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| ISSN 1563-9304 | Magh 27 1416 BS, Tuesday | February 09, 2010 |
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Defence arguments presented on behalf of Lt. Col. Syed Farook Rahman and Lt. Col Mohiuddin Ahmed Bangabandhu murder trial
Saturday November 21 2009 08:07:47 AM BDT Khan Saifur Rahman (Senior Advocate) 1. By the terms of the Leave, it is to be determined from the evidence and materials on record whether the instant case is a case of mutiny leading to murder of President Sheikh Mujibur Rahman and his family members or the instant case is a case of murder simpliciter. Upon the determination of the above question would depend whether it was proper on the part of the prosecution to have the appellant convicted by a normal criminal court vitiating the trial.
Upon examination of the evidence and materials on record it is clear that the series of events, activities, briefings, exercises and happening in Dhaka Cantonment in the night preceding the fateful event occurring in House No. 677, Road No. 32 Dhanmondi clearly constituted mutiny and does not indicate any case of murder simpliciter particularly when the place of occurrence includes the Cantonment and the Cantonment activities include the fact of the case. Thus it is not a case of murder simpliciter but a clear case of mutiny. In the result, no case of agreement or implicative presence, or criminal conspiracy or pre-concert, preplan, premeditated plan or pre-arranged plan, common intention or object of common intention or any imaginable illegal act within the scope whether of Section 34 or Section 120A of the Penal Code can be lawfully inferred otherwise than by way of conjecture or surmise. It is evident from the facts of the case as adduced, the event occurring in House No. 677 was in course of a mutiny originating in the Cantonment in the preceding night of occurrence. The killings occurring in the occurrence house resulted from mutiny and the murders are absorbed in the commission of offence of mutiny. An analogy may be found in the case of Section 396 of the Penal Code which absorbs in itself the offence of murder as an offence of dacoity with murder and not as murder simpliciter. It may be noticed that where any ex-military participant or any other participant not subject to Army Act joined the kind of activities in the Cantonment occurring in the night following 14 August 1975 would be liable for committing mutiny within the scope of Section 31 of the Army Act. In such cases, the persons concern in the mutiny irrespective of whether there is a combination of persons subject to the Army Act, ex-military man or any civilian shall be tried by Court Martial. In the instant case such combination of persons if any, would not hinder trial by Court Martial for committing the offence of mutiny. It may be noticed that the provision of section 31 of the Army Act includes besides any person subject to Army Act, any other person in the commission of mutiny as specified therein. Thus it is clear from the facts and circumstances of the case that the trial of the case by the ordinary criminal court such as the Sessions Judge, Dhaka was not maintainable in law for want of jurisdiction thereby vitiating the trial. Thus the conviction and sentence awarded on the appellants are liable to be set aside. Worthwhile to mention that one of the points for consideration as laid down in the judgment of the trial court is (7) Whether trial of this case by this court is without jurisdiction under the military law? Killing of Any Person in Course of Mutiny Triable by Court Martial. 1. Three persons subject to Army Act, namely, Colonel Jamil, Sheikh Jamal and Sepoy Samsu were killed by persons subject to Army Act. Sheikh Jamal was testified to as military officer by- PW 4, Page 247, 5th Para from bottom 1st line; PW 7, Page 276, middle of the page; PW 8, Page 284, 4th Para from top and PW 9, Page 290, 6th Para from top. 2. Killing of the three persons in this case subject to Army Act does not cover the scope of civil offence under section 59 of the Army Act. These killings including other killings are not murders simplicitor because they occurred in course of mutiny. 3. Mutiny is not a Penal Code offence; it is and offence under the Army Act and exclusively triable by Court Martial as per provision of section 31 of Army Act. Their Lordship’s of the Supreme Court in the case of Jamil Huq v. Bangladesh reported in 34 DLR (AD) 125, noted in that judgment (paragraph 28): “These twelve petitioners have been tried and convicted by a court martial convened by the Chief of the Army Staff under the Army Act, 1952. They were charged with the offence of mutiny under the Army Act. The mutiny took place in the night of 29th/30th May, 1981, which resulted in the death of Ziaur Rahman, President of Bangladesh. These petitioners were sentenced to death.” 4. It may be noticed that section 31 of the Army Act does not contain any definition of mutiny. It is defined in section 35 of the Navy Ordinance, 1961 making it applicable to persons subject to service law. Service law is defined in section 4 clause XXXIV of the Navy Ordinance, 1961 which makes the said definition of mutiny under the Navy Ordinance adopted by the Army Act. 5. The trial having included killing of 3 military men as per the charge is mistrial. 6. For clear understanding of case of mutiny another example is contained in the case of R Vs. Grant, Davis, Riley and Topley; All England Law Reports 1957, Volume-2 Pages 694-697. This case shows a simple nature of mutiny. Present case shows a grave nature of mutiny. ------------------------------------------------------------------------------------------------------------------------------------------------------------------- Case of Mutiny leading to Murder or a Case of Murder Simpliciter? 1. The respondent pleaded that whatever be the case, whether of mutiny or of murder, the appellants would not be prejudiced by the extent of punishment. The present case in fact is a case of mutiny attracting section 31 of the Army Act read with section 35 of the Navy Ordinance. Section 31 of Army Act reads— 31. Mutiny and insubordination.- Any person subject to this Act who commits any of the following offences, that is to say,-- (a) ... (b) ... (c) ... (d) ... shall, on conviction by court-martial, be punished with death or with such less punishment as is in this Act mentioned. From the above reproduction of section 31 of the Army Act it is clear that the offence of mutiny is triable exclusively by court martial and no other court; any sentence alternative to death sentence is any such less punishment. The alternative to death penalty ranges to any variety as enjoined in section 60 of the Army Act. Thus, the offence of mutiny in terms of sentence cannot be equated with that for murder under section 302 of the Penal Code. In the case of punishment for murder there is only one alternative of death penalty to imprisonment for life. So, extent of penalty in case of mutiny or in case of murder is not same and the difference is to the advantage of appellants in a trial by court martial and therefore the plea by the respondent is not correct. 2. The respondent pleaded that the event of the case involves murder attracting concurrent jurisdiction of Court Martial and Criminal Court under section 94 of the Army Act. Murder is a civil offence under section 59 of the Army Act and in this case, a civil offence of murder has been put on trial in the criminal court such as court of Sessions, Dhaka after compliance with necessary legal formalities provided in law. The respondent pleaded concurrent jurisdiction for the trial of the case by the criminal court or court martial basing the plea on the provision of section 91 and section 92 of the Army Act. If the provisions of section 91 and section 92 of the Army Act are read together it will be clear that sub-section (2) of section 92 is relevant on the point in this case. Sub-section (2) of section 92 has made an exception to general application of the provision in case of section 31 of the Army Act as relevant in the case. The expression in that sub-section that “Provided that nothing contained in this sub-section shall apply to the trial of any such person for an offence of desertion, fraudulent enrolment, or for any of the offences mentioned in section 31 or shall affect the jurisdiction of a criminal court to try any offence triable by such court as well as by a court-martial.” Trial by court martial is embedded in section 31 of the Army Act itself as symbolized by the expression on conviction by the court-martial (quoted from section 31 of the Army Act). So, the question of concurrent jurisdiction of trial of case is misconceived. It should not be lost sight of in this connection that the alleged killing of 3 military men is so intermingled with killing of persons not subject to Army Act that the two sets of killing cannot be separated from the occurrence and such proposition is supported by Sub-section (3) of section 59 of the Army Act. So, for the trial of the present case, court martial is the appropriate court to the exclusion of the criminal court. It should be borne in mind in this connection that, persons not subject to the service law (that includes the Army Act) may be put on trial in a court martial in combination with persons subject to service law under the provision of section 31 of the Army Act read with section 35 of the Navy Ordinance. The respondent cited section 69 of the Indian Army Act to correspond to section 59 (1) of our Army Act and section 70 of Indian Army Act to correspond to section 59 (2) of our Army Act and claimed that under section 70 of the Indian Army Act civil offence are not triable by court martial but in doing so they missed to notice that section 59 of our Army Act has 4 (four) sub-sections out of which sub-sections (3) and (4) are not covered by section 69 and 70 of the Indian Army Act and section 70 of the Indian Army Act unlike our Army Act contains the clear provision prohibiting trial of civil offences by court martial. Sub-section (3) of section 59 of our Army Act has empowered court martial to charge and punish any person without mentioning whether or not such person is subject to Army Act and exercise of such power shall not be affected by reason of the fact that the civil offence with which such person is charged is also an offence against this Act. Thus, it is clear that those laws of the Indian Army Act do not contain identical provisions in our Army Act. Further fact is that in this case the fact of murder is inseparably incidental to the offence of mutiny as murder may be incidental to dacoity. The above proposition is supported by the case law reported in 34 DLR (AD) 125 in the case of Jamil Haq Vs. Bangladesh. (relevant extract ibid) It may be noticed that in connection with mutiny or murder, the point for consideration as framed in the case at the trial court relevant in the context is as follows: (7)Whether trial of this case by this court is without jurisdiction under the military law? From the very stage of trial of the case, the appellants raised the point of ouster of jurisdiction of the trial court by the provisions of Army Act but the plea was not paid heed to. For this reason the appellants have