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Court is legally authorized to review or modify sentence

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05th-Jan-2019       
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High Court Division  :
(Criminal Miscellaneous Jurisdiction)
Md Emdadul Huq J
Md Shohrowardi J
Nasir Mia (Md)     .
........ Convict-Petitioner
vs
State.....Opposite-Party
Judgment
May 29th, 2018
State ..... Opposite-Party'

Code of Criminal Procedure (V of 1898)
Section 561 A
This Court in an appropriate case is legally authorized to review or modify the sentence passed by the trial Court to secure ends of justice. ..........(28)

Arms Act- (XI) f 1878)
Sections 19A and 19(f)

There are is no previous record of commission of any offence by the petitioner and therefore the minimum sentence may be imposed on him.. .. (30)
Abdul Qader Chowdhury vs State, 28 DLR (AD) 38; Emperor vs Khwaja Nazir Ahmed, AIR (1945) PC 18;
King Emperor vs Khawaja Nazir Ahmed, AIR 1963 (SC) 447; Md Samiullah vs State, 15 DLR (SC) 150: Golam Rasul vs Habibullah  Shakir, 20 BLC (AD) 58: Md Salimullah vs state, 15 DLR (SC) 150 and Jahangir Alam (MD) alias Zakir vs State, 56 DLR (AD) 217 ref.
Jahangir Ahmed Khan, Advocate-For the Convict-Petitioner.
Monjur Kader DAG with Helana Begum (Chaina), AAG and Mohammed Akhter Hossain,  AAG -For the Convict-Petitioner.
Monjur Kader DAG with Helana Begum (Chaina), AAG and Mohammed Akhter Hossain,  AAG-For the Opposite-Party (State).

