Death is irremediable, it goes beyond the world – Sentence of death is commuted into jail for life by Bangladesh SC (31/05/2022)

Sentence of death is commuted into imprisonment for life

Mohammad Ali @ Sakil vs The State

ফৌজদারী আপীল নং: ৫৯/২০১৪ তৎসহ জেল পিটিশন নং : ১৯/২০১৫ মোহাম্মদ আলী ওরফে সাকিল বনাম রাষ্ট্র

IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION

PRESENT:
Mr. Justice Md. Nuruzzaman
Mr. Justice Borhanuddin
Ms. Justice Krishna Debnath
CRIMINAL APPEAL NO.59 OF 2014 WITH JAIL PETITION NO.19 OF 2015.
(From the judgment and order dated 06.03.2014 passed by the High
Court Division in Death Reference No.113 of 2008, Criminal Appeal
No.7397 of 2008 and Jail Appeal No.1090 of 2008.)

Mohammad Ali @ Sakil. : ….Condemned-Prisoner-Appellant/Petitioner.
(In both the cases)
-Versus-
The State. : …….Respondent.
(In both the cases)

For the Appellant/Petitioner.
(In both the cases)
: Mr. S.M. Shahjahan, Senior Advocate,
instructed by Mr. Bivash Chandra
Biswas, Advocate-on-Record.
For the Respondent. (In
both the cases)
: Mr. Md. Jahangir Alam, Deputy Attorney
General, instructed by Mrs. Shirin
Afroz, Advocate-on-Record.

Date of Hearing. : The 25th May, 2022.
Date of Judgment. : The 31st May, 2022.

J U D G M E N T

Borhanuddin,J: Challenge in this appeal is to the judgment of
a Division Bench of the High Court Division dated 06.03.2014
confirming Death Reference No.113 of 2008 made by the
learned Additional Sessions Judge, 2nd Court, Bagerhat,
awarding death sentence upon the condemned-appellant arising
out of Sessions Case No.227 of 2007 arising out of Kachua
Police Station Case No.11 dated 17.08.2007 under sections
302/201/34 of the Penal Code corresponding to G.R. Case
No.147 of 2007.

Background facts in a nutshell are as follows:
“The informant was informed by his son’s wife
at about 12.30 hours at night on 17.08.2007
that dacoits have entered into her dwelling
house and she managed to come out of the house;
Receiving such information, the informant
rushed to the said house and started searching
for his wife Fatema (victim) but she was not
found inside the house; Dead body of Fatema was
found at about 20 cubits away from the dwelling
house; Being nearer the informant found her
slaughtered dead body; Meanwhile, Mosharaf Ali
Howlader and some other people came to the
place of occurrence but none of them found any
alamats of dacoity; The informant sent his
sister’s son Mosharaf to the Kachua Police
Station at about 5 a.m.; Md. Haider Ali Bepari
informed through cell phone that the accused
has been apprehended; PW-6, Tuhin Sikder, a van
puller, carried the accused from the occurrence
village and said PW-6 suspected the said
passenger to be the accused; PW-6 stated that
the condemned-prisoner was apprehended when he
was trying to flee away by a bus; The
condemned-prisoner was taken to the Police
Station and the FIR was lodged at about 9 a.m.;
The Police officials went to the occurrence
house, seized alamats prepared sketch map and
index, sent the dead body to the morgue;
Thereafter, as per discloser made by the
condemned-prisoner he has taken to the
occurrence house and as per his own showing a
knife was recovered, a seizure list was
prepared; The condemned-prisoner admitted the
fact that he has slaughtered the victim by
knife.”

The condemned-prisoner was produced before a
Magistrate, First Class, on 18.08.2007 where he made
statement under section 164 of the Code of Criminal
Procedure admitting his guilt.
On completion of investigation, Police submitted Charge
Sheet against the condemned-prisoner and his sister Rabeya
Begum under sections 302/201/34 of the Penal Code.
At commencement of the trial, the learned Additional
Sessions Judge, 2nd Court, Bagerhat, framed charge against
both the accused including condemned-prisoner under sections
302/34 of the Penal Code. The charge was read over to them
to which they pleaded not guilty and claimed to be tried.
At the trial, the prosecution examined 10 witnesses in
all to substantiate its case. Both the accused were examined
under section 342 of the Code of Criminal Procedure who
again claimed innocence but led no evidence.
The learned Additional Sessions Judge after
considering the evidence on record found the accused Rabeya
Begum to be not guilty of the charges leveled against her
and thus acquitted her but the condemned-prisoner was found
guilty under section 302 of the Penal Code and sentenced him
to death with a fine of Tk.10,000/- in Sessions Case No.227
of 2007.

Being aggrieved by and dissatisfied with the judgment
and order of the trial court, the condemned-prisoner
preferred Jail Appeal No.1090 of 2008 and thereafter
preferred the Regular Appeal being No.7397 of 2008. The
trial court also made reference under section 374 of the
Code of Criminal Procedure for confirmation of the sentence
of death. The death reference, jail appeal and regular
appeal were heard together. The High Court Division by the
impugned judgment and order dated 06.03.2014 accepted the
death reference dismissing the Criminal Appeal being No.7397
of 2008 and Jail Appeal No.1090 of 2008.
Feeling aggrieved, the condemned-prisoner Mohammad Ali
@ Shakil as appellant has preferred instant criminal appeal
before this Division from jail.