been deprived of trial by the competent court in consequence of which the trial has been vitiated disentitling the respondent to any remedy. The appellants are entitled to be discharged from the case. The respondent raised the plea that they have right to chose between murder and mutiny assuming that the offences are distinct and separate. In reply to it, the provision of section 5 of the Penal Code is relevant. Section 5 of the Penal Code reads as follows: “5. Nothing in this Act is intended to repeal, vary, suspend, or affect any of the provisions of any Act for punishing mutiny and desertion of officers soldiers, sailors or airmen in the service of the Republic, or of any special or local law.” From the above provision of law in the Penal Code it is clear that the operation of Army Act for awarding punishment for commission of any offence of mutiny shall take precedence over any provision of the Penal Code. So the respondent representing prosecution has no right to elect between the offence of murder and that of mutiny. In this connection, it should be borne in mind that concurrent jurisdiction is no abdication of jurisdiction of court martial. ----------------------------------------------------------------------------------------------------------------------------------------------------- A Case of Criminal Conspiracy for Murder or a Case of Criminal Conspiracy to Commit Mutiny to Change the Government? The instant case stands on a footing on criminal conspiracy for committing murder. The case was viewed in that premise and the appellants were found guilty sustaining the conviction and sentence but the evidence and materials on record show that the criminal conspiracy involved mutiny to change the then Mujib government. In this connection it may be noticed that any allegation of mutiny carries with it the existence of conspiracy within the definition of the offence of mutiny. It is worth noticing that the opinions of the learned Judges of the High Court Division provided supposedly respective materials from the Cantonment activities for making out the instant case as a case of criminal conspiracy for committing murder but it can be authoritatively said that there is absolutely no evidence to support any expression of resolve, designing, pronouncing, declaring, sounding, expressing or indicating in any manner whatsoever as a prelude to or preparation for killing President Sheikh Mujibur Rahman, his family members and near relations. But in contrast thereto, there is overwhelming evidence on record of the case to support a case of overthrowing the then Mujib government. The evidence in that regard is reproduced below: P.W. 7 *(Page-267) I, Major Dalim, speaking. Sheikh Mujib has been killed; his government overthrown; martial law proclaimed in the country and so on and so forth. ----- A fact that already happened and no evidence of any fact to be caused to happen. ---- Comment *(Page-277) That day in a special situation, chain of command and control broke down. I think some strayed officers had influenced my solders. P.W. 9 *(Page-290) The chain of command of Artillery and First Bengal Lancer Unit broke down at the incident of 15 August. *(Page-292) These killings, looting and plunder attract offences under the Army Act. I think, this an offence under the Army Act because the chain of command of two units of the Army was broken in this incident. Every one including the Chief of Army Staff had knowledge of the 15 August incident. *(Page-293) It is a fact that, at dawn, immediately before the occurrence, Bangabandhu phoned General Shafiullah and said ‘Your forces attacked my house. You send force immediately.’ P.W. 12 *(Page-313) Major Farook Rahman gave a briefing saying that ‘Tomorrow 15 August there will be a meeting in the University. In that meeting Kingship will be proclaimed by Sheikh Mujib. We do not support Kingship. Now you all will hear and obey what I and my officers say. *(Page-318) Major Sayed Farook Rahman addressed briefing at us: Tomorrow 15 August at the meeting in the University Sheikh Mujib will declare Kingship, which we do not accept. P.W. 24*(Page-388) Afterwards our C. O. Khandakar Abdur Rashid and Major Dalim addressed us saying ‘We liberated the country staking our life and comfort. Present government failed to protect the dignity of our women. People are dying in a starvation so on and so forth. So the present government has to be overthrown. P.W. 25*(Page-398) Major Farook Rahman, Major Rashid and Major Dalim said, ‘We librated this country at the cost of many lives, property and hard labour. This government has failed to protect the dignity of our women. Men are dying in starvation. The government is to be overthrown and you are to remain with us. *(Page-403) In half circle formation we closed in on the house. Solders were also posted outside the house. During operation, formation is made. P.W. 37*(Page-465) Thereafter Taher Uddin Thakur drafted the proclamation himself to the effect that, ‘Armed forces seized power under the leadership of Khandakar Mustaq overthrowing Sheikh Mujib and his autocratic government and clamped curfew. ----- A fact that already happened and no evidence of any fact to be caused to happen. ---- Comment P.W. 40*(Page-484) I said to Mr. Farook, ‘Sir, where will you go? He said, ‘I shall go to overthrow the autocratic government.’ *(Page-485) I heard the speech of Major Dalim on Radio within 10/15 minutes of performing the morning prayer. In his speech he said, ‘Autocratic government has been overthrown. Sheikh Mujib has been killed. ----- A fact that already happened and no evidence of any fact to be caused to happen. ---- Comment P.W. 44*(Page-518) Major Rashid said as soon as he saw me, (the following speech is in English) “we have captured state power under Khandaker Mustaque, Sheikh is killed; do not try to take any action against us.” ----- A fact that already happened and no evidence of any fact to be caused to happen. ---- Comment *(Page-520) The presence of Major Farook and Major Rashid in that meeting was against Military protocol and that was why I told them, they are to be brought back to the chain of command. I said to them, (in English version) You people are Mutinous deserters and killers you will be brought back to the chain of command and tried for your crime. P.W. 45*(Page-533) When I contacted Safayet (P.W. 44) it appeared to me that I awoke him. I thereupon directed him to resist them with three infantry battalions (Artillery and Armor). *(Page-543) I had power to initiate proceeding of court martial in connection with the occurrence. I had no opportunity to initiate any court of inquiry or court martial. Given any opportunity I would have set up a court martial. P.W. 47*(Page-552) The message was that, we the joiners have done our job, it is now turn of you, seniors to tackle the situation and save the country. Other senior officers are already at the Radio Station, you, please, quickly come and join them. Consult with them and act accordingly.’ ----- A fact that already happened and no evidence of any fact to be caused to happen. ---- Comment P.W. 48*(Page-561) And those who are involved in the killings and the conspiracy (in English version) they must be brought to book. Besides them none of the whole Army was involved in the killings and conspiracy. ----- A fact that already happened and no evidence of any fact to be caused to happen. ---- Comment P.W. 49*(Page-568) Enquiring about the whereabouts of General Shafiullah, I at last located him in the 46th Brigade where I found a chaotic situation. I found General Shafiullah surrounded in a room by armed men with aggressive mood. I found then the situation out of control. ----- A fact that already happened and no evidence of any fact to be caused to happen. ---- Comment · As per High Court Additional Paper Book Page No. Even the learned 3rd Judge commented on the event saying that: “The murder of Bangabandhu along with his family members though revolting one but the nature of the offence must not be influenced by emotion .....” (Page 1408, last Para) “In the instant case of conspiracy and murder, most of the witnesses are also accomplices and have been deposing against accused, themselves being the parties to the offence and in the revolting nature of the facts and circumstances of the case .....” (Page 1409, last Para) The above findings of the learned 3rd Judge is a finding of the situation as a mutiny obtaining in course of the occurrence. Impact of exclusion of section 10 of the Evidence Act barring the admissibility of confession affecting co-accused The Evidence Act provides special rule of evidence for proving criminal conspiracy by means of section 10. So long allegation of criminal conspiracy remains attached to the facts of the case, the requirement of section 10 is to be followed for proving the fact of conspiracy and conspirators. All the learned 3 judges discarded the applicability or admissibility of section 10 of the Evidence Act in considering the confession against the co-accused. In the context relevant observations of learned 3 judges are reproduced below: “In the instant case, both the learned judges have ruled out the applicability of section 10 of the Evidence Act, as the confessional statement of a co-accused cannot be used as a substantive evidence of conspiracy under section 10 of the Evidence Act against other co-accused, although the confessional statement may be admissible as evidence against the maker.” (3rd Judge, Page-1243, 2nd Para PB) “.. .. it is seen that confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist is not admissible as evidence under section 10 of Evidence Act. This being the state of law the confessional statement cannot be considered as evidence as against the confessing accused or the other co-accused in proving the allegation of conspiracy against the confessing accused or co-accused.” (1st Judge, Page-23, 2nd Para from bottom, Add. PB) “.. .. it is clear that the confessional statement of a co-accused cannot be used as a substantive evidence of conspiracy under section 10 of the Evidence Act, against other co-accused conspirators. In such a legal position the confessional statements of Lt. Col. Sayed Faruque Rahman (A-1), Lt. Col. Sultan Shahriar Rashid Khan (A-2), Lt. Col. Mohiuddin Ahmed (Artillery) (A-3) cannot be used as substantive evidence of conspiracy under Section 10 of the Evidence Act against any of other rest 12 co-accused, although the said confessional statements may be admissible as evidence against the makers thereof.” (2nd Judge, Page-209, Para-2nd, Add. PB) It is clear from the above findings that the prosecution failed to prove the existence of criminal conspiracy through the application of section 10 of the Evidence Act. It may be noticed that there is absolutely no evidence indicating what was the offence that was intended to be committed by means of criminal conspiracy. There is no substantive evidence to support the prosecution case of the occurrence also as through the charge. In the result of discarding the application of section 10 of the Evidence Act, all the alleged activities of the convicts lost reference to common intention---a requirement inherent in that section and therefore the prosecution case of criminal conspiracy failed. But the leaned 2nd Judge fruitlessly put his efforts in upholding the plea of criminal conspiracy by means of relying on confessions. In doing so, he failed to realize that confession is a statement made to the Magistrate and not to any co-conspirator. Further in doing so, pieces of inculpatory parts of confessions against the respective makers cannot be put up in combination to prove common intention because each such part remains confined and isolated to the maker only and no material is relevant to lend support to it. The first part of section 10 of the Evidence Act reads “where there is reasonable ground to believe two or more persons have conspired together to commit an offence . . .,” it is only when this condition precedent is satisfied, the subsequent part of the section comes into operation. Kehar Singh Vs. State, AIR 1988 SC 1883, Indira Gandhi’s Case Para-44. In this case, there is no reasonable ground to believe that the appellants conspired to commit any offence. In the result, the activities in the Cantonment deserved no consideration as part of any conspiracy. It is to be noticed that any allegation of criminal conspiracy is referable to a substantive offence but in the instant case the evidence shows overthrow of the government is substantive offence and the charge shows that allegation of murder is the tried offence. -------------------------------------------------------------------------------------------------------------------------------------------------------- A Case of Criminal Conspiracy for Murder or a Case of Criminal Conspiracy to Commit Mutiny to Change the Government? 