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Even an absconding accused has the right of fair hearing

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High Court Division :
(Criminal Appellate Jurisdiction)
Abu Bakar Siddique J
Mustafa Zaman
Islam J
Judgment
May 10th, 2016
State……..Petitioner
vs
Alam Malitha ……
Condemned-
Prisoner
Code of Criminal Procedure (V of 1898)
Section 340
Legal Rememberancer's Manual, 1960
Chapter XII, 6th Paragraph
Though a state defence lawyer was appointed at a belated stage to defend the absconding accused, but the state defence lawyer did not serve the purpose of the case for which such appointment was made. Being so, person concerned must be i.e. accused given an opportunity of being heard to defend himself properly by cross-examining the PWs. It is a sine qua non of the right of fair hearing of an absconding accused. .. .... (18)
State vs Abu Hanif Gani, 45 DLR 400; Abdur Rashid vs State, 27 DLR (AD) 1 and Balayet Howlader vs State, 49 DLR 520 ref.
Md Monirujjaman (Rubel), DAG with Kazi Bazlur Rashid, AAG and De/wara Begum (Bela), AAG-For the State.
Momtaz Begum, Advocate - For the State Defence Lawyer.
Judgment
Mustafa Zaman Islam J: This reference under section 374 of the Code of Criminal Procedure and the connecting jail appeal No. 172 of 2011 arise out of the judgment and order of conviction and sentence dated 27-4-20 II passed by the learned judge of Nari-o-Shishu Nirjatan Daman Tribunal, Kushtia for confirmation of death sentence of condemned-prisoner under section 11(Ka) of the Nari-o-Shishu Nirjatan Daman Ain, 2000 for alleged commission of murder of his wife Hazera Khatun.
2. Prosecution case, in short, are that one Hazera Khatun, the deceased, was married with accused Alam Militha (condemned prisoner) about six years ago to the date of occurrence. Out of wedlock, the couple begot a female child age about four years. Few days after marriage, accused along with other co-accused started making demands for dowry of Taka 30,000 but as the demands could not be satisfied resulted the accused would frequently tortured both mentally and physically. Subsequently, considering the happiness of the deceased, the informant was given to accused Alam Malitha as dowry demands of Taka 20,000 for running a business. Thereafter, accused Alam Malitha, again demands of dowry Taka. 20,000 from the deceased and tortured mentally and physically. On 14-9-2008 to 15-9-2008, the accused with the help of other accused persons murdered the deceased Hazera Khatun by beating and throttling for not satisfying the dowry demand and the accused Alam Malitha fled away. On the following day, the informant being informed through mobile phone the death of the deceased, he went to the house of the accused persons and saw the dead body of the deceased with blood stained condition. The local witnesses Md Toki, Zosimuddin and Shiuli Begum also saw the dead body. Hence, the first information report was lodged on 15-9-2008 upon which was recorded as Doulatpur Police Station Case No. 25 dated 15-9-2008 against the accused including other accused persons under section ll(Ka) of the Nari-o-Shishu Daman Ain 2000.
3. The investigating officer examined number of witnesses and after completion of the investigation, placed the charge-sheet for an offence punishable under section l1(Ka) of the Nari-o-Shishu Nirjatan Daman Ain, 2000 against the accused Alam Malitha and other accused person being charge-sheet No. 322 dated 14-11-2008. The condemned prisoner was absconding amid trial was held in his atrence and the accused and other co-accused were charged on 28-9-2009 under section 11(Ka) of the Nari-o-Shishu Nirjatan Daman Ain, 2000 who are the present in the court pleaded not guilty and claimed to be tried in accordance with law.
4. The prosecution, in order to substantiate the offence as alleged against accused Alam Malitha including other co-accused, examined as many as 13 witnesses while the defence examined none.
5. On consideration of the evidence on record, the Tribunal found the accused Alam Malitha guilty under section 11(Ka) of the said Ain, 2000 and sentenced him as mentioned above and co-accused were acquitted from the charge leveled against them.