Judgment
Md Shohrowardi J : Upon an application filed by the convict petitioner under Section 561 A
of the Code of Criminal Procedure, 1898 a Rule was issued by this Court on 29- 1-2013 for quashing the judgment and order of conviction and sentence dated 18-9-2011 passed by the Special Tribunal No.2, Brahmanbaria in Special Tribunal Case No. 175 of 2005 arising out of Brahmanbaria Police Station Case No. 19(08)) 05 convicting the petitioner under Section 19A and 19(f) of the Arms Act, 1878 and sentencing him to suffer rigorous imprisonment for 14 (fourteen) years.
2. The prosecution case, in short, is that convict Md Nasir Mia was in custody in connection with Brahmanbaria Police Station Case No. 22 dated 13-6-2005 under Section 392 of the Penal Code was taken on police remand and he had given some information about possession of illegal arms which was used at the time of the alleged robbery. Thereafter on the basis of GD No. 530 dated 9-8-2005, SI Ranjit Mojumder of Brahmanbaria Thana along with police force and convict Md Nasir Mia went to his house purchased in the name of his wife Nazma Begum and in presence of the local witnesses and Chowkider recovered one US made revolver and two cartridges kept under the bedding of Chowki of his east facing tin-shed dwelling hut and the convict Md Nasir Mia failed to show any valid license for keeping the said arms in his possession. Thereafter, the SI Ranjit Majumder lodged the FIR.
3. SI Md Jashimuddin was appointed as Investigating Officer and after completing investigation he submitted the police report on 22-82005 against the convict petitioner under Section 19A and 19(f) of the Arms Act, 1878. After that, the learned Magistrate sent the case records to the Special Tribunal No. 1, Brahmanbaria for trial who by the order dated 19-7-2006 transferred the case to the Special Tribunal No.2, Brahmanbaria for disposal of the case. During the trial, the charge was framed under Section 19A and 19(f) of
the Arms Act, 1878 by order dated 29-8-2006 against the convict petitioner which was read over in his presence and he pleaded not guilty and claimed to be tried.
4. During the trial, the prosecution examined 9 (nine) PWs and they were also cross-examined by the convict petitioner. Pending trial. the convict petitioner was enlarged on bail by the Hon'ble High Court Division and thereafter on 8-9-2009 he absconded. On 20-5-2010 an Advocate was appointed by the legal aid committee to conduct the case on behalf of convict petitioner.
5. Out of 9 (nine) witnesses examined by the prosecution PW 1 SI Ranjit Mojumder is the informant, PW 2 Md Abdul Hai. PW 3 Taleb Ali Bhuiyan, PW 4 Abdul Hannan and PW 5 Abu Taher are the seizure list witnesses. PW 6 Ajit Kumar Sarkar and PW 7 Md Imtiaz Ahmed are police personnel and members of the raiding party. PW 8 Muslim Miah is the local witness who was declared hostile. PW 9 Md Jashim Uddin is the Investigating Officer.
6. PW 1 Ranjit Mojumder stated that while convict Md Nasir Mia was on police remand in connection with Brahmanbaria Police Station Case No. 22 dated 13-6-2005 under Section 392 on the basis of GD entry No. 530 dated 9-8-2005, he along with police force and convict petitioner at 19-55 pm went to the house of convict Md Nasir Mia situated at village Atla of Brahmanbaria Thana, On the basis of information given by the convict petitioner he along with the police force raided the east facing tin-shed dwelling-house of the convict petitioner and in presence of the witnesses and the Constable No. 269 Abu Taher recovered one US made revolver and two round cartridges kept under the bedding of Chowki and prepared the seizure list. P.W. 1 proved the seizure list as exhibit-1. During the trial, the recovered revolver was exhibited and proved as material exhibit No. 1 and the two
rounds  of cartridges was proved as material exhibit No.2 series. PW 1 proved the FIR and he also proved his signature as exhibit No. 2/1. During cross-examination in reply to a question put to PW 1, he stated that before recovery of arms the convict petitioner was taken on police remand, but he could not say how many days he was in custody before recovery of the arms. He also stated that Hannan member was present at the time of recovery of arms at the place of occurrence. He denied the suggestion that no arms and cartridges were recovered from the dwelling hut of the convict petitioner. He also denied the suggestion that since there was an enmity between the neighbor of the convict petitioner and his wife, he falsely implicated the convict petitioner in this case.
7. PW 2 Abdul Hai staled that on 9-1-2005 police recovered one revolver and two cartridges from the house of the convict petitioner kept under the bedding. He proved his signature put in the seizure list which was marked as exhibits-1 and 2. He also identified the recovered arms and cartridges. During cross-examination, he stated that his house was situated far from the house of Nazma, wife of convict petitioner and police taken him to the place of occurrence. He also stated that while he went to the house of convict petitioner, he found the door open and he stayed at the place of occurrence for about 1/2 an hour. He denied the suggestion that no arms were recovered from the possession of the convict petitioner.
8. PW 3 Teleb Ali Bhuiyan, inhabitant of village Atla, stated that on 9-8-2005 at about 8-00 pm police recovered one revolver and two cartridges from the house of convict Md Nasir Mia kept under the bedding and he proved the seizure list and his signature put on the seizure list. On recall, during cross-examination PW 3 stated that Kashem, Barik and many other neighbors of convict Md Nasir Mia were present  at the time of occurrence and he was present at the shop of Abdur Mia and at about 7-30 pm he went to the place of occurrence and stayed there about 1/2 an hour and he also entered into the house of Md Nasir Mia and at that time police personnels were also present there along with Md Nasir Mia. He denied the suggestion that no arm and cartridge were recovered from the possession of the convict petitioner.