1. On the plea of the respondent as to point no. 4 of the Leave granting order that the criminal conspiracy is admitted by the respondent is of no substance because criminal conspiracy may remain attached to common intention to committing murder or to commit mutiny to change the then Mujib government. There is no direct evidence in the whole of legal evidence of the case to the effect that murder was intended to be committed. If it were so, when Bangabandhu was in the grip of Major Mohiuddin and his forces, he was led from his bedroom in the upstairs down the staircase up to the slap without being harmed. This shows that those holding the grip of Bangabandhu had no intention to commit murder of him. So, there was a set of mutineers not intending to commit murder but to commit mutiny for change of the Mujib government. As such, the mutineers intending to commit murder and those to change the government are to be separated to make the offences respective to each of the accused. 2. In reply to the plea of respondent relating to PW 12, it is stated that PW 12 is not a charge sheeted witness (PW 61, Page 613, 4th Para from top). (a) The respondent referred to PW 12 as saying that under order of appellant Farook Rahman went to the Kote for collecting ammunitions and this shows the intention of committing murder as occurred in this case. This alleged fact does not constitute to demonstrate any guilty mind of Syed Farook Rahman pointed to the alleged occurrence because PW 12 is a soldier engaged in allegedly entrusted duty and the collection of ammunition may be defensive as well as offensive and there is no indication from Syed Farook Rahman as to the use of collected ammunition for causing the occurrence. (b) The respondent cited different PWs and submitted that their deposition shows a deployment plan in the house of occurrence, in the house of Abdur Rab Sherniabad, in the house of Sheikh Fazlul Haq Moni, at the Radio Station and sarcastically commented that the defence pleads that there is no conspiracy to commit murder. The appellants react by stating that the respondent did not see that any fact of any alleged murder cannot be construed and understood by implication from evidence in the light and perspective of common intention and/or criminal conspiracy and it must be always by clear indication as to the common intention of killing the victims. The respondent also did not see that the places of deployment and the occurrence houses of Abdur Rab Sherniabad and Sheikh Fazlul Haq Moni are not included in the charge and fact of the case. Furthermore, they did not see that conspiracy is to be suspected and discovered from the co-conspirator at the first hand. In the instant case there is no account of conspiracy from any co-conspirator of the conspiracy. In any view of the matter, all those places are places unrelated to the case from the point of view of the charge and facts of the case. Those places came to be added to the case events in course of same transaction extending the facts of the case beyond the facts of the case and thereby, illegally merging unrelated evidence with the evidence of this case and embellishing the case with unrelated evidence. 3. Respondent further pleaded that the fact of changing government and that of murder of the President remain intermingled in this case. By such submission the respondent partly accepts our plea of change of the government. The respondent represents the prosecution of the case and burden of proof heavily lies on it. The shift of the prosecution from the position of murder simplicitor is a pointer to the fact that the prosecution case suffers from infirmity hitting the prosecution case at its root. 4. In reply to the written submission of the Attorney General on the point of criminal conspiracy for murder or for committing mutiny, the respondent relied on the decisions Mallimpggala Venkataramiah, reported in AIR 1938 (Madras) 130, in the case of East Pakistan Vs. Zakir Hossain, reportd in 8 DLR 48 and in the case of Md. Shamsul Haque Vs. State, reported in 20 DLR 540 and quoting those reported cases, stated that “it was decided that when a conspiracy has gone beyond the stage of conspiracy and offence is committed in pursuance thereof, then conspiracy becomes irrelevant i.e. no conviction can be awarded for conspiracy if substantive offence is committed in pursuance thereof.” Out of the above extract comes out the basic question if the substantive offence is committed in this case and the reply is in the affirmative; so it is irrelevant to embark on a research whether or not there was any existence of conspiracy. ----------------------------------------------------------------------------------------------------------------------------------------------------- On the Query of your Lordships 1. It was pleaded that question number 5 of column number 5 of the form of confession having not been put to confessing convict Sayed Farook Rahman, it cannot be said that the confession is true. The form of question is a guideline to the effect that he should say nothing which is untrue. (Page 747, HC PB). In column number 6 the Magistrate did not frame any question to that effect. The query was, whether such non-compliance was curable under section 533 of the Code of Criminal Procedure. The reply is no, because such confession shall not be admitted if the error has injured the accused as to his defence on the merits. Such limitation is provided in that very section of law. 2. Another query is whether any error, omission or irregularity in the charge is curable under section 537 of the Code of Criminal Procedure. In the charge of the instant case no place of occurrence was mentioned in respect of deceased Col. Jamil. There is evidence that Col. Jamil was killed near Sobahanbag Mosque (PW 1, Page 207, 5th line from bottom; Page 213, 3rd line form top; PW 4, Page 236, 20th line form bottom; PW 8, Page 280, 3rd Para from top; PW 11, Page 300, 12th line from bottom; PW 20, Page 366, last Para). The mention of place of occurrence is a requirement of section 222 (1) of the Code of Criminal Procedure and any breach of such legal requirement is a breach of law, which cannot be categorise as any error, omission or irregularity of the charge such as may be cured by section 537 of the Code of Criminal Procedure. So such defect of charge as obtaining in the case is not curable. (4 BLT 83) 3. In the light of section 367 (5) of the Code of Criminal Procedure the further query is what reasons may be advanced for awarding punishment in the alternative. In respect of convict Syed Farook Rahman: a. His confession remains unresolved by the fact that the 1st Judge discarded it, the 2nd Judge upheld it and the 3rd Judge did not hear his case. b. No direct evidence of his participation in the alleged killing. c. He is a Freedom Fighter. d. He suffered prolonged custody in death row for over 13 years. In respect of convict Mohiuddin Ahmed (Artillery) a. Till before the charge sheet in the case covering a long span of more then 21 years his name did not surface in connection with the alleged occurrence. b. There is no evidence relating to him for or in connection with killing of the victims. c. His identity is confusing as he was misidentified on dock as A. K. M. Mohiuddin. The learned 1st Judge relied on such misidentification and acquitted him. (Page 136-137, Last and 1st Para, Add. PB HC) The learned 2nd Judge in his opinion (judgment) fell into an error as to the identity as Major A. K. M. Mohiuddin Ahmed (Artillery) thinking that he and others “being fully armed went straight to the residence of the then President situated at Road No. 32, Dhanmondi, with armed troops.” (Page 299, 27th line for bottom, Add. PB HC) Fact remains that the present convict by the prosecution case never led any armed men to the occurrence house with armed troops. 4. On the subject captioned hereinabove Real Planner of the Event the further submission is that the citation referred to therein was material for consideration for the purpose therein contained. It appears that there is evidence through examination in-chief supporting the material and such evidence is contained in the deposition of PW 47. No piece of deposition in chief relied upon by the defence can be left out of consideration for any reason whatsoever to the prejudice of the defence. The extract of the piece of evidence is reproduced below: At one stage, Major Rashid introduced me with his wife after the oath taking ceremony of council of Ministers. It seemed to me that Major Rashid proudly said, ‘She is my wife. She is the chief planer of all that we have done.’ (Page 552, 5th Para from bottom) The above reproduction is evidence adduced by the prosecution in terms of section 3 of the Evidence Act. There is no plurality of planner from the extract of the evidence. So, the plurality required in the matter of section 120A or section 34 of the Penal Code is absent and the application of the said section in the case is of no legal significance. 