Ayub Ali Vs. State

Criminal Appeal No. 3013 of 2008

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

Criminal Appeal No. 3013 of 2008

Decided On: 10.09.2015

Ayub Ali Vs. State

Hon’ble Judges/Coram:
Soumendra Sarker and A.N.M. Bashir Ullah, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: M.A. Shahid Chowdhury, Advocate

For Respondents/Defendant: M.A. Mannan Mohon, D.A.G., Md. Aminur Rahman Chowdhury and Bazlur Rashid, A.A.Gs.

Subject: Criminal Law

Acts/Rules/Orders:
Code of Criminal Procedure, 1898 (CrPC) – Section 161; Code of Criminal Procedure, 1898 (CrPC) – Section 342; Code of Criminal Procedure, 1898 (CrPC) – Section 509A; Evidence Act, 1872 – Section 114(g), Evidence Act, 1872 – Section 134; Penal Code, 1860 – Section 302, Penal Code, 1860 – Section 34

Citing Reference:

Case Note:
Criminal – Legality of Conviction – Sections 34 and 302 of Penal Code – Whether judgment and order of conviction and sentence passed by Additional Sessions Judge, convicting appellants under Sections 302 r/w 34 of Penal Code and sentencing them to suffer rigorous imprisonment for life and to pay a fine and in default to suffer rigorous imprisonment for one year more is legal? – Held, evidence of PW 1 is shaky and highly doubtful and not supported by other circumstantial evidence along with autopsy report of deceased – Consequently, conviction on basis of such solitary evidence is not proper and legal – From face of record it is apparent that medical report containing several injuries with stab wound which is coming after postmortem of dead body is incompetent with prosecution case and as well as testimony of solitary witness PW 1 is inconsistent – Secondly, with regard to means of recognition this court find from evidence that place of occurrence is not a market place rather it is such a place; where there exist no source of light – Hence; it can be easily held that, non seizure of means of recognition is a very important factor and vital thing of this case which has falsified case of prosecution and besides this there is no legal evidence from side of prosecution to implicate accused person with occurrence of killing victim – Having gone through evidence on record it appears that prosecution is standing on a very weaken evidence which is not credible and trustworthy rather it is shaky – Prosecution in this case under preview of Evidence Act failed to discharge their onus in proving their case beyond all shadow of doubt – In view of fact, impugned order of conviction and sentence is based on surmise and conjecture and not founded on legal evidence and, as such, same is not sustainable in law – In result, both Criminal Appeal are allowed – Impugned judgment and order of conviction and sentence passed by Additional Sessions Judge convicting accused/appellants under Sections 302 r/w 34 of Penal Code and sentencing them to suffer rigorous imprisonment for life and to pay a fine in default to suffer rigorous imprisonment for one year more is hereby set aside, so far as it relates to conviction and sentence of two accused/appellants namely A and G- Accused/appellants A and G be acquitted from charge levelled against them under sections 302/34 of Penal Code and let accused/appellant A be set at liberty forthwith if not wanted in connection with any other case and in respect of bailed out accused G, sureties are hereby discharged from their bail bonds – Criminal Revision accordingly be rejected. [24],[25],[27], [28],[29],[30]

JUDGMENT

Soumendra Sarker, J.