6. Reference under section 374 of the code at criminal procedure was made to the High Court Division for confirmation of the sentence of death, which was registered as Death Reference No. 21 of 2011 and Jail Appeal No. 172 of 2011 was preferred by the condemned prisoner, which are heard together and are disposed of by this judgment.
7. Mr Md Monirujjaman (Rubel), the learned Deputy Attorney General along with Mr Kazi Bazlur Rashid, AAG appearing on behalf of the State in support of the reference strenuously argued that the circumstantial evidence and the chain of events conclusively suggest the involvement of the accused in the brutal murder of the deceased wife of the accused.
On the basis of the materials he supported the impugned judgment and order of conviction and sentence and submitted that no case is made out to interfere in the impugned judgment and hence it be upheld.
8. Ms Momtaz Begum, the learned Advocate, appearing on behalf of the condemned prisoner as the State defence lawyer, on the other hand, opposes the reference assailing the judgment and order of conviction and sentence under death reference. She submits that the trial was held in violation of provision of sections 87 and 88 of the code of criminal procedure without compliance of those sections vitiated the entire trial, as because, the Tribunal did not receive any service of return or report of compliance of warrant of arrest, proclamation and attachment inspite of notice was issued as per law. Moreover, no opinion has been formed as provided under section 20(1) of the said Ain 2000, learned Tribunal directed publication of notice in daily newspapers. She submits that it would be unsafe to convict the accused based on the testimonies of interested witnesses who are the father, mother, brother and near relatives of the deceased as well as informant. They are living in other village and in this case, it is essential that next door neighbours or those who are living near the place of occurrence be examined but the same were not examined, as such, it impossible to arrive at any proper conclusion that the condemned prisoner in any way was responsible for commission of murder of the deceased wife of the accused and that there was no motive attributed to the accused herein for indulging in the heinous crime of committing murder of the deceased. She submits that the allegations regarding demand of dowry and cruelty inflicted upon the deceased are in general terms and vague and none of the prosecution witnesses had stated as to when, in which date and month, any act of cruelty or tortured in connection with demand of dowry was committed by accused against the deceased. Referring to order sheet of this case, she submits that charge was framed on 24-6-2009 in the absence of the accused. No State defence was appointed before framing of charge to defend the accused at the time of hearing and on 1-2-2010 was fixed for witnesses and on that date Mr Abdul Khalek, the learned Advocate was appointed to defend the absconding accused Alam Malitha and on that date two of the prosecution witnesses were produced and examined, as such the state defence lawyer did not get adequate time to get himself prepared to conduct this case which affected seriously the purpose of the section 340 of the code of criminal procedure. She submits that the State defence lawyer who was appointed to defend the accused did not cross examine the witnesses and was not present on the same dates of the examination of the PWs, the condemned prisoner has been seriously prejudiced and, as such, the order of conviction and sentence is liable to be set-aside. In support of her submissions, the learned Advocate for State defence lawyer relied two decisions of this Court. In the Case of the State vs Abu Hanif Gani reported in 45 DLR 400 and in the Case of Balayet Howlader vs State reported in 49 DLR 520.
9. In reply, the learned DAG submits that, in view of section 21(1) of the Nari-o-Shishu Nirjatan Daman Ain, 2000 provides that Tribunal has a reason to believe that an accused is absconding or concealing himself with a view to avoiding his arrest and trial, it will have a notification published at least in two Bengali daily directing him to appear before Tribunal within a specified period not exceeding 30 days in any case, failing which he would be tried in absentia and there is no illegality committed by the Tribunal and, as such, the conviction and sentence should be upheld.
10. A very strange argument was raised by State defence lawyer, according to her, the prosecution had not proved that the provision of section 20(1) of the Ain, 2000 contemplated sections 87 and 88 of the code of criminal procedure along with section 340 of the said code did not comply with. Before we proceed with the matter, it has to be borne in mind that it is the duty of the court to secure justice and to prevent miscarriage of justice i.e for substantial Justice.
