Evidence Act, 1872 [Section 1-100] Case Reference

Evidence Act, 1872

Section 3- Circumstantial evidence-The rule as regards sufficiency of circumstantial evidence to be the basis for conviction is that the facts proved must be incompatible with the innocence of the accused and incapable of explanation by any other reasonable hypothesis than that of his guilt. State vs Ali Kibria 43 DLR 512.

Section 3- The evidence by trap party is tainted in nature and as such corroboration from independent and neutral witnesses is very much necessary. AKM Mukhlesur Rahman vs State 45 DLR 626.

Section 3-Material consistent with innocence When some material is brought on record consistent with innocence of the accused, which may reasonably be true, even though it is not positively proved to be true, the accused is entitled to acquittal. State vs Ali Kibria 43 DLR 512.

Section 3-Circumstantial evidence-Its sufficiency to prove guilt-In the instant case circumstantial evidence on which trial Court relied do not conclusively point to guilt of the accused-Mere movement of the accused near the place of occurrence may raise a suspicion against the accused but this cannot be the basis for their conviction. Ali Ahmed Malaker vs State 43 DLR 401.

Section 3-Document' occurring in section 3(16) of the General Clauses Act and section 3 of the Evidence Act-Meaning of Whether kabalas are documents as referred to in those Acts. Abdus Sattar Bhuiyan vs Deputy Commissioner, Dhaka 42 DLR 151.

Section 3-Circumstantial evidence- circumstances forming evidence in proof of the crime must be conclusively established-They must form such a complete chain that it was not only inconsistent with the guilt of the accused but was inconsistent with any reasonable hypothesis of innocence. State vs Ranjit Kumar Pramanik 45 DLR 660.

Section 3- Conviction on circumstantial evidence if it is proved beyond doubt that the deceased is seen last alive in the company of the accused, he is liable to offer satisfactory explanation as to the cause of death of the deceased or at least as to his company with the deceased. If circumstantial evidence leading to the irresistible conclusion that the accused alone caused the death of the victim is not considered sufficient for his conviction then there can never be any conviction on circumstantial evidence. In other words, the prosecution cannot prove its case by circumstantial evidence. Such a concept is contrary to time honoured principle of law regarding circumstantial evidence. Rezaul Huq vs State 42 DLR 440.

Section 3-A statement under section 342 CrPC is not evidence within the meaning of section 3 of the Evidence Act. Shah Alam vs State 42 DLR (AD) 31.

Section 3- Relationship of the witnesses with a party cannot be the sole ground of disbelieving their evidence unless contradiction and inherent infirmity are found in their evidence. Bachu Miah vs Samad Miah 50 DLR 564.

Section 3-Partisan evidence is no doubt suspect, but cannot be discarded without finding any inherent infirmity and/or contradictions therein making the same unworthy of credence.

In the context of prevailing deteriorating law and order situation in the society where open threat is given to the witnesses not to depose in support of the prosecution case the difficulty of the prosecution to bring independent witnesses, and the rising tendency of witnesses giving testimony in the Court to favour the accused giving different versions of the occurrence from the one made to the investigation officer at the time of investigation, for the above reasons, should be considered before finding fault with the prosecution for nonproduction of independent witnesses and relying on the evidence of the witnesses declared hostile by the prosecution without properly evaluating whatever evidence is available on record with a critical eye in the context of the respective cases of the parties. Dulal Miah vs. Ruhul Amin 50 DLR 618.

Section 3-Recognition by torch and hurricane at dead of night is doubtful. Abu Bakker vs State 49 DLR 480.

Section 3-A witness has a tendency to exaggerate, embroider and also to implicate falsely some other person in addition to the real offender. The Court is to scan the evidence so as to come to a decision as to which part is acceptable and only in case of impossibility to separate the truth from falsehood, the Court will be justified in rejecting the evidence in to to. Masum vs State 49 DLR 349.

Section 3-Evidence adduced by the prosecution being of a circumstantial nature and there being a missing link in the chain of circumstances, the prosecution failed to prove the guilt of the appellants beyond reasonable doubt. Nuru Miah vs State 49 DLR 97.

Section 3-In the absence of the practice of registration of birth in the official register kept by any public authority, one cannot really be sure of the date of birth of any particular person. Ultimately, it falls on the Court to determine the age of the victim girl based on the impression received, by her behaviour and appearance when brought before this Court. Nurunnahar Khatun vs State 46 DLR 112.

Section 3- Circumstantial evidence-If the circumstances are not proved beyond all reason- able doubt by reliable and sufficient evidence and if at all proved but the same cumulatively do not lead to the inevitable conclusion or hypothesis of guilt of the accuseds alone but to any other reasonable hypothesis compatible with the innocence of the accused then it will be a case of no evidence and the accused should be given benefit of doubt. Bakul vs State 47 DLR 486.

Section 3- Circumstantial evidence must be so strong as to eliminate the possibility of innocence of the accused-person. State vs Balai Chandra Sarker 47 DLR 467.

Section 3-The statements under section 164 of the Code of Criminal Procedure recorded before an authority other than the Judge who tried the case was not the statement of the witnesses produced before him, and, as such, this could not be treated as oral evidence. Such statements could not be used as substantive evidence for arriving at any finding as to the guilt or innocence of the accused. Babloo vs State 47 DLR 337.

Section 3-A witness for the prosecution does not become partisan per se nor an eyewitness can be disregarded merely because he has come to support the prosecution party. It was necessary to consider the whole evidence and then to assess the worth of the witnesses as a whole, State vs Abdul Khaleque alias Abdul Khaleq Howlader 49 DLR (AD) 154.

Section 3- Benefit of doubt to the accused would be available provided there is supportive evidence on record. For creating doubt or granting benefit of doubt, the evidence is to be such which may lead to such doubt. The law would fail to protect the community, if fanciful possibilities are admitted, thus, deflecting the course of justice. AlAmin vs State 51 DLR 154.

Section 3- The confession of co-accused can be considered to lend support to the other evidence, if any, but in this case there is no other evidence so far appellant Idris is concerned other than the confessional statement of the co-accused. Therefore the conviction Idris is based on no evidence and is liable to be set aside. State va Rafiqul Islam 55 DLR 61

Section 3-Circumstantial evidence may be and frequently is more cogent than the evidence of eye-witnesses. It is not difficult to produce false evidence of eye-witnesses. It is, on the other hand, extremely difficult to produce circumstantial evidence of a convincing character and therefore, circumstantial evidence, if convincing, is more cogent than the evidences of eye-witnesses. State vs Moslem 55 DLR 116.

Section 3-There should not be exaggerated devotion to the rule of benefit of doubt at the expense of social defence and course of justice cannot be allowed to be deflected on the concept of the rule of benefit of doubt. It is true to say with Viscount Simons that "miscarriage of justice" may arise from the acquittal of the guilty no less than the conviction of the innocent. State vs Md Awal Fakir 56 DLR 647.

Section 3- Because PW 2 had been declared hostile by prosecution, his testimony did not stand effaced and evidence remains admissible in trial and there is no legal bar to accept his testimony. Babul vs State 57 DLR 158.

Section 3- "Interestedness"-This has been defined by the Supreme Court of Pakistan in the case of Nazir vs State PLD 1962 SC 269 14 DLR (SC) 159 in the terms that interested witness is one who has a motive for falsely implicating an accused person. State vs Anjuara Khatun 57 DLR 277.

Section 3-Credibility of a witness is accepted if it is corroborated by the evidence of other witnesses but credibility should be tested in the touchstone of the broad probabilities of the case. Montu vs State 57 DLR 504.

Section 3- Only because of relationship witnesses evidence cannot be thrown away unless the evidence is found to be untrue or tainted with motive. Yogeshwar Gope vs State 58 DLR (AD) 73.

Section 3- Conviction could be based solely on unimpeachable evidence of the police witnesses even if not corroborated by independent public witnesses. Hiru Mia vs State 58 DLR 607.

Section 3-Prosecution case rested on circumstantial evidence which requires that prosecution is to prove each of the circumstances having a definite tendency pointing towards the guilt of the accused person and, though each of the circumstances by itself may not be conclusive but the cumulative effect of proved circumstances must be so complete that it would exclude every other hypothesis and unequivocally point to the guilt of the accused. State vs Md Kaloo 58 DLR 638.

Section 3- Conviction can be well based on the testimony of the Police personnel if it is supported by other evidence on record or if it inspires confidence. Faruq (Md) vs State 59 DLR 104.

Section 3- In order to judge credibility of a witness, the Trial Judge must look into the surrounding circumstances as well as probability of the contentions, so that he may form correct idea of truth or worthiness of a witness. If the evidence is inherently weak, basically suffers from absurdity, opposed to reason, logic, human conduct, natural course of events and no man of ordinary prudence can accept it, such witness must not be relied. State vs Kajal Ahmed Jalali 59 DLR 345.

Section 3-Long delay in recording statement of witness by the Investigating Officer renders his evidence unworthy of credit. State vs Kajal Ahmed Jalali 59 DLR 345.

Section 3-Circumstantial Evidence- Where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt. Helal vs State 60 DLR 24.

Section 3- Written statement submitted by the appellant when he was examined under section 342 of the Code of Criminal Procedure is not evidence within the meaning of section 3 of the Evidence Act. Such statement is to be considered along with the evidence and the circumstances and if the statement gets support from the evidence on record due weight may be given on it. [Vide 42 DLR (AD) 31]. Thus such statement cannot be the sole basis of conviction. Hasan Md vs State 60 DLR 56.

Section 3-Circumstantial Evidence-It is well settled law that last seen together is a weak type of circumstantial evidence on which to have a conviction, a link between the accused and the murder has to be proved. Bablu vs State 60 DLR 583.

Section 3-Circumstantial Evidence- Circumstances in respect of which an accused was not examined under section 342 of the Code of Criminal Procedure cannot be used against him. Bablu vs State 60 DLR 583.

Section 3-There is no reason why the evidence of police personnel should be discarded simply because they belonged to the police force. They came before the Court and testified to the occurrence. They were fully cross examined. Their evidence is also evidence within the meaning of section 3 of the Evidence Act. Mohin Uddin vs State 61 DLR 35.

Section 3- If the evidence of the hostile witness fits in with the attending circumstances, then it may be accepted and considered along with other evidence. We received support of the above view in the case of State of Uttar Pradesh vs Chat Ram AIR 1985 (SC) 1543. Sahabuddin vs State 61 DLR 54.

Section 3-When there is neither any eye- witness nor any corroboration of the evidence adduced by the prosecution and the deposition of the prosecution witnesses runs counter to the confessional statement, it is unsafe to sustain any conviction.. moreso, when such conviction is based primarily on the confessional statement of a co-accused. State vs Hamidul 61 DLR 614.

Section 3-Abscondence-Absconsion of the accused in certain cases can be vital circumstantial evidence, but it does not necessarily justify drawing an inference of guilt of the accused in each and every case. Ayub Ali Sheikh vs State 63 DLR 55.

Sections 3 and 5-Circumstantial evidence -Its conclusiveness assessment of evidence- This is a case in which a minor boy, the victim of murder, was called away by and seen in the company of the two young accused for the last time before disappearance and then some time thereafter the body of the victim was found out. The fact of calling away of victim Khairul by accused Khasru was satisfactorily established as the first circumstance in support of the prosecution and witnesses have also satisfactorily proved that the victim travelled with the two accused from their village Noapara to a distant place called Takerhat by bus and got down there at 4-00/4-30 PM on 4-1-79. This is the second circumstance proved against the accused. From this point onward upto the time of recovery of the body of Khairul at about 3-00/3-30 PM on the following day the accused were alleged to have been seen along with the deceased, the third circumstance in the absence of ocular evidence of murder, by PWs 11 and 12. The High Court Division rejected their evidence due to apparent contradiction between their evidence and the statement made by them before the police and also for the reason that their identification of the accused in the TI Parade had lost all significance in view of the fact that they had chance to see the accused. There has been no violation of any norm or procedure in assessing the evidence of the said two witnesses for which the finding of fact made by the High Court Division could be disturbed. The position, therefore, comes to this that the third circumstance, that of, seeing the three boys together near the bank of the river where the victim's body was found was not satisfactorily established. The circumstances of the case can never be said to be conclusive as to the guilt of accused Khasru and his brother Nowab. The High Court Division has correctly applied the rule as to circumstantial evidence in the facts of the present case. State vs Khasru @ Syed Mostafa Hossain 43 DLR (AD) 182.

Sections 3 and 5-Glaring inconsistencies between the existence of injuries on the body of the deceased as found by the post-mortem doctor and the evidence of prosecution witnesses about injuries caused by the appellants lead to the conclusion that the occurrence did not take place in the manner as alleged by the prosecution. Kadu vs State 43 DLR 163.

Sections 3, 5 & 8-Ordinarily an accused has no obligation to account for the death for which he was placed on trial, but the murder having taken place while the accused was living with his deceased wife in the same house, he was under an obligation to explain how his wife had met with her death. Abul Kalam Mollah vs State 51 DLR 544.

Sections 3 & 30-Confession of co- accused The confession of an accused is no evidence against the coaccused. Such confession cannot be taken into consideration against his coaccused and it can only be used to lend assurance to other legal evidence. But in the absence of any substantive evidence the confession of a coaccused is of no consequence against other accused persons. State vs Tajul Islam 48 DLR 306.

Sections 3 & 30-Confessional statement of coaccused by itself is not an evidence within the meaning of section 3 of the Act unless it is suppor- ted in material particulars by other evidence, at best it can be used against the maker. Abdus Sattar @A. Sattar @Sottar vs State 58 DLR 415.

Sections 3 & 30-It is true confession of an accused may be used as against other coaccused in the same trial. But this is for a limited purpose. Confession of a coaccused itself is not evidence but it may be used as such if it is found to be true and voluntary as against other coaccused not as a solitary basis but for the purpose of lending assurance to any other evidence found against him. Abul Hossain vs State 46 DLR 77.

Sections 3 & 30-Since the confessional' statement is not required to be taken on oath and taken in presence of a coaccused and not tested by cross-examination it cannot be considered as substantive evidence against the co-accused. Mojibar vs State 51 DLR 507.

Sections 3 and 30-Confession-Question of credibility when part of the occurrence is omitted or suppressed-It cannot be found nor it could be suggested by either the prosecution or the defence why throttling part of the occurrence was omitted or suppressed. Even if it be taken that accused Rina had deliberately suppressed the throttling part of the occurrence in her judicial confession that cannot mean that the confession was not true. Shahjahan Manik vs State 42 DLR 465.

Sections 3 & 32-Allegation made by the deceased prior to the occurrence cannot be treated relevant for the trial as it is not a subs- tantive evidence like dying declaration related to the act of the murder. State vs Kajal Ahmed Jalali 59 DLR 345.

Section 3-Confession of a co- accused is a type of evidence which is very weak in nature, as it does not come within the definition of "evidence". State vs Abdul Kader @Mobile Kader, 67 DLR (AD) 6

Section 3-If there is no other evidence against co-accused except the confession, then, the confession by itself being merely a matter to be taken into consideration, and not being an evidence under section 3, no conviction of the co- accused could be given relying on such confession. (PER SK SINHA, J AGREEING WITH MD ABDUL WAHHAB MIAH, J) State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6

Sections 3 & 154- Cheque, which is otherwise complete except the date, will be treated as an inchoate document handed over to the payee with implied authority (unless an express authority is annexed) to write the date on the cheque. It is the choice and decision of the drawer of a cheque to hand over a date, post-dated or undated cheque to the payee. He (drawer) cannot subsequently come with the plea that an undated or post dated cheque handed over to the payee. In such case he is stopped by his conduct, called estoppels by conduct, and cannot be allowed to deny his obligation only on the excuse that an undated cheque was given to the payee. Ahmad Ullah vs Younus, 68 DLR 228

Sections 3 and 8-Unexplained abscondence of the accused is a supporting circumstance which must be considered along with the substantive evidence on record, if any, forthcoming against the accused. Akbar Ali Lalu alias Roni vs State, 66 DLR 134

Sections 3 and 30-Confessional statement of co-accused-Its value-The confessional statement of co-accused is admissible against other accused-persons in the sense that it may be taken into consideration against them along with other evidence. But it cannot be the sole basis of conviction of a co-accused. State vs Delwar Hossain, 64 DLR 356

Section—3

Video Cassette—Video cassette whether is a document and whether the same is admissible in evidence — Video Cassette is a document within the meaning of the Evidence Act and is accordingly admissible in evidence if otherwise relevant in course of a trial or proceeding — when sound recorded on a tape is admissible in evidence, the record of sound and picture should equally be admissible in evidence. Mrs. Khaleda Akhtar Vs. The State; 5BLD (HCD) 303 Ref. AIR. 1964 (SC) 72; AIR. 1968 (SC) 147; PLD l976 (SC) 57 (69) Cited.

Section 3— A witness has a tendency to exaggerate, embroider and also to implicate falsely some other person in addition to the real offender. The Court is to scan the evidence so as to come to a decision as to which part is acceptable and only in case of impossibility to separate the truth from falsehood, the Court will be justified in rejecting the evidence in toto. Masum and others vs State 49 DLR 349.

Section 3— Evidence adduced by the prosecution being of a circumstantial nature and there being a missing link in the chain of circumstances, the prosecution failed to prove the guilt of the appellants beyond reasonable doubt. Nuru Miah and another vs State 49 DLR 97

Section 3— In the absence of the practice of registration of birth in the official register kept by any public authority, one cannot really be sure of the date of birth of any particular person. Ultimately, it falls on the court to determine the age of the victim girl based on the impression received, by her behaviour and appearance when brought before this court. Nurunnahar Khatun vs State 46 DLR 112.

Section 3— Long delay in examining the material witnesses casts a doubt on the whole prosecution case. Syed Nazakat Hossain alias Ujjal vs State 48 DLR 139.

Section 3— Circumstantial evidence —If the circumstances are not proved beyond all reasonable doubt by reliable and sufficient evidence and if at all proved but the same cumulatively do not lead to the inevitable conclusion or hypothesis of guilt of the accused’s alone but to any other reasonable hypothesis compatible with the innocence of the accused then it will be a case of no evidence and the accused should be given benefit of doubt. Bakul and others vs State 47 DLR 486.

Section 3— Circumstantial evidence must be so strong as to eliminate the possibility of innocence of the accused person. State vs Balai Chandra Sarker 47 DLR 467.

Section 3— The statements under section 164 of the Code of Criminal Procedure recorded before an authority other than the Judge who tried the case was not the statement of the witnesses produced before him, and, as such, this could not be treated as oral evidence. Such statements could not be used as substantive evidence for arriving at any finding as to the guilt or innocence of the accused. Babloo and another vs State 47 DLR 337.

Section 3— A witness for the prosecution does not become partisan per se nor an eye-witness can be disregarded merely because he has come to support the prosecution party. It was necessary to consider the whole evidence and then to assess the worth of the witnesses as a whole. State vs Abdul Khaleque alias Abdul Khaleq Howlader 49 DLR (AD) 154.