5. The submission arising out of the findings of the learned three Judges in respect of section 10 of the Evidence Act as appearing below is now to be tested from the relevant portion of the opinion (judgment) of the 2nd Judge:- “Pieces of inculpatory parts of confessions against the respective makers cannot be put up in combination to prove common intention because each such part remains confined to maker only.” The opinion in respect of Farook Rahman on his confession: “Let me now examine the confessional statements of Major Sayed Faruque Rahman (A-1) retracted subsequently. In his confessional statement, he divulged the facts of his conversations with Major Rashid (A-4), Major General Ziaur Rahman, indicating his participation in the conspiracy [plurality by participation in conspiracy remains truncated]. This was also high lighted by the evidence of P.W. 43 [P.W. 43 did not disclose any conspiracy, even by any remote implication and what was high lighted is unspecified]. In his confessional statement he said that he supported the confessional statement he said that he supported the logic of Major Rashid (A-4), Major Dalim (A-6) and Khondker Moshtaq that if necessary Sheikh Mujib had to be murdered [This context of confession does not lend assurance to other substantive evidence on record]. He also stated about holding a coordination meeting at the parade held on the night following 14th August, 1975. This was amply proved by the evidence of number of witnesses discussed above. In his address at the said night parade, he also emphasized about the change of Government and if Sheikh Mujib did not agree, if there was resistance he would be executed [This context of confession does not lend assurance to other substantive evidence on record]. His earlier belief and convictions together with that he meant what he stated has been amply proved by his orders in arming the troops by arms and ammunitions cannons with live shells and deployment of tanks not only in and around the house of the then President at Road No. 32, Dhanmondi, but in all relevant strategic positions of the city [belief and conviction is subjective in nature and what he meant is singular in nature]. His statements that he went to the house at Road No. 32, Dhanmondi, inquiring about Sheikh Mujib, rescue of Brigadier Mashrurul Haque, his role in Cantonment, in Banga Bhaban and elsewhere, as stated in his confessional statement and found on evidence, amply show that he was in the helm of affairs all around [A surmise].” (Page 305, Add. PB HC) Comment: The above finding did not bring out any common intention. The opinion in the relevant context in respect of Lt. Col. Mohiuddin Ahmed (Artillery): Contained in Page 306, 2nd Para from top, Add. PB HC. In this paragraph exculpatory statements are referred to as having proved facts on evidence. Learned 2nd Judge illegally found his confession to corroborate the evidence adduced by the prosecution witnesses. Comment: There is no inculpatory statement of the convict to prove any common intention. --------------------------------------------------------------------------------------------------------------------------------------------------- Scope and Jurisdiction of Third Judge 1. In this case there is no judgment in the eye of law delivered by the Division Bench of the High Court Division. Each of the learned Judges separately signed their respective opinions on the appeal in violation of provision of section 377 of the Cr. P. C. The order dated 14.12.2000 of the High Court Division speaks for itself that both the learned Judges gave their (judgments) opinions in separate sheets. 2. The order of the learned Chief Justice dated 15.01.2001 shows that Mr. Justice Mohammad Fazlul Karim was appointed as Third Judge to dispose of the Death Reference. It is manifestly clear from the order that the Death Reference was intended to be disposed of by the learned 3rd Judge. By that order the Death Reference was not piecemealed for disposal. The purport of the order required the 3rd Judge to dispose of the Death Reference as a whole. 3. The learned 3rd Judge took up the appeal finding that: a. The learned Judges of the High Court Division concurrently affirmed 9 condemned accused. b. And his bench has taken up the hearing in the respect of the remaining 6 only. c. On the conclusion of the hearing by his bench, the learned 3rd Judge acquitted 3 convicts out of 6 and confirmed the Death Reference in respect of the remaining 3 and in doing so he amalgamated the cases of 9 convicts with the 6 --- about whom he did not hear --- by confirming their conviction and sentence. Thus he misconceived that concurrent conclusion is no concurrent conviction and sentence on concurrent finding. d. The leaned Senior Judge of the Division Bench discarded all the three confessions in this case. One of such confession is coming from Lt. Col. Mohiuddin Ahmed (Artillery) and his confession remained finally decided by the learned 3rd Judge and remaining two undecided for his exclusion from the hearing. So finality of opinion to follow the Judgment as per the provision of section 429 read with section 377 of the Cr. P. C. for the purpose of section 378 of the Cr. P. C. has not been achieved in this case. In the case of Hethubha Vs. The State of Gujarat reported in 1970 (1) SCC (Cr) 280, held that: “It is, therefore, manifest that the third learned Judge can or will deal with the whole case.” (Page 283, Para 10) In the case of Union of India Vs. Ananti Padmanabiah reported in 1971 SCC (Cri) 535, held that: “This court held that the third learned Judge could deal with the whole case.” (Page 537, Para 6) In the case of Sajjan Singh Vs. State of M. P. reported in 1999 SCC (Cri) 44, it was held: “... The third Judge is, therefore, required to examine whole of the case independently and it cannot be said that he is bound by that part of the two opinions of the two Judges comprising the Division Bench where there is no difference. As a matter of fact the third Judge is not bound by any such opinion of the Division Bench. He is not hearing the matter as if he is sitting in a three-Judge Bench where the opinion of majority would prevail. ...” (Page 53, Para 10 & 11) In the case of Mahim Mondal Vs. State reported in 15 DLR 615 (Para 10, 11). Entire appeal including the point on which there was no disagreement was to be laid before the 3rd Judge and in that case, the cases reported in ILR 38 Cal. 202; AIR 1931 Lah 513 and AIR 1943 All 272 were discussed and not considered. In the concise statement of the respondent, the respondent relied upon the abovementioned reported cases that support our contention. --------------------------------------------------------------------------------------------------------------------------------------------------------- Scope and Jurisdiction of Third Judge 1. For the above purpose, section 378 and section 429 of the Code of Criminal Procedure need be reproduced side by side: 378. When any such case is heard before a bench of Judges and such Judges are equally divided in opinion, the case, with their opinions thereon, shall be laid before another Judge, and such Judge, after such hearing as he thinks fit shall deliver his opinion, and the judgment or order shall follow such opinion. 429. When the Judges composing the Court of Appeal are equally divided in opinion, the case, with their opinions thereon, shall be laid before another Judge of the same Court, and such Judge, after such hearing (if any) as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion. The above reproductions provide the scope of comparative study of said two provisions of law. a. Section 378 arises out of Chapter XXVII of the Code of Criminal Procedure relating to submission of sentences for confirmation including sentence of death. b. Section 429 arises out of Chapter XXXI of the Code of Criminal Procedure relating to Appeals. In a pending appeal, the appellant may default in making the hearing before the third Judge and this is why the ‘hearing’ as provided in section 429 has been qualified by ‘hearing (if any)’. It should be borne in mind that where there is no criminal appeal, there is no situation to arise attracting the provision of section 429. c. The present case involves Death Reference as well as appeals. The Judges hearing the case became equally divided in opinion so that both the provisions came into operation for the disposal of the ‘case’. It was the learned 3rd Judge who delivered his opinion to follow the judgment and order. It has been pleaded by the respondent that learned 3rd Judge has unfettered power to conduct the hearing of the case ‘as he thinks fit’. d. Both the sections of law involve three learned Judges delivering their opinions out of which the last opinion from the learned 3rd Judge shall be conclusive opinion so that the Judgment and order shall follow such opinion. e The respondent relied on 16 DLR (WP) 73 in the case of Abdur Raziq vs. State and cited the finding from the case law as follows: “The plain reading of these sections [section 378 and 429 of Cr.P.C.] shows that the third Judge to whom the case is referred need not agree with the finding of either of the two Judges. He is to give an independent opinion and then give his finding.” The above proposition finds support from the case reported in 1999 SCC (Cri) 44 in the case of Sajjan Singh Vs. State of M. P. and the relevant extract is as follows: “The third Judge is, therefore, required to examine whole of the case independently and it cannot be said that he is bound by that part of the two opinions of the two Judges comprising the Division Bench where there is no difference. As a matter of fact the third Judge is not bound by any such opinion of the Division Bench. He is not hearing the matter as if he sitting in a three-Judge Bench where the opinion of majority would prevail.” In this regard both the parties being the appellants and respondent cited Hethubha vs. State of Gujarat AIR 1970 SC 1266. In that case the 1st Judge convicted accused no. 1 under section 302 and accused nos. 2 and 3 under section 324/34. The 2nd Judge held that all the accused must be acquitted. The 3rd Judge convicted accused no. 1 under section 302 and accused nos. 2 and 3 under section 302/34. The 3rd Judge upheld conviction under section 323 of accused nos. 1 and 2 and section 323/34 of accused no. 3. From the scope of authority of the learned 3rd Judge under the above mentioned two sections of law is so wide that he can deliver his opinion ‘as he thinks fit’. But ‘as he thinks fit’ in both the sections has been misinterpreted on behalf of the respondent reading that those words qualify the hearing. It is stated that hearing is a matter circumscribed by the case itself and there is no correlation between the ‘hearing’ and ‘as he thinks fit’ f. In paragraph 2 of the submission on behalf of the respondent, they solicited clear guideline on the point of scope and jurisdiction of 3rd Judge. But there are consensus of opinions in the case laws of our country as well as of India and erstwhile Pakistan on the subject. g. The citation relied upon by the respondent of the case of Sarat Chandra Mitra Vs. Emperor reported in ILR 38 Cal 202, an extract from the Judgment was reproduced at page 9 of their submission. In the concluding portion of that extract it reads that, “It is this last opinion which prevails, subject to the provisions of section 377 of the Criminal Procedure Code in the case of confirmation of sentences of death.” So it follows in the matter of present case that for breach of provision of section 377 of the Code of Criminal Procedure, there is no judgment in this case in the eye of law. h. Two confessions of Syed Farook Rahman and Shahriar Rashid Khan remain hanging without being resolved by the learned 3rd Judge. It is pleaded by the respondent without dispute that the 3rd Judge will hear the difference of opinion but the learned 3rd Judge did not hear the difference and resolve it. i. It was pleaded that the learned 3rd Judge concurred with the opinion of the other Judges regarding 9 convicts and was therefore, right in dismissing the appeals and accepting the death reference but in doing so missed to notice that the convicts were denied hearing as a requirement of law. So the plea of the respondent that the confirmation of death sentence by the learned 3rd Judge as a condition precedent as enjoined in section 374 of the Code of Criminal Procedure is now overcome has no substance because the confirmation proceeding is not complete by reason of the 3rd Judge defaulting to give his finding on the evidence and hanging two confessions. Delay in Lodging the FIR 1 Paragraph 5 of the above heading of our written submission in support of argument has not been controverted on behalf of the respondent. ------------------------------------------------------------------------------- Whether charge under section 302/34 of the Penal Code has been proved on the basis of proper evaluation and sifting of evidence on Record? 