11. We have heard both sides. We have not expressed any opinion on the merits or demerits of the stands taken by both parties. All the legal pleas are kept open.
12. For proper disposal of the instant Death reference along with Jail appeal, it would be profitable to mention the order No. 15 dated 12-2010 as follows-
A`¨ সাক্ষীর জন্য দিন ধার্য আছে। মোট আসামী ৪ জন। আসামী ১। আলম মালিথা পলাতক। জামিনপ্রাপ্ত আসামী ২। লালন ৩। বুলজান ৪। লৌহ @ নুর মোহাম্মদ হাজিরা উপ¯ি'ত। রাষ্ট্র পক্ষে ২ জন সাক্ষীর নাম সহ হাজিরা দাখিল করেন।
13. According to provisions of Law Ld.
Adv. Mr Abdul Khaleque(l) is hereby appointed state defence pleader to conduct the case on behalf of absconding accused Alam Malitha. Inform the Ld. OM Kushtia & Ld. Advocate.
১৪. চড১ গাজী জোয়ার্দ্দার চড২ মোঃ শাহারুল ইসলামের হলফান্তে জবানবন্দী ও জেরা লিপিবদ্ধ করা হইল। সাক্ষী গাজী জোয়ার্দ্দার এর জবানবন্দী মতে এজাহার ঊীনঃ. ১ সাক্ষী শাহারুল ইসলাম এর জবানবন্দী মতে সুরত হাল প্রতিবেদন ঊীনঃ. ২ উহাতে তাহার স্বাক্ষর ঊীনঃ. ২/১ চিহ্নিত হইল। বিজ পিপি পরবর্তী সাক্ষীর জন্য সময়ের আবেদন করেন।
15. It appears from the record of the Tribunal that no state defence lawyer was appointed before framing charge on 24-6-2009 to defend the accused condemned prisoner. On 4-8-2009 was fixed for prosecution witnesses, on 7-9-2009, 1-5-10-2009 and 26-11-2009 were also for witnesses. But no state defence lawyer was yet to be appointed till that date. Lastly, on 1-2-2010 was fixed for witnesses i.e trial and on that date Mr Abdul Khaleque, learned Advocate was appointed as state defence lawyer to defend the absconding accused and on that date two of the prosecution witnesses were produced and examined by the prosecution. It would be mentioned that the state defence lawyer cross examined the two witnesses although the state defence lawyer did not get adequate time to yet himself prepared to conduct this case. It is necessary to say that the state defence lawyer to defend an absconding accused charged with capital offence should be appointed well ahead of time with a view to enable him to prepare this case and the lawyer should be of sufficient standing and able to render assistance. Here, in this case, from the record it is clear that two witnesses were actually cross examined on the date on which state defence lawyer was appointed. More so, the state defence lawyer who was appointed to defend the absconding accused, had no opportunity to go through the relevant papers of this case. In fact, no opportunity has given by the Tribunal, naturally it was not possible on his part to defend the absconding accused in accordance with law. The right of representation by a lawyer is considered to be a part of natural justice and it can be claimed as of right, whereas, the said right is conferred by the statute.
16. It is clear from the record that the two pws were cross examined by the defence lawyer without going through the relevant papers in this case. It is also clear that defence lawyer did not cross examine of Pws. 3-13 in this case nor he was present on the relevant dates. Besides, the investigating officer was not examined by the prosecution. This has seriously prejudiced the accused, the defence was materially affected. We feel it necessary to reproduce the relevant section 340 of the code which runs as follows:
"340(1) Any person accused of an offence before a criminal court, or against whom proceedings are instituted under this code in any such court, may of right be defended by a pleader.
(2) Any person against whom proceedings are instituted in any such Court under section 107, or under Chapter X, Chapter XI, Chapter XII, or Chapter XXXVI, or under section 552, may offer himself as a witness in such proceedings.