Section 3— Benefit of doubt to the accused would be available provided there is supportive evidence on record. For creating doubt or granting benefit of doubt, the evidence is to be such which may lead to such doubt. The law would fail to protect the community, if fanciful possibilities are admitted, thus, deflecting the course of justice. Al-Amin and 5 others vs State 51 DLR 154.

Sections 3, 5 & 8— Ordinarily an accused has no obligation to account for the death for which he was placed on trial, but the murder having taken place while the accused was living with his deceased wife in the same house; he was under an obligation to explain how his wife had met with her death. Abul Kalam Mollah vs State 51 DLR 544

Sections 3 & 30— Confession of co-accused—The confession of an accused is no evidence against the co-accused. Such confession cannot be taken into consideration against his co-accused and it can only be used to lend assurance to other legal evidence. But in the absence of any substantive evidence the confession of a co-accused is of no consequence against other accused persons. State vs Tajul Islam 48 DLR 306.

Sections 3 & 30— It is true confession of an accused may be used as against other co-accused in the same trial. But this is for a limited purpose. Confession of a co-accused itself is not evidence but it may be used as such if it is found to be true and voluntary as against other co-accused not as a solitary basis but for the purpose of lending assurance to any other evidence found against him. Abul Hossain and others vs State 46 DLR 77.

Sections 3 & 30— Since the confessional statement is not required to be taken on oath and taken in presence of a co-accused and not tested by cross-examination it cannot be considered as substantive evidence against the co-accused.. Mojibar vs State 51 DLR 507

Sections 3 & 30- Confessional statement suffered from meager and lack of independent corroboration. So, on the basis of such confession, conviction of the appellant cannot be sustained in accordance with law We have discussed the deposition of the star witnesses of this case thoroughly but we find no corroboration of the evidences with each other, rather, we find material contradiction in the testimonies of the P.Ws. with the extra- judicial confession of the co-accused Mosila and in fact there is no extra-judicial confession of the condemned appellant. Therefore, the opinion of the High Court Division does not reflect the real facts and circumstances of the instant case.

The confession made by a co-accused Mosila in the facts and circumstances of the instant case cannot be said that it is corroborated by other evidence and, as such, it cannot be the sole basis of conviction of another co-accused. The Criminal Appeal No.21 of 2015 is allowed. The Appellant Saley Akram alias Polash is acquitted from charges levelled against him....Saley Akram alias Polash =VS= The State, [10 LM (AD) 360]

Section 3, 8, 30- Even an innocent man may feel panicky and to evade arrest and trial may abscond when suspected of grave crime like murder. Abscondence by itself was not conclusive proof of guilt or guilty conscience of an accused but it might lend support to other evidence on record... Alamgir Hossain -VS- State, [10 LM (AD) 466]

Evidence Act (I or 1872)

S. 3 Confession is not evidence-Upon the plain meaning of the word evidence as given in section 3 of the Evidence Act, the plea of the accused whether it amounts to a confession or not is not evidence State Vs. Satya Pada Biswas (1962) 14 DLR 121.

-Admission of guilt by the accused at the commencement of the trial has not been treated as evidence. State Vs. Satyapada Biswas (1962)14 DLR 121:1962 PLD (Dar) 340

-The mere fact of the story having been told to a number of relations shortly after the occurrence is insufficient corroboration. Equally the fact of the story having been communicated by the relations to other neighbours and later to authorities is by no means sufficient corroboration. Muhammad Abdul Khaleque Vs. State (1960) 12 DLR(SC) 165.

-Confession of a co-accused not evidence.

A confession of a co-accused is obviously an evidence of a very weak type. It does not indeed come within the definition of 'evidence'. It is not re-. quired to be given on oath, nor in the presence of the accused, and it cannot be tested by cross- examination. (1950) 2 DLR(PC) 39.

-Probability-that of a prudent man. Section 3 does not even remotely provide that a Court ought to ignore all doubts regarding the exis- tence of a fact if it considers its existence more prob- able or likely. It does not lay down a comparative standard of probability. It enjoins that the judgment regarding probability must be that of a prudent man acting with due regard to all the circumstances of the case before him. (1956) PLD (Lah.) 300.

Existence of a document in a record does not make it an evidence.

Produced for the inspection of the Court' means produced in accordance with the provisions of the Evidence Act. Merely because a document was con- tained in the record of the committing Court, it can- not be said that it automatically becomes evidence in the Court of Session or was produced for the inspec- tion of the Court of Session. (1957) 9 DLR 645.

-Confession of a co-accused is not substantive evidence within the meaning of section 3 of the Evidence Act-Although confession of a co-accused cannot be treated as sub, stantive evidence against another accused and cannot be the sole basis for conviction of another accused but along with other direct or circumstantial evidence the Court may "take into consideration such confession" and can use the same "to lend assurance to other evidence" Mobarak Hossain Vs. State (1981) 33 DLR 274

--Ss. 3, 6 & 8

Statements in F.IR. which do not come in evidence cannot be used in finding the accused guilty of charge. Self-exculpatory confession of an accused cannot be legally used in finding co-accused guilty as it is no evidence as defined in s.3 of Evidence Act. Moniruddin Sana Vs. State (1988) 40 DLR 402

"Evidence"-Its meaning.

Section 3 of the Evidence Act defines "evidence" and provides that "evidence" means and includes

(1) all statements which the Court permits.or requires to be made before it by witnesses, in rela- tion to matters of fact under inquiry: such statements are called oral evidence:

(2) all documents produced for the inspection of the Court: such documents are called "documentary evidence"

Except what has been provided in the Cr.P.C. and the Evidence Act, the trial Court has no power and jurisdiction to treat any other oral evidence except the one made before it by witnesses, to be treat- ed as evidence in the case. Ansar Ali Vs. State (1983) 35 DLR 303.

-"Document" and video cassette-A video cassette is a document within the meaning of the Evidence Act and is accordingly admissible in evidence. Mrs. Khaleda Akhtar Vs. The State (1985) 37 DLR 275.

Ss, 3 and 30-The language of s. 30 does not render the confession of a co-accused as evidence within the definition of s.3 of the Evidence Act. Ma- mud Ali Vs. State (1985) 37 DLR 261.

-The confessional statement of a co-accused is a matter for consideration against another co-accused if tried jointly. Mamud Ali Vs. State (1985) 37 DLR 261.

Section—3

Confession of a co-accused—it does not come within the definition of ‘evidence’ as contained in section 3 of the Evidence Act. It may however lend assurance to other evidence. Dula Mia alias Nurul Islam Vs The State 14 BLD (HCD) 477

Section—3

Confession of a co-accused is no evidence against other accused persons and the same cannot be made the sole basis of conviction of others. The Court can however consider the same to lend assurance to other independent evidence on record. The State Vs. Md. Musa alias Musaiya alias Shafir Bap 15BLD (HCD)169

Sections—3 and 30

Confession of a co-accused

It is now well-settled that the evidentiary value of a confession, particularly of a retracted confession by a co-accused is nil in the absence of strong, independent and corroborative evidence. Faruk Mahajan and others Vs The State, 17BLD(HCD)15 Ref: 16DLR558;1983BLD325; PLD1960 (WP)Karachi 817; 1984BLD(AD)193—Cited.

Sections—3 and 30

It is an accepted proposition of law that the confession of a co-accused is no evidence against the other accused within the definition of section 3 of the Evidence Act. The purport of section 30 is that the confession of a co-accused can only be used to lend assurance to other evidence which by itself must be sufficient to support a conviction. Abdul Awal and others Vs. The State, 14 BLD (HCD)187 Ref: 1952 S.C.R. (India) 526—Cited.

Sections—3 and 30

Confession of co-accused

The confession of an accused is no evidence against the co- accused under section 3 of the Evidence Act. Under Section 30 of the Evidence Act the confession of an accused can be taken into consideration against his co-accused and it can only be used to lend assurance to other legal evidence. But in the absence of any substantive evidence the confession of a co-accused is of no consequence against other accused persons. The State Vs. Tajul Islam and 8 others, 15BLD(HCD)53

Sections—3 and 30

Confession of a co-accused

Even if the confessional statement of one accused is found to be true and voluntary, still his confession cannot be used against those who are co-accused in the case, as the basis for convicting them when there is no other evidence against them. Dr. Ishaq Ali Vs. The State (1993) 13BLD (HCD)236 Ref: 5DLR 369; 18 DLR (West Pakistan) 112—Cited.

Section —3

Proceeding before Arbitrator

Arbitration Award cannot be quashed simply on the ground of Misreading of evidence. Arbitrators in awarding Award had taken upon themselves the duties of Arbitrators carefully and considered papers in the case and passed the Award. It, thus, cannot be at all suggested that the Award rested on no evidence or on Misreading of evidence. Chittagong Steel Mills Ltd & Anr. Vs M/S MEC & Ors. 13 BLT (HCD)230

Section 3— Relationship of the witnesses with a party cannot be the sole ground of disbelieving their evidence unless contradiction and inherent infirmity are found in their evidence. Bachu Miah vs Samad Miah and others 50 DLR 564.

Section 3— Partisan evidence is no doubt suspect, but cannot be discarded without finding any inherent infirmity and/or contradictions therein making the same unworthy of credence. In the context of prevailing deteriorating law and order situation in the society where open threat is given to the witnesses not to depose in support of the prosecution case the difficulty of the prosecution to bring independent witnesses, and the rising tendency of witnesses giving testimony in the Court to favour the accused giving different versions of the occurrence from the one made to the investigation officer at the time of investigation, for the above reasons, should be considered before finding fault with the prosecution for non-production of independent witnesses and relying on the evidence of the witnesses declared hostile by the prosecution without properly evaluating whatever evidence is available on record with a critical eye in the context of the respective cases of the parties. Dulal Miah @ Dulal @ Nurun Nabi vs Ruhul Amin and others 50 DLR 618 Section 3— Recognition by torch and hurricane at dead of night is doubtful. Abu Bakker and others vs State 49 DLR 480.

Section 3— Long delay in examining the material witnesses casts a doubt on the whole prosecution case. Syed Nazakat Hossain alias Ujjal vs State 48 DLR 139.

Section 3— Circumstantial evidence must be so strong as to eliminate the possibility of innocence of the accused person. State vs Balai Chandra Sarker 47 DLR 467.

Section 3— Recognition by torch and hurricane at dead of night is doubtful. Abu Bakker and others vs State 49 DLR 480.

Section 3— Long delay in examining the material witnesses casts a doubt on the whole prosecution case. Syed Nazakat Hossain alias Ujjal vs State 48 DLR 139.

Section 3— Circumstantial evidence must be so strong as to eliminate the possibility of innocence of the accused person. State vs Balai Chandra Sarker 47 DLR 467.

খন্ডনীয় অনুমান-এলাহাবাদ হাইকোর্ট পর্যবেক্ষণ করেছেন এটা সন্দেহাতীত সত্য যে যদি প্রাপক কোন নোটিশ গ্রহণ করতে অস্বীকার করেন তাহলে তার উপর নোটিশ জারী বিষয়ক অনুমান উদ্ভুত হয়। কিন্তু সাক্ষ্য আইনের ৪ ধারার প্রেক্ষিতে এটা খন্ডনযোগ্য অনুমান এবং বিবাদী সাক্ষ্য দ্বারা প্রমাণ করতে পারেন যে তিনি কোন নোটিশ পাননি এবং নোটিশ গ্রহণ করতে অস্বীকারও করেননি। [সাতনারেইন বনাম রাম কিষান, ১৯৮১ সিভ এলজে ২]

আদালত অনুমান করতে পারেন-ডাক বিভাগের স্বাভাবিক কার্যক্রম-সাক্ষ্য আইনের প্রেক্ষিতে আদালত অনুমান করতে পারেন যে ডাক বিভাগের স্বাভাবিক কার্যক্রম অনুসারে কোন রেজিষ্টার্ড চিটিসমূহ এবং মানি অর্ডারসমূহ সাধারণত একই শহরে অবস্থিত প্রাপকের নিকট পরেরদিন অথবা তার পরেরদিন বিলি হয়। অত্র মামলায় পক্ষগণ একই শহরের বাসিন্দা এবং মানি অর্ডার ১৮/০৬/১৯৬৮ ইং তারিখে পাঠানো হয়েছে। যাইহোক এটা ভাবার কোন কারণ নেই প্রাপকের নিকট উহা ২০/০৬/১৯৬৮ ইং তারিখে অবশ্যই পৌছে থাকবে। জারিফ খান বনাম মুখতার আহমেদ, ১৯৬৪ অল এলজে ১৪৮ মামলায় বলা হয়েছে যে, যেখানে পক্ষগণ একই শহর ও একই ডাক এলাকার বাসিন্দা সেখানে আদালত সাক্ষ্য আইনে ১১৪ ধারার বিধান মোতাবেক অনুমান করতে পারেন যে ডাকবিভাগের স্বাভাবিক কার্যধারা অনুসরণ করা হয়েছে এবং ১৩ই জুলাইয়ের মানি অর্ডার ভূমি মালিকের নিকট ১৪ই জুলাই পৌছেছে, যদিও বিলির প্রকৃত সময় নিশ্চিত করা যায় না। [শ্রীমতি বিব্বো বনাম শেখ বরকি আলী, ১৯৮১ সিভ এলজে ১১৬]

অনুমান- সাক্ষ্য আইনে অনুমান হলো এমন সিদ্ধান্ত যা একটি যৌক্তিক মন স্বাভাবিকভাবে উক্ত সিদ্ধান্তে পৌছাতে পারে। যখনই আইন অনুমান করার অনুমতি প্রদান করে তখন আদালত সাক্ষ্য আইনের ৪ ধারার বিধান মোতাবেক কোন একটি ঘটনা প্রমাণের উদ্দেশ্যে অনুমান করতে পারেন। যদি অনুমানের বিষয়টি কোন ধারায় উল্লেখ থাকে তাহলে আদালত উক্ত ধারায় অনুমান করতে পারেন। মামলার পরিস্থিতির উপর এটা নির্ভর করে। [ রাম দাস বনাম সুরেন্দ্র নাথ, এআইআর ১৯৮০ অল ৩৮৫, এফবি]

অনুমানের প্রকারভেদ- অনুমান ৩ ধরণের। (১) অনুমতিসূচক অনুমান বা ঘটনা বিষয়ে অনুমান, (২) বাধ্যতামূলক অনুমান বা আইনের অনুমান, এবং (৩) অখন্ডনীয় আইনের অনুমান বা চুড়ান্ত অনুমান। [ সৈয়দ আকবর বনাম স্টেট অব কর্ণটক, এআইআর ১৯৭৯ এসসি ১৮৪৮]

ঘটনার অনুমান-ঘটনার অনুমান হলো কতগুলো ঘটনার সিদ্ধান্তসমূহ যা অভিজ্ঞতা এবং প্রকৃতির স্বাভাবিক পর্যবেক্ষণ, মানব মনের গঠন, মানব ক্রিয়ার সুত্রপাত, সমাজের রীতি নীতি এবং মানবিক বিষয়ের স্বাভাবিক কার্যক্রমের মাধ্যমে গ্রহণ করা হয়। [ সৈয়দ আকবর বনাম স্টেট অব কর্ণটক, এআইআর ১৯৭৯ এসসি ১৮৪৮]

আইনের অনুমান- আইনের অনুমানের ক্ষেত্রে আদালতের কোন ইচ্ছাধীনতার ক্ষমতা দেয়া হয়নি এবং আদালত কোন বিষয় সম্পর্কে অনুমান করতে বাধ্য যতক্ষণ পর্যন্ত পক্ষগণ সাক্ষ্য দ্বারা উক্ত অনুমান খন্ডায় বা অপ্রমাণিত করে। [ সৈয়দ আকবর বনাম স্টেট অব কর্ণটক, এআইআর ১৯৭৯ এসসি ১৮৪৮]

অপ্রমাণিত এবং প্রমাণিত নয় এর মধ্যে পার্থক্য-সাক্ষ্য আইনে অপ্রমাণিত এবং প্রমাণিত নয় এই দুইটি বিষয়ের মধ্যে স্পষ্ট পার্থক্য করা হয়েছে। একটি বিষয়কে তখনই অপ্রমাণিত বলা হয় যখন আদালত তার সামনে উপস্থাপিত বিষয়সমূহ বিবেচনা করতঃ বিশ^াস করেন যে উক্ত ঘটনার কোন অস্তিত্ব নেই বা তার অস্তিত্ব না থাকাটা এতটাই সম্ভাব্য যে একজন বিচক্ষণ লোক উক্ত পরিস্থিতিতে এটা অনুমান করে কাজ করবে যে উক্ত ঘটনার কোন অস্তিত্ব নেই। অপরপক্ষে একটি ঘটনাকে তখনই প্রমাণিত নয় বলা যায় যখন উক্ত ঘটনা প্রমাণিতও নয় আবার অপ্রমাণিতও নয়। [শ্রী কিষাণ বনাম বানবারী লাল, এআইআর ১৯৭৪ রাজ ৯৬]

Section 5— The Court ought not to have rejected the evidence of witnesses merely on the ground that they were not disinterested witnesses when their examination-in-chief could not be shaken in cross-examination by the defence. Samad Sikdar @ Somed Sikder vs State 50 DLR (AD) 24

Section 5— In the instant case where bitter enmity between the parties is admitted, some sort of corroboration of the evidence of interested witnesses is required as a rule of prudence. Abdul Kader alias Kadu and others vs State 49 DLR 577

Section 5— Where bitter enmity between the parties is admitted some sort of corroboration of the evidence of interested witnesses is required as a rule of prudence. Serajul Islam and others vs State 48 DLR 165.

Section 5— Courts must seek corroboration before acting upon interested witnesses in a criminal trial. It is the Court's solemn duty to assess the evidence legally not only to secure conviction but also to record acquittal. State vs Khalilur Rahman 48 DLR 184.

Section 5— Police witnesses are partisan or interested witnesses in the sense that they are concerned in the success of the raid. Their evidence must be tested in the same way as the evidence of the other interested witnesses by the application of diverse considerations which must vary from case to case. In view of the attitude as aforesaid of the learned Tribunal Judge regarding the police witnesses, we are at the outset required to settle the point. There cannot be any rigid consideration in this respect. In assessing oral evidence Judges may call in aid their experience in life and test the evidence on the basis of probabilities. Thus in a proper case, the Court may look for independent corroboration when it is found not safe to dispense with. Sirajul Islam (Md) vs State 48 DLR 301.

Section 5— An unreasonable delay in lodging the FIR inevitably gives rise to suspicion as to the trustworthiness or otherwise of the prosecution version of the case. State vs Tajul Islam 48 DLR 305.

Section 5— When the alleged eyewitnesses recognised the miscreants and disclosed their names to the informant before lodging the FIR and still then the informant does not mention their names in the FIR, the evidence of such witnesses must be kept out of consideration. State vs Tajul Islam 48 DLR 305.

Section 5— If there are admixture of falsehood so that it becomes impossible for the courts to separate the grains of truth from mass of chaff, then such evidence of a witness must be rejected as a whole. Bazlu Talukder and others vs Deputy Commissioner Madaripur 48 DLR 509.

Section 5— When the witness has animus against the accused her evidence cannot be relied on except with strong corroborative evidence. State vs Raisuddin and others 48 DLR 517.