1. The Criminal Appeal being No. 3013 of 2008 at the instance of convict-appellant Md. Ayub Ali and the Criminal Appeal No. 4174 of 2012 is directed at the instance of the convict-appellant Abdul Gafur and the Criminal Revision No. 1115 of 2008 is directed at the instance of the informant Nurul Alam, son of Haji Abdus Sobhan against the judgment and order of conviction and sentence dated 12-2-2008 passed by the learned Additional Sessions Judge, Court No. 4, Chittagong in Sessions Case No. 45 of 1992 arising out of Rangunia Police Station Case No. 3(4) of 1987 dated 12-8-1987 corresponding to GR No. 30 of 1987 convicting the appellants under sections 302/34 of the Penal Code and sentencing them to suffer rigorous imprisonment for life and to pay a fine of Taka 20,000 in default to suffer rigorous imprisonment for one year more. The prosecution case in a nutshell can be stated thus, one Nurul Alam, son of Haji Abdus Sobhan of village-Paschim Nishintapur, under Rangunia Police Station of Chittagong District lodged an ejahar with the Officer-in-Charge of Rangunia Police Station on 12-4-1987 contending inter alia that on 11-4-1987 at 20.30 hours the brother of the informant namely Abdus Sattar in the afternoon went to Ranirhat Bazar which is two miles away from the residence. At the time of occurrence at about 8-00 pm. Abdus Sattar started for his residence which is situated in the village Paschim Nishintapur along with his co-villager Badsha Mia. At about 8-30 pm out of previous enmity in respect of land litigation the accused persons namely Ayub Ali, Md. Harun and two other unknown persons resisted them on the way. The accused Ayub Ali had a ‘dao’ in his hand and finding this the brother of the informant Abdus Sattar and Badsha Mia ran away towards paddy field. The accused Ayub Ali, Harun and the remaining two other unknown assailants running after them gheraoed Abdus Sattar in that paddy field. At that time Abdus Sattar fell down and the accused Harun along with the other two unknown accused caught hold of him and thereafter the accused Ayub Ali slaughtered the informant’s brother Abdus Sattar by means of his “dao”. Instantly, the brother of the informant Abdus Sattar died. Badsha Miah thereafter coming to his residence informed the matter to the inmates of the house and after getting that information the informant along with his other villagers and the relations went to the place of occurrence and found the dead body of the deceased Abdus Sattar.

2. Getting the aforesaid ejahar from the informant, Rangunia Police Station Case No. 3(4) 87 was started, Rangunia police investigated the case and during investigation the investigating officer Sub-Inspector Md. Alimuzzaman went to the place of occurrence and prepared the inquest report of the deceased Abdus Sattar and thereafter sent the dead body to Chittagong Medical College Hospital morgue for postmortem. On 13-4-1987 the doctor did the postmortem of the dead body and submitted his postmortem report. The investigating officer during his investigation also prepared the sketch map and index of the place of occurrence and examined the witnesses under section 161 of the Code of Criminal Procedure and after investigation while the case was proved prima-facie he submitted charge sheet No. 56 dated 28-9-1987 under sections 302/34 of the Penal Code against the accused persons namely Ayub Ali, Md. Harun and Md. Gafur. Subsequently, while the case was ready for trial it was sent to the learned Sessions Judge, Chittagong and the learned Sessions Judge transmitted the same to the 4th Court of learned Additional Sessions Judge, Chittagong. Prior to that the learned Sessions Judge in that Sessions Case being No. 45 of 1992 framed charge against the accused persons under sections 302/34 of the Penal Code which was read over to the presentee accused Ayub Ali and Harun at which they pleaded not guilty and claimed to be tried. The remaining accused Abdul Gafur remained absconding and as a result of that the charge was not read over to him. The learned Additional Sessions Judge during trial of the original case examined as many as 07 witnesses and thereafter examined the presentee accused-appellant Ayub Ali under section 342 of the Code of Criminal Procedure and at that time also Ayub Ali pleaded not guilty and declined to adduce evidence in his support. Since the accused Abdul Gafur and Harun were absconding it was not possible for the trial court to examine them under section 342 of the Code of Criminal Procedure and after the close of evidence scanning the same and the hearing the learned Advocates of the parties the learned Additional Sessions Judge, 4 Court, Chittagong passed the impugned judgment and order of conviction and sentence on 12-2-2008.

3. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence the aforesaid two appeals were preferred and the above mentioned Criminal Revision being No. 1115/2008 was preferred by the informant of this case for enhancement of the conviction and sentence awarded against the accused persons.