1. e. PW 50 is not an eyewitness. As per testimonies of PW 1 and PW 50 they claimed they were together in the ground floor of the occurrence house during the occurrence. PW 1 claimed he sustained injury but does not refer to PW 50 also to have sustained injury. Conversely, PW 50 does not say PW 1 had sustained any injury. Their respective testimonies are materially discrepant. Mistake and error inadvertently occurred in the above submission under the above caption in respect of PW 1 and PW 50. Correct submission would be that PW 1 deposed as to his injury as well as to that of PW 50 but PW 50 did not depose that he saw the PW 1 to have sustained injury but stated that he came to know about the injury of PW 1 from him. PW 1 stated, “One bullet struck me in the heel. Another bullet hit D.S.P. Nurul Islam in his leg.” (Page 207, 16th line from top) On the other hand PW 50 D.S.P. Nurul Islam Khan deposed, “At that time I saw scars of blood on the shirt of Mohitul Islam who gave out that he has also been hit.” (Page 572, 3rd line from bottom of 3rd Para) The prosecution case is that both the witnesses were together in the occurrence house and in that case, PW 50 does not require to know from PW 1 that he sustained injury. It shows that PW 50 did not see PW 1 to have sustained injury. It became doubtful if they were together at the relevant time and at the relevant place. So, their togetherness is not free from doubt and worthy of any credence. 2. The respondent pleaded that the movement and deployment of troops, amalgamation of different kinds of troops in the cantonment preceding the alleged occurrence are indicators to a pre-plan in furtherance of common intention to commit the murders. Arguing but not conceding that if the above plea is accepted, in that case, as soon as the alleged murders were committed between 5 to 5.30 am of the morning of 15 August, 1975, the continuation of deployment of troops after the commission of the alleged murders loses all significance. It does not matter if the deployment continues to hold the ground or withdraws from their position or moves around or goes back to the barracks. In that view of the matter no furtherance of common intention can be invented in reference to such deployment and positioning of troops after the alleged murders was carried into effect. 3. In the highest court of the country for the first time at the hearing of the case the respondent by referring some pieces of evidence claimed that such pieces of evidence amount to extra judicial confession and in doing so they did not raise the issue at the trial court to enable those to subject them to a test through section 24 of the Evidence Act. 4. The respondent raised a plea on non-consideration of the Video Cassette as legal piece of evidence in the case. To back up their plea they referred to the case of Islamic Republic of Pakistan Vs. Abdul Wali Khan, reported in 1976 PLD SC 57. In that case the officer recording the speech was produced and examine along with the necessary tape played in the court. The officer identified the voice of the person speaking in the tape record. By contrast in the instant case the videographer was not produced and examined and the videograph as produced was admittedly a copy of the original from Granada Independent Television in the United Kingdom (Page-1034, HC PB). ------------------------------------------------------------------------------------------------------------------------------------------------------------- Delay in Lodging FIR Events relevant to the concerned delay. 1. The FIR was lodged on 02.10.1996. 2. Indemnity (Repeal) Act, 1996 was published in the Gazette on 14.11.1996 (49 DLR Statute 24) 3. Awami League Government came to power on 26.06.1996 4. The FIR dated 02.10.1996 shows that it was lodged with the Dhanmondi Police Station by PW 1 and the same was recorded by PW. 56, the then officer in Charge of that Police Station. So it appears that the operation of the Indemnity Ordinance, 1975 which was repealed on 14.11.1996 did not hinder earlier in point of time the lodging of the FIR on 02.10.1996. 5. PW. 1 explained that consequent upon accession of Awami League to power he was free from fear and insecurity of life and that is why there was delay in lodging the FIR. But the facts remain that Awami League Came to power on 26.06.1996 but the FIR was lodged on 02.10.1996, that is to say, after above 3 months. There is no explanation whatsoever for this delay of above 3 months. It may be noticed that PW. 1 was so much impatient in lodging the FIR that he did not wait for the repeal of the Indemnity Ordinance. Such impatience is not compatible with causing the delay of above 3 months in filing the FIR from the date of Awami League coming to power. 6. a. PW 1 not any eyewitness. The Investigating Officer PW 61 stated in his cross examination that I examined the informant on matters outside the First Information Report and recorded the same. I examined the informant on 3.10.96, 4.10.96, 24.10.96, 10.1.97. During such examination names of Rama PW 2 and Salim PW 3 residents of occurrence house transpired on 3.10.96. On 4.10.96 I collected information on Rabbani, A.D.C. to the President (PW 15) and on Aziz ... ... and further stated in cross examination that, “... on 3.10.96 and 4.10.96 the informant named some persons and from them he came to know about the incident.” (page-612 of HC PB) b. 450 persons had to be tested by I. O. Page 614, 4th Para from top; Page 622, 4th line from bottom. c. The delay in FIR was aimed at tutoring witnesses. d. Object of delay was to present a concocted but seemingly plausible prosecution case. PW 1 stated that I prepared the present First Information Report after adding some thing with the First Information Report which I had presented to the Lalbag Police Station in 1976. The previous First Information Report has been torn out. (Page 211, 11th line from bottom) ------------------------------------------------------------------------------------------------------------------------------------------------------------------- Concise Statements 1. Supreme Court (Appellate Division) Rules, 1988 is a kind of rules not covered by the definition of Rule in the General Clauses Act because Rule as defined in the General Clauses Act is a product out of exercise of power conferred by any enactment. Enactment which includes Regulations is defined in Section 3 (17) of General Clauses Act. Regulation is defined in Section 3 (46) of the General Clauses Act but the Supreme Court (Appellate Division) Rules, 1988 can not be classed as Regulation, because Article 107 of the Constitution describes the product of Article 107 as Rules and further because General Clauses Act has been made applicable to the Constitution by Article 152 (2) of the Constitution. 2. Thus, a concise statement is a class by itself which can not be described in any class of Suits, Appeals and Applications as envisaged in Part II of the Limitation Act. It is in the class of a statement required to be furnished following granting of leave by the Appellate Division and such statements can not be classified to belong to the Suits, Appeals and Applications and can not also give rise to a situation for requiring to condone the delay. The kind of delay required to be condoned, rests in matters of procedure. But in the case of concise statement a timely response as per Rule 2 of Order XIX was imperative and no case of condonable delay is relevant in the instant case. In the case of concise statement, requirement of law has to be addressed and in the case of limitation by way of delay the cause of delay has to be addressed. Any failure to respond within time as set down in Order XIX of Supreme Court (Appellate Division) Rules is attended with consequences as laid down in Rule 3 of the said Order, and the consequences is therefore final. If for argument’s sake, it is pleaded that it is a long drawn practice that time barred concise statements have been accommodated by the Honorable Court, the plea is of no substance because acknowledgment of such practice as customary must be characterized by absence of law in that regard. 3. It is noticed that Order XIX of the Supreme Court (Appellate Division) Rules apparently relate to Civil Appeals dealing with Appellate Jurisdiction in Part II of the Supreme Court (Appellate Division) Rules but the application of the said Order in Criminal Appeals has been provided for by Rule 13 of Order XXIII adopting the before mentioned Rules to Criminal Appeals “with necessary modification and adoption so far as may be applicable”. In the instant case no modification and adaptation of the Rules contained in Order XIX of the Supreme Court (Appellate Division) Rules is necessary. -------------------------------------------------------------------------------------------------------------------------------------------------------------- Whether Charge under section 302/34 of the Penal Code has been proved on the basis of proper evaluation and sifting of evidence on Record? 1. Proper evaluation and sifting of evidence on record clearly shows that there was no case of committing the murder pursuant to any common intention and the declared case without reservation is a case of overthrowing the government. In the view of the matter, the charge under section 302/34 of the Penal Code is irrelevant and thereby disproved. The broad fact is that there is no evidence to support any common intention or pre-concert etc. for causing the murders. It is only by means of conjecture and surmise the leaned judges invented a case of common intention or pre-concert etc. for causing the alleged murders as shown earlier. 2. If viewed from another angle, charge shows that 3 persons subject to Army Act were killed by persons subject to Army Act and as such, the charge do not attract Penal Code offence and therefore, charge has not been legally proved. 3. The charges do not specify the places of occurrence in respect of alleged killing of Colonel Jamil and Army Sepoy Samsul Haque so that the charge is incomplete and therefore, not proved. 4. The evidence adduced in the case through PW 2, (Page 219, 1st line from top and Page 221, 17th line from bottom), PW 4 (Page 236, 16th line from bottom), and PW 8 (Page 280, 3rd Para from top) speaks of the offence of looting committed by accused Honorary Captain A. Wahab Joarder in particular and generally against other participants to the alleged occurrence and this aspect of the case remains outside the purview of the charge framed. 