Section—5

The evidence of interested, inter-related and partisan witness

Their evidence must be closely scrutinized before it is accepted. The correct principle in respect of the evidence of persons falling in the category of interested, interrelated and partisan witnesses is that it must be closely and critically scrutinized. It should not be accepted on its face value. Since interested witnesses may have a motive of falsely implicating the accused persons, their evidence has to cross the hurdle of critical appreciation. As their evidence cannot be thrown out mechanically because of their interestedness, so their evidence cannot be accepted mechanically without a critical examination. The rule that the evidence of interested witnesses requires corroboration is not an inflexible one. It is a rule of caution rather than a rule of law. The High Court was obviously wrong in holding that no corroboration was necessary in this case and failed to scrutinise the evidence of interested eye-witnesses with infirmities in their evidence. It is unsafe to rely on such evidence for sustaining a conviction on a capital charge without corroboration, either circumstantial or ocular. (Per. Mustafa Kamal, J delivering the majority judgment)

There is no rule of law that if independent witnesses are not available in a case, a conviction cannot be sustained on the evidence of eye witnesses who are relations and partisan witnesses. If found to be trustworthy, conviction can be based on the evidence of such interested witnesses. When both the parties are equally powerful and divided in two hostile groups, at the present day no body likes to involve himself in a group rivalry between two strong factions of people. In such a case, it is indeed difficult for the prosecution to examine independent witnesses as the villagers would be reluctant to side with any of the parties who had longstanding enmity and rivalry between them. Furthermore, the witnesses as well as the accused being interrelated amongst themselves and enemically disposed of towards one another, it was difficult for the prosecution to examine independent witnesses. Moreover, it does not appear from the record that any independent witness who had seen the occurrence & was withheld by the prosecution to find fault with it. (Per Latifur Rahman,.J-delivering dissenting judgment) Nowabul Alam and others Vs The State, 15 BLD (AD) 54

Section 5— When the witness has animus against the accused her evidence cannot be relied on except with strong corroborative evidence. State vs Raisuddin and others 48 DLR 517.

Section 5-The Court ought not to have rejected the evidence of witnesses merely on the ground that they were not disinterested witnesses when their examination-in-chief could not be shaken in crossexamination by the defence. Samad Sikdar vs State 50 DLR (AD) 24.

Section 5- Courts must seek corroboration before acting upon interested witnesses in a criminal trial. It is the Court's solemn duty to assess the evidence legally not only to secure conviction but also to record acquittal. State vs Khalilur Rahman 48 DLR 184.

Section 5- Police witnesses are partisan or interested witnesses in the sense that they are concerned in the success of the raid. Their evid- ence must be tested in the same way as the evidence of the other interested witnesses by the application of diverse considerations which must vary from case to case.

In view of the attitude as aforesaid of the earned Tribunal Judge regarding the police wit- nesses, we are at the outset required to settle the point. There cannot be any rigid consideration in this respect. In assessing oral evidence Judges may call in aid their experience in life and test the evidence on the basis of probabilities. Thus in a proper case, the Court may look for independent corroboration when it is found not safe to dispense with. Sirajul Islam vs State 48 DLR 301.

Section 5- An unreasonable delay in lodging the FIR inevitably gives rise to suspicion as to the trustworthiness or otherwise of the prosecution version of the case. State vs Tajul Islam 48 DLR 305.

Section 5-When the alleged eye-witnesses recognised the miscreants and disclosed their names to the informant before lodging the FIR and still then the informant does not mention their names in the FIR, the evidence of such witnesses must be kept out of consideration. State vs Tajul Islam 48 DLR 305.

Section 5-If there are admixture of falsehood so that it becomes impossible for the Courts to separate the grains of truth from mass of chaff, then such evidence of a witness must be rejected as a whole. Bazlu Talukder vs Deputy Commissioner Madaripur 48 DLR 509.

Section 5-When the witness has animus against the accused her evidence cannot be relied on except with strong corroborative evidence. State vs Raisuddin 48 DLR 517.

Section 5- Mere placing no reliance upon confessional statement of the accused and non- examination of the Magistrate who held TI Parade are no grounds for acquittal where the order of conviction and sentence is based on other sufficient and reliable legal evidence on record. Abdul Hashem vs State 52 DLR (AD) 117.

Section 5- Calling and taking away of the victim by the appellant Billal and co-convict Saiful from his residence half an hour before his murder, recovery of the body of the victim, Billal's offer of love and threat to the PW 2 Mok- seda, and abscondence of Billal immediately after the occurrence are circumstances to lead to the conclusion that he abetted the murder. Billal vs State 52 DLR (AD) 143.

Section 5-Even in case of non-examination of the seizure list witness or if the seizure list wit- nesses do not speak in terms of the prosecution case, the conviction cannot be set aside only for this reason. Moshfiqul Islam alias Bilu vs State 52 DLR 593.

Section 5-It is unfortunate that for not seizing the lungi of PW I the positive testimony of this witness and other witnesses who spoke about the presence of PW 1 in the occurrence have been discarded.

"Evidence false in part is false in entirety" As a matter of fact this maxim is not supported by any authority and has got no relevance in the pre- sent time. Mahmudul Islam alias Ratan vs State 53 DLR (AD) 1.

Section 5-Mere relationship by itself cannot be a ground for rejecting testimony of a witness unless it is shown that the witness was biased and resorted to falsehood. Nure Alam vs State 54 DLR 242.

Section 5-There is no reason to hold that the defence has been prejudiced for non-examination of the investigation officer, although non- examination of the investigation officer in a cri- minal case is usually viewed with disapproval. Karam Ali vs State 54 DLR 378.

Section 5- Non-examination of independent witnesses, particularly some of the neighbours, raised a presumption against the prosecution to the effect that had they been examined, they would not have supported the prosecution case. Nepoleon Khondker alias Lepu vs State 54 DLR 386.

Section 5- In the context of the existing enmity between the parties, it is wholly unsafe to rely on the uncorroborated testimony of infor- mant. Altaf Hossain vs State 54 DLR 464.

Section 5-A close relative who is a material witness cannot be regarded as an interested witness. The term "interestedness" postulates that the witness must have some direct interest in having the accused somehow or the other connec- ted for some animus or some other reasons. State vs Moslem 55 DLR 116.

Section 5-If on consideration of the entire evidence and materials on record it appears to the Court that the prosecution case is doubtful, the benefit of doubt must be given to the accused and he should be acquitted of the offence charged. Shahidul Islam vs State 56 DLR 35.

Section 5-Discrepancy has to be distin- guished from contradiction. Whereas contradic- tion in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution case doubtful. Shibu Pada Acharjee vs State 56 DLR 285.

Section 5-The evidence of an injured person carries much weight since the injured person does not usually allow the real culprit to escape and falsely implicate an innocent person. Ataur Rahman vs State 43 DLR 87.

Section 5- Defence version-Manner of occurrence-prosecution having failed to prove their version of the manner of occurrence, the defence version became probable and the appe- llants were acquitted of he charges. Gopal Rajgor vs State 42 DLR 446.

Section 5- Assessment of evidence by the Appellate Division-In the matter of assessment of evidence trial Court's view is given great weight and when its finding is accepted as correct on reassessment by the Appellate Court, then the Appellate Division does not like to interfere. But when in accepting the evidence it is found that established principles of assessment of evidence have not been followed, then the Appellate Court's finding cannot claim sanctity (per Shahabuddin Ahmed CJ concurred by MΗ Rahman and ATM Afzal JJ). Abu Taher Chowdhury vs State 42 DLR (AD) 253.

Section 5-Appreciation of evidence-if there is contradiction of a substantial kind or a big difference as to time as given by witness and proved by other circumstances, then the time as to the occurrence may become doubtful and the Court can disbelieve the prosecution case. The opinion of the doctor has been so narrowly construed as would betray even ordinary common sense. Considering all aspects of the matter, there has been a manifest disregard of the accepted principles of appreciation of evidence and conse- quently a miscarriage of justice. State vs Abdus Sattar 43 DLR (AD) 44.

Section 5- In the matter of observation, perception and memorisation, different witnesses, differ from each other. So weight is to be given to those which are of consensus as to the substance of their evidence. The standard of rural witness should not be comparable to that of urban witness in the matter of exactitude and consistency. Consi- deration in narration can not militate against the veracity of the core of testimony provided that there is an impression of truth and conformity in substantial fabric of the testimony so delivered. Ataur Rahman vs State 43 DLR 87.

Section 5-It is settled principle that when injured witness marked assailants it cannot be said that he would give up real assailant and falsely implicate person with whom there was no enmity. Ataur Rahman vs State 43 DLR 87.

Section 5- Chance witness-He is found to be at the place of occurrence by chance or coinci- dence at the time the offence was committed. His evidence need not be rejected outright, but it is to be weighed with caution and may be viewed With suspicion if witnesses are partisan or inimically disposed towards the accused. State vs Md Shafiqul Islam 43 DLR (AD) 92.

Section 5-Wife-killing case-In such a case, there could be no eye-witness of the occurrence, apart from inmates of the house who may refuse to tell the truth. The neighbours may not also come forward to depose. The prosecution is, therefore, necessarily to rely on circumstantial evidence. State vs Md Shafiqul Islam 43 DLR (AD) 92.

Section 5- Evidence of persons falling in the category of interested witnesses must be closely scrutinised. They should not be accepted on their face value. Their evidence cannot be rejected outright simply because they are interested wit- nesses. Nowabul Alam vs State 45 DLR (AD) 140

Section 5-It is well-settled that the prosecution case is never proved by suggestions made by the defence to prosecution witnesses. The Court cannot accept what is favourable to the prosecution and ignore the true purpose of suggesstion: Per Mustafa Kamal J writing the majority Judgment. Nowabul Alam vs State 45 DLR (AD) 140.

Section 5-When discrepancies in testimony were mere discrepancies, and not contradictions, they did not affect the truth of what was stated in Court. State vs Ranjit Kumar Pramanik 45 DLR 660.

Section 5- Demeanour of witnesses-The observation of the demeanour of witness by the trial Court is not dismissed lightly by the Appe- llate Court, unless there are intrinsic weaknesses and blatant contradictions in his evidence. Abdul Hai Sikder vs State 43 DLR (AD) 95.

Section 5-Credibility of witness-Judges of the High Court Division have not considered the material discrepancies, contradictions and omi- ssions of eye-witnesses for which an error has crept in the judgment resulting in the conviction of the appellants. On consideration of the evi- dence particularly of the eye-witnesses, the appellants are held to be entitled to the benefit of doubt and acquitted. Nurul Islam vs State 43 DLR (AD) 6.

Section 5- Interested witness-Conviction cannot be based on the uncorroborated testimony of the informant who is a police officer and is vitally interested in the result of the case. Mati Miah vs State 44 DLR 554.

Section 5- Demeanour of witness, apprecia- tion of when a finding of fact is based upon the credibility of evidence involving appreciation of the demeanour of witnesses, the view of the trial Court is entitled to great weight. State vs MM Rafiqul Hyder 45 DLR (AD) 13.

Section 5-PWs 8 and 9 categorically stated that they heard of the occurrence from the victims who disclosed the names of accused Habib and Ripon but they did not disclose the names to investigation officer-Their belated disclosure of the names of accused is nothing but subsequent embellishment and, as such, the same cannot be relied. Shaheen (Md) vs State 59 DLR 23.

Section 5-When PWs do not give the whole truth-We find no corroboration in the evidence of the PWs by any reliable and independent source. As a result, an element of doubt looms large and leads to the inevitable impression that the prosecution did not give out the whole truth for unknown reasons. In the face of the clear and definite evidence on record it is impossible to con- clude with any amount of certainty that the death of Abdur Rahman was caused by appellant Abdul Hannan. Abdul Hannan vs State 60 DLR 590.

Section 6-Statement made by the victim of an offence, when it can have evidentiary value- In the absence of examination of the alleged of victim, her statements allegedly made to the police or to the Magistrate cannot be treated as evidence against the accused. As neither the victim girl nor the Magistrate was examined, the statements recorded by the latter is not even a secondary evidence and in that view it is no legal evidence to prove the prosecution case. Abul Kashem vs State 43 DLR 420.

6: Rape-Statement made by the victim some time after the crime not relevant-In a trial on a charge of rape, this victim's statement made some time after the crime does not form part of the same transaction and is not a relevant fact under section 6 of the Evidence Act, according to which only facts so connected with a fact in issue as to form part of the same transaction are relevant 1950 PLD(Lah) 189

S. 6, Illus.(a): Relevant fact-Witness stating that he heard bystanders saying that the accused had murdered the deceased-But the witness did not state who were those bystanders present at the spot.

Held: Such a statement is not legal evidence to establish the charge of murder. The State V. Bakhmir, (1970) 22 DLR (WP) 27.

Section-6

Unregistered deed of gift—the plaintiffs case was that the suit property was originally belonged to Abdul Wahab Howlader. The said Abdul Wahab Howlader executed a deed of gift in favour of the plaintiffs on 27.7.64 and delivered the possession but the said deed could not be registered due to certain difficulties. The defendants claimed the title over the suit land as a residuary sharer. Hence the plaintiff filed the title suit for declaration of title in respect of suit land—the learned trial court in consideration of oral and documentary evidence and materials on record decreed the suit. Against the said decree the defendants preferred appeal. Learned Appellate Court allowed the appeal by reversing the decree of the trial court—Held: That the plaintiffs, being in exclusive possession over the statutory period of limitation from the date of institution of the suit by the plaintiffs in the year 1984 and to the complete ouster of the defendants for about 20 years from the suit property have acquired a valid title even on the basis of the defective deed -of gift being an unregistered one. It further appears that the defendant could neither challenge the said unregistered deed Ext. I nor file any suit to establish their alleged right in the suit property within the statutory period of 12 year and it is further held that the defect of the plaintiffs deed of gift has been cured with the passage of time and the plaintiffs imperfect title has been perfected by the said period. Amirunnessa & Ors Vs. Abdul Mannan Howlader & Ors. 3BLT (HCD)-245

Section -6

Document—Plaintiff instituted the suit for declaration of title and also for a declaration that the suit property cannot be treated as vested and non-resident property (Enemy Property) alleging, inter alia that one Jagat Chandra Karmaker was the C. S. recorded owner of the suit property. After his death his son Gopal Karmaker inherited the said property. This Gopal Karmaker transferred the suit property to one Harendra Lal Saha and Jagannath Saha. After the death of Harendra Lal Saha his property was inherited by his two sons Chandi Gopal Saha and Ashutosh Saha. One Parveen Akter purchased the suit property by registered deeds from Chandi Gopal Saha, Ashutosh Saha and Jagannath Saha. From this Parveen Akhter plaintiff- appellants had purchased the suit property while the plaintiffs were possessing the suit land, they came to know that the property in question was declared as vested and nonresident property—learned Subordinate Judge dismissing the suit holding that the plaintiffs failed to produce any document to show the transfer in between Gopal Karmaker and Harendra Lal Saha and others—Held: The averments made in the plaint and the evidence of P.W.I together with the written statements of defendant No. 2 and the evidence of P.W. I it clearly appears that Harendra Lal Saha and others became the owners of the suit property and they possessed the same and sold the same to Mrs. Parveen Akhter by registered sale deeds in 1981—the rent receipts together with the continuous record as right vide exhibits I series may be treated as collateral evidence of title in favour of the plaintiff. Now, if we consider the oral as well as documentary evidence as stated above, we find that this Harendra Lal Saha and others acquired right and title over the suit property. The documents by which the heirs Harendra Lal and Jagannath transferred the suit land to Parveen Akhter and the registered document by which Parveen Akhter transferred the land to the present plaintiffs are not disputed at all. So it is held that the learned Subordinate Judge failed to consider the material evidence or record as stated above and he has arrived at a wrong finding and as such it cannot be sustained. Md. Amjad Hossain & Ors. Vs. Upazilla Nirbahi Officer Savar & Ors. 3BLT (HCD)-163

Section—7 Admission— Value of admission made in the plaint of a previous suit which was withdrawn — In our law of evidence an admission made by a party in a plaint is admissible as evidence against him in other actions as well but such admission cannot be regarded as conclusive proof and it is open to the party to show that it is untrue. Abdul Kader Khan being dead his heirs All Akbar Khan and others Vs. Basek Khan being dead his heirs Shaju Bia and others; 8BLD(AD)22 Ref. A.I.R. 1967 (SC) 341; AiR. 1968 (Cal)550; (1952) 1 Macq 212: 8DLR3I I Cited.

n 8-Motive-If the prosecution assigns a particular motive in proof of its case, then the motive has to be established by the prosecution failing which the prosecution must suffer on that account, not the defence. Khelu Mia vs State 43 DLR 573.

Section 8-Motive-Prosecution is not obliged to suggest any motive where there is direct evidence but in a case which depends on circumstantial evidence motive is an important factor. If motive is suggested in any case by the prosecution, it accepts the burden to discharge for making the suggested motive plausible one. Farid Karim vs State 45 DLR 171.

Section 8-Motive is not always necessary to prove murder, but if it was established, it would be a corroborative circumstance leading to compli- city of the accused in the offence. State vs Nurul Hoque 45 DLR 306.

Section 8 Murder charge resting on circumstantial evidence-Accused's motive in calling out and accompanying the victim boy- There is absolutely no material on record to show that anybody had at any stage expressed any sus- picion that the accused might have had any evil motive in calling out the victim. All that the father said at the trial was that the motive for murder was to give him pain. This is no motive. He did not say why the young accused would cause him pain. There is also no material to suggest even that there might have been some immediate and on-the-spot reason for the accused to cause violence to the victim or that they were acting at some others' behest-Per ATM Afzal J with whom Shahabu- ddin Ahmed CJ and MH Rahman J concurred. State vs Khasru @Syed Mostafa Hossain 43 DLR (AD) 182.

Section 8-Abscondance guilty mind- it is true mere abscondance is not sufficient to hold the accused guilty. But in this case his wife was in his house and her body was recovered from the nearby jute field. He neither informed her parents nor brought the matter to the notice of the police he simply vanished from his house and remained absconding for months. From these circumstances there can be no other hypothesis except that of his guilt. Abdul Khaleque vs State 45 DLR 75.

Section 8-Motive-Failure to prove motive does not always affect prosecution case. State vs Ranjit Kumar Pramanik 45 DLR 660.

Section 8-Abscondance-Abscondance by itself was not conclusive either of guilt or of guilty conscience. State vs Ranjit Kumar Pramanik 45 DLR 660.

Section 8-Abscondance Corroboration of evidence-Abscondance of an accused though can be treated as corroboration of the direct evidence of eye-witnesses connecting the accused with the crime but the abscondance cannot be treated to be corroboration of the confessional statement of another accused so as to base thereon the conviction of the absconding accused. Sanwar Hossain vs State 45 DLR 489.

Section 8-Prosecution is not generally required to prove any motive behind a crime. But if some motive is assigned, the prosecution needs to prove it. Gadu Mia vs State 44 DLR 246.

Section 8-Motive for murder-Though motive is one of the important factors for a murder, prosecution is not always bound to allege motive, and if alleged, need not prove it and for the absence of motive or proof thereof the prose- cution will not fail, if the guilt of the "accused is otherwise proved by reliable and cogent evidence. Taslimuddin vs State 44 DLR 136.

Section 8- Motive (by majority): Evidence of motive, when necessary there is no reference at all in the dying declaration to any fact or circumstances for which it can be even remotely inferred that there was any reason whatever for which the appellant was likely to make an attempt on the life of the deceased nor is there any reason for the deceased to suspect the appellant as his possible killer. In a case of this nature based only upon the dying declaration there should have been some evidence of motive although motive may not be proved in case of direct evidence or as an ingredient of the offence. Sk Shamsur Rahman vs State 42 DLR (AD) 200.

Section 8-Mere abscondance for some time without any guilty mind cannot be an incriminating circumstance against the accused to be relied upon for basing his conviction. Shah- jahan vs State 46 DLR 575.

Section 8-In a case where bitter enmity is admitted between the parties, it is required as a rule of prudence that there should be some corroboration of the evidence of the interested witness. Amir Hossain Dhali vs State 49 DLR 163.

Section 8-As the condemned accused absconded from the very beginning of the case, it appears that the learned Sessions Judge has been influenced for the same in awarding the capital sentence against him which is against the decided principle of law.

From the conduct of a person for absconding after commission of the offence may sometimes be evidence to show that he was concerned with the offence. But it is usually a very small item in the evidence on which a conviction can be based. State vs Balai Chandra Sarker 47 DLR 467.

Section 8-Motive is not imperative in every case of murder and even if motive is not estab- lished that does not throw the prosecution case overboard. Ashraf Ali Munshi vs State 48 DLR 590.

Section 8- Abscondance Though the fact that the accused absconded soon after the crime is not an evidence itself but it may lend weight to other evidence. Ashraf Ali Munshi vs State 48 DLR 590.

Section 8-The deceptive conduct of accused petitioner to turn into a fugitive by jum- ping the bail is a clear indication of his guilty conscience. Babar Hossain vs State 52 DLR 326.

Section 8-In view of the evidence as to motive of the condemned prisoner, his previous attempt to assault the victim, comes within the purview of section 8 of the Evidence Act and this said conduct is relevant for determination of the issue of the case. State vs Md Khosbar Ali 52 DLR 633.

Section 8-Unless the Court is told what exact words were used by the accused persons it cannot act on the inference supplied by the witne- sses from what they have heard or not heard. Abul Khair vs State 55 DLR 437.

Section 8- Accused remained absconding with clear guilty knowledge about his overt act in the occurrence resulting in the murder and, as such, his absconsion will create adverse opinion against him. Zakir Hossain vs State 55 DLR 137,

Section 8-Abscondence by itself does no prove any offence against any person unless such abscondence is substantiated by evidence in favour of his guilt incompatible with his plea o innocence. Zahid Hossain @ Paltu vs State 5 DLR 160.

Section 8- Abscondence of the condemned prisoner furnished strong corroboration to prosecution case that he is the culprit. State vs Moslem 55 DLR 116.

Section 8-Absconsion itself is not an incriminating matter inasmuch as even an inno- cent person implicated in a serious crime sometimes absconds during the investigation to avoid repression by the police. Abul Kashem vs State 56 DLR 132.

Section 8-Abscondence sometimes may not be an incriminating circumstance for drawing inference of the guilt of an accused person but, in the case in hand, long abscondence of the accused-appellant is an important circumstance to fasten him. Babul Sikder vs State represented by the DC 56 DLR 174.

Section 8-Motive-Motive, if proved, affords a key to scan the evidences of the case in its proper perspective and motive proved indicates the high degree of probability and provides a link in the chain to connect the accused with the offence. State vs Abdul Hatem 56 DLR 431.

Section 8-For lack of motive, the ocular evidence of injured witnesses and other eye- witnesses should not be discarded, specially in view of the fact that their evidence has not at all been shaken in the cross-examination. Ershad Ali Sikder vs State 57 DLR (AD) 75.

Section 8-The Court does not, subscribe to the view of the learned Counsel that for every offence the prosecution must prove the motive if otherwise there is reason to believe as to the guilt of the accused. State vs Kh. Zillul Bari 57 DLR (AD) 129.

Section 8- Abscondence Abscondence of an accused leads to no decisive implication, nevertheless, it has utility to form a link to concatenate the full chain in finding guilt of an accused person. Kazi Mahbubuddin Ahmed alias Mahbub vs State 57 DLR 513.

Section 8-The failure to discover the motive of an offence does not signify its non- existence. The failure to prove motive is not fatal as a matter of law, proof of motive is never indispensable for conviction when facts are clear, it is immaterial that no motive has been proved. Khalilur Rahman vs State 59 DLR 227.

Section 8-Abscondence This itself cannot be the sole criteria to reach a finality of guilt. It is only corroborative in nature-Some- thing more together may merit conviction-It is a fit case where the appellants are entitled to have benefit of doubt. Jaju vs State 59 DLR 499.

Section 8-It is well settled that abscon- dence of an accused is not conclusive proof of his guilt and cannot be the sole basis of his conviction without any corroborative evidence. State vs Al Hasib Bin Jamal alias Hasib 59 DLR 653.

Section 8-Where the testimony of the witnesses are mere hearsay, the case, becomes one of no evidence against the appellant. The appe- llant cannot be convicted merely on hearsay evidence as the hearsay evidence has no basis and thus the Court of law cannot rely on the hearsay evidence. Abdul Kader vs State 60 DLR 457.

Section 8-Failure to prove motive does not necessarily affect the prosecution case. Bablu vs State 60 DLR 583.

Sections 8 and 9-Abscondence of an accused person in some circumstances may not be an incriminating circumstance against him in respect of his guilt but long abscondence is an important circumstance against him and furnishes corroboration of the prosecution case. State vs Saiful Islam 56 DLR 376.

Sections 8 and 106-It was not denied by the appellant that victim Shefali was his wife and living with him in the same house just before her alleged missing. If that be so, he is under the obli- gation to explain what has happened to Shefali who was with him before her missing. Abdul Majid vs State 55 DLR 486.

Section 8(j)- Prosecution for rape-Ques- tion of corroboration. It has long been a rule of practice for insisting on corroboration of the statement of the prosecutrix. If the Judge feels that without corroboration in a particular case the conviction can be sustained then he should give indication that he had the rule of caution in his mind and then should proceed to give reasons for considering it unnecessary to require corrobo- ration and for considering that it was safe to convict the accused without corroboration. Saidur Rahman Neuton vs State 45 DLR (AD) 66.

Sections 8 & 9-Nowhere the accused mentioned anything why he avoided trial and remained in abscondance in spite of execution of Proclamation and Attachment and Warrant of Arrest for securing his attendance. This conduct of the accused is a relevant fact which should be taken into consideration as a circumstance in determining his guilt. Rajab Ali Zulfiqar vs State 45 DLR 705.

Section 8— As the condemned-accused absconded from the very beginning of the case, it appears that the learned Sessions Judge has been influenced for the same in awarding the capital sentence against him which is against the decided principle of law. From the conduct of a person for absconding after commission of the offence may sometimes be evidence to show that he was concerned with the offence. But it is usually a very small item in the evidence on which a conviction can be based. State vs Balai Chandra Sarker 47 DLR 467.

Section 8—Motive is not imperative in every case of murder and even if motive is not established that does not throw the prosecution case overboard. Ashraf Ali Munshi vs State 48 DLR 590.

Section 8— Abscondence—Though the fact that the accused absconded soon after the crime is not an evidence itself but it may lend weight to other evidence. Ashraf Ali Munshi vs State 48 DLR 590.

Evidence Act, 1872

Section 8 –Ascension by itself is not an evidence of guilt of an accused Code of Criminal Procedure, 1898 Section 164 – Confessional statement of accused recorded after being produced from prolonged police custody held inadmissible as being not true and voluntary Penal Code, 1860 Section 396 – Offence of dacoity – Ingredients constituting the offence must be present. In the instant case the 8(eight) condemned prisoners were sentenced to death by the trial court. In the FIR 3(three) accused are named. The learned judge of the High Court Division held the confessional statement of accused involuntary and not true by reason of being recorded from prolonged police custody and the recognition of the dacoits in the light of torch improbable and accordingly acquitted all the condemned prisoners. State Vs. Munia alias Monia and 7 others 15 MLR (2010) (HC) 266.

Section 8— Mere abscondence for some time without any guilty mind cannot be an incriminating circumstance against the accused to be relied upon for basing his conviction. Shahjahan vs State 46 DLR 575.

Section 8— In a case where bitter enmity is admitted between the parties, it is required as a rule of prudence that there should be some corroboration of the evidence of the interested witness. Amir Hossain Dhali and other vs State 49 DLR 163

Section—8

Non-payment of rent whether relevant —Non-payment of rent alone will not extinguish or disprove a tenancy but when it is a question of the very existence of the status of a tenant, payment of rent would be relevant as the subsequent of the parties concerned. Sahabuddin Vs. Saluddin Talukder and others; 4BLD (HCD) 291

Section 8—Motive is not imperative in every case of murder and even if motive is not established that does not throw the prosecution case overboard. Ashraf Ali Munshi vs State 48 DLR 590.

Section 8— Abscondence—Though the fact that the accused absconded soon after the crime is not an evidence itself but it may lend weight to other evidence. Ashraf Ali Munshi vs State 48 DLR 590.

S. 8-It is true that statement made in presence of an accused person even upon an occasion which should be excepted reasonably to call for some explanation or denial for him is not evidence against him of the facts stated, save so far as he accepts the statement so as to make it in effect his own. But the acceptance of the statements may be either by word or by conduct or action or demeanour. Md. Yusuf Vs. Crown (1955)7 DLR 302 (313 r. hand cl. bottom)..

-Statement unconnected with the accused's conduct not admissible.

Statement of an accused person cannot be admit ted under section 8 when they are unconnected with any conduct of the accused. Mere statements are not such evidence as may be admissible under section 8. Jagannath Biswas Vs. State (1957)9 DLR 508.

-Illustration () says that if a woman without making a complaint and without wishing some ac- tion to be taken merely states that she has been ravished, that statement is not relevant under section 8, though it may be relevant under section 157, Evidence Act, 1950 PLD (Lah.) 189.

Ss. 8 & 9

Hearsay evidence Statement of Keramat Ali is relevant and admissible u/s 8 of the Evidence Act showing accused's conduct which is influenced by the fact in issue. S.M. Qamruzzaman Vs. State (1981) 33 DLR 156

Where evidence not struck down as hearsay evidence but referred to as it afforded evidence of the accused's conduct immediately after the occurrence and as such furnishes support to prosecution case. SM. Qamruzzaman Vs. State. (1981) 33 DLR 156.

Factum of a statement and truth of at statement. (A distinction has always been made between factum and the truth of a statement, the object of the evidence is to recount certain statements made by another person necessary to introduce relevant facts or fact in issue which should otherwise be inadmissible as hearsay if the object is to prove the truth of those statements. There should be no objection in receiving them). S.M. Qamruzza man Vs. State (1981) 33 DLR 156.

-Dagger brought out by the accused from the place of concealment is admissible in evidence u/s. 8 of the Evidence Act. Khasru Vs. State (1983) 35 DLR 119.

-If the accused does not say anything but takes the police or the witnesses to a place and points out the spot from where incriminating object brought out-Such a matter admissible u/s 8 as an act or conduct. Bachchu Vs. State (1983) 35 DLR 170. When motive is important-Motive is some- times important as evidencing a state of mind which is a material element in the offence charged. Nausher Ali Vs. State. (1987) 39 DLR(AD) 194

Ss.8, 9-Evidence-Relevant evidence Absconding immediately after the murder and remaining in hiding for a long time are relevant facts that the accused was concerned in the murder. Section 8 read with section 9 of the Evidence Act makes this fact that accused Mobarak remained absconding after the commission of the crime for more than a year a relevant fact and in the absence of plausible explanation such circumstance along with the aforesaid and other circumstances indicate that he was concerned in the murder. Mobarak Hossain Vs. State, (1981) 33 DLR 274.

Section—8

Abscondence of the accused—Abscondence of the accused during the trial may be a circumstance for giving rise to an adverse presumption against him and but it can never be the sole basis of conviction. The court acted illegally in putting the burden of disproving the charge upon the accused person. Abdus Salam Vs. The State, 14 BLD (HCD) 99

Section—8

It is a settled principle of law that an accused is not supposed to prove or disprove anything and the onus lies on the prosecution to prove its case. The learned Special Judge was wrong in convicting the appellant simply on the ground that he was absconding and did not appear to face the trial or to refute the charges Md. Jamsed Ahmed Vs. The State, 14 BLD (HCD)301

S. 8: Explanation 2.

Silence of accused when statement incriminating him is made before him. The accused remained silent, while the 3rd accused incriminating the other two in the commission of the offence. The silence of the two accused persons is a matter admissible under section 8 of the Evidence Act. Haji Yar Md. Vs. Rahim Dinu (1961) 13 DLR(WP) 58.

Section 8—Motive is not imperative in every case of murder and even if motive is not established that does not throw the prosecution case overboard. Ashraf Ali Munshi vs State 48 DLR 590. Section 8— Abscondence—Though the fact that the accused absconded soon after the crime is not an evidence itself but it may lend weight to other evidence. Ashraf Ali Munshi vs State 48 DLR 590.

Section 8- The proof of motive helps the Court in coming to a correct conclusion when there is no eye witness of the occurrence. Since P.W.1 claimed that the appellant was not previously known to him and, after his arrest, he came to know him for the first time, the motive of killing as stated by the appellant in confessional statement was not true. We do not find any other motive of killing the victim by the appellant in the testimonies of the prosecution witnesses. It is true that the failure to establish the motive for the crime does not throw over-board the entire prosecution case but it casts a duty on the Court to scrutinize other evidence with greater care since motive moves a man to do a particular act and the same is relevant fact behind a crime.... Humayun Kabir (Md.) VS The State, [10 LM (AD) 619]

Section 8-Unexplained continuous abscondence of the accused-Ambassador during the trial of the case is a relevant fact under section 8 of the Act and favours the prosecution pointing a finger at his guilt. ATM Nazimullah Chowdhury vs State, 65 DLR 500

Section 8-Abscondence-Abscondence itself is not the conclusive proof of guilt of the accused in absence of legal evidence. Only because of abscondence accused could not held responsible for committing the offence. State vs Md Tohurul Islam @Azizul Haque, 66 DLR 386

Section 8-Normally, there is a motive behind every criminal act that is why the court while examining the complicity of an accused tries to ascertain as to what was the motive on the part of the accused to commit the crime in question. Mufti Abdul Hannan Munshi alias Abul Kalam vs State, 69 DLR (AD) 490

Section 8-Absconsion of the accused itself is not an incriminating material against an accused inasmuch as even an innocent person implicated in a serious crime sometimes absconds during the investigation to avoid repression by the police. State vs Jashim Uddin alias Iqbal, 70 DLR 211

Sections 8 and 9-Soon after the occurrence convict Jashim had fled away and remained absconding during the trial and trial was held in his absentia. Such abscondence of the accused is an incriminating circumstances connecting them in the offence and conduct of a person in aboscondence after commission of crime is an evidence to show that they are concerned in the offence. Absondence of accused is a relevant fact under section 9 of the Act and unless accused explains his conduct, absondence may indicate guilt of the accused. State vs Jashim Uddin alias Iqbal, 70 DLR 211

Sections 8 and 106-Facts are especially within the knowledge of accused Rahman and the burden cast on him to rebut the allegation made against him. Having regarded to the fact that accused Rahman knowingfully well about the trial absconded and avoided the trial willfully and thereby, failed to discharge his burden in view of the provision of section 106 of the Act. And thus, it can be validly inferred that he is guilty of offence of 'money laundering'. Durnity Daman Commission vs Md Tarique Rahman, 68 DLR 500

Section 9— Long abscondence and non-submission to the process of the court speaks a volume against the accused persons and clearly suggest their involvement in the crime. Abscondence of the accused persons furnished corroboration of the prosecution case and evidence. Al-Amin and 5 others vs State 51 DLR 154

Section 9— The non-holding of the Test Identification Parade cannot affect the identification of the accused Shamim Hossain by the victims at the time of trial and the statement made by the witnesses are the legal and substantive evidence in the eye of law. Al-Amin and 5 others vs State 51 DLR 154

S. 9-Evidence in the T. I. parade before the police-When admissible.

When a witness has given details of the commission of a crime and of the persons engaged in committing it, the act of the police-officer in subsequently asking the witness to point out those per- sons from amongst others who are mixed up with them cannot be objected to. The evidence of the result of such test may be rightly given under section 9 of the Evidence Act in proof of the identity of the accused as the doer of a certain act, without contravening the provisions of section 162 of the Code of Criminal Procedure. Ibrahim Bhak Vs. Crown (1955) 7 DLR (FC) 123 (136 Lh.col).

S. 9-Please see s. 8 of Evidence Act in the Matter of Mobaraque Hossain Vs. State (1981) 33 DLR 274.

Section 9 read with Code of Criminal Procedure (V of 1898). S.288 [omitted by Ordinance XLIX of 1978]-Two ways of making the previous recognition of the accused admissible in evidence. Rules stated in AIR 1925 (All) 223 have been relied on by the State (Respondent). Ratan Kha Vs. The State (1988) 40 DLR 186.

Section 9-Long abscondance and non- submission to the process of the Court speaks a volume against the accused persons and clearly suggest their involvement in the crime. Absco- ndance of the accused persons furnished corrobo- ration of the prosecution case and evidence. AlAmin and 5 others vs State 51 DLR 154.

Section 9-The nonholding of the Test Identification Parade cannot affect the identifi- cation of the accused Shamim Hossain by the victims at the time of trial and the statement made by the witnesses are the legal and substantive evidence in the eye of law. AlAmin vs State 51 DLR 154.

Section 9- It was the duty of appellant to follow the position of the case. No duty was cast upon Tribunal to run after a fugitive to post him with day-to-day proceeding against him. Nizam Hazari vs State 53 DLR 475.

Section 9-Abscondence of accused is a relevant fact under section 9 of the Evidence Act and unless accused explains his conduct abscon- dence may indicate his guilt. Nizam Hazari vs State 53 DLR 475.

Section 9-Abscondence of an accused cannot be treated to be corroboration of the confe- ssional statement of another accused person so as to base thereon conviction of the absconding accused. Nizam Hazari vs State 53 DLR 475.

Section 9-It is the facts and circumstances of the case which decides whether abscondence is due to any guilty knowledge or to any intention to avoid harassment by police. Nizam Hazari vs State 53 DLR 475.

Section 9-T1 Parade The credibility of Test Identification Parade is dependable upon 3 conditions, firstly, the accused should be unknown to the identifying witness by name, secondly, the witness must not have any opportunity to see the accused after the occurrence in connection with which he is put up for identification and thirdly, the identifying witness makes no mistake to recognise the offender. Ibrahim vs State 58 DLR 598.

Section 10- Fixing the period of conspi- racy is important as the provisions of section 10 of the Act would apply only during the existence of the conspiracy. (Per SK Sinha J). Major Bazlul Huda vs State 62 DLR (AD) 1.

Section 10- Common Intention-When a criminal conspiracy for committing murder has been established there is no need to award a conviction in the aid of section 34 for, in an offence of criminal conspiracy anything said, done or written in reference to their common intention after the intention was entertained is relevant against all the accused. When specific acts done by each of the accused have been established showing their common intention they are admissible against each and every other accused. Though an act or action of one accused cannot be used as evidence against other accused but an exception has been carved out in section 10 of the Evidence Act in case of criminal conspi- racy. If there is reasonable ground to believe that two or more persons have conspired together in the light of the language used in 120A of the Penal Code, the evidence of acts done by one of the accused can be used against the other. Major Bazlul Huda vs State 62 DLR (AD) 1.

Section 10- Well settled principle that the confession of a co-accused cannot be used against another co-accused until strongly corroborated by other evidence- The length of period spent by a convict in the condemned cell as an extenuating ground sufficient for commutation of sentence of death- The prosecution tried to prove the above mentioned conduct of convict-appellants Sirajul Islam, Sohel and Rajib that lead us to conclude that the convict Sirajul Islam, Sohel and Rajib with Zamir conspired to kill the deceased Aktar Hossain and all of his family members. In case of conspiracy the conspirators conspire among themselves, there remains no eye witness. They make design and prepare plan to execute the same and in furtherance of their conspiracy and common intention execute the plan. In the instant case, the motive, behavior of the convict-appellants are very much clear to execute the alleged killing in a planned way and as per Section 10 of the Evidence Act, 1872 the convict-appellants Sirajul Islam, Sohel and Rajib are guilty for committing the occurrence....Zamir =VS= The State, [10 LM (AD) 647]

Section 10-When more than one person are being tried jointly for the same offence and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other of such persons as well as against the person who makes such confession. Milon vs State (Criminal) 75 DLR (AD) 164

Section 10-Conspiracy is done in secret. It is not possible to prove conspiracy by direct evidence. It has to be proved by circumstantial evidences. State vs Zalal @ Zillu., 66 DLR 167

Section 10-Bazlu made the confessional statement after his arrest and that too after the alleged criminal conspiracy culminated with the killing of deceased. So, the confessional statement of accused-Bazlu cannot be used as evidence against Mobile Quader. State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6

Section 10-Section 10 of the Act cannot be so widely construed so as to include a statement made by a person in reference to past acts done in actual course of carrying out conspiracy after it was completed. (PER SK SINHA, JAGREEING WITH MD ABDUL WAHHAB MIAH, J) State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6

S. 10-Pre-existing conspiracy must first be established by prima facie evidence in order to at- tract the provisions of this section-Such evidence must be apart from any act or statement of co- conspirator sought to be used as evidence. Moqbool Hussain Vs. State (1960) 12 DLR (SC) 217.

Section 11-Alibi' It is a convenient term used for the defence taken by an accused that when the occurrence took place he was so far away from the place of occurrence that it is highly improbable that he would have participated in the crime. Kazi Mahbubuddin Ahmed alias Mahbub vs State, represented by the DC, Dhaka 57 DLR 513.

S. 13-Admission into evidence of judgments passed subsequent to the matter under investigation-Not admissible.

The provisions of section 13 of the Evidence Act cannot be invoked for purposes of admitting into evidence judgments and orders made subsequent to the date of the incident or to the matter under investigation. Dud Raja Vs. State (1956) 8 DLR 667.

-Statement or findings in a judgment-Not admissible.

Even if previous judgments and order be admit- ted into evidence under section 13 of the Evidence Act in order to prove that there was litigation which terminated in a certain way, there is no authority upon which the admission of statements or recitals or findings contained in such judgments can be justified. Dud Raja Vs. State (1956)8 DLR 667.

Section 13- An admission of a person is admissible in evidence as against him, though it can be explained away by the maker thereof or the person against whom it is sought to be proved. According to me, the same principle applies to an admission in a signed pleading, or in affidavit, or in any sworn deposition given by a party in a prior litigation, though it is capable of rebuttal. The assertion of a right, whether in a pleadings or other statements, is relevant under section 13 of the Evidence Act and is, therefore, legally admissible in evidence. An admission contained in a plaint or written statement or an affidavit or any sworn deposition given by a party in a prior litigation will be regarded as an admission in a subsequent action, though it is capable of rebuttal. ...Alimuzzaman (Reza) (Md.) VS Masudar Rahman(Md.) @Babul, [8 LM (AD) 164]

Section 13, 41, 43

The law is now settled that a judgment whether inter parties or not may be conclusive evidence against all persons of its existence date and legal effect, as distinguished from the accuracy of the decision rendered. Alauddin Mia and another Vs. Abdul Latif 9 DLR. 357. Malik Din and another Vs. Mohmmmad Aslam 21. DLR. 95.41 DLR (Ad) 1997. Robert Pinaru vs Moulana Hahibur Rahman (Md. Ruhul Arnin, J) (Civil) I ADC 421

Section—13

Relevance of previous judgment — When a judgment, though not inter parties, may be admissible — Ordinarily a judgment cannot be used as evidence against a person who is a stranger thereto — But the judgment in a prior suit together with the plaint and other steps taken in connection therewith is evidence of an assertion by the holder of the judgment of the right which he claims to acquire and is then admissible in evidence of his right. Hazi Waziullah alias Waziullah Miah and others Vs. The Additional Deputy Commissioner (Revenue), Noakhali and Assistant Custodian, Vested and Non-Resident Property and others; 9BLD (AD)135 Ref. 21 DLR(SC)94; 2 C.W.N. 501; 58 Indian Appeals 125; A.I.R.1937(PC)69— Cited.

An admission of a person is admissible in evidence as against him, though it can be explained away by the maker thereof or the person against whom it is sought to be proved. According to me, the same principle applies to an admission in a signed pleading, or in affidavit, or in any sworn deposition given by a party in a prior litigation, though it is capable of rebuttal. The assertion of a right, whether in a pleadings or other statements, is relevant under section 13 of the Evidence Act and is, therefore, legally admissible in evidence. Md. Alimuzzaman vs. Md. Masudar Rahman (S.K. Sinha J) (Civil) 8 ADC 392

S. 15-Evidence of similar criminal acts of the accused in other cases-

Evidence admissible only if relevant.

The accused was tried for murdering his wife A. The jury found him guilty and he was sentenced to death. Evidence under section 15 was admitted at the trial on the ground that it tended to show that the ac- cused has murdered another woman, his wife, G. It was contended that the circumstances attending the two deaths made the evidence concerning the earlier of them relevant to the charge..

Held: In a case of this character, two principles were laid down:

The first was 'that it is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused had been guilty of criminal acts other than those covered by the indictment.

The second principle was that the mere fact that the evidence adduced tends to show the commission of other crimes does not render it admissible if it be relevant to an issue before the jury.

And it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental or to rebut a defence which would otherwise be open to the accused. Nur Mohd. Vs. King (1949) I DLR(PC) 121.

It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried, S.M.K. Alvi Vs. Crown(1953)5 DLR(FC) 161(177 rt.h.col.).

-Evidence showing commission of other crimes-Not inadmissible if it is a relevant issue. S.M.K. Alvi Vs. Crown (1953)5 DLR (FC) 161 (177 rth.col.).

In a particular case it may appear that the facts and circumstances of the particular offence charged are consistent with innocent intention, whereas further evidence, which incidentally shows that the accused has committed one or more other of- fences, may tend to prove that they are consistent only with a guilty intent. In all such cases, the Judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial. If so far as that purpose is concerned, it can in the circumstances of the case, have only trifling weight, the Judge will be right to exclude it. To say this is not to confuse weight with admissibility. The dis- tinction is plain, but cases must occur in which it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible. The decision must then be left to the discretion and the sense of fairness of the Judge. Nur Md. V. King (1949) I DLR (PC) 121

Ss 15, 17 & 21

Evidence of criminal act to lead to the conclusion that the accused is the sort of man likely to commit the offence charged not admissible. S.M.K. Alvi Vs Crown (1953) 5 DLR (FC) 161 (177) rth.col.)

The mere fact that the evidence adduced tends 10 show the commission of other crime does not render it inadmissible if it be relevant to an issue be- fore the jury and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime were designed or accidental or to rebut a defence which would otherwise be open to the accused, S.M.K. Alvi Vs Crown (1953) S DLR (FC) 161 (177 rt. h. col.).

-Evidence of instances of similar unconnected transactions with other persons before and after the date of the offence charged, is admissible not to establish the factum of the offence but to prove that the transaction in issue was one of a systematic series of frauds and that the intention of the accused on the particular occasion in question was dishonest and fraudulent. Evidence of such other acts, whether previous or subsequent to the frauds charged against the accused, is relevant for the purpose of showing whether or not the intention of the accused was honest or fraudulent. M.FN. Rewail Vs. State (1956) 8 DLR 569.

-Evidence merely to prove that the accused's character is such that he is likely to commit the act with which he is charged is not admissible and can- not be considered. M.F.N. Rewail Vs. State (1956)) 8 DLR 569

-An act whether accidental or intentional- principle as to when provisions underlying section 15 to be applied-Expounded.

In the absence of any evidence of any conspiracy or any design to follow a particular mode of operation it cannot be said that the evidence of other acts performed in more or less similar circumstances be- comes relevant to establish a code or pattern of con- duct. It has to be remembered that the principle upon which evidence of similar acts may be admitted un- der section 15 of the Evidence Act is, that it is to be admitted merely to prove a person's state of mind but not to prove either the occurrence of the main fact itself or the identity of its author. Thus where the mental state of a person is not relevant, section IS has no application.

Again, this section cannot be invoked in aid until it has been shown that the person charged had committed all the offences. Only when this has been established, does his state of mind become relevant to show that those acts were not committed accidentally or inadvertently but by design in accordance with a preconceived pattern or design. State Vs. Minhun (1964) 16 DLR (SC) 598

Section—17

Statement in writing made by the accused before respectable persons who are not police officers, clearly admitting therein bringing into Bangladesh of a huge quantity of gold without any valid authority though may not amount to confession proper but nonetheless it is a clear admission by the accused of his misdeed under section 17 of the Evidence Act. The trial Court was right in accepting this admission along with other evidences in establishing the guilt of the accused. Md. Shaft Vs. The State, 14BLD (HCD) 322 Ref: 10 DLR(WP)55; 45 DLR(AD) 113—Cited

S.17-Accused's letters about the occurrence stating that he acted in self defence-Such letters cannot be used as confession but can be used to show his presence at the occurrence. Golam Ahmed Khan Vs. State (1958) 10 DLR (WP) 55.

Silence of the accused when statement incriminating him made.

Two accused remained silent, while the 3rd. accused incriminating the other two in the commission of the offence. The silence of the two accused persons is matter admissible under section 8 of the Evidence Act. Haji Yar Md. Vs. Rahim Din, (1961) 13 DLR (WP) 58.

-An admission made by an accused person in or out of the Court, unless it be vitiated by any such circumstances as are mentioned in the Evidence Act can be considered to be a matter which the Court may take into consideration in coming to its conclusions. Rahim Bux Vs. Crown (1952) 4 DLR (FC) 53. (M.Munir, J. giving a dissentient view in the same case).

Section—20

Admission between the parties made in another proceeding — Such admission whether binds a party in a subsequent proceeding – Respondent’s admission that he was a tenant under the appellant estops him from denying appellant’s title in the suit premises — Admission by way of statements made in documents certified to be true copies by an authorised officer of the Government are admissible in evidence. Hajee Abdus Sattar Vs. Mahiuddin and others; 6BLD (AD) 224

Section—21

Admissibility of previous statement

A party’s previous statement regarding a fact in issue is relevant and can be used against him if he has not appeared in the witness box at all — Even if the party appearing in the witness box is not confronted with his contrary previous admission, his such previous admission, if duly proved is admissible. Sultan Ahmed and others Vs. Mohammad Islam and others; 4BLD (HCD) 183 Ref: A.I.R. 1946 (Lah) 65 (PB); AIR. l957(AIl) 1(FB); AIR. 1966(SC)402 — Cited.

S.21-Document evidencing record of weighment of wood written up by complainant on dictation of accused who was doing the actual weighing.

One of the accused was weighing out wood with a spring balance and dictating the reading in respect -Ss. 21 & 24

of each weighment to the complainant to whom the wood had been sold. The record of weight was put in evidence by the prosecution against the accused in a trial on a charge of cheating by deliberately dictating higher figures than the actual of each weighment. On objection being taken that the writing was inadmissible as an admission under section 21, Evidence Act-

Held: The writing was not an admission, having been prepared by the complainant on dictation by the accused, and was, therefore, not inadmissible in evidence. 1953 PLD (Bal) 21.

Former deposition by party in a previous suit Certified copy of deposition may be placed on record to prove admission under section 21-But to contradict deponent with a view to impeach his cred- it he should be confronted with his previous deposition and be given an opportunity to explain it. 1951 PLD (Pesh) 61.

Section—23

Admission made by a party in a letter written “without prejudice” — Admissibility of — The letter written by the appellant cannot be used to determine the extent of its liability, but in so far as it shows the relationship between the appellant and the respondent No. I as debtor and creditor and that they tried to settle the account, the letter can be taken into consideration. M/s. Haque Brothers (Carbide) Ltd. Vs. Bangladesh Shilpa Rin Sangstha and others; 5BLD (AD) 102 Ref. (1967) 72 C.W.N. 1 — Cited.

S.24 All ingredients under this section must combine to make a confession irrelevant-The use of the word 'and' in sec. 24 leaves no room for doubt that all ingredients of the section should combine in order to make a confession irrelevant. The presence of one or more ingredients but not of all will not render the confession irrelevant under section 24 of Evidence Act Nazra vs. State. (1960) 12 DLR (WP) 34: 1960 PLD (Lah) 739.

-Person in authority-Influence exerted by such person-This section makes it clear that a confession is not made inadmissible sim- ply because it is made in presence of a person in authority. In order to attract the operation of section 24 of the Evidence Act, it must in addition be shown that the person in authority held out to the confessioner some threat, promise or inducement having reference to the charge against him. State vs. Yunus Ali (1961) 13 DLR 665.

-Extra-judicial confession ion can be act- ed upon, if true, even if retracted.

Extra-judicial confession can be acted upon when it is found to be true and is corroborated in material particulars by independent witnesses and the fact that such confessions is subsequently retracted is immaterial. State vs. Sadek Matbar (1961) 13 DLR 591.

-Extra-judicial confessions should be relied upon only when the evidence in their support is in- vulnerable. Haji Yar Muhammed vs. Rahim Dino (1961) 13 DLR(WP) 58: 1960 PLD(Kar) 769

"A person in authority"-Meaning of.

Generally speaking a "person in authority" within the meaning of the section is one who is en- gaged in the apprehension, detention or prosecution of the accused or one who is empowered to examine him. State vs. Balashri Das Sutradhor (1961) 13 DLR 289 1962 PLD 467.

-Confession must be voluntary and not induced by threat-The rule with regard to the admission of confessions is a rule of law the rule being that a confession can only be admitted if it is voluntary and, therefore, one obtained by threats or promises held out by a person in authority is not to be admitted. Kuruma Vs. Queen (1957) 9 DLR (PC) 336

-Person in authority-Confession to-When can be excluded.

Confession of an accused cannot be excluded from evidence merely because it was made before persons in authority unless it is further shown that the confession was the result of inducement, etc.. held out by such person in authority.

There is no law which says that an admission made by an accused person in or out of Court, un- less it be vitiated by any such circumstances as are mentioned in the Evidence Act, cannot be considered to be a matter which the Court may take into con- sideration in coming to its conclusion. Rahim Bux Vs. Crown (1952) 4 DLR (FC) 53.

S. 24

-Statements under section 164, Cr.P.Code, come under section 24, Evidence Act, and are, there- fore excluded from evidence: Mst. Fazlan Vs. Crown (1956) 8 DLR (FC) 1.

-Confessional statement by approver before tender of pardon, recorded under section 161 Cr.P.C. Section 24 not applicable to such a statement.

Section 24 has nothing to do with the confession of an approver recorded under section 164 of the Cr.P.C. before a pardon is tendered to him. The maker of the confession in such a case, though an accused when he made the confession is not an accused when the confession is given in evidence but only a witness who gives evidence on oath. Ibrahim Bhak Vs. Crown (1955) 7 DLR (FC) 123 (129 r h.col).

-The language of section 24 is wholly inapplicable where the statement of an approver recorded as a confession under section 164 of the Cr.P.C. is given in evidence as the previous statement of a wit- ness and not as a relevant fact against its maker. That section obviously applies to confessional statements which are proved as substantive evidence against their makers and it is not at all in point, where the maker of the confession is not being tried as an accused but gives evidence on oath under the sanction of section 337 of the Cr.P.C. Ibrahim Bhak Vs. Crown (1955) 7 DLR (FC) 123 (129 rt.h.col).

-Person in authority-Private person armed with gun-Person in authority-private persons armed with guns sent by police to "find" accused-Confession on inducement of such per- sons-inadmissible. Qutba Vs. Crown (1954) 6 DLR (FC) 126.

-Approver's statement admissible un- der section 339(2) Cr.P.C. against him at his own trial after forfeiture of pardon. When an approver is put on his trial, after forfeiture of pardon, for the offence with regard to which he had been granted pardon, his statement in the previous trial of his accomplices is admissible under the previous section 339(2), Cr.P.C., though it would otherwise have been inadmissible because, of section 24, Evidence Act, inasmuch as such a statement was obviously the result of an induceent, viz., tender of pardon, 1955 PLD (Lah) 375.

-Police custody, before and after the confession-Not acceptable.

The accused had been in custody of the police for long over 24 hours and subsequent to his remand after the recording of his confessional statement, he continued in the said custody of the police, for about 10/12 days. In his statement under section 342 of the Code of Criminal Procedure he complained that he had been tortured by the Police in the lock-up as a result or which he made confessional statement.

Held: Such confession cannot be accepted as a voluntary one. Abdus Shukur Vs. State (1964) 16 DLR (Dac.) 148.

-Retracted confession-As against the maker thereof requires corroboration. A retracted confession is prima facie a confession which, as to its voluntary character or truth or both, if challenged by its maker, requires independent and reliable evidence to support it before it is accepted or acted upon. Abdus Shukur Vs. State (1964) 16 DLR (Dac) 148.

-Retracted confession-The retraction of a confession is wholly immaterial once it is found that it is voluntary as well as true. Hari Pada Debnath Vs: The State. (1967) 19 DLR 574.

-In the facts and circumstances of the case and having regard to the nature of the extra-judicial confession we think that the mere inability of a witness to give the exact words of the confession does not make it inadmissible in the evidence or valueless. State Vs. Jatindra Kumar Sutradhar alias Dhana (1968) 20 DLR 526.

