Saturday, June 24, 2017 | ePaper

Scanty and insufficient evidence not enough to convict an accused

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Appellate Division :
(Civil)
Md Abdul Wahhab Miah J
Nazmun Ara Sultana J
Md lmman Ali J
Abdul     Motaleb   (Md) ………..Appellant
 (In the both Appeals)
vs
Md Kamal Uddin and others .. Respondents
(In CA No. 177 of 2005)
Md Rafiqul Alam and others .. Respondents  
(In CA No. 178 of 2005)
Judgment
May 31st, 2016
Muslim Marriages and Divorce
(Registration) Act (LII of 1974)
Section 4
When a Kazi is appointed, his service will continue as Kazi until and unless he is in any way disqualified under the law. Upon conversion of the Union Parishad to a Pourasava only the character of the Administrative unit changes. It is our view that Kazi, who was operating as such within the Union Parishad continued as Kazi for the whole area of that Union Parishad, which then became the Pourasava, i.e. he continued as Kazi for all Wards of the newly created Pourasava until his jurisdiction was lawfully curtailed in respect of some Wards. The law permits the Government to curtail the jurisdiction of Kazis...(8)
Jamir Uddin Sirker, Senior Advocate, instructed by Md Wahidullah, Advocate-on-Record-For the Appellant  (In both the Appeals).
Mohammad Hossain, Advocate, instructed by Nurul Islam Chowdhury Advocate-on-Record-For Respondent No. I (In CA No. 177 of 2005).
Md Zahirul  Islam, Advocate-on-Record-For Respondent No. 1 (In CA No. 178 of 2005).
Mohammad Hossain, Advocate, instructed by Nurul Islam Chowdhury Advocate-on-Record-For Respondent No.9 (1n CA No. 178 of 2005).
None Represented-Respondent Nos. 2-9 (In CA No. 177 of 2005).
None Represented-For Respondent Nos. 2-8 (In CA No. 178 of 2005).
Judgment
Md Imman Ali J : These two Civil Appeals, by leave, are directed against the judgment and order dated 6-12-2004 passed by the High Court Division upon hearing Writ Petition Nos. 5043 of 2003 and 4808 of 2003, making the Rules absolute.
2. The facts of the case, in brief, are that Md Kamal Uddin respondent No.1 in Civil Appeal No. 178 of 2005 (petitioner in Writ Petition No. 4808 of 2003) was appointed as Nikah Registrar for Chhagalnaiya Union Parishad No.7 in District Feni and worked as such, and that in the meantime Chhagalnaiya Union Parishad was converted into a Pourasava and after creation of the Pourasava one Md Rafiqul Alam Mizi was appointed Nikah Registrar for Ward Nos. I, 2 and 3 of Chhagalnaiya Pourasava on 31-3-2003. Subsequently, Md Rafiqul Alam respondent No. 1 in Civil Appeal No. 177 of 2005 (petitioner in Writ Petition No. 5043 of 2003) was appointed as Nikah Registrar for Ward Nos. 4, 5 and 6 of the said Paurasava on 6-4-2003. Subsequently by memo dated 30-6-2003 Md Abdul Motaleb, the appellant in both the appeals, was appointed Nikah Registrar for Ward Nos. 4, 5 and 6 of the Paurasava while aforesaid Md Rafiqul Alam was appointed Nikah Registrar for Ward Nos. 7, 8 and 9. Thus Md Abdul Motaleb has been discharging his duties as Nikah Registrar for Ward Nos. 4, 5 and 6. This appointment stood unaltered in the later memo dated 6-7-2003, i.e. the appellant Motaleb has been Nikah Registrar for Ward Nos. 4, 5 and 6 while Md Rafiqul Alam was Nikah Registrar for Ward Nos. 7, 8 and 9 by dint of the same memo dated 30-6-2003.
3. Challenging the memo dated 3'0-6-2003 Md Rafiqul Alam filed Writ Petition No. 5043 and Md Kamal Uddin filed Writ Petition No. 4808 of 2003 before the High Court Division and obtained Rules, which upon hearing the parties were made absolute.