5. The fact of looting having been over looked in framing the charge, the defence of appellant suffered misdirection in the manner of commission of alleged murder and as such, the charge has not been proved. 6. Misidentification of Mohiuddin Ahmed (Artillery) Renders the Charge not Proved Page 136-137 Last and 1st Para (Additional PB) Judgment I J Convict Major Mohiuddin Ahmed of Artillery misidentified on dock as Major A.K.M Mohiuddin who is not from Artillery but from Lancer then absconding. Mohiuddin Ahmed of Artillery was not named in FIR even after long 21 years, within which time it was natural that his name could have surfaced unless his name was wrongfully inducted. His name in the case is a mistake and product of concoction for which the charge against him not proved. Page 299, Para 4 form top (Additional PB) Judgment II J The learned 2nd Judge misidentified Major Mohiuddin Ahmed as Major A. K. M. Mohiuddin Ahmed (Artillery) finding that he and others being fully armed went straight to the residence of the then President situated at Road No. 32, Dhanmondi with Armed Troops. This shows that even the learned 2nd Judge was mislead in proper identification of Major Mohiuddin Ahmed of Artillery. 7. Nothing of Section 34 of the Penal Code in this case of murder simplicitor a. Nowhere in this case, there is any agreement or implicative presence, or criminal conspiracy or pre-concert, preplan, premeditated plan or pre-arranged plan, common intention or object of common intention or any imaginable illegal act that can be found to relate to committing any murder simplicitor read with section 34 of the Penal Code. b. If the offence committed is found to be mutiny (which is a military offence) section 34 or 38 of the Penal Code has no manner of application in this case. c. The presence, if any, of the appellant(s) in relation to the alleged occurrence may be viewed in terms of mutiny and not as murder simplicitor. i. Presence in the Cantonment where the appellants used to reside and/or to keep engaged in the ordinary business of their military activities is prima face innocent unless contrary is proved in terms of evidence and not in terms of charge; ii. Their presence in the routine parade is equally innocent. iii. The presentation of the prosecution case, arguing but not conceding, may attract the provision of section 38 and not 34 of the Penal Code. 8. Impact of exclusion of section 10 of the Evidence Act barring the admissibility of confession affecting co-accused The Evidence Act provides special rule of evidence for proving criminal conspiracy by means of section 10 and by no other means. So long allegation of criminal conspiracy remains attached to the facts of the case, the requirement of section 10 is to be followed for proving the fact of conspiracy and conspirators. All the learned 3 judges discarded the applicability or admissibility of section 10 of the Evidence Act in considering the confession against the co-accused. In the context relevant observations of learned 3 judges are reproduced below: “In the instant case, both the learned judges have ruled out the applicability of section 10 of the Evidence Act, as the confessional statement of a co-accused cannot be used as a substantive evidence of conspiracy under section 10 of the Evidence Act against other co-accused, although the confessional statement may be admissible as evidence against the maker.” (3rd Judge, Page-1243, 2nd Para PB) “.. .. it is seen that confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist is not admissible as evidence under section 10 of Evidence Act. This being the state of law the confessional statement cannot be considered as evidence as against the confessing accused or the other co-accused in proving the allegation of conspiracy against the confessing accused or co-accused.” (1st Judge, Page-23, 2nd Para from bottom, Add. PB) “.. .. it is clear that the confessional statement of a co-accused cannot be used as a substantive evidence of conspiracy under section 10 of the Evidence Act, against other co-accused conspirators. In such a legal position the confessional statements of Lt. Col. Sayed Faruque Rahman (A-1), Lt. Col. Sultan Shahriar Rashid Khan (A-2), Lt. Col. Mohiuddin Ahmed (Artillery) (A-3) cannot be used as substantive evidence of conspiracy under Section 10 of the Evidence Act against any of other rest 12 co-accused, although the said confessional statements may be admissible as evidence against the makers thereof.” (2nd Judge, Page-209, Para-2nd, Add. PB) It is clear from the above findings that the prosecution failed to prove the existence of criminal conspiracy through the application of section 10 of the Evidence Act. Pieces of inculpatory parts of confessions against the respective makers cannot be put up in combination to prove common intention because each such part remains confined to maker only. It may be noticed that there is absolutely no evidence indicating what was the offence that was intended to be committed by means of criminal conspiracy. There is no substantive evidence to support the prosecution case of the occurrence also as through the charge. Section 10 of the Evidence Act reads: “Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by anyone .. ..” Thus, in the result of discarding the application of section 10 of the Evidence Act, all the alleged activities of the convicts lost reference to common intention---a requirement inherent in that section and therefore the prosecution case of criminal conspiracy backed by common intention (section 34 of the Penal Code) failed. The first part of section 10 of the Evidence Act reads “where there is reasonable ground to believe two or more persons have conspired to commit an offence it is only when this condition precedent is satisfied, the subsequent part of the section comes into operation.” (Kehar Singh Vs. State, AIR 1988 SC 1883, Indira Gandhi’s Case Para-44). In this case, there is no reasonable ground to believe that the appellants conspired to commit any offence. In the result, the activities in the Cantonment deserved no consideration as part of any conspiracy. 9. In the light of evidence the prosecution failed to prove the charge of murder (section 302 of the Penal Code) because--- a. PW 1 is not a eyewitness (How? Already submitted in no. 6 of the heading Delay in Lodging FIR) b. From the chronology of events in the deposition of PW 2, Banga Bandhu was killed at 5 am. He woke up at about 5 am when he was informed by Begum Mujib about the attack of the house of Serniabat (Page 218, 1st Para). He further stated that he did not hear the sound of Bugle (Page 220, 23rd line from top), whereas PW 4 (Page 235, 15th line from bottom) and PW 5 (Page 250, 4th line from bottom) stated that they hoisted the flag and played Bugle at 5 am. Had he been an eyewitness he would have sound of Bugle. c. PW 3 is not a eyewitness. His case as per his statement is that he was shot at his stomach and hand (Page 224, last line) confining him to 1 month 3 days in hospital (Page 226, 1st Para). Injury sustained by Military weapon of the kind as claimed cannot permit him to continue to see what happened afterwards. d. Hoisting Flag and Playing Bugle is concoction. The PWs 1, 2 and 3 are inmates of the house and guard PW 6 and security officer PW 50 giving the accounts of the occurrence deferent from the account given by guard PW 4 and 5 in respect of hoisting flag and playing Bugle. In the inmates’ account including that of house guard PW 6 there is no event for hoisting the flag and playing the Bugle in the morning of occurrence. The house was under attack. It is striking to notice that in the accounts of the inmates there was development of events successively occurring without any respite for fitting in the event of hoisting the flag and playing the Bugle. Moreover, the account from PW 1, 2, 3, shows assailants already in the house keeping no occasion for hoisting the flag and playing the Bugle. It may be reasonably presumed that Banga Bandhu was killed before 6 am. (PW 4, 15-17 line from bottom Page -239, PW 5 Page 250, 251) PW 4 (Habildar) stated that, “So I attended to duty at 5am in place of 6am.” But PW 7 (C.O.) stated that, “Then I didn’t know the program.” he further stated that, “Time schedule cannot be changed at the level of havilder.” (Page 276, 4th line from bottom) e. PW 50 is not an eyewitness. As per testimonies of PW 1 and PW 50 they claimed they were together in the ground floor of the occurrence house during the occurrence. PW 1 claimed he was sustained injure but does not refer to PW 50 also to have sustained injury. Conversely, PW 50 does not say PW 1 had sustained any injury. Their respective testimonies are materially discrepant. PW 50 is Charge Sheet witness no. 4 (Page 199 HC PB). He was withdrawn from serial no. 4 of the Charge sheet in violation of order no.26 dated 30.06.1997, passed by the Sessions Judge, Dhaka (relevant Page 32, 3rd line from bottom) and produced as PW 50 without any permission from the court. 10. Omission to protect the victims renders the guard PWs unreliable. Criminal omission to protect the victims prompted the guards to depose falsely for protecting them from implication in the occurrence. The story of taking away of the 1000 rounds of ammunition from the guards is a myth. So the accused Joarder is acquitted and no appeal was preferred. In the case of Kehar Singh Vs. State (Indira Gandhi’s Case) AIR 1988 SC 1883 Para-280, it was held that, “to place reliance on his [guards/ security officer] testimony would be to put a premium on his irresponsibility” 11. Presence of Farook Rahman a. There is no incriminating presence of Farook Rahman in the case relatable to the killings being the subject matter of the case. The tank crew carrying accused Farook Rahman is not a witness of this case. The Tank crew was intentionally withheld because if they would have produced the following suggestion would have been supported. It is not a fact that if the tank crew of Farook Rahman would have been produced as witness, he would have disclosed that at the direction of Army Head Quarter subsequent to the occurrence, accused Farook Rahman made the outing for the sake of checkmating the civil war. (Page 623 Para 3 and 4 from bottom) c. Tank Movement PW 14 refers to order for moving out tank at 4 am and one tank moved to Radio Station via Cantonment old Railway Station-Mohakhali-3rd Gate and another tank taking possession on the old Racecourse. (PW 14, Page 328) Major Dalim came to Radio Station at 5.30 am. (PW 14, Page 328) After sometime Farook and others came to Radio Station. (PW 14, Page 329) At about 3/3.30 am Farook Rahman came and ordered for moving out the tank from the Garage for placement at the Signal Gate road side. (PW 23, Page 382, Last Para) At 4/4.30 am Major Farook Rahman boarded one of the tanks, which moved southwards. (PW 23, Page 383, 1st Para) None of the witnesses deposing on Farook Rahman and tank movement stated that the tanks had their targets on the occurrence house in anticipation of or in course of the occurrence. The movements of tank had taken their position in the Radio Station and Old Racecourse. Farook Rahman’s arrival in the occurrence house was quite a long time after the occurrence had taken place. Thus, the tank movement cannot be linked with the occurrence that took place in Road No. 32, where the tank did not visit in support of the occurrence. 