Section—24

Extra-Judicial confession

By its very nature it is a very weak type of evidence. It is unsafe to base conviction of an accused on his extra-judicial confession alone. The value of such confession as evidence depends on the veracity of the witnesses to whom it is made. In a case of such confession material corroboration of evidence of unimpeachable character is required. In the instant case there is no ocular evidence of the occurrence except the testimony of P.W.8 Md. Habibur Rahman who also did not disclose the name of the condemned prisoner to the P.W. 1 informant, or to anybody after the killing or also at the time of lodging the first information report. Although it has been stated by some of the witnesses that condemned prisoner Hasen Ali made extra-judicial confession admitting the killing of the victim the allegation of making the extra- judicial confession has become, uncertain and without any corroboration and as such it is unsafe to base a conviction on the basis of the said extra judicial confession. The State Vs. Hasen All, 19BLD (HCD) 419

Sections—24, 30

Prolonged police custody before recording confessional statement—Prolonged police custody of the confessing accused immediately preceding the making of confession is sufficient, if not properly explained, to make the confession involuntary. A confession to be the basis of conviction must be voluntary and true and it must also be inculpatory in nature. Exculpatory confession is no confession in the eye of law. Dula Mia alias Nurul Islam and others Vs. The State, 14BLD(HCD)477

Retracted confession

A retracted confession requires independent and reliable corroboration before it is accepted and acted upon. Dula Mia alias Nurul Islam and others Vs. The State, 14BLD(HCD) 477

-Ss. 24, 25 & 26

Extra-judicial confession-Can form a basis for conviction if found voluntary and true-This statement was made first of all to Tayeb Ali and Ak- ram Ali before the arrival of the Dafadar and is voluntary and true. Nausher Ali Vs. State (1987) 39 DLR (AD) 194

Surrounding circumstances are ordinarily the only material from which the inference of a confession may be drawn. Nausher Ali Vs State (1987) 39 DLR (AD) 194.

Secs. 24 & 25-Accused person in section 24 means the same person accused of any offence in section 25.

The phrase 'the accused person' used in section 24 has not a different meaning from a person accused of any offence occurring in section 25. Both phrases mean exactly the same thing.

In substance sections 24 and 25 are exactly the same and, therefore, no distinction should be drawn between the two sections with regard to the position of an accused when he makes a confession simply because in one case the word 'relevant' is used and in the other the word 'proved' is used.

Section 24 would apply even if the person who is said to have made the confession was not an accused at the time when he made the confession. It is sufficient if ultimately he became an accused with reference to the charge in respect of which he is said to have made the confession. It is quite enough that the confession is subject to the infirmities which are laid down in the section and if it is made by an accused person either at a time when he was an accused person or before he comes to be accused. Nazra Vs. State (1960) 12 DLR (WP) 34 (1960) PLD (Lah) 739.

Secs. 24-26. Confession-Admissible when it complies with the provisions of sections 24-26.

In order to make a confession admissible, the Judge had to decide whether there exists or does not exist any of the circumstances mentioned in sections 24 to 26 of the Evidence Act. In deciding these questions, the Judge may be said to be also considering the voluntariness of the confession but this is merely for the purpose of deciding as to the admissibility of the confession itself. Asgar Vs. State (1957) 9 DLR 511

Ss. 24-30 Confession is a species of admission-Confession-As to the meaning of confession was noted by Privy Council-Confession- Evaluation of confession The court may take the confession into consideration which can be put into the scale and weighed. State Vs. Lalu Mia, (1987) 39 DLR (AD) 117

Section 24— Since the confessing prisoner neither filed any petition from jail nor directly filed any petition in Court nor made any oral allegation retracting from the confession his last moment retraction cannot be entertained. State vs Kamal Ahmed 49 DLR 381.

Section 24— Extra-judicial confessions are not usually considered with favour but it does not mean that such a confession coming from a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support his statement should not be believed. Syed Ahmed vs Abdul Khaleque and others 51 DLR 43.

-Caution in case of inadmissible evidence of co-prisoners.

The difficulty in all cases where more than one person are accused of a crime and when the evidence against one is inadmissible against another is that, however carefully assessors or a jury are directed and however firmly a Judge may steel his mind against one by the evidence admissible only against another, nevertheless the mind may inadvertently be affected by the disclosures made by one of the accused to the detriment of another. Wali Md. Vs. King (1951) 3 DLR(PC) 372.

-Confession affecting co-accused but affecting the maker only impliedly-Inadmissible against co- accused. 1956 PLD(Lah) 157.

-Confession tarring co-accused with same brush as the confessing accused-May be considered against both. 1954 PLD(Lah) 210.

-Confession retracted can be used against the maker but is very weak evidence against co-accused.

Confession, though retracted, can be used against the maker, if it was made voluntarily. It is generally not considered sufficient to justify the conviction. of a co-accused; but where it stands unrebutted and there is nothing to show that the confessing accused had any reasons for falsely implicating the co-accused and the story related by him fits in with proved facts and is sufficiently corroborated by maternal evidence against the co-accused the retracted confession becomes a strong piece of evidence even against the co-accused. (1950) PLD (Lah) 507

-Confession of co-accused implicating another accused can be taken into consideration as against the latter accused even though the confession was retracted before the committing Magistrate but was again accepted in the Sessions Court. Sarwar and others Vs. The State (1969) 21 DLR(SC) 61.

-Judicial Confession, retracted- Accused did not complain of any torture, threat or inducement while making the confession-Evidence on record also corroborate the statement-On a reading of the statement one finds a ring of truth in the samo-The confession, held, is voluntary and true. The State Vs. Lufor Fakir (1972) 24 DLR 217.

-Judicial confession-Magistrate recording confessional statement did not tell the accused that he would not be sent back to Police custody- Record shows that the accused made the judicial statement after orders for sending him to judicial custody had been passed within his knowledge- Held: Judicial confession, under circumstances was voluntary. The State Vs. Lutfor Fakir (1972) 24 DLR 217.

-Evidentiary value of a retracted confession as against a co-accused.

It is also well-settled that the statement of confession of an accused cannot be the foundation of conviction of a co-accused. Its evidentiary value is not much by itself, but it can certainly be taken into consideration to strengthen the other evidence in the case and to lend assurance to the same. To hold that it is of no value at all would be to ignore the provisions of section 30 of the Evidence Act. Ayesha Khatun Vs. The State, (1967) 19 DLR 818.

Such confession can only lend assurance to other evidence. Confession of an accused cannot be treated as substantive evidence against another accused but that it can only be used to lend assurance to other evidence. Lutfun Nahar Begum Vs. The State (1975) 27 DLR (AD) 29.

Confession by one accused is not a substantive evidence as against another non-confessing accused and cannot be used for conviction of the non- confessing accused. Abdul Malik Vs. State (1984) 36 DLR 275.

-A statement made by a co-accused cannot be treated as substantive evidence against other person sufficient to sustain his conviction. Mamud Ali Vs. State (1985) 37 DLR 261.

Section 24-It is only when the statement of the accused can be read as a plenary admission of guilt in clear terms that it can be taken as a confe- ssion of the crime. State vs MM Rafiqul Hyder 45 DLR (AD) 13.

Section 24- Confession should not only be voluntary but it also must be true-For the pur- pose of establishing its truth examination of the confession and its comparison with remaining evi- dence of the prosecution and probability of the case would be relevant. State vs Ali Kibria 43 DLR 512.

Section 24- Retracted confession-It is a rule of prudence that a retracted confession needs corroboration inasmuch as it is always open to suspicion and cannot be acted upon unless corro- borated by independent and credible evidence. State vs Ali Kibria 43 DLR 512.

Section 24- The statement admittedly made by the appellant while in custody of the Customs officials cannot be considered as evidence and it is barred under section 24 of the Evidence Act. MM Rafiqul Hyder vs State 41 DLR 274.

Section 24- Confessional statement-There being no corroboration on any material particular of the confessional statement, it is unsafe to maintain conviction of the respondents under sections 302/34. Penal Code thereon, though respondent Abid Ali implicated himself in the statement to be an offender. State vs Shafique 43 DLR (AD) 203.

Section 24-Since the confessing prisoner neither filed any petition from jail nor directly filed any petition in Court nor made any oral allegation retracting from the confession his last moment retraction cannot be entertained. State vs Kamal Ahmed 49 DLR 381.

Section 24- Extra-judicial confessions are not usually considered with favour but it does not mean that such a confession coming from a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support his statement should not be believed. Syed Ahmed vs Abdul Khaleque 51 DLR 43.

Section 24-A conviction can also be rested on extra-judicial confession subject of course to the fact that such statements are corroborated by other materials on record. State vs Moslem 55 DLR 116.

Section 24-Extra-judicial confession-such confession made before a person in authority cannot be relied upon as evidence without any independent corroboration. Mobarak Ali Gazi vs State 55 DLR 325.

Section 25-The record of one proceeding is not to be treated as a part of the record of another proceeding and the record of each proceeding should be self-contained and complete. State vs Ershad Ali Sikder 56 DLR 185.

Sections 25 & 26-No confession made to a police officer shall be proved as against a person accused of any offence under section 25 of the Evidence Act. The criterion for excluding the confession under this section is the answer to the question, to whom was the confession made? If the answer is that it was made to a police officer, the confession is inadmissible; and cannot be proved either by the evidence of the police officer, or by any other evidence, as the medium by which it is sought to prove an inadmissible confession does not alter its inadmissibility. A confession made to a police officer must be ruled out of evidence even if it was made in the immediate presence of a Magistrate as the terms of section 25 are not qualified or controlled by section 26. Bura Yunus vs State 59 DLR 549.

Sections 25 and 27-An information even by way of confession made in police custody which relates to the fact discovered is admissible in evidence against the accused.

Police Officer may be allowed to say that he went to the place and found the knife, but any statement as to confession of murder is inadmis- sible. Secondly, a fact already known to the police cannot be re-discovered on the state-ment of an accused so as to make the accused's conduct of pointing out a place admissible in evidence. Thirdly, when a discovery is made in consequence of information received from more than one person, but it cannot be determined who first made the crucial statement, it is no discovery and the joint information or joint production is not admissible against any one. Joint information, however, should not be confused with similar information given simultaneously leading to discovery. Bashir Ali vs State 45 DLR 63.

S. 25-Accused in the F.I.R. making a confession-Such confession not admissible. Confessional statement of an accused incorporated in the first information report lodged by him is hit by the provision of this section and as such not admissible against him. State Vs. Shandul (1961) 13 DLR (WP) 62

-Confession to person, in the presence of a police officer, admissible if no influence was exercised. Tabibor Rahman Vs. Crown (1957) 9 DLR 165

See case Nazra Vs. State (1960) 12 DLR (WP) 34.

Ss, 25 & 26--This extra-judicial confession does not come under the scope of ss.25 and 26 as it was made before the arrival of the Dafadar. Nausher Ali Vs. State. (1987) 39 DLR (AD) 194.

S.26-Accused during the period between his arrest and his confession remaining in police custody for a fortnight-Confession inadmissible, Hazi Yar Mohammad Vs, Rahim Dino (1961) 13 DLR (WP) 58: (1960) PLD (Kar) 769.

See case Asgar Vs. State (1957) 9 DLR 511

-Ss. 26 & 27

-A confession in the presence of a chowkidar.

A confession made by an accused while in custody of a chowkidar is not admissible in law. A chowkidar is a police officer within the meaning of the term "police officer', in section 26 of the Evidence Act. Crown Vs. Rostom Ali (1955) 7 DLR 209.

-Sec case Nausher Ali Vs. State (1987) 39 DLR (AD) 194.

-Confession, admissibility of Confession of the accused was made in the Court room at a time when the police officers were present near the prisoner. Held: Such confession is admissible in evidence under section 26 of the Act.

In the absence of any evidence to show that there was any attempt on the part of the police or any person in authority to induce or intimidate the prisoner to make the confession, it is admissible. Abul Kashem Vs. The State (1970) 22 DLR 279.

S. 26-Confession recorded in the presence of police officer-To what extent inadmissible.

Retracted confession, if true and voluntary, is admissible. The mere fact that the Court Constable was allowed to remain present while the co-accused were making their confessions does not involve the total exclusion of the confessions from evidence.

It may be said that when Police Officers are present or are within sight and hearing of the place where the accused is kept during the time allowed for reflection or at the time of recording of the confession the possibility of the accused being influenced by threat or gesture from the Police cannot altogether be eliminated. The confession recorded under such circumstances cannot but be viewed with some amount of suspicion that the accused might have been influenced by the Police to make the confession.

It is true that a retracted confession should be looked upon with suspicion, but if it is considered by the Court to have been a voluntary confession and substantially true it can be admitted and used against its maker. Jafar Alam Chowdhury Vs. The State (1968) 20 DLR 666.

Evidence Act [I of 1872]

Section 26

No confession made to a police officer shall be proved as against a person accused of an offence. Similarly Section 26 of the Evidence Act provides that confession by the accused person while in custody of police cannot be proved against him. [2023] 27 ALR (AD) 41

Section 27-The recovery evidence is relevant and can be relied on. The information relates to the facts and discovery on the basis such information is admissible. The possession of such articles with the accused has to be explained by the accused and the burden would be on the accused to explain as to how he came into possession of those articles. The principle of admitting evidence of statements made by a person giving information leading to the discovery of facts may be used in evidence against him. Section 27 of the Act permits such information leading to the discovery of a fact to be admitted in evidence. Dr. Miah Md Mohiuddin vs State (Criminal) 75 DLR (AD) 8

Evidence Act [1 of 1872)

Section 27

If a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly it can be allowed to be given in evidence. Since statement under section 27 of the Evidence Act is alleged to be frequently misused by the police, the courts are required to be vigilant about its application. The court has to be cautious that no effort is made by the prosecution to make out a statement of accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27 the Evidence Act. [2023] 27 ALR (AD) 41

Section 27- It is not the distance by which the place of occurrence is shifted is material but it is the prosecution case which has been different because of shifting of the place of occurrence and this has cast a suspicion on the prosecution case. Abul Kashem vs State 56 DLR 132.

Section 27-If after an examination of the whole evidence, the Court is of opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to benefit of doubt, not as a matter of grace, but as of right. Abul Kashem vs State 56 DLR 132.

Section 27-Discovery of the dead bodies in pursuance of the confessional statement-Effect of. The statements of the two condemned priso- ners not only corroborated each other, the disco- very of dead bodies in pursuance of the statement having been corroborated evidence lead us to believe that confessional statements of the condemned prisoners are voluntary and true as well. Hazrat Ali and Abdur Rahman vs State 42 DLR 177.

Section 27-Statement of condemned priso- ner leading to the discovery of dead bodies- Effect of. Hazrat Ali and Abdul Rahman vs State 42 DLR 177.

Section 27-Information received from accused-Its language-It may not be incumbent on the part of the police officer to record the state- ment of the accused in custody giving information leading to discovery of certain fact but if such information is recorded it must be done in the language of the accused. Farid Karim vs State 45 DLR 171.

S.27-Covers only "part" of statement leading to discovery.

Section 27 only covers so much of the statement in consequence of which a discovery is made. Jiando Vs. State (1962) 14 DLR (WP) 43 (1962) PLD (Kar) 882.

-Accused seen with the deceased alive for the last time.

The accused having been seen in the same field with the deceased, a duty was cast on him to explain as to how did the deceased meet the unnatural death. By itself this circumstance may not be considered enough to connect the accused with the murder but taking it is conjunction with the other circumstances in the present case it assumes an importance of the greatest magnitude. Nazra Vs. State (1960) 12 DLR (WP) 34; 1960 PLD (Lah) 739.

-How much information received from accused may be proved.

On the arrest of three accused persons, two of them made certain statements while in custody of the police and thereafter led the police to a ditch and there one of them recovered from inside a bush certain stolen articles.

It was contended on behalf of the accused petitioner that the evidence of joint statements made by the two accused petitioners in pursuance of which the recovery was made, was inadmissible.

Held: There being nothing in the record to indicate which of the two accused made first discovery, the said evidence is not legally available or usable against any of the accused persons.

Section 27 Murder case- Rigorous imprisonment for life In a trial for murder it is not an absolute necessity or an essential ingredient to establish corpus delicti. The fact of death of the deceased must be established like any other fact. Corpus delicti in some cases may not be possible to be traced or recovered.

There was no credible evidence with regard to the last seen theory. The recovery of the weapon of the offence was disbelieved as no disclosure statement under Section 27 of the Evidence Act was brought on record and the recoveries were effected from an open place. The appellant was made an accused on confession of a co-accused. But the vehicle allegedly recovered from the appellant was found not to be involved in the kidnapping. There was no evidence with regard to the appellant having been involved in the kidnapping and taking away of the child. It was held that identification parade was not substantive evidence and apart from the same there was no other incriminating evidence like recovery of articles from the appellant. The appeal is dismissed.....Sanjay Rajak -VS- The State of Bihar, [8 LM (SC) 11]

Evidence Act [1 of 1872)

Section 27

It is now settled principle of law that the power and function of both the trial Court and the appellate Court are one and the same. The appeal is a continuation of the original proceeding. That being the legal position, the High Court Division as the last Court of fact has rightly arrived at the above finding based on evidence and materials on record and attending circumstances of the case. [(2022) 26 ALR (AD) 2]

-S. 27

Again the mere fact that one of them actually brought out the thing from the place where the same had been concealed also cannot warrant an inference that he must have been responsible for concealing those articles there. Rekatullah Vs. State (1961) 13 DLR 750: (1962) PLD (Dac) 261.

-How much information received from accused may be proved-So much of the information as relates distinctly to the fact thereby discovered. no

The fact that the piece of cloth was recovered from the place pointed out by the approver was of value as supporting the credibility of the approver's story; but the statement made by the approver that it was the accused who threw the cloth to the place where it was found is of no more, or no less, value than his statement that the accused took an active part in the murder. Bhubani Shahu Vs. King (1950) 2 DLR 39.

-Evidence of pointing out by approver of places visited by the accused before the crime-Section not applicable.

Section 27 relates to the discovery of fact which has been made in consequence of any information given by an accused person himself. It is not correct that in determining the relevancy of the information under this section regard is to be had to the position of the person making the statement at the time the information is given in evidence and not at the time the discovery is made. The section clearly contemplates cases where at the time of the making of the discovery the person giving the information is a per- son accused of an offence and in custody and whose information or conduct is sought to be proved against him at the trial. Ibrahim Bhak Vs. Crown (1955) 7 DLR (FC) 123.

-Where the pointing out of places is not by an accused person, and the matter is beyond the scope of section 27, such evidence is admitted merely to confirm the evidence of the person who pointed out the places. But if the pointing out amounts to statement under section 162 of the Cr.P.C., the evidence as to it would be inadmissible. Ibrahim Bhak V Crown (1955) 7 DLR (FC) 123 (135 rt. h.col).

Statement in police custody coupled with pointing out the stolen property admissible. Khan Vs. Crown (1957) 9 DLR (WPC) 5.

Statement of a prosecution witness admitted under section 288, Cr.P. Code, containing confession said to have been made while in police custody by an accused is not saved by section 27, Evidence Act State Vs. Fashiruddin (1958) 10 DLR 222.

The plain meaning of section 27 is that if a confession to a police officer leads to a recovery, evidence about the confession is admissible in spite of the provisions of the two preceding sections. Crown Vs. Sadullah Khan (1953) 5 DLR (WPC) 98.

