High Court Division :
(Criminal Miscellaneous Jurisdiction)
ANM Bashir Ullah J
Mustafa Zaman Islam J
Sumon Ahmed (Md) alias Sumon-----
July 24th, 2018
Code of Criminal Procedure (V of 1898)
Sections 526 and 185
In order to avoid conflicting decisions and also at the same time in order to bring the real culprits into the book of law for causing murder of deceased both the cases should be heard and disposed of simultaneously by a single Judge and in this it will be just, proper and fair for all the parties if the two pending cases arising out of the murder of single person are being heard simultaneously by a single Judge and considering the facts and figures of the cases since in the case of Hobiganj there are 76 accused, so it will be convenient and proper if both the cases are heard by the Sessions Judge, Hobiganj. ...........13 & 14)
Shahed Ali vs the State, 13 DLR 414 ref.
Md Shakhawat H Khan, Advocate-Petitioner.
Md Aminul Islam DAG with Anwara Shahjahan DAG with Fatema Rashid AAG-For the State.
ANM Bashir Ullah J : This Rule, application under Section 526 read with Section 185 of the Code of Criminal Procedure (in short, the Code) was issued calling upon the opposite parties to show cause as to why the proceedings Sessions case No. 239 of 2013 arising out Lakhai Police Station case No. 9 dated 16-11- 2006 corresponding to GR No. 112 of 2006 (Lakhai) under Sections 147/148/149/447/323/324/326/302/307/427/114 of the Penal Code now pending in the Court of Sessions Judge, Habiganj and the Sessions case No. 373 of 2012 arising out of CR case No. 223 of 2010 (Nasirnagar) under Sections 143/302/34/109 of the Penal Code now pending in the Court of Additional Sessions Judge, 1st Court, Brahmanbaria should not be tried simultaneously by the same competent Court either by in Hobiganj or Brahmanbaria District and /or pass such other or further order or orders as to this Court may seem fit and proper.
2. The facts relevant for disposal of the Rule, in short, is that one Harun Mia was murdered on 15-11-2006 at 4-30 pm and upon the said fact his full brother Md Masuk Mia lodged an FIR with Lakhai Police Station of Hobiganj District on 16-11-2006 naming 76 persons along with unknown 50/60 persons in the FIR alleging inter-alia that the accused persons named in the FIR murdered his brother Harun Mia in the yard of Murul Bari at Kamalpur village of Lakhai Police Station and on the basis of said FIR, Lakhai PS case No. 9 dated 16-11-2006 corresponding to GR No. 112 of 2006 (Lakhai) were started.
3. Police on completion of the investigation submitted report recommending the trial of 74 accused and the case was registered as Sessions case No. 239 of 2013 now pending in the Court of Sessions Judge, Hobiganj and the case was awaiting for framing charge.
4. On the other hand for the self same occurrence of murder of Harun Mia his wife Fultara Begum filed a petition of complaint in the Court of Magistrate Nasirnagar, of district Brahmanbaria against 20 accused alleging inter-alia that accused named in the petition of complaint murdered her husband Harun Mia on 15-11-2006 at 4-30 pm on the bank of the river of Rampur village. Ultimately the said CR case was turned into the Nasirnagar PS case No.5 dated 6-2-2007 and Police on completion of the investigation also submitted Police report in this case recommending the trial of the 20 accused and this case was registered as Brahmanbaria Sessions case No. 373 of 2012, now pending in the Court of Additional Sessions Judge, 1st Court, Brahmanbaria and has been awaiting for framing charge.
5. The Rule petitioner Md Sumon Ahmed alias Sumon Is the accused of the Lakhai PS case No.9 dated 16-11-2006, that is, he is an accused of the Hobiganj Sessions case No. 239 of 2013, Since for the murder of Harun Mia two cases have been started against the two sets of accused in two different districts in one Hobiganj and another one in Brahmanbaria, the petitioner in order to have a simultaneous trial of both the proceedings moved this Court filing an application as stated hereinbefore and accordingly the Rule was issued.
6. On the date of issuance of the Rule on 30-9-2013 proceedings of the both cases were stayed for 6 (six) months thereafter it was extended from time to time for a limited period and lastly it was extended on 24-8-2017 for 1 (one) year and the same is still continuing.
