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Petitioner: ABDUL ALIM Alias ABDUL Alias ABDUL AWAL AND 22 Others VS Respondent: THE STATE
Court Name: Dhaka High Court Judge(s): Ahsanuddin Choudhury, Abdul Hakim Title: ABDUL ALIM Alias ABDUL Alias ABDUL AWAL AND 22 Others vs THE STATE Case No.: Criminal Appeal No. 570 and Death Reference No. 14 of 1969 Date of Judgment:1970-05-26 Reported As: 1971 P Cr. L J 1230 Result: Orders accordingly
JUDGMENT
JUDGMENT AHSANUDDIN CHOUDHURY, J.--Reference. No. `14' of 1969 under section 374, Cr. P. C. Had been made by the Additional Sessions-Judge, Comilla for confirmation of sentence of death imposed under section 302/149, P. P. C. On five prisoners, namely, Abdul Latif, Indu Mia Member, son of late Abdul Aziz; Abdul Awal alias Abdul alias Abdul Alim son of Indu Mia, Indu Mia, son of late Altab Ali Haji and Mukhlesur Rahman. Appeal No. 570 of 1969 has been preferred by the above-named five condemned-prisoners against their sentence of death along with 18 others who have been sentenced under section 302/149, P. P. C. To transportation for life each. The condemned-prisoners as well as the 18 other appellants were tried and convicted on. Other charges as well but awarded no separate sentence i.e respect of .Those charges. The reference as well as the appeal having been heard together are disposed of by this judgment. The prosecution case is as follows. P. W. 14 Habibulla of village Sreehasya, P. S. Laksam lodged .a First Information Report at Laksam Police Station on 14th March 1969 alleging that several persons had set fire to their house and had injured his father badly causing burn injuries to him. Laksam P. S. Case No. 6(3) of 1969 was started on the said First Information Report. It was a the of large scale civil disturbance and incidents of arson, assaults and lawlessness were rampant causing widespread panic and freight to the people, particularly to the officials and more particularly to the police. So the officer-in--charge Syed Kalandar Ali took with him, a force consisting of his second officer S. I. Harisuddin (P. W. I), A. S. I. Zikrul Huq (P. W. 3) and 6 constables namely, deceased Amal Khan, deceased Md. Muslim, deceased Probhat Chakrabarty, Syedul Huq, Md. Hossain Ali and Nurul Islam, each of the constables being armed with a rifle and 40 rounds of ammunitions. The Officer- in-Charge himself was armed with' a revolver and he left the police: station with his party making a
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G. D. Entry No. 331 dated 14th March 1969 at 4-35 p.m. For investigation, of the said case. S. I. Sabder Ali who remained in charge of the Thana was instructed by the officer-in-charge to send a phone message to Chaudhagram Police Station, for deputing one S. I. And to armed constables to join them at village Sreehasya for assisting the investigating party. The police party having got an information that that accused of the aforesaid case had already left Sreehasya village and had come away to Laksam began to look for the accused-in Laksam and Doulatganj. Thereafter at about 1-30 a.m. On 15-3-69 A. S. I. Zikrul Huq and constables Amal Khan, Probhat, Md. Muslim and Hossain Ali went to Langalkot and halted there till the officer-in-charge Kalandar Ali, S. I. Harisuddin and to constables Nurul Islam and Syedul Huq went to Langalkot at 6/6-3Q a.m. The officer-in- charge went by his own motor-cycle and the rest by baby taxis. The officer-in-charge took to local students' leaders, namely, Mustafa Kamal, P. W: 33 and Nazir Ahmed respectively the Vice- President and Joint-Secretary of Pashimgaon College Union with the hope that they might control and pacify the students if the students were involved in the occurrence or if they caused arty disturbance or obstacle to the discharge of the police duty. They took Dr. Ali Ashraf (P. W. 32) Medical Officer of Laksam Charitable Dispensary with them to give first aid to the father of the informant said to have got burn injuries on the eyes and face. All 'of them together started from Langalkot for Sreehasya and reached the house of the informant at 9-30 a.m. On 15-3-69. Dr. Ali Ashraf gave first aid to the father of the informant. In the