DISTRICT- _______

IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

CRIMINAL RIVISIONAL JURISDICTION

Criminal Miscellaneous Case No. ______________.

IN THE MATTER OF:

An application under Section 561A of

the Code ofCriminal Procedure.

.

-AND-

IN THE MATTER OF:

____________ , S/o, _________,

Village _____P.S.-________,.

District- _____________

----------------------Convict Appellant

(Surrendered)

-VERSUS-

The State

-----------------------------Respondent

IN THE MATTER OF:

The judgment and order dated

_________passed

by__________

, Judge, Special Tribunal No.2

_______ in Special Tribunal Case No.

______ arising Out of _________

Police Station Case No.___dated

_____ corresponding to

G.R Case No.

_______ under Sections

143,323,326

and 307 of the Penal

Code 1860 and

also 3 and 4 of the

Explosive

Substances Act, 1908 convicting the

accused petitioner under section 3 and

4 of the Explosive

Substances Act and

sentencing him to suffer

rigorous

imprisonment for five

years and also to

pay a fine of Tk. 5000 in

default to

suffer rigorous

imprisonment for

another one year.

To

Mr. Justice Mozammel Haque, the Hon’ble Chief

Justice of Bangladesh and his companion

Justices of the said Hon’ble Supreme Court.

The humble petition on behalf of

accused petitioner above named

most respectfully-

SHEWETH:

1. That the prosecution case, in short is

that the accused persons are violent and rowdy

elements. Occasionally they come to

__________Bazar from different places on being

armed with Dhama, Lathi,Chora, Pipe Gun,

Cocktail, etc., and roam about throughout the

Bazar with a view to establish reign of terror.

On ________ at about 10.00 A.M. all the accused

persons came to _______ Bazar in a pre planned

way and with a view to kill informant ________

indiscriminately threw 12/13 bombs pointing at

him in front of shop of witness no. 4

_________. The informant could swiftly leave

the place unhurt. But witness 1, 2, and 3

suffered grievers bleeding injuries with blast

of bombs. _____ son of ______ of village

________ also suffered serious injury. On

hearing alarm of the informant and injured

persons when the people of locality started to

come forward from all around then the accused

persons went towards forward by blasting bombs.

The informant and the people of locality took

injured persons to _________Hospital. There has

been delay in lodging ezahar in view of

informant’s pre occupation in the treatment of

injured persons.

2. That the informant _________ lodged ezahar

with the _______ Police Station on ______ at

______ hours under Sections 143, 323, 326, 307

of the Penal Code, 1860 and also 3 and 4 of

Explosive Substances Act, 1908.

3. That the Officer- in- Charge of ________

Police Station recorded the case after receipt

of written ezahar of informant _______ and then

he handed over the investigation of the case to

Sub Inspector ________

(The certified copy of ezahar

is annexed herewith and marked as

ANNEXURE-‘A’.)

4. That the Sub Inspector _________ prior to

completing his investigation was transferred to

elsewhere and then the responsibility of

investigation fell upon Sub Inspector

Mr_________.

5. That Sub-Inspector __________ submitted

Charge Sheet bearing No. 28(ka) dated _________

and in the same out of 14 ezahar named accused

persons 6 viz. ezahar named nos (1) ________

(2) ________ (3_________ (4) ________(5)

_________ and

(6) Nure Alam have been recommended for

prosecution for committing offence under

Section 3 and 4 of the Explosive Substances

Act, 1908 while rest eight others have not been

recommended for prosecution.

(The certified copy of chage

sheet is annexed herewith and marked as

ANNEXTURE-‘B’.)

6. That the charge was framed against the

accused persons recommended for prosecution in

the charge sheet on 2.5.2007 under Sections 3

and 4 of Explosive Substances Act,1908 and at

the time of charge hearing accused nos.

(3)___________, (5) _________and

(6) ____________ were present to which they

pleaded not guilty and claimed to be tried. The

said charge could not be read over to accused

nos. (1) _________, (2) _________, (4) _______

as trial proceed against them under Section

339(1) of the Criminal Procedure, 1898.

(The certified copy of the charge is

annexed herewith and marked as ANEXURE-‘C’.)

7. That the prosecution examined ten PWs out

of eleven charge sheet named witnesses and

amongst them other than PW-1 informant ________

no other witness is an eye witness to the

occurrence.