    (3) ………….
    (a) …………
    (b) ………..
17. From the above, this Section implies that the accused shall have a reasonable opportunity to cross examine and this is a privilege given to the accused. Accused in a criminal case under Section 340 of the code has been given the statutory right of being defended by a lawyer. It is the duty of the court that accused's right to be defended at the state's cost and relevant papers of this case must be supplied and proper opportunity be given for the competent lawyer to make himself ready. We shall now consider the case law relied upon by the learned state defence lawyer. This view finds support in the case of state vs Hanif Gani mentioned above, wherein held that-
"The appointment of the lawyer to defend accused charged of capital offence at the state expense at the last moment has been disapproved by the Superior Courts and in this regard as a case in hand reference may be made to the case of Abdur Rashid vs State reported in 27 DLR (AD) 1 wherein it has been observed as follows:
"a last moment appointment of Advocate for defending a prisoner, accused of capital sentence, results in a breach not only of the provisions of Section 340 CrPC but also of 6th Paragraph of Chapter XI1 of the legal Rememberancer's manual, 1960 and this kind of appointment frustrate the object behind the elaborate provisions of that chapter",
"if the Sessions Judge finds that it is necessary to appoint a counsel for the accused, he shall at once take necessary steps to that end and make all relevant papers including a copy of the brief available to the Advocate appointed for the aforesaid purpose. No court should proceed with the trial by marely nominating a counsel at government expense for the defence of the accused at the commencement of the trial without giving the counsel sufficient opportunity to study the necessary documents and think over the case and if necessary to consult the accused."
"Having regard to the fact that such late engagement of a defence lawyer is of no use, it is necessary that the rules as contained in the legal remembrance's manual in aid of section 340 of the code of criminal procedure must be rigorously followed for ends of justice."
18. We are of the view that reason stated here in above, though a state defence lawyer was appointed at a belated stage to defend the absconding accused, but the said state defence lawyer did not serve the purpose of the instant case for which such appointment was made. Being so, person concerned must be i.e. accused given an opportunity of being heard to defend himself properly by cross examining the PWs. It is a sine qua non of the right of fair hearing of an absconding accused. For this reason, the case is liable to be sent back to the Tribunal for fresh trial. In that view of the above, no decision on merit is given in this appeal.
19. In the light of our above discussion the condemned prisoner Alam Malitha be offered the choice of choosing lawyer to defend himself  within a reasonable time. If he does not do so then he as well as condemned prisoner should defence at state expense by a lawyer of sufficient standing allowing him reasonable time to prepare the case and he should be provided with all papers in time.
20. In view of the discussion made herein above, the reference is rejected and the Jail Appeal No. 172 of 2011 is allowed. The impugned judgment and order dated 27-4-2011 passed in the Judge of the Nari-o-Shishu Nirjatan Daman Tribunal, Kushtia is hereby setaside. Condemned prisoner Alam Malitha to death under section l1(Ka) of the Nari-o-Shishu Nirjatan Daman Ain, 2000 is hereby set-aside. The Tribunal is directed to allow an opportunity to the accused condemned prisoner to cross examine the prosecution witness and, the case is sent back on remand to the court of the learned Nari-o-Shishu Nirjatan Daman Tribunal, Kushtia for holding a fresh trial in the light of the observation made in the body of the judgment.
21. The condemned prisoner who was convicted awarded the death sentence by the Tribunal in 2011 and after judgment he was arrested, therefore, is languishing in death cell for about 5 years. Since, there is urgency in this matter, therefore, we direct the Tribunal to decide the matter as expeditiously as possible, in any event within 6 (six) months from the date of communication of this judgment and order. It is needless to mention that this order is confined to the condemned prisoner herein only, however, condemned prisoner remains in custody not in death cell till fresh trial be concluded. The trial court is at liberty to consider the bail matter of the accused namely, Alam Malitha on the event of failure to conclude the trial within 6 months.
Send down the LC record at once.

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