meantime S. I. Makbul Ahmed with to Constables, namely, Abdul Wahab (P. W. 6) and Md. Mia (P. W: 44) of Chadagram P. S. Joined the police party of Laksam at Sreehasya with to rifles and 80 rounds of ammunitions. It is alleged that in course of investigation the Officer-in-Charge secured the arrest of 4 persons, namely, accused Abut Kalam, Mukhlesur Rahman, Awal, son of Abdur Rab and another Awal alias Alim son of Indu Mia, sized alamats and examined some witnesses. Thereafter at about 3 p.m. They left Sreehasya along with the aforesaid 4 accused and .The seized alamats and on the way they stopped for a while in the house of Ahmed Ali, ex-member and had light refreshment. From there they started for Langalkot with the arrested accused. S. I. Makbul Ahmed, to constables of Chaddagram Police Station, namely, Abdul Wahab and Md. Mia and 4 constables of Laksam. P. S. Namely, deceased Amal Khan; Hossain Ali, Nurul Islam and Syedul Huq were 'going ahead with the 4 arrested accused. Dafadar Ekhlasur Rahman (P. W. 37), informant Habibullah (P, W. 14) and a by carrying alamats were also going with that police party. The officer-in-charge Kalandar Ali, S. `I. Harisuddin (P. W. 1), A. S. 1. Zikrul Huq (P. W. 3) and to constables, namely, deceased Md. Muslim and deceased Probbat Chakravarty of Laksam Police Station; Dr. Ali Ashraf (P. W. 32) and to students' leaders Mostafa Kamal (P. W. 33) and Nazir Ahmed (not examined) were about 50/60 cubits behind the other batch. When the police party with four accused under arrest reached a place near the house of Ahamadulla Muktear of village Dateswar at about 4 p.m. 2000 to 3000 people, including the present accused (other than the four then under arrest) suddenly appeared there from north east and west armed with daos, lathis, brick-bats, etc. And fell upon the escorting police party. They made severe attack and assaults raising cries for killing the police--men. They snatched away the 4 arrested accused who after release 'joined the aforesaid mob and all of them started mercilessly assaulting the policemen and snatched away the rifles from the constables except that of Amal Khan and the seized alamats from the police. Deceased Constable Amal Khan whose rifle. Was sought to be snatched away opened fire from his rifle which hit one of the assailants, namely, the accused Shamsul Hoque. Immediately after that firing, Constable Amal Khan was brutally beaten to death on the spot by the mob including the appellants. The other policemen of that batch were chased, caught and dragged to the Muktear Bari where they were tied down and then dragged to the primary school near, the Muktear Bari and assaulted them severely causing grievous hurts to them. While the attack and assault on the aforesaid police were continuing the officer-in-charge Kalandar Ali along with other policemen attempted to advance
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for rescue of the victims and for dissuading the assailants from assaulting them any more but they were themselves attacked by the mob. Apprehending great danger the officer-m-charge Kalandar Ali, S, I. Harisuddin, A. S. I. Zikrul Huq and deceased constables Muslim and Probhat ran towards west leaving behind motor-cycle of officer-in-charge and entered the village Bagmara. The mob left the police--men already tied down in the school there and, chased the officer---in- charge and the policemen with him who .Got, shelter in the, house of one Sultan Ahmed (P. W. 20) of Bagmara where S. I. Harisuddin hurriedly took of his police, uniform putting on a fungi which he begged from a female inmate of that house and hick himself inside a paddy basket. Thus he escaped notice of the chasing mob who surrounded and entered the house of Sultan Ahmed when officer-in-charge Kalander Ali fired from his revolver, made their way through the attacking mob and ran towards village Patwari, but the mob chased the police party. S. I. Harisuddin at this moment came out 'from his hiding place without any uniform on and got himself mingled with the crowd who were chasing the police party. A. S. I. Zikrul Huq was overtaken and brought by the mob to the primary school near Muktear Bari and mercilessly beaten. The