IN THE SUPREME COURT OF BANGLADESH

APPELLATE DIVISION
(CRIMINAL APPELLATE JURISDICTION)

CRIMINAL MISCELLANEOUS PETITION NO. OF 2012.

IN THE MATTER OF:

An application under Article

103 of the Constitution of the

People’s Republic of

Bangladesh .

AND

IN THE MATTER OF:

Kamal Hossain

Son of Abdul Gafur

Of Village- Udrajpur

(Mollah House)

Police Station- Dagon Bhuiyan,

District- Feni.

...Accused-Petitioner
(On Bail)

-Versus-
 2

The State

..... Respondent

AND

IN THE MATTER OF

Judgment dated 19.01.2012

passed by the Hon'ble High

Court Division in Criminal

Miscellaneous Case No. 8855

of 2007 discharged the Rule.

To

Mr. Justice Md. Muzammel Hossain the Hon'ble

Chief Justice of Bangladesh and his companion Justices

of the said Hon’ble Court.

The humble petition on behalf

of the Petitioner named above

most respectfully-

SHEWETH:
 3

1. That the Criminal Miscellaneous petition for leave to

appeal arises out of judgment and order dated

19.01.2012 passed by a Division Bench of the High

Court Division in Criminal Miscellaneous No. 8855

of 2007 discharging the Rule.

2. That the case of the prosecution in short is that Md.

Ayub Khan, Sub-Inspector of Police of Dagun

Bhuiyan Police Station, Feni lodged First

Information Report with the Dagon Bhuiyan Police

Station stating that on 23.10.2007 in connection

with G.D. Entry No. 879 the informant along with

his forces with Army in the name of ‘Operation

clean heart’ and made operation in the building of

Quddus Miah along with the accused persons and

according to their statements 4 Nos of country made

Pipegun measuring 40” length and 1 piece of

country made rusty Pistol recovered from that water

tank situated in the roof of Quddus Miah and in

 4

pipe gun presence of witnesses a seizure list was

prepared. Hence the prosecution case.

3. That on the basis of the F.I.R. Police started Dagun

Bhuiyan Police Station Case No. 15 dated

23.10.2002 under section 19A of the Arms Act,1878

against the accused petitioner and others, thereafter

on completion of the investigation, the Investigation

Officer Submitted Charge Sheet under Section 19A

and 19(f) of the Arms Act,1878 against the

petitioner and others being charge sheet No. 105

dated 23.10.2002.

4. That thereafter the case was transferred to the court

of learned Session Judge and special Tribunal for

trial registered the case being Special Tribunal Case

No. 82 of 2003 and framed charged under section

19A and 19f of the Arms Act, 1878 against the

accused-petitioner and others which was read over

to the only accused Peyara Begum and she pleaded

not guilty and claimed to be tried.

 5

5. That the prosecution examined 9 witnesses to

proved there case. Amongst them PW-1, Md. Ayub

Khan, Sub-Inspector, the informant PW-2, Sala

Uddin, PW-3, Obaidul Haque, PW-4, Momtaj Uddin,

Constable No. 392, PW-5, Hla Ching Prue, the

police inspector, PW-6, Md. Jashim Uddin, PW-7,

Nasir Uddin, PW-8, Humayun Kabir, PW-9, Ayub

Khan, Sub- Inspector and investigating officer. But

none as examined on behalf the accused-petitioner.

6. That the learned Session Judge and Special

Tribunal No.1, Feni by his Judgment and order

dated 4.10.2006 found the accused-petitioner

alongwith 2 others guilty of a charge and thereby

convicting them under sections 19A and 19f of the

Arms Act, 1878 and sentenced to suffer rigorous

imprisonment for 14 years and also to pay a fine of

taka 5000 each in default to suffer rigorous

imprisonment for 6 months more and acquitted

accused Peyara Begum.

 6

7. That it is stated that the accused-petitioner is not in

any way involved in the instant case and he was not

a possessor or tenant of the alleged house and

nothing has been recovered from his exclusive

possession rather he is a victim of operation of

Clean heart and thus the accused-petitioner but the

tribunal most illegally convicted the petitioner

without considering the same and High Court

Division also affirmed the judgment of the tribunal

committed error of law and hence the impugned

judgment are liable to be set a side.

