Friday, May 24, 2019 | ePaper

Court is legally authorized to review or modify sentence

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(From previous issue) :
16. Mr Monjur Kader, the learned Deputy Attorney General appearing on behalf of the state submits that PWs 2.3 and 4 who were present at the time of recovery of arms are locals and they also corroborated the evidence of PWs I, 5, 6 and 7 who were police personnel and there is no legal ground for quashing the judgment and order of conviction and sentence passed by the trial Court against the convict petitioner.
17. The issue involved in the Rule as to whether the prosecution successfully proved the charge against the convict petitioner under Section 19A and 19(f) of the Arms Act, 1878 and further question involved as to whether under Section 561A of the Cude of Criminal Procedure, 1898 this Court is authorized to review the sentence passed by the trial Court.
18. To answer the points raised, it is required to quote the provision of Section 561 A of the Code of Criminal Procedure which runs as follows;
"Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court Division to make such orders as may be necessary to give effect to any order under this Code. or to prevent abuse of the process of any Court or otherwise to secure such the ends of justice."
19. On a careful reading of the provision of Section 561A of the Code of Criminal Procedure it is found that by inserting Section 561A in the Code the legislature did not confer any new power to the Court to bypass or override any other statutory provision and this Court is not legally authorized to assess the evidence like an appellate court. On perusal of the evidence if this Court finds that there is no legal evidence to connect the convict with the charge framed against him then this Court to secure the ends of justice is competent to quash the judgment and order of conviction and sentence passed by the trial Court. If there  is sufficient evidence against the convict it would not be just and proper to exercise its jurisdiction to quash the judgment and order of conviction and sentence passed by the trial Court.
20. On perusal of the evidence. it transpires that PW 1 Ranjin Mojumder along with PWs 5. 6. 7 and police force went to the house of convict Md Nasir Mia on 9-8-2005 at about 19-55 pm and in presence of local witnesses recovered one 3.2 bore revolver and two cartridges from the east facing tin-shed dwelling hut of the convict petitioner kept under the bedding of Chowki. PWs 2, 3 and 4 who are locals also corroborated the evidence of PW I. PW 4 Abdul Hannan is the local member of the Union Parishad. During the trial, PW 5 Police Constable No. 269 Abu Taher, PW 6 Constable No. 970 Ozid Kumar Sarker and PW 7 Inspector of Police Md Imtiaz Ahmed also corroborated the evidence of PW I as regards recovery of arms from the possession of the convict Md Nasir Mia. PW 8 was declared hostile by the prosecution, but during cross-examination, he affirmed that convict Md Nasir Mia resides along with his wife at village Atla wherefrom the alleged arms were recovered. The defence cross examined all the P.Ws but failed to bring out any material contradiction as regards statement made in examination in chief regarding recovery of arms from possession of convict petitioner.
21. Section 561 A was inserted in the Code by the Code of Criminal Procedure (Amendment) Act, 1923 (XVIII of 1923) and after that the Privy Council in the Case of Emperor vs Khwaja Nazir Ahmed reported in AIR (1945) PC 18 examined the inherent power of this Court under Section 561 A and observed that;
"It has sometimes been thought that 561A has given increased powers to the Court which it did not possess before that Section was enacted. But this is not so, the section gives no new powers, it only provides that those which the Court already inherently possess shall be preserved and is inserted as their Lordships think, lest it should be considered that only powers possessed by the Court are those expressly confered by the Criminal Procedure Code and that no inherent powers had survived the passing of the Act." (1944) LR 71. fA 203, 212, Privy Council, King Emperor vs Khawaja Nazir Ahmed. [As quoted in AIR 1963 (SC) 447]
22. In the case of Md Samiullah vs State repolted in 15 DLR (SC) 150, the Supreme Court of Pakistan examined the inherent power of the court under Section 56lA of the Code of Criminal Procedure as regards alteration and modification of the sentence passed by the trial Court and held as under;
"The jurisdiction under Sec. 561A of the Criminal Procedure Code is, in our opinion, of an extraordinary nature intended to be used only in extraordinary cases where there is no other remedy available. It is of a limited scope and cannot be utilised where there is another express remedy provided by the Code of Criminal Procedure. In the exercise of the inherent jurisdiction under this section the High Court can neither exercise the powers of a Court of appeal nor can it enhance a sentence nor can it even re-consider the question of sentence."
23. In the case of Abdul Quader Chowdhury and the state reported in 28 DLR (AD) 38 our Apex Court after elaborate discussion of the provision of Section 561A of the Code of Criminal procedure, 1898 made some category of cases where this Court can exercise is jurisdiction under the said section and observed in the following terms;
    "a)  some categories of cases may also be indicated where the inherent jurisdiction can and should be exercised for quashing the proceeding. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the Court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal  proceedings in question are in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceedings the High court would be justified in quashing the proceedings on that ground.
b)    Cases may also arise where the allegations in the first Information Report or the complaint even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged in such cases no question of appreciating evidence arises, it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases. it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person.