4. All the two appeals along with the Criminal Revision are taken up together for the sake of brevity as they are inter-related with one-another and being disposed of by this single judgment.

5. Mr. MA Shahid Chowdhury, the learned Advocate appeared on behalf of the accused-appellants while none appeared on behalf of the petitioner of the criminal revision and Mr. MA Mannan Mohon, the Deputy Attorney-General with Mr. Md. Aminur Rahman Chowdhury, and Mr. Kazi Bazlur Rashid, Assistant Attorney-Generals are appeared on behalf of the State-respondents.

6. The learned Advocate appearing on behalf of the convict-appellants in support of the appeals submits that the impugned judgment and order of conviction and sentence has been passed on surmise and conjecture and the learned Additional Sessions Judge, 4 Court, Chittagong being guided by emotion without any legal evidence awarded the conviction and sentence which is liable to be set aside. The learned Advocate further submits that the prosecution of this case during trial of the original Case has hopelessly failed to prove the basic requisites of conviction, which are the place of occurrence, time of occurrence and manner of occurrence. The learned Advocate also submits that in the instant case the solitary ocular witness upon which the learned trial court relied on, is not at all trustworthy, credible as well as dependable; rather the evidence of the solitary witness has been shaken and in consultation with other materials on record there is no means of recognition in the instant case while the alleged time of occurrence was 8.30 p.m. and that was not a moonlit night. The learned Advocate further submits that there is no explanation from the side of the prosecution as to why the alleged torch light by the flash of which the witness Badsha Mia could recognize the assailants was not seized by the investigating officer. Furthermore; the postmortem report of the dead body not at all supported the prosecution case with regard to the injuries as stated from the side of the prosecution to the person of the deceased Abdus Sattar. The only eye witness of the case Badsha Mia who is PW 1, is not at all dependable and he is mere a chance witness and in fact there is no incriminating evidence against the accused-appellants by dint of which they can be connected with the alleged occurrence of killing the victim Abdus Sattar. There is no corroborative evidence to justify the manner of occurrence as stated from the side of the prosecution. In the instant case; there is no independent, disinterested credible witness who can be relied upon to hold such a view that the allegation of killing the victim Abdus Sattar has been proved. The learned Advocate lastly submits that it is nowhere in the evidence that there was any means of recognition in the possession of the so-called eye witness Badsha Mia at the time of occurrence by which he recognized the accused-appellants in the dark night. In the postmortem report it is evident that not only due to the throat injury cause by slaughtering of the deceased but also for number of other injuries the deceased died. So; the manner of occurrence as stated by the prosecution is not consistent with the doctor’s report, who did the postmortem of the deceased. Besides this; there is no citation within the four corners of the ejahar that as to how the only eye-witness of the occurrence was able to recognize the assailants of this case. Admittedly; between the parties there was previous enmity and as a result of that it can be easily held that out of that previous enmity the accused persons has been falsely implicated in this case. The learned Advocate in his concluding submission submits that, save and except the only witness PW 1 Badsha Mia there is no other neighboring witness of the place of occurrence who deposed in support of the prosecution case and as such the accused-appellants are entitled to get the benefit of section 114(g) of the Evidence Act in their favour and, as such, there is no legal basis of the impugned order of conviction and sentence as awarded by the learned trial court against the convict-appellants. Apart from this; as per prosecution, the place of occurrence is a paddy field and it is quite natural that it was a dark place in the night. The learned Advocate in support of his aforesaid argument referred two case laws reported in LEX/BDHC/0249/1989 : 42 DLR 511 and 43 DLR (AD) 95.

