(Criminal)
Syed Mahmud Hossain CJ
Md Imman Ali J
Hasan Foez Siddique J
Mirza Hussain Haider J
Abdur Rab Munshi……Petitioner
vs
State…….Respondent.
Judgment
October 7th, 2018
Code of Criminal Procedure (V of 1898)
Section 35A
Any period that the convict suffered in custody during the course of the trial shall be deducted from the period of his sentence……………………………. (16)
SM Atikur Rahman, Advocate instructed by Syed Mahbubar Rahman, Advocate-on-Record-For the Petitioner
None Represented-For the Respondent.
Judgment
Md Imman Ali J: The delay of 6 days in filing the criminal petition for leave to appeal is hereby condoned.
2. This criminal petition for leave to appeal is directed against the judgement and order dated 28-5-2015 passed by a Division Bench of the High Court Division in Criminal Miscellaneous Case No. 6610 of 2012 discharging the Rule.
3. The facts, relevant for disposal of the instant criminal petition for leave to appeal, are that on the basis of the Narail PS Case No.43 dated 24-9-2008, the informant along with other police personnel arrested the convict-accused-petitioner. On interrogation the convict-petitioner confessed that he kept a country made pipe gun in a heap of straw in his house. Thereafter, the informant long with his force rushed to the house of the accused, where the convict-petitioner himself brought out a country made pipe gun and two rounds of cartridges and handed those over to the police. The informant seized the recovered arms and ammunitions under a seizure list in presence of the witnesses and lodged the First Information Report (FIR) giving rise to Narail PS Case No.03 dated 3-4-2009 corresponding to GR No.84 of 2009.
4. After investigation, police submitted Charge Sheet No.63 dated 20-4-2009 under Sections 19A and 19(f) of the Arms Act, 1878 against the convict-petitioner, and the case record was transferred to the Special Tribunal No.1, Narail for trial.
5. At the commencement of trial of the case charge under Section 19A of the Arms Act, 1878 was framed against the convict-petitioner. The charge was read over and explained to the convict-petitioner to which he pleaded not guilty and claimed to be tried.
6. Subsequently, on 5-8-2010 the charge was amended incorporating the Section 19(f) of the Arms Act, 1878 to the previous charge. But the convict-petitioner had absconded after being enlarged on bail, hence the amended charge could not be read over and explained to him.
7. To support its case the prosecution examined as many as 15 witnesses, while the defence examined none. As the accused was absconding during trial, he could not be examined under Section 342 of the Code of Criminal Procedure. The defence case as it transpires from the trend of cross-examination of the PW 1 is denial of the occurrence and plea of innocence.
8. After consideration of the evidence and materials on record the Special Tribunal No.1, Narail by its judgement and order dated 14-6-2011 convicted the accused under Sections 19 (f)/19A of the Arms Act sentencing him to suffer rigorous imprisonment for life for the offence under Section 19A and 7 (seven) years for the offence under Section 19(f) of the Arms Act.
9. No appeal was preferred against the judgement and order of the trial Court. However, being aggrieved by and dissatisfied with the judgement and order of conviction and sentence dated 14-6-2011, the convict-petitioner preferred Criminal Miscellaneous Case No. 6610 of 2012 under Section 561A of the Code of Criminal Procedure and obtained Rule, which upon hearing was discharged.
10. Mr SM Atikur Rahman, learned Advocate appearing on behalf of the petitioner submitted that the High Court Division failed to consider that from a careful reading of the evidence adduced by the prosecution during the trial it was apparent on the face of the record that it was a clear case of no evidence as there was contradiction in the evidence given by the prosecution witnesses. He further submitted that the FIR, charge sheet and other materials on records did not disclose any offence which may attract the mischief of Sections 19(f)/19A of the Arms Act. He further submitted that there were gross contradictions between the ejahar, charge sheet and the deposition of the witnesses and, as such, the impugned judgement and order of conviction and sentence was not maintainable in law. He further submitted that the prosecution failed to prove the case beyond all reasonable doubt and, as such, the impugned judgement and order of conviction and sentence was liable to be set aside. He lastly submitted that the sentence of life imprisonment as passed by the trial Court was too harsh in the facts and circumstances of the case.
11. No one has appeared for the respondent.
12. We have considered the submissions of the learned Advocate for the petitioner, perused the impugned judgement and other connected papers on record.
13. The grounds taken and submissions made by the learned Advocate for the petitioner may have been urged in an appeal. Contradictions in evidence may well be argued in an appeal, but cannot support a submission that it is case of no evidence.
14. Having considered the evidence and materials on record, we are of the view that the case cannot be said to be one of no evidence, especially in view of the recovery of the arms consequent upon confession made by the accused-petitioner and which he himself brought out of his straw store located within his homestead. This is supported by the seizure list.
15. In the facts and circumstances discussed above, we do not find any illegality in the conviction of the accused-petitioner.
16. However, we are of the view that the ends of justice would be sufficiently met if the sentence of the convict-petitioner imposed for the offence under Section 19A of the Arms Act is reduced to rigorous imprisonment for 10 (ten) years. Both the sentences shall run concurrently. Any period that the convict-petitioner suffered in custody during the course of the trial shall be deducted from the period of his sentence.
With the above observations and directions the criminal petition for leave to appeal is dismissed.