c)    The third category of cases in which the inherent jurisdiction of the High Court can be invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is consistent with the accusation made and cases where there is legal evidence which on its appreciation may not support tne accusation in question. In exercising the jurisdiction under Section 561 A the High Court would not embark upon an inquiry as to whether the evidence in question is reliable or not. That is the function of the trial Magistrate and ordinarily, it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly speaking that is the nature and scope of the inherent jurisdiction of the High Court under Section 561A in the matter of quashing criminal proceedings.
24. In the case of Golam Rasul vs Habibullah Shakir reported in 20 BLC (AD) 58, Judgment dated 11-6-2013 our Apex Court considering the other decisions of the Apex Court as regards jurisdiction under Section 561A of the Code of Criminal Procedure observed in the following terms;
"The exercise of jurisdiction under inherent power as envisaged under Section 561 A of the Code of Criminal Procedure to have the criminal proceedings quashed is an exception rather than a rule and the case for quashing must be treated as rarest of rare cases so that it can't scuttle or bury a prosecution case on flimsy and unfounded reasons. The High Court Division though, is clothed with inherent power to quash a proceeding or to make such order or orders as may be necessary for the ends of justice that power should be exercised in appropriate
case, sparingly and cautiously but in the above case the High Court Division on a flimsy ground quashed the proceeding of a Criminal Case which is liable to be knocked down by this Division."
25. In the case of Mir Mohammad Ali vs The State, Judgment dated 11th May 1993. (Special Tribunal Case) , para 10 as regards the jurisdiction of the High Court Division under Section 561A of the Code of Criminal Procedure his Lordship Mr AKM Sadeque J observed in the following term
"This section enables the Court to invoke the inherent jurisdiction in order (I) to give effect to any order under the Code. or (2) to prevent abuse of the process of any Court or (3) otherwise to secure the ends of justice. In the instant case there is no allegation that the Tribunal who tried the case was Coram nonjudice or that Law of Limitation cannot strike down there was any legal bar to try the cases; nor is there any allegation of abuse of process of the Court. "
26. In the referred case his Lordship Mr Justice AKM Sadeque echoes the view made in the case of Md Salimullah vs State reported in 15 DLR (SC) 150 and further observed that
"But in the cases under consideration. it is not the provisions under the Code which seek to limit the inherent jurisdiction of the Court. It is the law of limitation which limits the jurisdiction. In other words, it is the law of limitation and not any provisions of the Code that has taken off the cases out of the jurisdiction of the Code sealing their fate. Therefore, Section 561 A of the Code of Criminal Procedure cannot be conceived to give the High Court the jurisdiction to retrieve the case from moratorium after they have been barred by limitation. The Section 561 A of the Code of Criminal Procedure has not given any new jurisdiction to the High Court to override other laws. It is easy to see that this Court cannot have any inherent jurisdiction to strike down the law of limitation in the following terms;"
27. Subsequently in the case of Jahangir Alom (Md) alias Zakir vs State reported in 56 DLR (AD) 217 our Apex Court' modified the sentence under Section 561 A of the Code of Criminal Procedure and observed that;
"Having regard to the above finding of the High Court Division, we are of the view that the ends of justice will be met if this application is disposed of with modification of sentence. Accordingly maintaining the conviction, the sentence is modified to 10 (ten) years rigorous imprisonment and to a fine of Taka 5,000 in default to suffering rigorous imprisonment for 6 (six) months more."
28. Since our Apex Court in the referred case modified the sentence under Section 561A of the Code of Criminal Procedure, we are of the view that this Court also in an appropriate case is legally authorized to review or modify the sentence passed by the trial Court to secure ends of justice.
29. In the instant case, it is found that P.Ws. 2, 3 and 4 who are the local respectable persons of the locality of the crime site corroborated evidence of PWs 1 and 5 to 7 who are police personnel as regards recovery of arms from the possession of the convict Md Nasir Mia and their evidence remains unshaken during crossexamination. Therefore, we are of the view that the prosecution successfully proved the charge up to the hilt against the convict petitioner under Section 19A and 19(f) of the Arms Act, 1878. In view of the above. We do not find any valid ground for quashing the judgment and order of conviction and sentence passed by the trial court.
30. As regards sentence, we have found that the trial Court convicted accused Md Nasir Mia under Section 19A and 19(f) of the Arms Act. 1878 and sentenced him to suffer rigorous imprisonment for 14 (fourteen) years. We hold that the trial court rightly convicted the accused under Section 19A and 19(f) of the Arms Act. 1878. But so far it relates to the sentence we are of the view that there is no previous record of commission of any offence by the petitioner and therefore the minimum sentence may be imposed on him. Accordingly, we are inclined to modify the sentence passed by the trial Court maintaining the conviction under Section 19A and 19(f) of the Arms Act, 1878.
31. In the result, the Rule is disposed of in the following terms;
(1)     The conviction of the petitioner Md Nasir Mia under Section 19A and 19(f) of the Arms Act, 1878 as found and decided by the trial Court is maintained.
(2)     The sentence of 14 (fourteen) years imposed by the trial Court is modified to the effect that the petitioner is convicted and sentenced to suffer 10 (ten) years rigorous imprisonment under Section 19A and 7 (seven) years  rigorous imprisonment under Section  9(f) of the Arms Act, 1878.
(3)     Both the sentences shall run concurrently.
(4)     The custody period of the convict petitioner before the pronouncement of the judgment by the trial Court shall be deducted under Section 35A of the Code of Criminal Procedure, 1898 from the sentence as modified above.
Send down the lower court records along with a copy of the judgment and order to the concerned Court below.
(Concluded)

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