7. Mr Md Shakhawat H Khan, the learned Advocate appearing for the petitioner submits that Harun Mia, the deceased of the both the cases was murdered on 15-11-2006 at 4-30 pm and for his such murder two cases were filed by his two nearest relatives, one by his brother and another one by his wife. His brother Masuk Mia filed the case on the following day on 16-11-2006 with Lakhai Police Station against 76 accused alleging that the occurrence took place in the yard of Murul bari at Kamalpur village while his wife Most. Fultara Begum filed another CR case before the Judicial Magistrate, Brahmanbaria as complainant mentioning the same time of occurrence but giving a different place of occurrence and to her estimation the occurrence took place on the bank of the river of Rampur village and in both the cases the accused are different but both the cases were filed to secure the justice of the murder of deceased Harun Mia.
8. The learned Advocate also submits that both the cases are matured now and have been awaiting for framing charge in but two different districts. The case filed by the brother of the deceased is pending in the Court of Sessions Judge, Hobiganj while the case filed by the wife of deceased is now pending as Sessions case No. 373 of 2012 in the Court of Additional Sessions Judge, 1st Court Brahmanbaria. If the two cases are disposed of and decided separately by two Judges having no communication with each other there may be the miscarriage of justice and contradictory decisions and the real culprit cannot be brought into the justice, so in order to secure conviction and sentence of the person or persons who are involved in the murder of the deceased, both the cases should be heard and disposed of simultaneously by the same judge.
9. He also adds that in order to avoid any conflicting decision and findings and also in order to secure the ends of justice Rule petitioner has filed this petition for the simultaneous trial of both the cases by a judge either in the district Brahmanbaria or at Hobiganj as the Court may deem fit and proper.
10. Mr Md Aminul Islam, learned Deputy Attorney General appearing for the state finds it difficult to oppose the Rule.
11. We have considered the above submissions of the learned Advocates of both the parties with profound attention and have gone through the materials on record particularly the FIR of both the cases and the other materials on record.
12. On going to the materials on record it appears that for the murder of Harun Mia two cases were started one by his brother at Lakhai Police Station and another one by his wife at Nasirnagar Police Station and both the cases are matured now. Lakhai PS case No.9 dated 16-11-2006 has been turned into the Sessions case No, 239 of 2013 while the Nasirnagar PS case No.5 dated 6-2-2007 (arising out of CR case) has been turned in Sessions case No. 373 of 2012 pending before the Additional Sessions Judge 1st Court, Brahmanbaria.
13. From the materials on record it appears that two nearest relatives are interested, for the conviction and sentence of two sets of accused. The brother Masuk Mia filed the case against 76 accused while wife Most. Fultara Begum filed the case against another sets of accused. The accused persons are not common in both the cases. We find that if both the cases are heard and disposed of by a single Judge there will be less possibility of miscarriage of justice and that will be helpful to render fair and equitable justice to bring the real culprit into the law for causing murder of deceased and if two cases are decided and disposed of by the two separate Judges in two separate districts there may be conflicting and contradictory decisions also which is not desirable at all and in that case the total trial may be under question. So we are of the opinion that in order to avoid conflicting decisions and also at the same time in order to bring the real culprits into the book of law for causing murder of deceased Harun Mia both the cases should be heard and disposed of simultaneously by a single Judge and in this connection we can also refer the case of Shahed Ali vs State, 13 DLR 414. In the reported case there lordships held in the following way: (para 13).
"We would also like to point out that whenever there is a case and a counter case in respect to the same occurrence; it is desirable that they should be tried simultaneously by the same learned Judge, yet the records of each case should be kept distinct and separate. The evidence or record of one case cannot be used in connection with the other case. Each case must be decided on its own evidence and record. The advantage of a simultaneous trial is that it gives the trying Judge a whole picture which will help him to appreciate properly the evidence in each case, but it does not enable him to use the record of one case for the purpose of disposing of the other case."
14. Having regards to the above decision we find that it will be just, proper and fair for all the parties if the two pending cases arising out of the murder of single person Harun Mia are being heard simultaneously by a single Judge and considering the facts and figures of the cases since in the case of Hobiganj there are 76 accused, so it will be convenient and proper if both the cases are heard by the Sessions Judge, Hobiganj. As such we find merit in the Rule.
15. In the result, the Rule is made absolute. The Sessions case No. 373 of 2012 now pending in the Court of Additional Session Judge, 1st Court, Brahmanbaria is transferred in the Court of Sessions Judge, Hobiganj with a direction to dispose of the case by the Sessions Judge, Hobiganj or by any other competent Judge having jurisdiction to try the case simultaneously with the Sessions case No. 239 of 2013 pending in the Court of Sessions Judge, Hobiganj.