7. As against the aforesaid submissions of the learned Advocate for the convict-appellants, the Deputy Attorney-General along with the learned Assistant Attorney-Generals in support of the prosecution case submits that the learned trial court during disposal of the original Sessions case committed no illegality or irregularity. The learned Assistant Attorney-General Mr. Md. Aminur Rahman Chowdhury further submits that the eye witness of the occurrence Badsha Mia accompanied the deceased at the time of occurrence and this PW 1 Badsha Mia specifically asserted to the effect that he could recognize the accused persons at the time of occurrence who first of all gheraoed the deceased Abdus Sattar and thereafter while Abdus Sattar tried to escape; the accused followed them and when the deceased fell down in a paddy field the accused Ayub Ali with the help of other accused slaughtered the victim of this case Abdus Sattar by a ‘dao’ in hand. The learned Assistant Attorney-General submits that the most important eye witness of this occurrence Badsha Mia rightly relied on by the trial court and due to previous enmity with the deceased the accused-appellants killed the deceased brutally. The inquest report of the dead body supported the prosecution and the testimony of the witness No. 1 Badsha Mia has been corroborated by other circumstantial evidence. The learned Assistant Attorney-General further submits that at the time of occurrence inasmuch as excepting the P.W. 1 Badsha Mia there was no eye witness of the place of occurrence locality; they were not examined by the prosecution and as such the accused are not entitled to get any benefit under section 114(g) of the Evidence Act. The learned Assistant Attorney-General lastly submits that, as the evidence of the only ocular witness Badsha Mia is dependable, there is no necessity of other corroborating evidence for awarding punishment against the convict-appellants under the purview of law. The accused-persons are dangerous in nature and their previous conducts are bad. The learned AAG argued that no body of the place of occurrence locality was dare to depose against the accused persons and this factual aspect was rightly considered by the learned trial court during disposal of the original case and from the sketch map and index of place of occurrence which has been marked as Exhibits-4 and 5 respectively it is apparent that, beside the place of occurrence there was no dwelling hut of anybody and that’s why save and except Badsha Miah there was no eyewitness of the occurrence. The learned Assistant Attorney-General in support of his contention referred two decisions reported in 5 BLC (AD) 41 and 6 BLC (AD) 58.

8. Let us now examine the evidence adduced from the side of the prosecution for its critical analysis. In this case; prosecution have examined 7 (seven) witnesses and out of them PW 1, Badsha Mia is the only ocular witness of this case. PW 2 Nurul Alam is the informant of this case, who lodged the ejahar hearing the occurrence subsequently. The witness No. 3 of the prosecution Md. Abul Kalam Dafadar is a witness of inquest report and seizure list. PW 4 Mahbub Alam is the brother-in-law of the deceased and a seizure list witness of this case. PW 5 Sayed Mia is a hearsay witness of this case, PW 6 Sajeda Begum is the wife of deceased Abdus Sattar, who is also a hear-say witness and the last witness PW 7 Sub-Inspector Alimuzzaman did the investigation of the case and after completion of the investigation submitted charge sheet against the accused persons.

9. PW 1 Md. Badsha Miah in his testimony testified that on 11-4-1987 at 8-00 p.m. the occurrence was held while he was returning with the deceased Abdus Sattar from ‘Ranirhat Bazar’. This witness Badsha Mia along with the deceased while reached to Khalifar Para road, they found the accused to the east bank of Chowdhury Pond, who were Ayub Ali, Harun, Gafur and Ismail. The accused finding Abdus Sattar called him and at that time Abdus Sattar blazed out his torch towards the accused and identified them. The accused Ayub Ali had a ‘dao’ and knife in his hands and finding these deadly weapons in the hands of Ayub Ali the deceased Abdus Sattar ran away. The accused thereafter followed Sattar and at a stage gheraoed the deceased in the place of occurrence which is a paddy field. Then, Sattar requested the accused to save his life but they committed the mischief and Ayub Ali by his ‘dao’ slaughtered Abdus Sattar. The other accused Harun, Gafur and Ismail helped Ayub Ali to kill Sattar. Thereafter, this witness went to his residence and disclosed the occurrence to his mother and son. Subsequent to that; he going before his co-villagers informed the matter to them.