prosecution story further shows that lastly the officer-in--charge and to constables Muslim and Probhat being chased took shelter in the house of Shamsul Haque Khandakar (P. W. 43) of Patwar where they were kept hidden upon the ceiling of a dwelling but the chasing mob surrounded and attacked the house of Shamsul Hoque Khandakar, threatened him with assaults and setting fire to his house. Some members of the mob broke into the but and compelled the police party, to come .Out. The officer-in-charge in self-defence opened fire from his revolver which hit accused Sirajur Rahman, accused Rustom of Tunibhanga and accused Makku. Then they ran with their life but they were chased and in course of the chase both the constables were caught and beaten to death on the spot by the mob including the appellants. The officer-in-- charge was caught near the house of one Ayub Ali and beaten to death there by the aforesaid furious mob. All the dead bodies were left in the field. The officer-in-charge and 3 constables having been killed, some villagers of Dateswar had mercy for those policemen who were kept tied in the school and released them. With much difficulty they (the police who were let of) walked up to a culvert under repair where a train stopped and they availed it of A. S. I. Zikrul Haq, constables Hussain Ali and Nurul Islam went to Laksam Police Station and S. I. Makbul Ahmed and to constables of his police station went to Feni Without any dress on except under-wears. S. I: Harisuddin having managed his escape reached Laksam Police Station at 10-30 p.m. Prepared and recorded a First Information Report; Exh. 2. It may be mentioned that the students' leader Mostafa Kamal after attack on the first batch of the police hurriedly went to Laksam Police Station and gave an information, of the occurrence to S. I. Sabder Ali who immediately sent a telephonic message to the Additional S. P. On getting: the message the Additional. S: P: came down to Laksam at about 11 p.m. Being accompanied by S. D. O: (Sadar South), Comilla, and a police force: They arranged for the treatment of the victims in. The Police Hospital, Comilla. On the following morning they went to the place of occurrence along with S. I. Harisuddin and searched for the dead bodies. The dead body of Constable Amal Khan was found on a field to the south-east: of Dateswar village in naked condition with multiple injuries. They also found the dead bodies of Officer-in-charge Syed Kalander Ali and to constables Muslim and Probhat on the field in between Patwar and Dateswar. The Additional S. P. Held inquest on the dead bodies of the Officer-in-charge and Constable Muslim while S. I. Harisuddin held inquest on the dead bodies on Constables Amal Khan and Probhat and all the 4 dead bodies were despatched to Comilla morgue for post-mortem examina--tion. P. W. 46 Hrishikesh Bhattacharjee, S. I. Of police, took up the investigation. He visited the place of occurrence, prepared a sketch map with index, recovered and seized the rifles of the victim police constables, revolver and motor cycle of the Officer-in-charge and other alamats from different
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places (made exhibits in the case). He arrested the accused of whom accused Mafizur Rahman and Maklesur Rahman made confessional statements before a Magistrate, 1st Class. After completion of, the investigation the Investigating Officer submitted charge-sheet against 37 persons; including the present accused-appellants ox 30th April 1969: Mr. Md. Zahirul Islam, Magistrate, 1st Class, Sadar South, Comilla after preliminary inquiry held by him committed 31 accused to the Court of Session- having charged them under sections 302/149, 333/149 and having further charged 27 of them under section 225/ 149, P. P. C. In the Court of Session all the above charges were maintained with slight amendments and a new charge under section 224, P. P. C. Was framed against 4 accused, namely Moklesur Rahman, Abul Kalam, Abul alias Abdul Awal, son of Indu Mia and Abdul Awal son of Abdur Rab. All the accused pleaded not guilty to 'the charges framed against them and denied their concern or involvement in the occurrence. They also denied the