4. Against the judgment and, order of the High Court Division the writ respondent Md Abdul Motaleb filed Civil Petition for Leave to Appeal Nos. 128 and 129 of 2005 before this Division whereupon leave was granted to consider the following grounds:
"I. For that the petitioner was appointed Nikah Registrar for Ward Nos. 4,5; and 6 by Memo dated 30-6-2003 and Md Rafiqul Alam was appointed to work in Ward Nos. 7,8 and 9. 'But as a result' of 'declaring memo dated 30-6-2003 as illegal, the appointment of the petitioner Md Abdul Molaleb as Nikah Registrar for Ward Nos. 4, 5 and 6 has been set at naught while the appointment of Md Rafiqul Alam for Ward Nos. 4; 5 and 6 made previously by Memo dated. 6-4-2003 has remained unaffected and as, a result, the petitioner has been deprived of all the Wards.  
II. For that in view of the impugned judgment Ward Nos. 4, 5 and, 6 went back to respondent Md Rafiqul Alam. Md Kamal Uddin, the other respondent being former Nikah Registrar of the whole Union (before conversion as Pourasava) kept in his control the area of Ward Nos. 7, 8 and 9.
III. For that in the impugned judgment the definite finding of interpolation in the basic document of appointment of respondent Md Kamal Uddin, as to commission of interpolation, he has got no right to stick to the position as Nikah Registrar of Ward Nos. 7, 8 and 9 but in view of the High Court Division making the Rule absolute his appointment also remains unchanged.
IV. For that the finding of the High Court Division that the appointment of the petitioner Md Abdul Motaleb as Niakh Registrar is not sustainable, is not based on any legal basis and, therefore, suffers from serious error of law."
5. Mr Jamir Uddin Sirker, learned Senior Advocate appearing on behalf of the appellant in both the appeals made submissions in line with the grounds of appeal upon which leave was granted. The learned Advocate further submitted that when the Union Parishad was converted into Pourasava, the incumbent Kazi namely Md Kamal Uddin (petitioner in Writ Petition No. 4808 of 2003) was no longer Kazi since the Union Parishad no longer existed. Thereafter, when the Pourasava was divided into 9 Wards the appellant was appointed Kazi for Ward Nos. 4, 5 and 6.
He submitted that in such circumstances the High Court Division erred in law in making the Rule absolute, taking away from the appellant Ward Nos. 4, 5 and 6 for which he had been legally appointed Kazi and wherein he had worked as Kazi since 30-6-2003.
6. Mr Mohammad Hossain, learned Advocate appearing on behalf of the respondent in Civil Appeal No. 177 of 2005 submitted that when the Union Parishad was converted to Pourasava, Kamal Uddin, who had been the Kazi for Union Parishad automatically continued as the Kazi for the newly created Pourasava. He pointed out that on 31-3-2003 Rafiqul Alam Mizi was appointed Kazi for Ward Nos. 1, 2 and 3 of the newly created Chhagalnaiya Pourasava. On 6-4-2003 respondent No.1 in Civil Appeal No. 177 of 2005 (petitioner in Writ Petition No. 5043 of 2003) was appointed as Kazi for Ward Nos. 4, 5 and 6. However, by the memo impugned in the writ petitions dated 30-6-2003 Md Rafiqul Alam was appointed Kazi for Ward Nos. 7, 8 and 9 and Md Abdul Motaleb (appellant herein) as Kazi for Ward Nos. 4, 5 and 6 in place of Md Rafiqul Alam. Md Rafiqul Alam challenged the impugned memo on the ground that he was a resident within Ward Nos. 4, 5 and 6 and therefore, his appointment for Ward Nos. 7, 8 and 9 was not legal and proper. He submitted that the High Court Division rightly made the Rule absolute and put Md Rafiqul Alam the respondent back to his earlier position, i.e. Kazi of Ward Nos. 4, 5 and 6.
