MOHAMMAD ULLAH Vs. SESSIONS JUDGE, NOAKHALI

JUDGEMENT

(1.) This appeal by leave is directed against the judgment and order dated 18th November 1998 passed by a Division Bench of the High Court Division in Writ Petition No.3501 of 1997 discharging the rule.

(2.) The rule was issued by the High Court Division on an application under Article 102 of the Constitution of the People's Republic of Bangladesh upon the respondents to show cause as to why the order dated 26th November, 1996 passed by the Sessions Judge, Noakhali in Miscellaneous Case No.353 of 1996 for fresh trial in G.R. Case No. 1 of 1983 of the Court of Magistrate. First Class, Noakhali should not be declared to have been passed without lawful authority and why direction should not be made for quashing the proceedings against the appellant in the aforesaid G.R. Case No.1 of 1983 stating, inter alia, that the appellant joined service under the Government as Typist in 1967 and later on become Stenographer, in Noakhali Judgeship in December, 1975. The dead body of Ziauddin Mahmud alias Firoj, son of respondent No.3 missing since 29.12.1982, was discovered on 1.1.1983, whereupon U.D. Case No.1 of 1983 was registered with Sudharam Police Station. Appellant was arrested in connection with the said case on 3.1.1983. Sagir Ahmed, Sub-Inspector of Sudharam Police Station lodged suo moto First Information Report on 5.1.1983 and after investigation charge-sheet was submitted against the appellant and 6 others on 20.4.1983 under sections 364/302/201 read with sections 34, 109 and 120B of the Penal Code alleging, inter-alia, that they in conspiracy with each other killed Ziauddin Mahmud alias Firoj, minor son of respondent No.3, due to long standing enmity and grudge. This case was registered as G.R. Case No.1 of 1983 and on the prayer of the Investigating Officer Altaf Hossain, C.I.D. made on 20.4.1983 the case was transferred to the Special Martial Law Court No.4, Comilla by the Zonal Martial Law Administrator, Zone-D, Comilla for trial (vide Index Nos.7 and 8). The Special Martial Law Court No.4, Comilla upon trial convicted the appellant and co-accused Md. Hossain and Md. Yakub and sentenced each of them to imprisonment for life by judgment dated 15.3.1984. Appellant suffered rigorous imprisonment from 15.3.1984 to 16.11.1991 i.e., 8 years 10 months and 14 days and he was released from jail upon declaration of general amnesty by the then Acting President. On release from jail the appellant filed Writ Petition No.3832 of 1992 challenging the legality and validity of the order of sentence passed by the Special Martial Law Court No.4, Comilla in Special Martial Law Case No. 24 of 1983. The rule was ultimately made absolute and order of conviction and sentence passed in the said case had been declared to have been passed without lawful authority vide judgment dated 21.4.1994. The appellant who was suspended from service by order dated 6.7.1983 and dismissed by order dated 17.4.1988, was reinstated under order of the Government dated 30.3.1995 and the petitioner joined his post on 17.4.1995 and was paid all arrear remuneration and allowances admissible under the rules. While in police custody after arrest on 3.1.1983 the police severely tortured the appellant for getting confessional statement implicating himself with the death of the son of respondent No.3 and such torture resulted in left thumb fracture and injury to other parts of the body and he had to be in the Noakhali Jail Hospital from 8.1.1983 to 21.7.1983. The fact of torture was brought to the notice of the Sub-Divisional Magistrate, Noakhali on 13.1.1983 and also the Sessions Judge, Noakhali and the Sessions Judge passed order on the appellant's application for taking necessary action. After disposal of the said Writ Petition No.3832 of 1992 the appellant instituted Money Suit No.3 of 1995 in the Court of Subordinate Judge, Noakhali against Bashir Ahmed. Most. Hasna Hena Begum, Nazrul Islam, Mohammadullah alias Madhu, Abdul Matin and Abul Hashem as principal defendants and Deputy Commissioner, Noakhali and Home Secretary, Government of the People's Republic of Bangladesh as proforma defendants for damage for malicious prosecution and wrongful imprisonment. At the instance of the respondent No.3 the said suit has been transferred to the Subordinate Judge, First Court, Dhaka and the suit is pending in the said Court. Respondent No.3 submitted an application before the Sessions Judge, Noakhali praying for fresh trial of G.R. Case No.1 of 1983 and thereupon Miscellaneous Case No. 353 of 1996 was registered in the Court of Sessions Judge, Noakhali, who, without issuing any notice, passed order on 26.11.1996 for fresh trial of said G.R. Case No. 1 of 1983 and the Magistrate, Noakhali was directed to send the records of Special Martial Law Case No.24 of 1983 which was in his custody under the Chief Martial Law Administrator's order conveyed under Memo No.6506/20/M.L.-2(A) dated 22.3.1986. The appellant had been prosecuted and punished for the offence relating to death of Ziauddin Mahmood alias Firoj and he had suffered imprisonment from 15.3.1984 to 16.11.1991 pursuant to the judgment dated 15.3.1984 passed upon trial of Special Martial Law Case No.24 of 1983. As such, if fresh trial takes places in pursuance of the Sessions Judge's order dated 26.11.1996 in Criminal Miscellaneous Case No.353 of 1996, such prosecution will be a violation of the fundamental right guaranteed to the appellant under Article 35(2) of the Constitution of the People's Republic of Bangladesh.

(3.) Upon hearing the parties a Division Bench of the High Court Division discharged the rule by judgment dated 18th November, 1998 holding, inter alia, as follows: