IN THE SUPREME COURT OF BANGLADESH APPELLATE DIVISION PRESENT Mr. Justice Md. Muzammel Hossain, Chief Justice Mr. Justice Surendra Kumar Sinha Mr. Justice Md. Abdul Wahhab Miah Ms. Justice Nazmun Ara Sultana Mr. Justice Syed Mahmud Hossain Mr. Justice Muhammad Imman Ali CRIMINAL APPEAL NO.23 of 2011 (From the judgment and order dated 28.08.2008 passed by the High Court Division in Death Reference No.150 of 2004 heard along with Criminal Appeal No.4739 of 2004, Criminal Appeal No.4740 of 2004, Jail Appeal No.118 of 2006 and Jail Appeal No.597 of 2007 accepting the death reference in part and allowing the appeals.) The State .............Appellant =Versus= Dafader Marfoth Ali Shah and others .......Respondents For the Appellant : Mr. Mahbubey Alam, Attorney General with Mr. M. K. Rahman, Additional Attorney General, Mr. Momtazuddin Fakir, Additional Attorney General with Mothahar Hossain Saju, Deputy Attorney General, Mr. Bishwajit Deb Nath, Deputy Attorney General, Mr. Ekramul Haque, Deputy Attorney General with Mr. 2 Md. Masud Hasan Chowdhury, Assistant Attorney General, Mr. Shaikat Basu, Assistant Attorney General, Mrs. Mahfuza Begum, Assistant Attorney General and Mr. Bashir Ahmed, Assistant Attorney General instructed by Mrs. Sufia Khatun, Advocate-on-Record. Government Chief Prosecutor: Mr. Anisul Huq, Senior Advocate with Mr. Nurul Islam Sujan, Advocate and Mr. Sheikh Fazle- Noor-Taposh, Advocate as Government-Prosecutor. As State Counsel to defend the respondents (appointed by the Court) : Mr. Abdullah-Al-Mamun, Advocate. Date of hearing: 15.01.2013, 22.01.2013, 23.01.2013, 29.01.2013, 30.01.2013, 12.02.2013, 13.02.2013, 19.02.2013, 26.02.2013, 27.02.2013, 16.04.2013, 17.04.2013. Date of judgment : 30.04.2013. J U D G M E N T Md. Muzammel Hossain, C.J.- I have gone through the separate judgments prepared by Surendra Kumar 3 Sinha, J. and Nazmun Ara Sultana, J. I agree with the reasoning and findings given by Nazmun Ara Sultana, J. C.J. Surendra Kumar Sinha, J: I have had the privilege of reading the draft copy of the judgment prepared by my learned sister Nazmun Ara Sultana, J. While I fully endorse her view that ‘the accused persons made a conspiracy to kill the four Awami League leaders inside the jail and in pursuance of that conspiracy accused Risalder Muslem Uddin, the present accused respondents Dafader Marfoth Ali Shah and L.S. (Dafader) Abul Hashem Mridha along with two other army personnel’ perpetrated the killing in the Dhaka Central Jail on the night following 2nd November, 1975 at around 4 a.m, I am however, unable to endorse her opinion in the operating part of the judgment restoring the respondents conviction passed by the trial court under sections 302/34 of the penal code and her findings that ‘The trial Court, therefore, rightly convicted’ the respondents. I also fully agree with my learned sister with her concluding opinion that the High Court Division erred in law in acquitting respondents. Since my learned sister has extensively discussed the evidence on record, I will discuss the evidence shortly which are necessary in support of my opinion. 4 A prison is a place in which people are physically confined and usually deprived of a range of personal freedoms. Incarceration in prison is a legal penalty that may be imposed by the Courts for the commission of a crime. Other terms used as penitentiary, correctional facility, remand centre, detention centre, and a gaol or jail. A prison system is the organizational arrangement of the provision and operation of prisons. A prison may also sometimes be used as a tool of political repression to detain political prisoners, prisoners of conscience and enemies of the state, particularly by authoritarian regimes. In times of war or conflict, prisoners of war may also be detained in prisons. The use of capital punishment began to decline in the late 18th century, the prisons are increasingly used by courts as a place of punishment, eventually becoming the chief means of punishing serious offenders. The concept of the prison as a penitentiary (as a place of punishment and personal reform) was advocated by the English jurist and philosopher Jeremy Bentham, among others. Confinement of criminals came to be viewed as an ideal, because it was thought that solitude would help the offender to become penitent and that penitence would result in rehabilitation. Prisons are normally surrounded by fencing, walls, earthworks, geographical features, or other barriers to prevent escape. Multiple barriers, 5 concertina wire, in some cases electrified fencing, secured and defensible main gates, armed guard towers, lighting, motion sensors and roving patrols may also be present depending on the level of security. There are a number of accepted reasons for the use of imprisonment. One approach aims to deter those who would otherwise commit crimes (general