What a Court has to see in such cases is whether the knowledge of an accused person of the place where an incriminating article lay would prove that he had placed the article there. Crown Vs. Sadullah Khan (1953) 5 DLR (WPC) 98.

-The investigating officer deposed that the accused had said that he would point out the place where he had buried that stolen railway sleepers. Held: The statement of the accused that he had

buried the stolen property is admissible under section 27. Crown Vs. Sadullah Khan (1953)5 DLR (WPC) 98. -Where a dead body had been pointed out by the accused and stained shirt on which the Chemical Examiner did not find any human blood had been discovered after the first information report recorded. Held: The evidence was inadmissible and was to be excluded, PLD (1956) (Kar) 350.

-Recoveries of articles and dead body-Made on joint pointing out by several accused-Evidence as to recovery, inadmissible. 1950 PLD (BJ) 79.

-Confessional statements accompanying pointing out of property-Inadmissible-The convict petitioners not only indicated where the property could be found but also stated that either this was their share of stolen property or indicated the circumstances under which they them selves hid the property. This part of the evidence cannot, therefore, be used against them. 2 PLD (Lah) 352.

Stolen property found in a public place on the pointing out by the accused-Unsafe to convict solely on such pointing out 2 PLD (Bal) 30.

-Having regard to the fact that the remains of the dead body were found from a very lonely place where no person would ordinarily go to search for clues to the child missing from the town four miles away, a reason has to be found why the police went to that place at all, and no other reason is offered than that the accused himself led them to that place. Abdus Samad Vs. State (1964) 16 DLR (SC) 261.

-Statement of an accused person leading to a discovery cannot be received in proof of the criminality of another from whom any fact is discovered.

Section 27 deals with the admitting of so much of such part of the statement of an accused person against him but this would not mean that the statement made by the accused person would be received in proof of the alleged criminality of the person from whom any fact is discovered. Muhammad Ak- bar Vs. State (1965) 17 DLR (WP) 9.

Confessions which are inadmissible in evidence under sections 24, 25 and 26 of the Act are admissible when they contain information leading to the discovery of a fact in respect of that particular crime. Ketab Ali Vs. The State. (1970) 22 DLR 472.

-Witness-Some witnesses for the prosecution mentioned in the F.I.R. not examined by the prosecution-Effect.

When the prosecution has established its case by other evidence and the circumstances proved in the case are incompatible with the innocence of the accused, the mere fact that some witnesses for the prosecution mentioned in the F.I.R. were not examined by the prosecution is no ground to hold the prosecution's case otherwise. Kelab Ali Vs. The State (1970) 22 DLR 472.

-Joint statement made by the accused-Admissible in evidence.

On interrogation by the Officer-in-charge, the accused persons made certain statements jointly and in pursuance thereof and on their pointing out the stolen goods were recovered from a particular place. It was contended that the evidence of joint statement made by the accused was not admissible in evidence.

Held: In a suitable case, the joint statements made by two or more accused persons simultaneous- ly before the discovery of the articles in question, if proved satisfactorily, may go into evidence under section 27 of the Evidence Act. Kitab Ali Vs. The State, (1969) 21 DER 377..

-Accused brought out robbed goods. from a place known only to him is a strong circumstance to establish that he was himself involved in the commission of the offence (of murder).

The fact is that shortly after the murder accompanied by robbery the condemned prisoner was found in possession of goods robbed which he himself brought out from a place of which he alone had the exclusive knowledge.

This fact is a very strong circumstance to establish that the condemned prisoner was the person who received these things following the murder and the natural inference is that he was directly concerned in the murder. Salauddin Vs. State (1980) 32 DLR 227

-Statement by an accused in custody of the police leading to the discovery of the dead body of the murdered man is admissible u/s.27 of the Evidence Act, though otherwise it will be met by s.26.

Although in view of the provisions of sections -Ss. 27, 29 & 30

25 and 26 of the Evidence Act the first part of the statement that appellant caught hold of Sobhan while the other accused Bachchu, throttled him to death is not admissible in evidence as it was made in the custody of the police, but under section 27 of the Evidence Act the latter part of the statement made by the appellant in the custody of the police leading to the discovery of the dead body of the person murdered is admissible. Bachchu Vs. The State (1983) 35 DLR 170.

Section 28, Article 6, 7

The claim of the respondents for muta- tion of their names has no legal basis and respondents are at first required to establish their right title and interest over the property in question in a com- petent court of law before praying for direction for mutation of their names and writ court is not the proper forum for deciding such question of title and accordingly the High Court Division acted beyond its jurisdiction in making the Rule absolute. Rupali Bank Ltd. & Govt. etc. vs Shawkat Ara Salauddin Md. Tafazzul Islam J) (Civil) 2ADC 1

S.29-Admissibility of evidence is the only relevant question and how it was obtained.

Evidence, admissibility of is the only relevant question- Question as to how the evidence was procured immaterial Principle equally applicable both to civil and criminal cases. Kuruma Vs. Queen (1957) 9 DLR (PC) 339. S. 30-Place see sec. 3 of Evidence Act in the matter of Mamud Ali Vs. State (1985) 37 DLR 261

(Supra) See case u/s. 24 of Evidence Act in the mat- ter of State Vs. Lalu Mia. (1987) 39 DLR (AD) 117 (supra).

Confession-Retraced-Its evidentiary value against a co-accused-The fact that a confession has been retracted has nothing to do with the question of its being of a voluntary nature and true and as such cannot be ruled out of consideration merely on the ground of its being retracted.

The retraction of the confession was wholly im- material once it was found that it was voluntary as well as true. Joygun Bibi Vs. State (1960) 12 DLR (SC) 156 (1960) PLD (SC) 323.

"May take into consideration" What it connotes.

Section 30 of the Evidence Act merely provides that the Court "may take into consideration" such confessions as against the appellant, as well as against their makers. The language of the section is very guarded and lends no warrant to the inference that such a statement made by a co-accused could be treated as substantive evidence against the other per- son, sufficient to sustain his conviction. It is well- settled that there ought to be other evidence, whether direct or circumstantial, linking such a person with the crime, before a confession made by a co-accused could be adverted to, in adjudging the guilt of that person.

The persuasive efficacy of such confessional statements would be further weakened by the circum- stances that their makers have themselves resiled from them. Moqbool Hossain Vs. State (1960) 12 DLR (SC) 217

-Co-accused's confession very weak- Not 'evidence'-Does not amount to proof".

Section 30 seems to be based on the view that an admission by an accused person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself. But a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in sec- Lion 3, Evidence Act. It is not required to be given on oath, nor in the presence of the accused and it cannot be tested by cross-examination, Bhubani Sha- hu Vs. King (1950) 2 DLR (PC) 39.

-Section 30 provides that the Court may take the confession and thereby, no doubt, makes it evidence on which the Court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. Bhubani Shahu Vs. King (1950) 2 DLR (PC) 39.

-Confession of an accused may be taken into consideration-But is not strictly evidence against a co-accused. State Vs. Mukter Ali (1958) 10 DLR 155.

Corroboration-Confession of a co-accused cannot corroborate the confession of another accused. Share Vs. Mukter Ali (1958) 10 DLR 155.

S. 30. Explanation-"offence". Confession of a co-accused not evidence as defined in s.3 of the Evidence Act The explanation given under the section includes within the term "offence" used in the section the abetment of or attempt to commit the offence. The language of the section does not render the confession of a co-accused as evidence within the definition of section 3 of the Evidence Act. It sim- ply says that the Court may "take into consideration such confession." Lutfun Nahar Begum Vs. The State (1975) 27 DLR(AD) 29.

-Confession when proved against confessing accused can be taken into consideration against co- accused in same offence. Nunshur Ali Vs. State (1987) 39 DLR (AD) 194.

-Evidence adduced by prosecution-For appreciation of its quality and worth-Broad facts of the ease recounted. Appreciation of oral evidence-So- called confession by a co-accused (appellant Daud) relied upon by the trial Court-That confession is no confession in the eye of law as it was a testimony against the other accused without the maker having involved himself. Ibrahim Mollah Vs. State (1988) 40 DLR (AD) 216.

-If the principal evidence in the case namely direct oral evidence does not qualify to be trustworthy the alleged confession is of no avail to the prosecution for sustaining the order of conviction. (1988) 40 DLR (AD) 216.

Examination and analysis of oral evidence High Court Division failed to give due and proper consideration to the well established principles governing appreciation of evidence in a case where there is possibility of false implication because of existing dispute and enmity between the parties-Where the witnesses are related and partisan and have strong motive to depose falsely, their evidence must be put to the strictest scrutiny having regard to the attendant circumstances. (1988) 40 DLR (AD) 216.

Section 30-Confession by co-accused-Its worth in the absence of corroboration-A confession made by a co-accused in a joint trial for the same offence affecting himself and others may be taken into consideration. The confession of such an accused may lend assurance to the other evi- dence on record. Babor Ali Molla vs State 44 DLR (AD) 10.

Section 30-Confession Joint trial- Where more persons than one are being tried jointly for the same offence, a confession made by any one of them affecting himself and any one of his co-accused can be taken into consideration by the Court not only against the maker of the confession but also against the co-accused. It may not be an evidence within the strict meaning of the term, but it lends assurance to other evidence on record. State vs Abul Khair 44 DLR 284.

Section 30-Evidence adduced by prose- cution For appreciation of its quality and worth -Broad facts of the case recounted. Appreciation of oral evidence-So-called confession by a co- accused (appellant Daud) relied upon by the trial Court that confession is no confession in the eye of law as it was a testimony against the other accused without the maker having involved him- self. Ibrahim Mollah vs State 40 DLR (AD) 216.

Section 30-If the principal evidence in the case namely direct oral evidence does not qualify to be trustworthy the alleged confession is of no avail to the prosecution for sustaining the order of conviction. Ibrahim Mollah vs State 40 DLR (AD) 216.

Section 30-Examination and analysis of oral evidence High Court Division failed to give due and proper consideration to the well established principles governing appreciation of evidence in a case where there is possibility of false implication because of existing dispute and enmity between the parties Where the witne- ssess are related and partisan and have a strong motive to depose falsely, their evidence must be put to the strictest scrutiny having regard to the attendant circumstances. Ibrahim Mollah vs State 40 DLR (AD) 216.

Section 30-Neither the trial Court nor the High Court Division scanned the evidence in an analytical manner. After all these infirmities on the side of the prosecution the trial Court and the High Court Division should have entertained reasonable doubt as to the alleged participation of the appellants in the throwing of bombs. Ibrahim Mollah vs State 40 DLR (AD) 216.

Section 30-No conviction can be made solely on the basis of a confessional statement of a co-accused unless it is corroborated by some other independent evidence. State vs Mokammel Hyeath Khan 58 DLR 373.

Section 30-A confession, judicial or extra- judicial, whether retracted or not, can in law validly form the sole basis of conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture, coercion or inducement. State vs Mokammel Hyeath Khan 58 DLR 373.

Section 30- The confession of an accused is not a substantive piece of evidence against the co- accused who did not confess and such evidence alone, without any substantive corroborative evi- dence, cannot form basis of conviction of co- accused. Mofazzal Hossain alias Mofa vs State 58 DLR 524.

Section 30-Consideration of confession- Confession affecting person making it and others When confessional statement of an accused is found to be voluntary and partly exculpatory and partly inculpatory, the exculpatory part being improbable, contrary to reason and ordinary human conduct is liable to be rejected and the inculpatory part can be relied on even if the confession is subsequently retracted. Inculpatory part of the confession can also be used against the other accused. Abdul Kashem vs State 42 DLR 378.

Section 30-The confession is sufficient to find accused Rina guilty of the charge under sections 302/34 Penal Code inasmuch as she participated in the murder starting from hatching of conspiracy for killing her husband in order to marry accused Manik to allowing the latter to bring in poison and mix it with the drinking water of her husband's jug and then to see the husband drinking that water, then after his death to hang the body and raising a feigned cry. Besides, the circumstances showed there was no scope for anyone to enter the room to kill her husband without her co-operation. Shahjahan Manik vs State 42 DLR 465.

Section 30-Confession of a co-accused cannot be the sole basis for conviction. State vs Nurul Haque 45 DLR 306.

Section 30-Confession-retraction-an order of conviction can be passed solely on the basis of a confession, whether retracted or not, if it is considered and found to be true and voluntary. Though there is no compulsion that a confession need be materially corroborated yet it is prudent that a Court should look for it.

We are to examine the confessional statement in the light of the circumstances under which it is made and the other evidences on record corroborating the chain of circumstances as narrated by the accused before the Magistrate in his confessional statement and this corroborating need not always be in material particular as even a general corroboration or corroboration by medi- cal evidence would be considered to be enough. Abdur Rahman Syed vs State 44 DLR 556.

Section 30- Confession-When not volun- tary and true-The condemned prisoner was in police custody for 2 days with no explanation. This coupled with allegation of police torture shows the confession to be not voluntary, Con- fession containing exculpatory materials out- weigh the inculpatory materials and then the statements having not been corroborated, the confession cannot be said to be true as well. Farid Karim vs State 45 DLR 171.

Section 30-In a joint trial of several persons the Court may take into consideration confe- ssional statement of an accused against himself and other accused. Md Azad Sheik vs State 41 DLR 62.

Section 30- The extra judicial confession made in Police Station in presence of constables who had arrested the confessing accused and the police officer who had investigated the ease is inadmissible in evidence, Mofazzal Hossain Mollah vs State 45 DLR (AD) 175.

Section 30-Extra-judicial confession-If at all made appears to be wholly untrue-No reliable evidence of corroboration of the alleged extra- judicial confession and it is not at all safe to rely and act upon such extra judicial confession. The alleged extra-judicial confession if at all made by the said accused also appears to be wholly untrue. So, in the whole analysis of the facts and circumstances of the case and the evidence on record and the alleged extra-judicial confession of the condemned prisoner, we find that there is no reliable evidence of corroboration of the so-called alleged extra-judicial confession and it is not at all safe to rely and act upon such extra-judicial confession and convict the accused on that basis. Hence the conviction of the condemned prisoner Badsha Mollah on the basis of alleged extra- judicial confession cannot be sustained in law. State vs Badshah Mollah 41 DLR 11.

Section 30-Mere absconding cannot always be a circumstance to lead to an inference of guilt of the accused. Mere abscondance cannot always be a circumstance which should lead to an inference of guilt of the accused. Sometimes out of fear and self-respect and to avoid unnecessary harassment even an innocent person remains absconding for some time. State vs Badshah Mollah 41 DLR 11.

Section 30-Abscondance was not with any guilty mind. Existence of enmity is not disputed. Accused has been falsely implicated in this case out of grudge and enmity. State vs Badshah Mollah 41 DLR 11.

Section 30-In this case the condemned prisoner Badsha remained absent or absconding for some time but subsequently he surrendered himself in Court before the commencement of the trial. It appears, this abscondance was not with any guilty mind. So, this circumstance cannot be treated as a discriminating one. State vs Badshah Mollah 41 DLR 11.

Section 30-There being no independent evidence except the confessional statement of appellant Farook Mahajan against the other accused appellants. The trial Court was wrong in finding all the appellants guilty.

A retracted confession, like the one which is not retracted, may form the sole basis of conviction of the maker if the Court believes it to be voluntary and true. But as against the co- accused, the evidentiary value of a retracted is practically nil and in the absence of strong independent evidence, it is totally useless. Faruque Mahajan vs State 49 DLR 47.

Section 30-Confessional statement of one accused cannot be used as evidence against another coaccused unless there is any independent corroboration. Sohel Monir, son of M A Monir of Dhaka vs State 49 DLR 407.

Section 30-The evidentiary value of a retracted confession is practically nil in the absence of strong independent evidence. Sohel Monir, son of M A Monir of Dhaka vs State 49 DLR 407.

Section 30-The confession of a co-accused may be used only to lend assurance to other evidence on recorded in support of the guilt of the accused but the same cannot be used as a substantive evidence. Moslemuddin vs State 48 DLR 588.

Section 30-No statement that contains selfexculpatory matter can amount to confessional statement if the exculpatory statement is of some fact which if proved would negative the offence confessed.

The statement of accused Bachchu in his confessional statement as quoted are the admission and not confession as confession involved a voluntary acknowledgment of guilt. From the admission of accused Bachchu it cannot be said that he was aware that Khairul would be murdered by the other accused. He, therefore, cannot be said to have abetted that offence of murder. State vs Md Bachchu Miah @ Abdul Mannan and 5 others 51 DLR 355.

Section 30-If confession falls short of plenary acknowledgment of guilt it would not be a confession even though the statement contained some incriminating fact. Jabed Ali (Md) alias Jabed Ali vs State 51 DLR 397.

Section 30-It is very risky to rely on the statements of the two confessing accused so as to convict accused Mohammad Ali as there is absence of any corroborative evidence to identify Mohammad as Mohammad Ali. Mohammad Ali vs State 52 DLR 245.

Section 30-The confessional statement of an accused can very well be the basis of conviction provided the same is true and voluntary. Hasmat Ali vs State 53 DLR 169.

Section 30-Prolonged police custody immediately before recording of the confessional statement is sufficient, if not otherwise properly explained, to render it as involuntary. Hasmat Ali vs State 53 DLR 169.

Section 30-The conviction cannot be based solely on the basis of confessional statement of a co-accused unless it is corroborated by some other independent evidence. State vs Lieutenant Colonel Syed Farook Rahman 53 DLR 287.

Section 30-The alleged solitary confinement was after the recording of the confessional statement and does not affect the confession as involuntary. State vs Lieutenant Colonel Syed Farook Rahman 53 DLR 287.

Section 30-Confession of a co-accused cannot by itself be the basis of conviction of another co-accused nor even against himself if the same is not substantiated by satisfactory evidence proving the guilt of its maker. Zahid Hossain @ Paltu vs State 55 DLR 160.

Section 30 Conviction can be based on judicial confession if it is established that it is true and voluntary and is substantiated by other evi- dences, whether direct or circumstantial and mate- rials on record. State vs Moslem 55 DLR 116.

Section 30-Conviction can be based on the sole confession of the accused although retracted subsequently if it is found to be true and volun- tary. Zakir Hossainvs State 55 DLR 137.

Section 30- Conviction of the confessing accused based on a retracted confession even if uncorroborated cannot be said to be illegal if the court believes that it is true and voluntary. State vs Rafiqul Islam 55 DLR 61.

Section 30-The trial Court first has to find the confessional statement to be true and volun- tary and then only may place reliance on it. State vs Rafiqul Islam 55 DLR 61.

Section 30-The confession of one co- accused cannot be used for corroborating the confession of another co-accused as both are tainted evidence, much more so when they are retracted, for, then the maker himself repudiates the correctness of his earlier statements the confession of a co-accused could not be sustained and further the confession of one co-accused could not be said to be corroborated by the confession of another co-accused. Rezaul Karim (Md) alias Rezaul Alam Rickshawa vs State 55 DLR 382.

Section 30-Confession of an accused is not a substantive piece of evidence against the co- accused, so such evidence alone without substantive corroborative evidence cannot form the basis of conviction of a co-accused. Rezaul Karim (Md) alias Rezaul Alam Rickshawa vs State 55 DLR 382.