10. During cross-examination the witness No. 1 Badsha Mia testified at a stage that the deceased Abdus Sattar had a quarrel with Ayub Ali in respect of a land and when the accused ran after the deceased, this witness was standing therein but none of the accused hit him and subsequent to that while the accused tried to catch hold of him he flee away. He was shouting by stating that Abdus Sattar is being killed by the accused. In other stage of cross-examination PW 1 testified that he requested the accused not to kill the victim at the time of occurrence and on the place of occurrence there were 40/50 persons and excepting the witnesses of the case he (PW 1) cannot remember the name of other presentees. This witness denied the suggestion of the defence that he deposed falsely against the accused persons.

11. PW. 2 the informant of this case Nurul Alam during his deposition corroborated his ejahar and testified that after the occurrence hearing the death news of his brother Abdus Sattar he went to the place of occurrence and found the dead body lying in a paddy field. He found that Abdus Sattar has been slaughtered and that cut injury is distinct in the neck of Abdus Satter. The informant in his cross-examination frankly conceded that he did not find the occurrence and at a stage of his deposition he states that, to the western side of the place of occurrence there are 3/4 homesteads. He also testified at a stage of his cross-examination that the road; which was used by Sattar and Badsha Mia was such a road of the locality which is being used by the villagers till 10-00 pm and at the night of occurrence there was slight moonlight. The informant denied the suggestion of the defence that due to previous enmity with the accused persons they have been falsely implicated in this case.

12. PW 3 Md. Abul Kalam Dafadar testified that at the time of occurrence he was a ‘Dafadar’ of the place of occurrence locality which belong to Rajnagar Union Parishad. After the occurrence he heard from one Mahbub Alam at Ranirhat Bazar that “Ayub bahini” has killed Abdus Sattar. Thereafter, this witness went to the place of occurrence and found the dead body of Sattar in a paddy field.

13. PW 4 Mahbub Alam who is the brother-in-law of the deceased Abdus Sattar in his deposition before the trial court testifies that his relation Nurul Alam informed him that “Ayub Bahini” killed his brother Abdus Sattar and hearing that news he went to the local Bazar and informed the matter to Dafadar Abul Kalam.

14. PW 5 Sayed Miah in his testimony testifies that his father Badsha Mia on 11-4-1987 coming to the residence told him that the deceased Abdus Sattar has been killed by the accused persons out of previous enmity.

15. The defence has declined to cross-examine this witness.

16. PW 6 Sajeda Begum testified that on 11-4-1987 her husband Abdus Sattar was killed by the accused persons namely, Ayub Ali, Gafur, Harun and Ismail. The son of Badsha Mia namely Sayed Meah informed her about the occurrence. This witness in her testimony testified at a stage that the accused Ayub Ali at the time of occurrence cut the left hand of her husband and Ayub Ali did it out of enmity. This witness also testified that her husband Abdus Sattar was killed by the accused Ayub Ali by slaughtering.

17. PW 7 Alimuzzaman is a Sub-Inspector of police who is the investigating officer of this case. This witness deposed before the Court and testified that in the year 1987 while he was serving in Rangunia police station he was entrusted investigation of this case by the Officer-in-Charge of that police station on 12-4-1987. Getting investigation of the case, he went to the place of occurrence and prepared inquest report of the dead body. He sent the dead body to the local morgue for postmortem. He visited the place of occurrence repeatedly and prepared sketch map, index of the place of occurrence. He seized the alamat which is a pair of sandal of the deceased and a torn half-shirt of the deceased with a cheque lungi and these were the wearing apparels of the deceased Abdus Sattar at the time of occurrence. This PW 7 also seized some paddy from the place of occurrence field. This witness identified the article exhibits which were duly marked as exhibits. The investigating officer of this case during his deposition further testifies that he examined the witnesses under section 161 of the Code of Criminal Procedure and recorded their statement and during cross-examination he denied the suggestion of the defence that he did not visit the place of occurrence and not examined the witnesses correctly under section 161 of the Code of Criminal Procedure and his investigation is faulty.

18. Having gone through the evidence on record it transpires that the prosecution in this case have failed to examine the PM done doctor who did the postmortem of the deceased. Inspite of that; within the case record there exist the PM report and the learned trial court under the provisions laid down in section 509A of the Code of Criminal Procedure considering the absence of the concerned doctor considered the postmortem report of the deceased and marked it as Exhibit-6.

19. Consulting this postmortem report (Exhibit-6) of the deceased Abdus Sattar it is evident to note that the doctor during autopsy of the dead body found multiple penetrating wounds in different parts of the body and besides this; excepting the wound in front of the neck, which is 3 1/2″ x 1 1/2″ x 1 1/2″ in size a stab injury was also present on the chest wall of the deceased Abdus Sattar and two penetrating wounds were found in the lower limb. Apart from the neck injury, the injury No. (b) i.e. the penetrating wound in the chest wall (right lower part) was 3/4″ x 1/4″ x 1″ in size. Therefore, the doctor at the time of autopsy noticed several remarkable injuries in different parts of the body and all the injuries were ante-mortem in nature. As to the cause of death of the deceased Abdus Sattar the concerned doctor’s (Dr Ganapati Das) opinion was as follows: “Death in my opinion was due to combined effects of cut throat & multiple penetrating wounds leading to Hemorrhage shock & Asphyxia which was homicidal in nature.”

20. It is a fact that in the instant case we have come across that, save and except the only ocular witness PW 1 Badsha Mia as alleged from the side of the prosecution there is no direct evidence against the accused persons and in this context; it is the specific contention of the defence that Badsha Mia is a liar witness and in fact he deposed falsely before the court only to implicate the accused persons out of previous enmity and the evidence led from the side of the prosecution are shaken and doubtful and in fact; there is no credible cogent evidence to believe the prosecution case especially the identification of the accused persons in the dark night of 11-4-1987.

21. Scanning the evidence on record it transpires that the only eye-witness of the occurrence who deposed as PW 1 of this case during his testimony before the court tried to make out a third case by stating that at the time of occurrence he wanted to resist the accused persons and requested them not to kill the victim Abdus Sattar. Apart from this; we have come across from the deposition of this witness P.W. 1 that with regard to the recognition of the assailants at the time of occurrence he testified that the victim Abdus Sattar, 

 No where it is noticed from his deposition that he personally could recognize the accused persons by any means of recognition, or that the torch light by which Abdus Sattar could recognize the accused Ayub Ali that was snatched away by the accused persons or missing. Besides this, it is well within record that the place of occurrence is by the side of a village road and is a paddy field and from the deposition of the informant we find that there was slight moonlight at the time of occurrence. In our jurisdiction it is a decided matter that recognition in such type of light is highly doubtful. Hence; the recognition of the accused by the solitary ocular witness (PW 1) Badsha Mian suffers from reasonable doubt.

22. Be that as it may; under section 134 of the Evidence Act the single witness PW 1 upon which the prosecution case stands is not reliable. To base conviction there must have some credibility of such type of single witness and his testimony should be corroborated by the circumstances of the case and medical evidence on record. The testimony of the solitary witness must not be shaken in any manner and such a testimony would be entirely reliable and if it is found that such a testimony is entirely reliable there is no legal impediment to the conviction of the accused persons on such proof.

23. In the case of Abdul Hye Sikder vs. State, 43 DLR (AD) 95, their lordships held that the conviction of the appellants can safely be based on the solitary evidence of the eye witness if it is full, complete and self-contained and it should have corroboration by circumstances of the case and the medical evidence on record.