8. That it is submitted that the accused-petitioner was

arrested by the Joint forces during clean heart

operation in the year 2002 and the place of

occurrence, Quddus Miahs 3 storied buildings roof

and water tank which is 8 K.M far away from the

place of arrest of the petitioner, Kamal Hossain,

Mere knowledge of the accused that the arms was

lying at the spot pointed out by him with 2 others,

 7

in the absence of any evidence or circumstance to

show that he had exclusive possession over the spot

or that none else had access to the spot, therefore

the learned Tribunal committed an error of law to

convict the petitioner and High Court Division also

without applying judicial mind discharged the rule

hence the impugned judgment are liable to be set a

side.

9. That it is submitted that the Special Tribunal most

illegally convicted the petitioner under section 19A

and 19(f) of the Arms Act, sentencing him to suffer

rigorous imprisonment for 14 years and also pay a

fine of taka 5000 only in default to pay the fine of

taka the petitioner also suffer rigorous

imprisonment for 6 (Six) months more. Although

there is no provision of penalty in section 19A and

(f) of the Arms Act,1878. The tribunal pay fine of

taka committed error of law but the High Court

Division without applying Judicial mind discharged

 8

the rule error of law hence the impugned judgment

passed by both the Court are liable to be set a side

for the ends of justice.

10. That there has been gross violation of the law to

convict the petitioner in as much as no provision of

penalty in section 19A and 19(f) of the Arms

Act,1878. Therefore the Hon'ble High Court Division

ought to have made the Rule absolute. But the

Hon'ble High Court Division without considering the

legal ground most illegally and without lawful

authority discharge the Rule error of law and as

such the impugned judgment and order passed by

the High Court Division is liable to be set aside.

11. That it is submitted that having considered the

gross illegalities as on the procedural irregularity

High Court Division committed error of law in

passing the impugned judgment and as such the

impugned judgment and order dated 19.01.2012

 9

passed by the Hon'ble High Court Division is liable

to be set a side.

12. That it is respectively submitted that unless the

judgment and order passed by the High Court

Division is stayed by this Hon’ble Court the

petitioner will suffer irreparable loss and injury,

there will be social, and administrative crises

therefore an order of stay is necessary to uphold the

provisions of law.

13. That the petitioner filed an application for obtaining

the Certified Copy of the impugned judgment being

entry No. 54 dated 19.01.2012 but he could not

obtain the certified copy of the judgment. The

petitioner will file regular leave petition as soon as

Certified Copy of the impugned judgment is

supplied from the High Court Division.

14. That in the premises, the petitioner being aggrieved

by and dissatisfied with the judgment and order

dated 19.01.2012 passed by a Division Bench of the

 10

High Court Division in Criminal Miscellaneous Case

No. 8855 of 2007, The petitioner beg to file this

petition for leave to appeal on the following amongst

other-

And for this act of kindness, your Petitioners as in

duty bound shall ever pray.

Drawn and filed by:

Advocate-on –record
For the Petitioner
 11

IN THE SUPREME COURT OF BANGLADESH

APPELLATE DIVISION

( CRIMINAL APPELLATE JURISDICTION)

CRIMINAL MISCELLANEOUS PETITION FOR

LEAVE TO APPEAL NO. OF 2012.

Kamal Hossain ...Petitioner

-Versus-

The State ..... Respondent

AFFIDAVIT OF FACTS

I, ------, Advocate-on-Record for the petitioner do

here by solemnly affirm and say as follows;-

1. That the statements made an application for

filing a Criminal petition for Leave to appeal
are true to my instructions received from the
petitioner which I verily believe to be true.
Dated this the th of January, 2012.

Advocate-on-Record
For the petitioner.

IN THE SUPREME COURT OF BANGLADESH

 12

APPELLATE DIVISION

(CRIMINAL APPELLATE JURISDICTION)

CRIMINAL MISCELLANEOUS PETITION FOR

LEAVE TO APPEAL NO. OF 2012.