manner of occurrence as given by the prosecution. Their defence was that the occurrence took place at a dine when there, was a large scale civil disturbance and a section of the students and members of the public all over the country started campaign against the then regime and they sought to punish criminals and corrupt people by assaulting them and by burning their houses and inflicting various other punishments on them. They were also holding meetings and processions raising slogans against corruption and malpractices by the people in authority. In that situation when the police party were taking the four accused under arrest a band of students and public were returning in a procession from a meeting, held at Langalkot raising slogans against authorities. Seeing their, rowdy arid excited mood Constable Amal Khan being a non-Bengali could not follow their slogans, so he became panicky and opened fire which hit a student, namely, accused Shamsul Hoque whereupon the entire body, of the procession of the, students and public got excited and attacked the said police party, snatched away the four arrested accused beat the policemen and they beat Constable Amal' Khan to death on the spot. The Officer-in-charge and his companion police officers and men were not present in that scene, nor were they following the batch consisting of Amal Khan and others as they were taking tea in the house of ex-member Ahmed Ali. In that area another batch of students were returning in a procession after burning the hots of one criminal named Asghar. At, that the they came to -learn that one of their fellow students was injured by police firing only about an hour before. This news infuriated them against the officer-in-charge and to, constables who were chased by the students beaten to death. The present accused were not at all involved in the attack or assault on the police party or in the killing of the Officer-in- charge and the three constables. It is further contended that none of the policemen could recognise the assailants. But subse--quently in order to make out a, plea for the firing they have concocted a false. Case with the assistance of Habibullah as in connection with his case police went to Sreehasya and arrested four accused. The present case, therefore, is at the instance of Habibullah who had enmity and grudge against all the accused. Accused Muklesur Rahman and Mafizur Rahman further pleaded that their confession was extracted by the police by putting them under inhuman torture and also by offering allurement to them. They submitted that whatever they stated in their confessions all false and that they were tortured by the police: Accused Shamsul Huq, Serajur Rahman and Makku pleaded that having been injured by reckless police firing they were falsely implicated on suspicion ever though they were not at all involved in the occurrence and also with a motive to prevent them from bringing any action against the police, for their indiscriminate firing. Accused Indu Mia, son of late Abdul Aziz and accused Belayet Hossain alias Milan pleaded alibi. Accused Indu Mia stated when examined under section 3 2, Cr. P. C. That he Was away at Comilla and accused Belay Hossain stated that he was away in Chittagong attending School there. All the accused thus asserted their innocence so far as the present occurrence is concerned.
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The present appellants along with the acquitted 8 accused faced the trial under various charges. Nineteen of the present appellants along with acquitted 8 accused were charged under section 225/149, P: P. C. For rescuing by force accused Muklesur Rahman; Abul alias Abdul Alim, Abul Kalam and Awal from lawful custody of the police: These four accused rescued from the lawful custody were charged under section 224, P. P. C. For escaping from lawful custody of the police by application of force. All the 23 appellants along with 8 acquitted accused were charged under section 333/149, P. P. C. For deterring the police from discharging their lawful duties and in doing so causing grievous hurts to some policemen and they were further charged under section 302/149, P. P. C. For committing the offence