24. Here in this case; the evidence of PW 1 is shaky and highly doubtful and not supported by other circumstantial evidence along with the autopsy report of the deceased Abdus Sattar. Consequently, the conviction on the basis of such solitary evidence is not proper and legal. From the face of the record it is apparent that the medical report containing several injuries with stab wound (vide Exhibit-6) which is coming after postmortem of the dead body is incompetent with the prosecution case and as well as the testimony of the solitary witness PW 1 Badsha Mia is inconsistent. Secondly, with regard to the means of recognition we find from the evidence that the place of occurrence is not a market place or Bazar periphery rather it is such a place; where there exist no source of light or that it is not in the vicinity of a shop. Furthermore; it is obvious to note that; there is no source of light in the surrounding place of the place of occurrence in where the victim was allegedly killed by the assailants. Hence; it can be easily held that, non-seizure of the means of recognition is a very important factor and vital thing of this case which has falsified the case of the prosecution and besides this there is no legal evidence from the side of the prosecution to implicate the accused person with the occurrence of killing the victim Abdus Sattar. Therefore, the decision referred to by the learned Assistant General as cited from the case of State vs. Ful Mia 5 BLC (AD) 41 and in the case of Chowdhury Nuruzzaman vs. State 6 BLC (AD) 58 have got no nexus with the instant case due to different factual aspects.

25. Before parting, we must observe that the learned Judge is wrong in his view that the case is proved. Having gone through the evidence on record it appears that the prosecution is standing on a very weaken evidence which is not credible and trustworthy rather it is shaky. The learned trial judge during awarding punishment, have failed to consider the factual and legal aspect of the case and have failed to assess the evidence and appreciate the actual proposition of law in its true perspective. In this case the overall condition of the solitary evidence which is coming has already spelt out earlier which is highly shaky and doubtful. The prosecution in this case under the preview of Evidence Act as such has failed to discharge their onus in proving their case beyond all shadow of doubt. The defence counsel Mr. Chowdhury in support of his contention argued a lot, which is well founded.

26. Section 134 of the Evidence Act is incorporated in connection with the evidence of a single witness upon which the prosecution case can stand; but it should be highly reliable and unshaken as well as credible. Our Apex Court in the case of Abdul Hye Sikder vs. State 43 DLR (AD) 95 held that a full, complete with full corroboration and self-contained evidence of a single witness by circumstances of the case along with the medical evidence on record can only justify the conviction of the accused of a case and not other than this.

27. Having regard to the facts and circumstances of the case and the discussions referred to above we are constrained to hold such a view that the learned Additional Sessions Judge, 4th Court, Chittagong during disposal of the original Sessions Case committed illegality. There is no convincing legal evidence against the accused persons to connect them in the offence as cited within the ejahar.

28. In view of the fact; we are under legal obligation to hold that the impugned order of conviction and sentence is based on surmise and conjecture and not founded on legal evidence and, as such, the same is not sustainable in law.

29. In the result, the Criminal Appeal being No. 3013 of 2008 and Criminal Appeal No. 4174 of 2012 are allowed. The impugned judgment and order of conviction and sentence dated 12-2-2008 passed by the learned Additional Sessions Judge, 4 Court, Chittagong in Sessions Case No. 45 of 1992 convicting the accused-appellants Ayub Ali, son of late Ishak Ali and Abdul Gafur, son of late Matiur Rahman under sections 302/34 of the Penal Code and sentencing them to suffer rigorous imprisonment for life and to pay a fine of Taka 20,000 in default to suffer rigorous imprisonment for one year more is hereby set aside, so far as it relates to the conviction and sentence of the aforesaid two accused-appellants namely Ayub Ali and Abdul Gafur.

30. The accused-appellants Ayub Ali, son of late Ishak Ali and Abdul Gafur, son of late Matiur Rahman be acquitted from the charge levelled against them under sections 302/34 of the Penal Code and let the accused-appellant Ayub Ali, son of late Ishak Ali be set at liberty forthwith if not wanted in connection with any other case and in respect of the bailed out accused Abdul Gafur, son of late Matiur Rahman the sureties are hereby discharged from their bail bonds. The Criminal Revision No. 1115 of 2008 accordingly be rejected.

Send down the lower court’s record along with a copy of this judgment and order to the concerned trial court at once to take action and necessary steps.