7. We have considered the submissions of the learned Advocates appearing for the parties concerned and perused the impugned judgment of the High Court Division and other connected papers on record.
8. We have to point out at the outset that when a Kazi is appointed, his service will continue as Kazi until and unless he is in any way disqualified under the law. We could not accept the submission of Mr Sirker that when the Union Parishad was converted to a Poursava, Md Kamal Uddin ceased to be Kazi. Upon conversion of the Union Parishad to a Pourasava only the character of the Administrative unit changes. It is our view that Kazi, who was operating as such within the Union Parishad continued as Kazi for the whole area of that Union Parishad, which then became the Pourasava, i.e. he continued as Kazi for all Wards of the newly created Pourasava until his jurisdiction was lawfully curtailed in respect of some Wards.
Our contention is supported by memo No. 839 dated 21-8-2002 sent by the District Registrar (Current Charge), Feni addressed to the Secretary, Ministry of Law, Justice into Parliamentary Affairs requesting authority for the incumbent Nikah Registrar of No. 7 Chhagalnaiya Union, namely Kazi Mvi Kamal Uddin to continue as Kazi for the newly created Chhagalnaiya Pourasava. However, the law permits the Government to curtail the jurisdiction of the Kazis. This appears to have been done firstly by appointing Md Rafiqul Alam Mizi as Kazi for Ward Nos. 1,2 and 3 of the said Pourasava and, thereafter, by appointing Md Raliqul Alam (respondent herein) as Kazi for Ward Nos. 4, 5 and 6. This meant that after the appointment of Kazi Md Rafiqul Alam Mizi for Ward Nos. 1, 2 and 3 and Md Rafiqul Alam for Ward Nos. 4, 5 and 6, Ward Nos. 7, 8 and 9 remained with the original Kazi namely Md Kamal Uddin.
9. By the impugned memo dated 30-6-2003 the appellant Md Abdul Motaleb was appointed as Kazi in place of Md Rafiqul Alam for Ward Nos. 4, 5 and 6 and said Md Rafiqul Alam was appointed as Kazi for Ward Nos. 7, 8 and 9 thereby altogether displacing Md Kamal Uddin, who was left with no jurisdiction as Kazi within Chhagalnaiya Pourasava.
10. Md Kamal Uddin filed Writ Petition No.4808 of 2003 impleading Md Abdul Motaleb as respondent No. 4. He contended that he was appointed as a Nikah Registrar permanently in the No. 7 Chhagalnaiya Union Parishad which was converted to Chhagalnaiya Pourasava. But as a result of the impugned memo he was left with no jurisdiction as Kazi in any of the Wards of the Pourasava.
11. We note from the records that although the appellant before us was respondent No.4 in the Writ Petition filed by Md Kamal Uddin, he did not file any affidavit-in-opposition controverting the averments made by the writ petitioner.
Hence, those statements of Md Kamal Uddin, including his contention that he continued as Kazi, remained unchallenged.
12. By the impugned judgment and order of the High Court Division the petitioner in Writ Petition No. 5043 of 2003, namely Md Rafiqul Alam was placed back in his former position as Kazi for Ward Nos. 4, 5 and 6, thereby reinstating him in the Wards for which he had been appointed earlier. This resulted in the appellant being displaced from those Wards. We do not find any illegality in the decision of the High Court Division in reinstating Md Rafiqul Alam as Kazi of Ward Nos. 4, 5 and 6 where he is a resident.
13. Similarly, since the petitioner of Writ Petition No. 4808 of 2003, namely Md Kamal Uddin had retained his position as Kazi of Ward Nos. 7, 8 and 9 and as there was no question of appointing him as Kazi for those Wards, since he was already Kazi for those Wards, we do not find any illegality in the impugned judgment of the High Court Division making the Rule absolute in case of Writ Petition No. 4808 of 2003.
14. In the facts and circumstances discussed above, we do not find any illegality or impropriety in the impugned judgment and order of the High Court Division.
Accordingly, both the appeals are dismissed without, however, any order as to costs.

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