12. Confession not voluntary and true. a. Farook Rahman Confession of Farook Rahman was recorded after 32 days remand. PW 61 stated that confession of Farook Rahman was recorded after 25 days remand. Senior Judge of Division Bench held that the confession of Farook Rahman is not voluntary and question of truth does not arise. Materials a. Confession is dated 19.12.1996 (PW 51, Page 577 Add. PB) b. Date of Arrest 13.08.1996 (Page 624 Add. PB) c. 25 days remand custody in violation of section 344 of Cr. P. C. (Page 624 Add. PB) d. Till before 19/12/96 accused Farook Rahman was never produced in the court. (PW 61, Page 615, Para 8) e. The 1st Judge relied on 32 days of remand preceding the confession. (Page 62, last Para, Add. PB) f. Question no. 5 of column no. 5 of the form of recording confession was not put to him for which it cannot be said whether the confession was true. g. 32 days is a compact period involving one person subjected to severe strain and stress which cannot be piecemealed by piecing the compact period to few pieces. b. Mohiuddin Ahmed (Artillery) The 2nd Judge found “As such the allegation that the accused made his confessional statements after a long period of remand indicating mental and physical torture on him has got no substance. He was on remand for a period of 7 days with effect from 19.11.1996 and he made his confessional statement on 27.11.1996.” (Page 182, above 2 Paragraphs from bottom, Add. PB) 27.11.1996 is a date of wrongful confinement out of remand for 7 days and as such the confession of Mohiuddin Ahmed is to be rejected. 13. Material Non-Identification of Farook Rahman PW 50 stated he was on duty in the house of Bang Bandhu since 31 October 1974 (Page 573, 2nd Para, Add. PB) it is therefore verily likely that he knew Farook Rahman by reason of deployment of his force for that house. He deposed “I recognized the army officer who was on the occurrence day at the occurrence place.” (Page 573, 4th Para from top, Add. PB). [Farook Rahman was on dock on the date of deposition 10.02.1998, see order sheet, but he did not identify Farook Rahman.] 14. Real Planner of the Event The real planner of the event is Jobaida Rashid, wife of convict Khandakar Abdur Rashid as per prosecution case. [Real planner is a single person and the question of pre-concert etc. in plurality attracting section 34 of the Penal Code does not arise.] Jobaida Rashid Vs. The State 2 BLC 356 Para 23 15. Military PWs contradicted each other in their deposition since they did not see the occurrence. PW 45 the then Army Chief [highest authority amongst the soldier witnesses in the case] stated that “I think the military men did not see the occurrence but made contradictory statements/ versions and provided information at different times and that is why there are discrepancies in them.” Conclusion For Sayed Farook Rahman 1. Prolonged custody in death cell deserves reduction of death sentence to imprisonment for life. 7 BLC (AD) 52 2. In his 342 examination he disclosed that he was a Freedom Fighter and his sentence may be reduce to imprisonment for life. (38 DLR 188, Para 38) Conclusion For Mohiuddin Ahmed (Artillery) 1. With in a span of more then 21 years, his name did not surface and his name did not appear in FIR which claims that the informant filed the FIR after gathering details of the occurrence but in such details the name of Mohiuddin Ahmed (Artillery) did not transpire. So it may be said that his name was deliberately inducted into the case in order to be sure of any doubt that the person bearing the name of Mohiuddin is netted in the case. 2. A question in respect of Major Mohiuddin Ahmed of Artillery remains unanswered and the question is whether the alleged deployment of artillery battery near Kalabagan allegedly along with this convict was in connection with killing of the occurrence victims or in connection with overthrow the government? There is no evidence relating to him for or in connection with killing of the victims. 3. Gist is that Supreme Court may go through evidence if there is dissenting opinion as to death sentence and in that case death sentence may be reduced to another form. AIR 1955 (SC) 216 (Para 9 & 37) 4. It is safer, therefore to err in acquitting than in convicting him. (Convict Balabir Singh acquitted) AIR 1988 (SC) 1883 (Indira Gandhi’s Case) ------------------------------------------------------------------------------- Whether Charge under section 302/34 of the Penal Code has been proved on the basis of proper evaluation and sifting of evidence on Record? 1. Proper evaluation and sifting of evidence on record clearly shows that there was no case of committing the murder pursuant to any common intention and the declared case without reservation is a case of overthrowing the government. In the view of the matter, the charge under section 302/34 of the Penal Code is irrelevant and thereby disproved. The broad fact is that there is no evidence to support any common intention or pre-concert etc. for causing the murders. It is only by means of conjecture and surmise the leaned judges invented a case of common intention or pre-concert etc. for causing the alleged murders as shown earlier. 2. If viewed from another angle, charge shows that 3 persons subject to Army Act were killed by persons subject to Army Act and as such, the charge do not attract Penal Code offence and therefore, charge has not been legally proved. 3. The charges do not specify the places of occurrence in respect of alleged killing of Colonel Jamil and Army Sepoy Samsul Haque so that the charge is incomplete and therefore, not proved. 4. The evidence adduced in the case through PW 2, (Page 219, 1st line from top and Page 221, 17th line from bottom), PW 4 (Page 236, 16th line from bottom), and PW 8 (Page 280, 3rd Para from top) speaks of the offence of looting committed by accused Honorary Captain A. Wahab Joarder in particular and generally against other participants to the alleged occurrence and this aspect of the case remains outside the purview of the charge framed. 5. The fact of looting having been over looked in framing the charge, the defence of appellant suffered misdirection in the manner of commission of alleged murder and as such, the charge has not been proved. 6. Misidentification of Mohiuddin Ahmed (Artillery) Renders the Charge not Proved Page 136-137 Last and 1st Para (Additional PB) Judgment I J Convict Major Mohiuddin Ahmed of Artillery misidentified on dock as Major A.K.M Mohiuddin who is not from Artillery but from Lancer then absconding. Mohiuddin Ahmed of Artillery was not named in FIR even after long 21 years, within which time it was natural that his name could have surfaced unless his name was wrongfully inducted. His name in the case is a mistake and product of concoction for which the charge against him not proved. Page 299, Para 4 form top (Additional PB) Judgment II J The learned 2nd Judge misidentified Major Mohiuddin Ahmed as Major A. K. M. Mohiuddin Ahmed (Artillery) finding that he and others being fully armed went straight to the residence of the then President situated at Road No. 32, Dhanmondi with Armed Troops. This shows that even the learned 2nd Judge was mislead in proper identification of Major Mohiuddin Ahmed of Artillery. 7. Nothing of Section 34 of the Penal Code in this case of murder simplicitor a. Nowhere in this case, there is any agreement or implicative presence, or criminal conspiracy or pre-concert, preplan, premeditated plan or pre-arranged plan, common intention or object of common intention or any imaginable illegal act that can be found to relate to committing any murder simplicitor read with section 34 of the Penal Code. b. If the offence committed is found to be mutiny (which is a military offence) section 34 or 38 of the Penal Code has no manner of application in this case. c. The presence, if any, of the appellant(s) in relation to the alleged occurrence may be viewed in terms of mutiny and not as murder simplicitor. i. Presence in the Cantonment where the appellants used to reside and/or to keep engaged in the ordinary business of their military activities is prima face innocent unless contrary is proved in terms of evidence and not in terms of charge; ii. Their presence in the routine parade is equally innocent. iii. The presentation of the prosecution case, arguing but not conceding, may attract the provision of section 38 and not 34 of the Penal Code. 8. Impact of exclusion of section 10 of the Evidence Act barring the admissibility of confession affecting co-accused The Evidence Act provides special rule of evidence for proving criminal conspiracy by means of section 10 and by no other means. So long allegation of criminal conspiracy remains attached to the facts of the case, the requirement of section 10 is to be followed for proving the fact of conspiracy and conspirators. All the learned 3 judges discarded the applicability or admissibility of section 10 of the Evidence Act in considering the confession against the co-accused. In the context relevant observations of learned 3 judges are reproduced below: “In the instant case, both the learned judges have ruled out the applicability of section 10 of the Evidence Act, as the confessional statement of a co-accused cannot be used as a substantive evidence of conspiracy under section 10 of the Evidence Act against other co-accused, although the confessional statement may be admissible as evidence against the maker.” (3rd Judge, Page-1243, 2nd Para PB) “.. .. it is seen that confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist is not admissible as evidence under section 10 of Evidence Act. This being the state of law the confessional statement cannot be considered as evidence as against the confessing accused or the other co-accused in proving the allegation of conspiracy against the confessing accused or co-accused.” (1st Judge, Page-23, 2nd Para from bottom, Add. PB) “.. .. it is clear that the confessional statement of a co-accused cannot be used as a substantive evidence of conspiracy under section 10 of the Evidence Act, against other co-accused conspirators. In such a legal position the confessional statements of Lt. Col. Sayed Faruque Rahman (A-1), Lt. Col. Sultan Shahriar Rashid Khan (A-2), Lt. Col. Mohiuddin Ahmed (Artillery) (A-3) cannot be used as substantive evidence of conspiracy under Section 10 of the Evidence Act against any of other rest 12 co-accused, although the said confessional statements may be admissible as evidence against the makers thereof.” (2nd Judge, Page-209, Para-2nd, Add. PB) It is clear from the above findings that the prosecution failed to prove the existence of criminal conspiracy through the application of section 10 of the Evidence Act. Pieces of inculpatory parts of confessions against the respective makers cannot be put up in combination to prove common intention because each such part remains confined to maker only. It may be noticed that there is absolutely no evidence indicating what was the offence that was intended to be committed by means of criminal conspiracy. There is no substantive evidence to support the prosecution case of the occurrence also as through the charge. Section 10 of the Evidence Act reads: “Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by anyone .. ..” Thus, in the result of discarding the application of section 10 of the Evidence Act, all the alleged activities of the convicts lost reference to common intention---a requirement inherent in that section and therefore the prosecution case of criminal conspiracy backed by common intention (section 34 of the Penal Code) failed. The first part of section 10 of the Evidence Act reads “where there is reasonable ground to believe two or more persons have conspired to commit an offence it is only when this condition precedent is satisfied, the subsequent part of the section comes into operation.” (Kehar Singh Vs. State, AIR 1988 SC 1883, Indira Gandhi’s Case Para-44). In this case, there is no reasonable ground to believe that the appellants conspired to commit any offence. In the result, the activities in the Cantonment deserved no consideration as part of any conspiracy. 