of murder of police, on duty namely of Constables Amal Khan, Probhat and Md. Muslim and Officer-in-charge Syed Kalander Ali. The trial was held with the aid of 4 assessors who were divided in their opinion so far as the complicity of the accused in respect of the charges against them is concerned. The learned Additional. Sessions Judge acquitted 8 accused of all the charges out of 31 who faced the trial before him but convicted and, sentenced the appellants as stated above. The prosecution, out of 50 witnesses, tendered 8 namely, P. Ws. 20, 25, 27, 28, 45, 47, 48 and 50 for cross-examination and examined as many as 42 witnesses. P. W. I Harisuddin, P. W. 12 Makbul Ahmed are Sub-Inspectors of Police, P. W. 3 Zikrul Hoque is A. S. I., P. W. 4 Nurul Islam P. W. 5 Sayedul Hoque, P. W. 6 Abdul Wahab, P. W: 8 Hossain Ali and P. W. 44 Md. Ali are constables. There were all victims in the occurrence P. W. 2 Abdul Hakim is Additional Superintendent of Police, P. W. 11 Ansab Ali is a constable who escorted dead bodies to the morgue. P. W. 22 Tajul Islam is another constable, P. W. 24 Kabir Ahmed Chowdhury is S. I. Of Police P. W. 26 Jahan Kader Chowdhury is A. S. I. And P. W. 46 Hrishikesh Chakravorty is Investigating Officer, P. W. 7 Dr. Siddiqullah, P. W. 9' Dr. Kazi- Azizul Hoque, P. W. 15 Dr. Md. Zahirul Hoque, P. W. 16 Dr. Syed Lokman, P. W. 30 Dr. Md. Rafique Hossain, P. W. 32 Dr. Ali Ashraf, P. W. 38 Dr. Abdul Khaleque, P. W. 42 Dr. M. S. Islam p. W. 49 Dr. Wajiullah and medical men of whom P. W. 42 held post-- mortem examination on the dead bodies of Officer-in- Charge Kalander Ali and. Three constables and the other medical witnesses except P. W. 32 examined the injured police men and officers, P. W. 32 Dr. Ali Ashraf accompanied the police party from Laksam. The rest .Are local witnesses who: deposed about the' occurrence. In this case the admitted facts- are that 4 persons, namely accused Muklesur Rahman, Abut Kalam, Abut alias Abdul Awal, son of Indu Mia and Abdul Awal son of Abdur Rab were arrested by the police on the First Information; Report of P. W. 14 Habibullah, that these four arrested persons were by force rescued by a riotous mob and that Officer-in-Charge Syed Kalandar Ali and three Constables Amal Khan, Muslim and Probhat Chakravorty were, murdered. Let us now proceed to consider the evidence on record. P. W. 1 Sub-inspector Harisuddin was attached to Laksam Police Station in March 1969. He has proved the F. I. R. Exh. 4 lodged by P. W. 14 Habibullah on 14-3-69 at 3-30 p.m. It was recorded by the Officer-in-Charge Syed Kalander Ali. His evidence shows that, on 14-3-69 at about 4-30 p.m. The Officer-in-Charge Syed Kalander Ali being accompanied by this witness, A. S. I. Zikrul Hoque (P. W. 3), deceased Constables Amal Khan, Md. Muslim and Probhat Chakravorty, Syedul Huq (P. W. 5) Hossain Ali (P. W. 8) and Nurul Islam (P. W. 4) all constables of Laksam Police Station started for Shreehasya village. Each constable carried a rifle and 40 rounds of ammunition and the Officer-in---Charge Kalander Ali had a revolver. S. I. Sabder Ali (P. W.45) was -left in charge, of the police station and he was asked to give a telephonic message 'to Officer-in-Charge Chaddagram Police Station requesting him to depute one S. I. And to armed con--stables to Sreehasya village to assist them in that investigation. Before leaving the station Kalander Ali made a G. D. Entry No. 331," Exh. 1, noting therein their departure from the Thana. The police party reached Shreehasya at 9-30 a.m. On 15-3-69 S. I. Makbul -Ahmed and 2 constables of Chauddagram Police Station joined them at Shreehasya. The Officer-in-Charge Kalandet Ali in course of investigation arrested four persons: Those four persons are accused Abul