deterrence) and to make it less likely that those who serve a prison sentence will commit crimes after their release (individual deterrence). A second approach focuses on issuing punishment to, or obtaining retribution from those who have committed serious crimes. A third approach encourages the personal reform of those who are sent to prison. Finally, in some cases it is necessary to protect the public from those who commit crimes-particularly from those who do so persistently. Although prisons are intended to be institutions where good order prevails, but it is also possible that in certain circumstances the discipline may break down. It is the responsibility of prison administrators to ensure that each arriving prisoner understands what type of behaviour is expected and what acts are forbidden. On top of everything, their personal security is ensured by the State itself. In addition, there must be a clear set of disciplinary sanctions for acts of indiscipline. The modern prison system was born in London, influenced by the utilitarianism of Jeremy Bentham. 6 Bentham’s panopticon introduced the principle of observation and control that underpins the design of the modern prison. The notion of prisoners being incarcerated as part of their punishment or detention for the time being and simply as a holding state until trial or hanging or imprisonment was at the time revolutionary. This is when prisons had begun to be used as criminal rehabilitation centers. Political prisoners are not treated as under- trial prisoners nor are they treated as convicted persons. They are kept in prison for alleged violation of prejudicial acts. They are kept separately without mixing with other prisoners. Their status is much higher than an ordinary civilian prisoner. It is the responsibility of the prison authority to ensure their safety and security. Even during medieval period it was inconceivable that a prisoner could be brutally killed by the authority in power. It is always treated as the safest place for all kinds of prisoners and detainees. This has been not only proved untrue in the case in hand, the governments in power instead of putting the killers to justice rewarded them. After the killing of Sheikh Mujibur Rahman, the entire nation was maimed to hear the news of the killing of Syed Nazrul Islam, Tajuddin Ahmed, Captain Monsur Ali and M. Kamruzzaman in their prison cells in the Dhaka Central Jail. The authority remained unmoved and indifferent. Being impelled by conscience, Kazi 7 Abdul Awal (P.W.1), the DIG (Prisons) Dhaka Central Jail, lodged an FIR on 4th November, 1975, being Lalbagh P.S. Case No.11 dated 4th November, 1975, taking risk of his life as the authority in power wanted to suppress the real incident of the killing. He stated that realizing the hatefulness and barbarism and the gravity of the incident, he himself lodged the FIR instead of allowing the Jailor to lodge the same. No investigation was held over the said incident to unearth the names of the assailants, their purpose and intention of the killing. The investigation of the case was postponed sine die by the order of the Government as revealed from the statement of Abdul Kahar Akond (P.W.64). The reason is obvious from all corners the fingers were pointing towards Khandaker Mustaq, his security team deputed at Bangabhaban and his followers as the killers. These killers were staying with Khandaker Mustaq in Bangabhaban forming his security team and associates to consolidate power for running the country. In 1996, when the Awami League, the political party to which these national leaders belonged, formed Government, revived the case. P.W.64 could not trace out the original FIR. Ultimately, he colleted the true copies thereof from two places, one from the Dhaka Central Jail, ext-1 and the other from the judicial record of the Inspector General of Police, ext-3. In due course, he submitted the charge sheet on 15th 8 October, 1998, against the respondents and 18 others. The learned Sessions Judge, Dhaka, received the case record for trial on 24th November, 1998. All 20(twenty) accused including the respondents stood charged under sections 120B and 302/109 of the Penal Code. Accused Moslemuddin was also separately charged under section 302 of the Penal Code. Most of the accused persons including the respondents remained in abscondence. They were tried in absentia. The trial Court as well as the High Court Division, believed the incident of killing but disbelieved the claim of P.W.1 that exts-1 and 3 are the true copies of the FIR. Despite that, the trial Court convicted 15 accused persons including the respondents in absentia and sentenced some of them to imprisonment for life under sections 302/109 of the Penal Code and the respondents with Moslem Uddin @ Moslem Uddin @ Heron Khan @ Moslem Uddin Khan to death under sections 302/34 of the Penal Code.