9. PW 4 Abdul Hannan of village Atla stated that on 9-8-2005 at about 8-00 pm police recovered one revolver and two caltridges from the house of convict Md Nasir Mia kept under the bedding. He proved his signature put in the seizure list which has been marked as exhibit-1/4 and he identified the seized arms and cartridges. He admitted that the place of occurrence is the house of the wife of convict Md Nasir Mia and his house was situated about  ½  kilometer far from the house of Md Nasir Mia. He also stated that at about 7-30 pm he went to the place of occurrence. He affirmed that he is a member of local Union Parishad and he along with police and convict Md Nasir Mia entered the house of the wife of convict Md Nasir Mia. He denied the suggestion that no arms and ammunition were recovered in his presence from the possession of the convict petitioner.
10. PW5 Constable No. 269 Abu Taher stated that on 9-8-2005 at about 9-30 pm he along with police force went to the house of convict Md Nasir Mia of village Atla and at about 10 to 11 pm as per showing of convict Md Nasir Mia he, recovered one revolver and two cartridges kept under the bedding of chowki and at that time he was present inside the hut and in his presence the informant prepared the seizure list. He proved his signature which has been marked as exhibit-1/5 . In cross-examination in reply to a question put to PW 5, he stated that at evening he started from thana and while he reached at the place of occurrences, he saw that the doors of the house is closed and he and the police force opened the door and 8/9 locals including Union Parishad member came at the place of occurrence. He denied the suggestion that convict petitioner was not aware of the recovered arms and cartridges.
11. PW 6 Constable No. 970 Ajit Kumar Sarkar  stated that on 9-5-2005, he along with SI Ranjit Mojumder and police force went to the house of convict Md Nasir Mia of village Atla and at about 19-55 pm he recovered one revolver and two cartridges from his house kept under the bedding. He identified recovered arms in Court. In cross-examination, he stated that he started at 17-50 pm from thana and after 3 and 1/2 an hour he reaches at village Atla. He denied the suggestion that the place of occurrence is not the house of convict Md Nasir Mia. He affirmed that he found Hannan member, Taleb Ali and 50/60 locals at the place of occurrence. He denied the suggestion that the convict petitioner was falsely implicated in this case.
12. PW 7 Md Imtiaz Ahmed, Inspector of Police. DB stated that he along with SI Ranjit Mojumder and police force on 9-8-2005 on the basis of GD Entry No. 530 at about 17-50 pm started for village Atla by a Government pickup. At aboLit 19-55 pm they reached at the house of Nazma Begum and in presence of the local members and the respectable persons as per showing of convict petitioner recovered one 32 bore revolver and 2 cartridges from the east facing tin-shed dwelling hut of the convict kept under the bedding in the polythene bag and in presence of the witnesses pol ice prepared the seizure list. During cross-examination, he admitted that convict petitioner was on remand before recovery of the arms and Nazma Begum. wife of convict Md Nasir Mia is the Owner of the house wherefrom the arms and cartridges were recovered. He also affirmed that the house of convict petitioner and his wife is the same house. He denied the suggestion that before one month of Occurrence convict Md Nasir Mia was detained at Brahmanbaria Thana and at the instance of his local enemy, he falsely implicated him in this case. He affirmed that it was a dark night while the arms were recovered and he did not enter into the house wherefrom the arms were recovered. but stated that the respectable 'persons of the locality went to the place of occurrence along with the informant. He also denied the suggestion that no arms and cartridges were recovered from the possession of the convict petitioner.
13. PW 8 Muslim Mia is the inhabitant of village Atla Wherefrom the alleged arms were recovered and convict Md Nasir Mia is his neighbor. PW 8 was declared hostile. During the cross-examination, he stated that convict Md Nasir Mia resides in the house of his wife at village Atla. He also stated that he does not know as to whether there is any local enemy of the convict petitioner.
14. PW 9 SI Md Jashimuddin is the Investigating Officer and he stated that during investigation of the case he prepared the sketch map and index and recorded statement of witnesses and after investigation he found prima-facie truth of the allegation made in the FIR and submitted charge sheet against the convict petitioner under Section 19A and 19(f) of the Arms Act, 1878.
15. Mr Jahangir Ahmed Khan, the learned Advocate appearing on behalf of the convict Md Nasir Mia submits that he was falsely implicated in the instant case at the instance of the police in connivance with his local rivals and he is also not the owner of the house wherefrom the alleged arms and cartridges were recovered. He further submits that at the relevant time the convict petitioner was in police remand and showing false recovery of arms the police  falsely implicated him in the instant case. He also submit that the sentence imposed by the trial court  is too harsh  and for ends of justice the impugned judgment and order of conviction and sentence is liable to be quashed.       (To be continued)

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