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Kalam, Moklesur Rahman, .Abu] alias Abdul Awal son of Indu Mia and Abdul Awal son of Abdur Rab. The police party started from Sreehasya at 3-30 p.m. On 15-3-69 with the four arrested accused. A batch consisting of S. I. Mokbul Ahmed (P. W. 12), Constables Syedul Huq (P. W. 5), deceased Amal Khan, N. tslam4l'. W. 4), Abdul Wahab, (P. W. 6), Hossain Ali (P. W. 8), Md. M is (P. W. 44), to local Ansars, namely, Badsha Mia (P. W. 21) and one Mokbul Ahmed (not examined) were escorting the arrested accused. The other batch consisting of the officer-in-charge deceased Syed Kalandcr Als S .1.Harisud--din (P. W. 1), A. S. I. Iikrul Hoque (P. W. 3) and constables deceased Md. Moslem and deceased Probhat Chakraborty, to students Mostafa Kamal (P. W. 33) and Nazir Ahmed (not examined), Dr. Ali Ashraf (P. W. 32) were following the former police party. P. W.14 Habibullah and the local Dafadar Eklasur Rahman (P. W. 37) were also with them. When this Party reached village Dateswa r about 2000/3000 people came from the north, west and east being armed with daos, lathis, etc. And attacked the police party who were escorting the four accused under arrest, started assaulting the police party and snatched away the aforesaid four accused from the lawful custody of the police. They raised the cry kill the policemen Ibis evidence further shows that he himself, Officer-in-Charge Kalander Ali A. S. I. Zikrul Hoque, Constables Muslim and Probhat ChaKraborty ran away and entered Bagmara village. Kalander Ali left his motor cycle behind. They sought to enter and take shelter in several houses but the house owners did not give them shelter. At last the witness, Officer-in-Charge Kalander Ali, A. S. I Zikrul Hoque, Constables Muslim and Probhat Chakraborty entered the house of Sultan Ahmed (P. W. 20) of Bagmara by the back door. But the aggressive mob chased them and some people also were giving out their movements at every stage, the Officer-in-Charge Kalander Ali, A. S. I. Zikrul Hoque, 2 constables left that house and ran towards west. But the witness (P. W. I) managed to procure from that house a lungi which he put on by taking of his uniform and hid himself inside a paddy basket with the bundle of uniform. By that the, the aggressive mob had chased Kalarider Ali, Zikrul Hoque, Constables Muslim and Probhat towards west. At that the he heard a gunshot whereupon all the inmates of that house left the house and he seized that opportunity and went out leaving the uniform behind. He saw people chasing Kalander Ali, Zikrul Hoque and to constables who were heeding for their lives. He joined with the mob in the chase getting himself mingled with them. Out of this party he claimed to have recognised Indu Mia, his son Latif, Shafiqut Rahman, Serajur Rahman, rescued accused Moklesur Rahman, Awal and Abul Kalam. But he identified only Indu Mia and Latif. He proceeded to say that when it became dark he got himself detached from the crowd and started for Laksam Police Station. He reached the police station at 10-30 p.m. On 15-3-69 on foot. 1t appears that he did not see the murder of Officer-in---Charge and 3 constables as he ran with his own life. After his arrival at the Thana A. S. I. Zikrul Hoque and Constables Hossain Ali and Nurul Islam also returned to Thana. They had only underwear's on and had multiple injuries on their person. The witness (P. W. 1) had also injuries on his person. A. S. I, Zikrul Hoque told him that he recognised Indu Mia, Latif and few others. Two constables, namely, Hossain Ali and Nurul Islam told him about their recognition of the accused. P. W. 1 then drew tip a First Information Report between 10-30 p.m. To 11 p.m. And sent A. S. I. Zikrul Hoque and Constables Nurul Islam and Hossain Ali to Comilla Police Hospital on the same night. He also sent a message over telephone to Superintendent of Police, and S. D. O. Sadar(s), Comilla. Additional Superintendent of Police along with S. D. O. Went to Laksam Police Station a midnight and enquired of the occurrence from the witness. In the latter part of the night the Additional Superintendent of Police and S. D. O. With force started from Laksam to search for the missing Officer---in-Charge, Syed Kalander Ali and constables Amal Khan, Probhat Chandra Chakraborty and Muslim. They went to Bagmara and Dateswar and first traced the dead body of constable Amal Khan on the field to the east of village Bagmara and to the south-east of Ahamadulla Muktear's housed The body was in nude condition with multiple injuries thereon. On further search they found the dead bodies of…
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