IN THE MATTER OF:

An application for Stay .

AND

IN THE MATTER OF:

Kamal Hossain

Son of Abdul Gafur

Of Village- Udrajpur

(Mollah House)

Police Station- Dagon Bhuiyan,

District- Feni.

...Accused-Petitioner
(On Bail)

-Versus-

The State
..... Respondent
 13

To
Mr. Justice Md. Muzammel Hossain the Hon'ble

Chief Justice of Bangladesh and his companion Justices

of the said Hon’ble Court.

The humble petition on behalf

of the Petitioner named above

most respectfully-

SHEWETH:

1. That the Criminal Miscellaneous petition for leave to

appeal arises out of judgment and order dated

19.01.2012 passed by a Division Bench of the High

Court Division in Criminal Miscellaneous No. 8855

of 2007 discharging the Rule.

2. That the case of the prosecution in short is that Md.

Ayub Khan, Sub-Inspector of Police of Dagun

Bhuiyan Police Station, Feni lodged First

Information Report with the Dagon Bhuiyan Police

Station stating that on 23.10.2007 in connection

with G.D. Entry No. 879 the informant along with

 14

his forces with Army in the name of ‘Operation

clean heart’ and made operation in the building of

Quddus Miah along with the accused persons and

according to their statements 4 Nos of country made

Pipegun measuring 40” length and 1 piece of

country made rusty Pistol recovered from that water

tank situated in the roof of Quddus Miah and in

pipe gun presence of witnesses a seizure list was

prepared. Hence the prosecution case.

3. That on the basis of the F.I.R. Police started Dagun

Bhuiyan Police Station Case No. 15 dated

23.10.2002 under section 19A of the Arms Act,1878

against the accused petitioner and others, thereafter

on completion of the investigation, the Investigation

Officer Submitted Charge Sheet under Section 19A

and 19(f) of the Arms Act,1878 against the

petitioner and others being charge sheet No. 105

dated 23.10.2002.
 15

4. That thereafter the case was transferred to the court

of learned Session Judge and special Tribunal for

trial registered the case being Special Tribunal Case

No. 82 of 2003 and framed charged under section

19A and 19f of the Arms Act, 1878 against the

accused-petitioner and others which was read over

to the only accused Peyara Begum and she pleaded

not guilty and claimed to be tried.

5. That the prosecution examined 9 witnesses to

proved there case. Amongst them PW-1, Md. Ayub

Khan, Sub-Inspector, the informant PW-2, Sala

Uddin, PW-3, Obaidul Haque, PW-4, Momtaj Uddin,

Constable No. 392, PW-5, Hla Ching Prue, the

police inspector, PW-6, Md. Jashim Uddin, PW-7,

Nasir Uddin, PW-8, Humayun Kabir, PW-9, Ayub

Khan, Sub- Inspector and investigating officer. But

none as examined on behalf the accused-petitioner.

6. That the learned Session Judge and Special

Tribunal No.1, Feni by his Judgment and order

dated 4.10.2006 found the accused-petitioner

 16

alongwith 2 others guilty of a charge and thereby

convicting them under sections 19A and 19f of the

Arms Act, 1878 and sentenced to suffer rigorous

imprisonment for 14 years and also to pay a fine of

taka 5000 each in default to suffer rigorous

imprisonment for 6 months more and acquitted

accused Peyara Begum.

7. That it is stated that the accused-petitioner is not in

any way involved in the instant case and he was not

a possessor or tenant of the alleged house and

nothing has been recovered from his exclusive

possession rather he is a victim of operation of

Clean heart and thus the accused-petitioner but the

tribunal most illegally convicted the petitioner

without considering the same and High Court

Division also affirmed the judgment of the tribunal

committed error of law and hence the impugned

judgment are liable to be set a side.