8. That after closure of recording of

evidence four accused persons namely accused

nos. 3. _________(4) _______ (5) ________and

(6) _____________ were examined under Section

42 of the Code of Criminal Procedure to which

they again pleaded not guilty and declined to

adduce any evidence. The accused no. 1.

____________ could not be examined under

Section 342 of the Code of Criminal Procedure.

As on being unaware of lodging of case against

him he did not have the occasion to appear

before the court during the whole period of

trial.

9. That the accused petitioner went to Italy

in the mid of 1994 and he was not present at

the time of occurrence. He also had no

knowledge or information about lodging of the

present case against him along with certain

other persons.

10. That the learned Special Tribunal No. 4

passed the impugned judgment and order No.

___________ by which he convicted the accused

petitioner under Sections 3 and 4 of Explosive

Substances Act 1908 and sentenced him to suffer

rigorous imprisonment for another one year . By

the said judgment and order the learned special

Tribunal acquitted the four other accused

persons.

11. The accused petitioner is a valuable

wage earner for the country and each year he

remits considerable amount of foreign currency

to Bangladesh.

12. The accused petitioner is sole earning

member of his family and the members of his

family is wholly dependent on his income.

13. The accused petitioner first came to

know about the aspect and sentence against him

after coming home from Italy in the 1st week of

August after a lapse of twelve years and on

being respectful to the law of the land he

surrendered before the Special Tribunal No.

3________ on ________ and the learned Judge

presiding over the said court was pleased to

send the accused petitioner to custody.

(The certified copy of the order

dated ________ passed by

the Special Tribunal No. 3,_______

in relation to surrender of

accused petitioner along with his

petition of surrender is

annexed herewith and marked as

ANEXTURE-‘D’.)

14. That the accused petitioner’s no

relation informed him about the Judgment and

order passed in Special Tribunal case No.

______ as in their impression that might have

negative bearing towards his stay in Italy as

well as becoming permanent resident of Italy.

Besides, that might have affected the means of

livelihood of members of family as members of

his family were solely dependent on the income

of accused petitioner.

15 That for being away from the country

the accused petitioner could neither surrender

before any court nor he could prefer any appeal

against the Judgment and order under specific

provisions of law as provide under the Special

Powers Act 1974 in due time and in as much the

accused petitioner having no other alternative

and efficacious remedy he is preferring this

application under Section 561A of the Code of

Criminal Procedure.

16. The relief under Section 30 of the

Special Powers Act could not be invoked by the

petitioner because of 9 years 9 months 2 days

delay.

17. That being aggrieved by and

dissatisfied with the impugned Judgment and

order dated _________ passed by the learned

Special Tribunal No.2, _______ in special

Tribunal case no. _____, the accused petitioner

begs to prefer this revisional appeal before

your lordship on the following amongst other:

- G R O U N D S-

I. For that the judgment and order dated passed by the learned tribunal No.2, is bad in law and facts.

II. For that the learned judge has misread theevidence and misinterpreted the law and has come to erroneous finding.

III. For that the prosecution hopelessly failedto produce any alamot of bomb blast said

to have been taken place at the place of occurrence at the time of occurrence.

IV. For that the occurrence has not been provide with the evidence of either publicor private witnesses but the learned Special tribunal overlooked the same and in an illegal manner convicted the accusedpetitioners.

V. For that PW-1 informed of the case in his ezher has specifically stated that on at about a.m. all the accused persons conjointly came to and with the intention to kill him indiscriminately threw 12/13 bombs pointing him in front of the shop of witness no. and he could swiftly leaves the place of occurrence unhurt. But the informant whiledeposing as PW-1 has said only shopkeeper saw the occurrence. Shop is in the middle of the bazar and he was in front of the shop of . Inthis respect if we look into the evidence

of PW-8 it appears that in his evidence he has stated that he did not seeas to who threw bomb. The PW-1 in his cross-examination could not say whose bombinjured whom.

( The certified copies of the evidence sheets of the information PW-1 and PW-8shopkeeper are annexed herewith and marked as ANNEXURE- ‘E’ and ‘F’)

VI. For that PW-2 one of the victims in his deposition has said that on the alleged date of occurrence there was hartal from 6.00 hours to 12.00 hours called by opposition and the information of the case took him toDr. and after receiving treatment he came back home. Admittedly, informant was an atavist of ruling party of the giving period and he is an interested and partisan witness. Besides, with the own evidence of PW-2 it is also proven that he did not get to

sadar Hospital as referred by PW-4 Dr. .

( The certified copy of the evidence ofPW-2 is annexed herewith and marked as ANNEXURE- ‘G’).

VII. For that other victim PW-3 in his deposition has although stated thatPW-4 examined him at Dagonbhuiyan hospital but PW-4 in his deposition did not say anything about examination of in the Dagonbhuiyan Hospital on the alleged date of occurrence. Another interesting thing of the evidence of this PW is that he in his evidence has stated that recovery of a alamot like jorder kouta from the place of occurrence but inthis respect if we look into the evidence of informant PW-1 and first Investigating Officer Sub-Inspector we find that none of them in their evidence did state about recovery of any alamot of bomb blast from the place of occurrence.

( The certified copy of the evidence ofPW-3 is annexed herewithand marked as ANNEXURE-‘H’.)

VIII. For that with regards to injury sustained by one of the victims , PW-4 who as Upazilla Health and family Planning officer examined him at Upazilla Health Complex has stated that examining him he found three injury of which injury nos. 1 and 2 were simple while 3 was grievous andhe referred him to Sadar Hospital. The medical certificate given by PW-4 could not be exhibited as the same was photocopy and apart from that no paper could be furnished by him so as to show treatment of victim to sadar Hospital. This PW in his cross-examination although has saidthat he suspects injury caused by bomb blast but he did not find any splinter.

( The certified copy of the evidence of PW-4 is annexed herewith and marked ANNEXED-‘I’.)

IX. For that PW-5 a shopkeeperof in his evidence has said that he did not see who threw bomb and whose bomb injured whom.

( The certified copy of the evidence ofPW-5 is annexed herewith and marked ANNEXED-‘J’.)

X. For that PW-6 a farmer of the neighborhood of the place of occurrence in his evidence did not say anything implicating any of the accused persons.

(The certified copy of the evidence of PW-6 is annexed herewith andmarked ANNEXED-‘K’.)

XI. For that PW-7 a shopkeeper of in his evidence has specifically stated that he did not see throwing of bomb by any accused.

(The certified copy of the evidence of PW-7 is annexed herewith and marked ANNEXED-‘L’.)

XII. For that PW-9 is first investigation officer Sub-Inspector and he in his evidence categorically stated that during investigation he did not find trace of any explosive in the place of occurrence and for that he could not prepare any seizure list.

(The certified copy of the evidence of PW-9 is annexed herewith andmarked ANNEXED-‘M’.)

XIII. For that PW-10 is second Investigation Officer Sub-Inspector and there is nothing in his evidence so as to consider to have any bearing upon the involvement of accused petitioner with thealleged offence.

(The certified copy of the evidence ofPW-10 is annexed herewith and marked ANNEXED-‘N’.)

XIV. For that the accused petitioner being valuable wage earned for the country and also being permanent resident of Italy is playing dominant role to the economic development of the country and his custody

would deprive the country from legitimate foreign exchange earning.

XV. For that the fact and circumstance of the case do not form any basic sustaining order of conviction and sentence.

Wherefore, it is most humbly prayed that your Lordships would graciously be pleased to call forthe record now lying with the record room of the , issued rule calling upon the opposite party to show cause as to why the impugned by , Special tribunal no. 4 Case No. arising out of police Station Case No. dated corresponding to G.R. Case no. under section 3 and 4 of the Explosive Substance Act, 1908 should not be seaside and after perusal of the cause shown if anyand hearing the parties finally make the rule absolute and or pass such other or further order

and order as your Lordships may deem fit and proper.

-A N D-

During pendency of the rule the petitioner further prayer that anorder of ad-interim bail be granted.

-A N D-

Pending disposal of the Rule the realization of fine may kindly bestayed.

And for this act of kindness shown the petitioner, as in duty bound shall ever pray.

AFFIDAVIT

I---------, son of -------- of Village- ------, P.S. -----------, District- -----------, age at about-42 years, nationality- Bangladeshi, religion- Islam, Occupation- Business do hereby solemnly affirmand say as follows:

1.That I am tadbirkar of this petition and fully conversant with the fact and circumstances of the case and competent toswear this affidavit.

2.That the statement made herein above are true to the best of my knowledge and belief.

Prepared in my office.

Advocate Deponent

The deponent in known to me and identifiedby me.

Advocate

Solemnly affirmed before

Me on this the 26th of January 2010.

COMMISSIONER OF AFFIDAVIT

HIGH COURT DIVISION SUPREME COURT OF BANGLADESH