9. In the light of evidence the prosecution failed to prove the charge of murder (section 302 of the Penal Code) because--- a. PW 1 is not a eyewitness (How? Already submitted in no. 6 of the heading Delay in Lodging FIR) b. From the chronology of events in the deposition of PW 2, Banga Bandhu was killed at 5 am. He woke up at about 5 am when he was informed by Begum Mujib about the attack of the house of Serniabat (Page 218, 1st Para). He further stated that he did not hear the sound of Bugle (Page 220, 23rd line from top), whereas PW 4 (Page 235, 15th line from bottom) and PW 5 (Page 250, 4th line from bottom) stated that they hoisted the flag and played Bugle at 5 am. Had he been an eyewitness he would have sound of Bugle. c. PW 3 is not a eyewitness. His case as per his statement is that he was shot at his stomach and hand (Page 224, last line) confining him to 1 month 3 days in hospital (Page 226, 1st Para). Injury sustained by Military weapon of the kind as claimed cannot permit him to continue to see what happened afterwards. d. Hoisting Flag and Playing Bugle is concoction. The PWs 1, 2 and 3 are inmates of the house and guard PW 6 and security officer PW 50 giving the accounts of the occurrence deferent from the account given by guard PW 4 and 5 in respect of hoisting flag and playing Bugle. In the inmates’ account including that of house guard PW 6 there is no event for hoisting the flag and playing the Bugle in the morning of occurrence. The house was under attack. It is striking to notice that in the accounts of the inmates there was development of events successively occurring without any respite for fitting in the event of hoisting the flag and playing the Bugle. Moreover, the account from PW 1, 2, 3, shows assailants already in the house keeping no occasion for hoisting the flag and playing the Bugle. It may be reasonably presumed that Banga Bandhu was killed before 6 am. (PW 4, 15-17 line from bottom Page -239, PW 5 Page 250, 251) PW 4 (Habildar) stated that, “So, attended to my duty at 5 am in place of 6 am.” (Page 239, Para 7). But PW 7 (C.O.) stated that, “Time of program was not known to me.” (Page 275, 2nd Para) he further stated that, “The time schedule for duty cannot be changed at the level of Habildar.” (Page 276, 4th line from bottom) e. PW 50 is not an eyewitness. As per testimonies of PW 1 and PW 50 they claimed they were together in the ground floor of the occurrence house during the occurrence. PW 1 claimed he sustained injury but does not refer to PW 50 also to have sustained injury. Conversely, PW 50 does not say PW 1 had sustained any injury. Their respective testimonies are materially discrepant. PW 50 is Charge Sheet witness no. 4 (Page 199 HC PB). He was withdrawn from serial no. 4 of the Charge sheet in violation of order no.26 dated 30.06.1997, passed by the Sessions Judge, Dhaka (relevant Page 32, 3rd line from bottom) and produced as PW 50 without any permission from the court. 10. Omission to protect the victims renders the guard PWs unreliable. Criminal omission to protect the victims prompted the guards to depose falsely for protecting them from implication in the occurrence. The story of taking away of the 1000 rounds of ammunition from the guards is a myth. So the accused Joarder is acquitted and no appeal was preferred. In the case of Kehar Singh Vs. State (Indira Gandhi’s Case) AIR 1988 SC 1883 Para-280, it was held that, “to place reliance on his [guards/ security officer] testimony would be to put a premium on his irresponsibility” 11. Presence of Farook Rahman a. There is no incriminating presence of Farook Rahman in the case relatable to the killings being the subject matter of the case. b. PW 61 I.O. of the case stated that, “The tank crew carrying accused Farook Rahman is not a witness of this case." It was pleaded: The Tank crew was intentionally withheld because if they would have been produced, the following suggestion would have been supported. It is not a fact that if the tank crew of Farook Rahman would have been produced as witness, he would have disclosed that at the direction of Army Head Quarter subsequent to the occurrence, accused Farook Rahman made the outing for the sake of checkmating the civil war. (Page 623 Para 3 and 4 from bottom) c. Tank Movement PW 14 refers to order for moving out tank at 4 am and one tank moved to Radio Station via Cantonment old Railway Station-Mohakhali-3rd Gate and another tank taking possession on the old Racecourse. (PW 14, Page 328) Major Dalim came to Radio Station at 5.30 am. (PW 14, Page 328) After sometime Farook and others came to Radio Station. (PW 14, Page 329) At about 3/3.30 am Farook Rahman came and ordered for moving out the tank from the Garage for placement at the Signal Gate road side. (PW 23, Page 382, Last Para) At 4/4.30 am Major Farook Rahman boarded one of the tanks, which moved southwards. (PW 23, Page 383, 1st Para) None of the witnesses deposing on Farook Rahman and tank movement stated that the tanks had their targets on the occurrence house in anticipation of or in course of the occurrence. The movements of tank had taken their position in the Radio Station and Old Racecourse. Farook Rahman’s arrival in the occurrence house was quite a long time after the occurrence had taken place. Thus, the tank movement cannot be linked with the occurrence that took place in Road No. 32, where the tank did not visit in support of the occurrence. 12. Confession not voluntary and true. a. Farook Rahman Confession of Farook Rahman was recorded after 32 days remand. PW 61 stated that confession of Farook Rahman was recorded after 25 days remand. Senior Judge of Division Bench held that the confession of Farook Rahman is not voluntary and question of truth does not arise. Materials a. Confession is dated 19.12.1996 (PW 51, Page 577 Add. PB) b. Date of Arrest 13.08.1996 (Page 624 Add. PB) c. 25 days remand custody in violation of section 344 of Cr. P. C. (Page 624 Add. PB) d. Till before 19.12.96 accused Sayed Farook Rahman produced in any court. (PW 61, Page 615, Para 8) e. The 1st Judge relied on 32 days of remand preceding the confession. (Page 62, last Para, Add. PB) f. Question no. 5 of column no. 5 of the form of recording confession was not put to him for which it cannot be said whether the confession was true. g. 32 days is a compact period involving one person subjected to severe strain and stress which cannot be piecemealed by piecing the compact period to few pieces. b. Mohiuddin Ahmed (Artillery) The 2nd Judge found “As such the allegation that the accused made his confessional statements after a long period of remand indicating mental and physical torture on him has got no substance. He was on remand for a period of 7 days with effect from 19.11.1996 and he made his confessional statement on 27.11.1996.” (Page 182, above 2 Paragraphs from bottom, Add. PB) 27.11.1996 is a date of wrongful confinement out of remand for 7 days and as such the confession of Mohiuddin Ahmed is to be rejected. 13. Material Non-Identification of Farook Rahman PW 50 stated he was on duty in the house of Banga Bandhu since 31 October 1974 (Page 573, 2nd Para, Add. PB) it is therefore verily likely that he knew Farook Rahman by reason of deployment of his force for that house. He deposed “On the date of occurrence at the place of occurrence ... I could recognize who was the Army officer.” (Page 573, 4th Para from top, Add. PB). [Farook Rahman was on dock on the date of deposition 10.02.1998, see order sheet, but he did not identify Farook Rahman.] 14. Real Planner of the Event The real planner of the event is Jobaida Rashid, wife of convict Khandakar Abdur Rashid as per prosecution case. [Real planner is a single person and the question of pre-concert etc. in plurality attracting section 34 of the Penal Code does not arise.] Jobaida Rashid Vs. The State 2 BLC 356 Para 23 15. Military PWs contradicted each other in their deposition since they did not see the occurrence. PW 45 the then Army Chief [highest authority amongst the soldier witnesses in the case] stated that “I think the military men did not see the occurrence but made contradictory statements/ versions and provided information at different times and that is why there are discrepancies in them.“ Conclusion For Sayed Farook Rahman 1. Prolonged custody in death cell deserves reduction of death sentence to imprisonment for life. 7 BLC (AD) 52 2. In his 342 examination he disclosed that he was a Freedom Fighter and his sentence may be reduce to imprisonment for life. (38 DLR 188, Para 38) Conclusion For Mohiuddin Ahmed (Artillery) 1. With in a span of more then 21 years, his name did not surface and his name did not appear in FIR which claims that the informant filed the FIR after gathering details of the occurrence but in such details the name of Mohiuddin Ahmed (Artillery) did not transpire. So it may be said that his name was deliberately inducted into the case in order to be sure of any doubt that the person bearing the name of Mohiuddin is netted in the case. 2. A question in respect of Major Mohiuddin Ahmed of Artillery remains unanswered and the question is whether the alleged deployment of artillery battery near Kalabagan allegedly along with this convict was in connection with killing of the occurrence victims or in connection with overthrow the government? There is no evidence relating to him for or in connection with killing of the victims. 3. Gist is that Supreme Court may go through evidence if there is dissenting opinion as to death sentence and in that case death sentence may be reduced to another form. AIR 1955 (SC) 216 (Para 9 & 37) 4. It is safer, therefore to err in acquitting than in convicting him. (Convict Balabir Singh acquitted) AIR 1988 (SC) 1883 (Indira Gandhi’s Case) ¶ 11/19/2009 09:09:00 PM Translation of legal provisions and witness statements was prepared by Senior Advocate Khan Saifur Rahman and is rendered here in blue. Criminal Appeal No.56 of 2007 And Criminal Appeal No. 58 of 2007 Submissions - Khan Saifur Rahman (Senior Advocate) Case of Mutiny leading to Murder or a Case of Murder Simpliciter?
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