In support of the appeal the stands taken before the
High Court Division are reiterated by the learned Senior
Counsel for the appellant and the state.
We have considered the submissions of the learned
Senior Counsel for the appellant and the learned Deputy
Attorney General for the state, the impugned judgment and
order alongwith materials on record. Both the High Court
Division and the trial court concurrently arrived at a
finding that the prosecution proved that condemned-appellant
slaughtered the victim which he admitted in his confessional
statement. Those findings of the court below are based on
proper appreciation of evidence on record.

The High Court Division and the trial court found that
the confessional statement, exibit-01, of the condemned-
appellant is true and voluntary. The confessional statement
has been quoted in the judgment of the High Court Division
and we have gone through the confessional statement vis-a-vis
the evidence of PW-1, Mr. Soroj Kumar Nath, the Executive
Magistrate who recorded the confessional statement under
section 164 of the Code of Criminal Procedure and we find
that the confessional statement is true and voluntary.

Let us now come to the question of the sentence of
death imposed on the condemned-appellant. During recording
of his confessional statement under section 164 of the Code
of Criminal Procedure, the condemned-appellant Mohammad Ali
@ Shakil stated that he was aged about 21 years. Having
considered the evidence on record, the confessional
statement as well as the statement recorded under section
342 of the Code of Criminal Procedure, we are of the view
that the condemned-appellant was not a minor at the time of
commission of the offence. Therefore, he was not entitled to
get the privilege under the Children Act, 1974 so far as
those relate to youthful offenders.

However, condemned-prisoner was very young at the time
of commission of the offence and as it is appears from his
confessional statements that he committed the offence being
disgusted with the behaviour of the victim to her sister,
the victim was the mother-in-law of his sister. From the
charge sheet it appears that the P.C. and P.R. (Previous
Conviction and Previous Records) of the appellant are nil.
Therefore, it appears that the petitioner is not a veteran
criminal.

Regarding death penalty, we like to quote a few
paragraphs from the judgment of this Division passed in Nalu
Vs. State, reported in 17 BLC (AD) (2012) 204. The author
judge Syed Mahmud Hossain J, eloquently discussed:
18. “In the case of Gregg vs. Georgia, (1976) 428
US 153, the majority of the Judges endorsed and
approved of imposition of death penalty being not
unconstitutional. While writing the majority
opinion, Justice Stewart stated as under:
“But we are concerned here only with the
imposition of capital punishment for the crime
of murder, and when a life has been taken
deliberately by the offender, we cannot say
that the punishment is invariably
disproportionate to the crime. It is an extreme
sanction, suitable to the most extreme of
crimes.

We hold that the death penalty is not a form of
punishment that may never be imposed,
regardless of the circumstances of the offence,
regardless of the character of the offender,
and regardless of the procedure followed in
reaching the decision to impose it.”
19. While writing the minority opinion Justice
Brennan stated as under:
“Death is not only an unusually severe
punishment, unusual in its pain, in its
finality, and in its enormity, but it serves no
penal purpose more effectively than a less
severe punishment, therefore, the principle
inherent in the Clause that prohibits pointless
infliction of excessive punishment when less
severe punishment can adequately achieve the
same purposes invalidates the punishment.
The fatal constitutional infirmity in the
punishment of death is that it treats ‘members
of the human race as non-humans, as objects to
be toyed with and discarded. It is thus
inconsistent with the fundamental premise of
the Clause that even the vilest criminal
remains a human being possessed of common human
dignity.”—I, therefore, would hold, on that
ground alone, that death is today a cruel and
unusual punishment prohibited by the Clause,
“Justice of this kind is obviously no less
shocking than the crime itself, and the new
official’ murder, far from offering redress for
the offense committed against society, adds
instead a second defilement to the first.”
20. From the minority opinion, it appears that the
death sentence treats a human as non-human and that
taking into consideration the eighth amendment to
the US Constitution which states, “Excessive bail
shall not be required, nor excessive fines
‘imposed, nor cruel and unusual punishments’
inflicted,” the learned Judge found that the
punishment of death is inconsistent with
fundamental premise of eighth amendment to the
Constitution.
21. Admittedly, death is irremediable. Death is
unknowable, it goes beyond the world.
In the case in hand the only aggravating circumstances
is that for the purpose of saving his sister from
humiliation and physical and mental torture the condemned-
appellant committed the offence.

Mr. S.M. Shahjahan, learned Counsel submits that the
condemned-appellant seeks mercy of this court and that his
sentence of death may be commuted to one of imprisonment of
life. Though there is no scope for showing mercy in a court
of law but it is not out of place to quote a few lines from
“The Nature of Judicial Process by Benjamin Cardozo” as under:

There is an old legend that on one occasion god
prayed, and his prayer was “Be it my will that
my justice be ruled by my mercy.”
(quoted from the cited judgment.)

In view the facts and circumstances of the case it is
found that the trial court was correct in its decision
convicting the appellant and subsequently High Court
Division affirmed the same and we also give our opinion that
the appellant was rightly found guilty by both the courts
below but we think that justice would be made if the
sentence of death is commuted into imprisonment for life as
the appellant is in pang of death since pronouncement of the
trial court and subsequent affirmation by the High Court
Division and as such the sentence of death is commuted into
imprisonment for life. The appellant will get the benefit of
section 35(A) of the Code of Criminal Procedure in
calculation of his sentence. Jail Petition No.19 of 2015 is
disposed of in the light of the judgment delivered in the
Criminal Appeal No.59 of 2014.

The concerned Jail Authority is directed to shift the
appellant from condemned cell to general ward forthwith.
Accordingly, the criminal appeal is dismissed with
modification of sentence.

J.
J.
J.

The 31st May/2022.
Jamal(B.R)/Words*1900*