8. That it is submitted that the accused-petitioner was

arrested by the Joint forces during clean heart

 17

operation in the year 2002 and the place of

occurrence, Quddus Miahs 3 storied buildings roof

and water tank which is 8 K.M far away from the

place of arrest of the petitioner, Kamal Hossain,

Mere knowledge of the accused that the arms was

lying at the spot pointed out by him with 2 others,

in the absence of any evidence or circumstance to

show that he had exclusive possession over the spot

or that none else had access to the spot, therefore

the learned Tribunal committed an error of law to

convict the petitioner and High Court Division also

without applying judicial mind discharged the rule

hence the impugned judgment are liable to be set a

side.

9. That it is submitted that the Special Tribunal most

illegally convicted the petitioner under section 19A

and 19(f) of the Arms Act, sentencing him to suffer

rigorous imprisonment for 14 years and also pay a

fine of taka 5000 only in default to pay the fine of

taka the petitioner also suffer rigorous

imprisonment for 6 (Six) months more. Although

 18

there is no provision of penalty in section 19A and

(f) of the Arms Act,1878. The tribunal pay fine of

taka committed error of law but the High Court

Division without applying Judicial mind discharged

the rule error of law hence the impugned judgment

passed by both the Court are liable to be set a side

for the ends of justice.

10. That there has been gross violation of the law to

convict the petitioner in as much as no provision of

penalty in section 19A and 19(f) of the Arms

Act,1878. Therefore the Hon'ble High Court Division

ought to have made the Rule absolute. But the

Hon'ble High Court Division without considering the

legal ground most illegally and without lawful

authority discharge the Rule error of law and as

such the impugned judgment and order passed by

the High Court Division is liable to be set aside.

11. That it is submitted that having considered the

gross illegalities as on the procedural irregularity

High Court Division committed error of law in

passing the impugned judgment and as such the

 19

impugned judgment and order dated 19.01.2012

passed by the Hon'ble High Court Division is liable

to be set a side.

12. That it is respectively submitted that unless the

judgment and order passed by the High Court

Division is stayed by this Hon’ble Court the

petitioner will suffer irreparable loss and injury,

therefore an order of stay is necessary to uphold the

provisions of law.

13. That it is stated that the petitioner enlarged on bail

from the Hon’ble High Court Division and he did not

misuse the privilege of bail. Therefore the operation

of the impugned judgment and order need be stayed

for the ends of justice, other wise the petitioner will

suffer irreparable loss and injury.

Wherefore it is most humbly

prayed that your lordships

would graciously be pleased to

stay operation of the Judgment

and order dated 19.01.2012

 20

Passed by the Hon'ble High

Court Division in Criminal

Miscellaneous Case No. 8855

of 2007 discharged the Rule till

hearing of the Criminal Petition

for Leave to appeal and or pass

such other or further order or

orders as your Lordships may

deem fit and proper.

And for this act of kindness, your Petitioners as in

duty bound shall ever pray.

Drawn and filed by:

Advocate-on –record
For the Petitioner

IN THE SUPREME COURT OF BANGLADESH

 21

APPELLATE DIVISION

( CRIMINAL APPELLATE JURISDICTION)

CRIMINAL MISCELLANEOUS PETITION FOR

LEAVE TO APPEAL NO. OF 2012.

Kamal Hossain ...Petitioner

-Versus-

The State ..... Respondent

AFFIDAVIT OF FACTS

I, -------, Advocate-on-Record for the petitioner do

here by solemnly affirm and say as follows;-

1. That the statements made an application for

stay are true to my instructions received from
the petitioner which I verily believe to be true.
Dated this the th of January, 2012.

Advocate-on-Record
For the petitioner.

IN THE SUPREME COURT OF BANGLADESH

 22

APPELLATE DIVISION

( CRIMINAL APPELLATE JURISDICTION)

CRIMINAL MISCELLANEOUS PETITION FOR

LEAVE TO APPEAL NO. OF 2012.

Kamal Hossain ...Petitioner

-Versus-

The State ..... Respondent

AFFIDAVIT OF SERVICE

I, -------, Advocate-on-Record for the petitioner do

here by solemnly affirm and say as follows;-

1. That the statements made Criminal petition for

Leave to appeal and an application for stay are

true to my instructions received from the

petitioner which I verily believe to be true.

Dated this the th of January, 2012.

Advocate-on-Record
For the petitioners.