Section 30 Confession of a co-accused can be taken into consideration and on the strength of that confession another co-accused can be convicted provided the said confession is corroborated by any other evidence, either direct and circumstantial. State vs Mir Hossain alias Mira and others 56 DLR 124.

Section 30-Conviction on the basis of a confessional statement upon the maker can be very much based even if the confessional statement had been retracted at a later stage. State vs Anjuara Khatun 57 DLR 277.

Section 30-Very brevity of dying declaration in the circumstances of the case far from being a suspicious circumstances was an index of its being true and free from the taint of tutoring. Tenseness of statement itself can be characterised as the guarantee of truth. State vs Anjuara Khatun 57 DLR 277,

Section 30-A Judicial confession not furnished voluntarily and out of free will is quite unreliable, more so, when such a confession is retracted. Kazi Mahbubuddin Ahmed alias Mahbub vs State, represented by the DC, Dhaka 57 DLR 513.

Section 30-A retracted confession can constitute sufficient basis for conviction of its maker provided the same is found true and voluntary. Khalilur Rahman vs State 59 DLR 227.

Section 30- The confessions being out and out exculpatory are not confessions in the eye of law and, as such, completely inadmissible and those cannot be considered under section 30 of the Evidence Act as against the co-accuseds. State vs Al Hasib Bin Jamal alias Hasib 59 DLR 653.

Section 30-It appears from the evidence on record that the accused Kader in collusion with Kamran and Imran took Sahad from his house with a preplan to take revenge of the previous enmity. Subsequently, the conduct of the accused Kader i.e. leaving his house immediately after occurrence and his spontaneous surrender before the police also clearly corroborates the confes- sional statement. As regard the extra-judicial confession, the witnesses in whose presence he confessed his guilt, they deposed in the Court. Furthermore, the recovery of dead body and the recovery of 'Bothi' and other materials at the pointing out of Kader also clearly indicate the corroboration of confessional statement. More- over, the Magistrate who recorded the confes- sional statement has come before the Court and deposed that the accused Kader made the confessional statement voluntarily and he certified the confessional statement as true and voluntary. State vs Abdul Kader 60 DLR 420.

Section 30-A confessional statement must not only be voluntary, but it must be true at the same time. The veracity of the confessional statement must not be tested in a vague and hypothetical manner, but in a concrete and logical manner in light of the evidence adduced by the prosecution. State vs Hamidul 61 DLR 614.

Section 30-The confessional statement neither fits with the prosecution version of the event nor does it corroborate the testimony of the prosecution witnesses and on this score, the confessional statement cannot be taken to be true. In the absence of any other credible evidence by which the complicity of the appellant in the case can be established, his conviction becomes equally unsustainable. State vs Hamidul 61 DLR 614.

Section 30-It appears from the order No. 141 dated 12-4-1997 that the accused Aktaruz- zaman Chowdhury Babu was granted bail by the Court of Sessions, and thereafter the High Court Division cancelled his bail on 27-5-1993 and directed him to surrender before the Court of the Chief Metropolitan Magistrate by 12-6-1993, but the accused flouted the order and absconded and remained in abscondence for over 3 years till his surrender before the trial Court. This conduct of Babu appears to be culpable in nature and is a cir- cumstance that goes against him. State vs Md Fazlur Rahman Tonmoy 61 DLR 169.

Section 30-The general principle is that the evidence of an approver should be accepted or rejected as a whole. By making a departure from established legal principle, the Court below acquitted Babu on some untenable and unsustain- able grounds. State vs Md Fazlur Rahman Tonmoy 61 DLR 169.

Section 30- The confession of an accused person against a co-accused is not evidence in the ordinary sense of the term. Such a confession can only be used to lend assurance to other evidence against a co-accused. The judge may call in aid the confession and use it to lend assurance to the other evidence. Khalil vs State 62 DLR 309.

Section 30- Confession of a co-accused can-not be the sole basis to convict the other of the co-accused, in absence of other corroborative evidence. Nuru Miah vs State 63 DLR 242.

Section 30-Confession of a co-accused cannot be resorted to under any guise as substantial evidence to convict another but may be used as a relevant fact only to lend assurance to any other evidence. State vs Moksed Ali 63 DLR 346.

Sections 30 & 3- Confession of co-accused -The confession of an accused is no evidence against the coaccused. Such confession cannot be taken into consideration against his coaccused and it can only be used to lend assurance to other legal evidence. But in the absence of any substantive evidence the confession of a coaccused is of no consequence against other accused persons. State vs Tajul Islam 48 DLR 306.

Sections 30 & 3-It is true confession of an accused may be used as against other co-accused in the same trial. But this is for a limited purpose. Confession of a coaccused itself is not evidence but it may be used, as such, if it is found to be true and voluntary as against other co-accused not as a solitary basis but for the purpose of lending assurance to any other evidence found against him. Abul Hossain vs State 46 DLR 77.

Sections 30 & 3-Since the confessional statement is not required to be taken on oath and taken in presence of a coaccused and not tested by cross-examination it cannot be considered as substantive evidence against the co-accused. Mojibar vs State 51 DLR 507.

Sections 30 and 114(b)- Court may take into consideration the confessional statement of a co-accused under section 30 of the Act against the one who did not confess but an accomplice is unworthy of credit unless he is corroborated in material particulars. Nazrul Islam vs State 45 DLR 142.

Evidence Act (1 of 1872)

Section 30

If marshalling the evidence excluding those C confessions altogether from consideration it is believed, a conviction could safely be based on it, in such event, the Judge may call in aid the confession and use it to lend assurance to the other evidence. Since confessional statement of the co-accused is not admissible against the accused Sujon and there was no other substantive evidence to connect him with the occurrence, we are of the view that the Courts below committed an error of law in convicting accused Sujon. ......(23) [73 DLR (AD) 366]

Section 30-A statement of an accused would be admissible against co-accused only in terms of section 30 of the Act. A voluntary and true confession made by an accused can be taken into consideration against a co-accused by virtue of section 30 of the Act but as a matter of prudence and practice the Court should not act upon it to sustain a conviction of the co-accused without full and strong corroboration in material particulars both as to the crime and as to his connection with the crime. Dr. Miah Md Mohiuddin vs State (Criminal) 75 DLR (AD) 8

Section 30-Though generally the confessions of a co-accused are not admissible, however, there are certain exceptions where such confessional statements could be weighed up in reaching a verdict. Nevertheless, these rules applied at the time of convicting and sentencing any person after taking all the evidences. This is merely a plea for granting bail of an under trial accused. At this summary proceeding and premature stage, we cannot foretell whether there will be no other incriminating evidence adduced that could be corroborated by the confessions of the co-accused. (Per Md Ashfaqul Islam, J) State vs AHM Fuad (Criminal) 75 DLR (AD) 241

Section 30

The confession made by a co-accused cannot be said that it is corroborated by other evidence and, as such, it cannot be the sole basis of conviction of another co-accused. [73 DLR (AD) 264]

S. 30 read with S.3-Confessional statement of co-accused implicating other co-accused not admissible for later's conviction. Amir Hossain Howlader Vs. The State (1985) 37 DLR (AD) 139.

This section simply makes the confession of a co-accused a relevant fact, in other words, the confessional statement of a co-accused is admissible against other accused persons in the sense that it may be taken into consideration against them along with other evidence. But for this section 30, the confessional statement of one accused will be inadmissible in evidence against another accused in view of $3 of the Evidence Act. Amir Hossain Vs. State (1985) 37 DLR (AD) 139.

Neither the trial Court nor the High Court Division scanned the evidence in a analytical manner. After all these infirmities on the side of the Prosecution the trial Court and the High Court Division should have entertained reasonable doubt as to the alleged participation of the appellants in the throwing of bombs. Ibrahim Mollah Vs. State (1988) 40 DLR (AD) 216.

Section—30

Confessional statement, whether is evidence itself? Confessional statement is not evidence itself. It can only be taken into consideration against the co-accused if corroborated by some other independent evidence. This section applies to confession made by an accused affecting himself and his co-accused in a joint trial for the same offence and not the statement whereby he does not admit his guilt. Abdul Gafur and others, Vs. The State, 13BLD(HCD)598

Section—30

Section 30 of the Evidence Act provides that the confession of a co-accused can be taken into consideration to lend assurance to other substantive evidence on record but it never says that such confession amounts to proof. In the instant case, there being no substantive evidence, either direct or circumstantial, implicating the appellant in the alleged murder or in the abetment of the same except as to some evidence about the motive of the offence, the High Court Division was wrong in treating the confessional statement of the co-accused as substantive evidence and treating the evidence of P.Ws. 4 and 7 as corroboration thereof. Ustar Ali Vs. The State, 18BLD (AD)43 Ref: 1LR76 Indian Appeals 147; 27DLR 29; 44DLR(AD) 10—Cited.

Section—30

Confession of co-accused Section 30 of the Act provides that the confession of a co-accused can be taken into consideration to lend assurance to other substantive evidence on record but it never says that such confession amounts to proof. In the instant case, there being no substantive evidence, either direct or circumstantial, implicating the appellant in the alleged dacoity or in the abatement of the same except as to some evidence about the motive of the offence, the trial Court was wrong in treating the confessional statement of the co-accused as substantive evidence against the appellant. Mojibar Vs The State, 20BLD(HCD)273 Ref: Ustar Ali Vs. The State, 18BLD (AD) (1998)43: 3BLC(AD)53; Bhuboni Safer Vs. The King, 1LR76 Indian Appeals 147; Lutfun Nahar Vs. State, 27DLR29; Babor Ali Mollah Vs. State, 44DLR(AD)10 ; 2DLR (PC) 29—relied.

Section—30

Section 30 of the Act provides that the confession of a co-accused can be taken into consideration to lend assurance to other substantive evidence on record, but it never says that such confession amounts to proof. In the instant case there being no substantive evidence, either direct or circumstantial, implicating Ansar Ali, Montaz, Bhola and Hormuz Ali in the alleged commission of dacoity, the learned Assistant Sessions Judge was wrong in convicting the appellants on the basis of the confessional statement of their two co-accused. Md. Ansar Ali Vs The State, 19BLD (HCD)224 Ref: 1 8BLD(AD)( 1998)43—relied upon

Secs. 30 and 133-Retracted confessions of two co-accused's-Admissible against each other- Corroboration in material respect required as a rule of prudence. (1957) PLD (Lah) 956.

Section 30— There being no independent evidence except the confessional statement of appellant Farook Mahajan against the other accused appellants. The trial Court was wrong in finding all the appellants guilty. A retracted confession; like the one which is not retracted, may form the sole basis of conviction of the maker if the court believes it to be voluntary and true. But as against the co-accused, the evidentiary value of a retracted is practically nil and in the absence of strong independent evidence, it is totally useless. Faruque Mahajan and 4 (four) others vs State 49 DLR 47

Section 30— Confessional statement of one accused cannot be used as evidence against another co-accused unless there is any independent corroboration. Sohel Monir, son of M A Monir of Dhaka vs State 49 DLR 407

Section 30— The evidentiary value of a retracted confession is practically nil in the absence of strong independent evidence. Sohel Monir, son of M A Monir of Dhaka vs State 49 DLR 407

Section 30— The confession of a co-accused may be used only to lend assurance to other evidence on recorded in support of the guilt of the accused but the same cannot be used as a substantive evidence. Moslemuddin and another vs State 48 DLR 588.

Section 30— No statement that contains self-exculpatory matter can amount to confessional statement if the exculpatory statement is of some fact which if proved would negative the offence confessed. The statement of accused Bachchu in his confessional statement as quoted are the admission and not confession as confession involved a voluntary acknowledgment of guilt. From the admission of accused Bachchu it cannot be said that he was aware that Khairul would be murdered by the other accused. He, therefore, cannot be said to have abetted that offence of murder. State vs Md Bachchu Miah @ Abdul Mannan and 5 others 51 DLR 355

Section 30—If confession falls short of plenary acknowledgment of guilt it would not be a confession even though the statement contained some incriminating fact. J abed Ali (Md) alias Jabed Ali and others vs State 51 DLR 397

Sections 30 & 3—Confession of co-accused—The confession of an accused is no evidence agianst the co-accused. Such confession cannot be taken into consideration against his co-accused and it can only be used to lend assurance to other legal evidence. But in the absence of any substantive evidence the confession of a co-accused is of no consequence against other accused persons. State vs Tajul Islam 48 DLR 306.

Sections 30 & 3—It is true confession of an accused may be used as against other co-accused in the same trial. But this is for a limited purpose. Confession of a co-accused itself is not evidence but it may be used as such if it is found to be true and voluntary as against other co-accused not as a solitary basis but for the purpose of lending assurance to any other evidence found agianst him. Abul Hossain and others vs State 46 DLR 77.

Sections 30 & 3—Since the confessional statement is not required to be taken on oath and taken in presence of a co-accused and not tested by cross-examination it cannot be considered as substantive evidence against the co-accused. Mojibar vs State 51 DLR 507.

Evidence Act, 1872

Section 30 – Confessional statement of one accused cannot be the basis of conviction of non-confessing accused without corroborative evidence. Law is well settled that in a joint trial of a confessing accused and non-confessing accused for the same offence, the confession of a co-accused may be taken into consideration against non-confessing accused only along with for substantive evidance for the purpose of finding him guilty of the offence. Abdus Salam Mollah V The State 13 MLR (2008) (AD) 268.

Section 30— The evidentiary value of a retracted confession is practically nil in the absence of strong independent evidence. Sohel Monir, son of M A Monir of Dhaka vs State 49 DLR 407

Section 30-Confession of a coaccused cannot be treated as substantive evidence against the other person to find him guilty of the offence charged with and it would require other evidence whether direct or circumstantial linking such a person with the crime, before a confession made by a co-accused can be adverted to in adjudging the guilt of that person. State vs Abdul Kader @Mobile Kader, 67 DLR (AD) 6

Section 30-When more than one person are being tried jointly for the same offence and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confes- sion as against such other of such persons as well as against the person who makes such confession. State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6

Section 30-In view of the other evidence against accused-Mobile Quader, we can very much consider and use the confessional statement of co-accused within the meaning of section 30 of the Act with the other evidence adduced in the case in seeing his link or connection with the killing. State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6

Section 30-Retraction of a confes- sion has no bearing whatsoever if it was voluntarily made so far the maker is concerned. It is, however, very weak type of a fact like any other fact and it cannot be the basis for conviction of co-accused. (PER SK SINHA, JAGREEING WITH MD ABDUL WAHHAB MIAH, J) State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6

Section 30-If the confessional statement is found true and voluntary, it can form the basis for conviction even if retracted so far the maker is concerned but it cannot be used against co-accused. (PER SK SINHA, JAGREEING WITH MD ABDUL WAHHAB MIAH, J) State vs Abdul Kader @ Mobile Kader, 67 DLR (AD) 6

Section 30-Confession of a co- accused is not substantive evidence and such confession cannot be the sole basis of conviction of a co-accused in the absence of independent and corroborative evidence. State vs Md Tohurul Islam @ Azizul Haque, 66 DLR 386

Section 30-Confession of a co- accused is not evidence, it can only lend assurance to other evidence. State vs Md Tohurul Islam @Azizul Haque, 66 DLR 386

Sections 31 and 80-An admission is the best evidence that the opponent can rely upon, and though not conclusive is decisive of the matter unless successfully with- drawn or proved erroneous. It can be shown to be erroneous or untrue, so long as the person to whom it was made has not acted upon it to his detriment, when it might become conclusive by way of estoppel. Mufti Abdul Hannan Munshi alias Abul Kalam vs State, 69 DLR (AD) 490

Section 32—It is not required for a dying declaration that the maker should be in expectation of his immediate death nor it is restricted to homicidal death.. Humayun Matubbar vs State 51 DLR 43.

Sections 32(1)- Section 32(1) of the Act has made any statement, written or verbal, of a dead person admissible in evidence when these statements are as regards any facts and circumstances which resulted in his/her death irrespective of the fact whether the person who made those statements was under expectation of death or not at the time of making those statements. Syed Sajjad Mainuddin Hasan @Hasan vs State, 70 DLR (AD) 70

Section 32(1)—Unless the dying declaration as compared to other evidence appears to be true, it cannot by itself form the basis of conviction of the accused. State vs Tota Mia 51 DLR 244

Evidence Act, 1872

Section 32 – Acceptability of dying declaration

Unless the dying declaration is made under the expectation of imminent death, it is not admissible in evidence as to the cause of death of the deceased who died long after the occurance. When the occurrance took place in the darkness of night and there was no means of recognition of the accused and the Witnesses contradicted on points, the High Court Division found the convict appellant not guilty of the charge and acquitted which the apex court affirmed having found nothing wrong therewith. State Vs. Md. Ruhul Amin and others 13 MLR (2008) (AD) 280.

Section 32(1) Dying declaration- Considering all the three dying declarations, in the light of well-settled principles, this Court held that all the three dying declarations are true, voluntary and consistent. Insofar as third dying declaration, this Court, in paras (408) to (412) held that the dying declaration made through signs, gestures or by nods are admissible as evidence and that proper care was taken by PW-30 Pawan Kumar, Metropolitan Magistrate and the third dying declaration recorded by in response to the multiplechoice questions by signs, gestures made by the victim are admissible as evidence. In the third dying declaration, the victim also wrote the names of the accused persons "Ram Singh, Mukesh, Vinay, Akshay, Vipin, Raju". So far as the name of accused Vipin written by the prosecutrix in the third dying declaration has been elaborately considered by this Court in paras (150) and (188) of the judgment. Mukesh VS State of NCT of Delhi, [4 LM (SC) 101]

Section—32(1)

Dying declaration

It is alleged by the defence that P.W.1 admittedly not a witness of the occurrence implicated the accused persons out of enmity at the instance of P.W.4 who during cross- examination himself stated categorically that before going to the thana for lodging F.I.R. he consulted the matter with the informant PW. 1 which lends support to the defence version that the accuseds have been falsely implicated in the case in collusion with him. It is also in the evidence of P.W.5 that regarding dying declaration alleged to have been made by the deceased on query to her wife but Mobessera did not say that she reported the matter to P.W. 1 before going to thana for lodging F.I.R. Moreovor the daroga deposed that she did not state to him that her husband the victim told her the names of the accused persons or she saw them running away. This statements are also absent in the first information report. Moreover the principal accused Kamrul Islam have been acquitted by another Bench of the High Court Division disbelieving the prosecution story in Criminal Appeal No. 605 of 1995. Liton Vs The State, 20BLD(HCD)219

Section—32(1)

In the instant case, there are two dying declarations made by deceased Hatem Ali Sikder and in both the dying declarations he mentioned the names of the appellants. The second dying declaration being nearer to death, the High Court Division believed the same and acted on it. Moreover, P.Ws 4 and 7 in clear terms mentioned the inflicting of injuries by the appellants on the person of the deceased, which is supported by the medical evidence. The High Court Division ought not to have rejected the evidence of these two witnesses merely on the ground that they were not disinterested witnesses, notwithstanding the fact that the defence failed to shaken their credibility in cross-examination. The order of conviction is maintained. Samad Sikdar Vs. Md. Abdul annan Sikder, 17BLD(AD)239

Section—32 (1)

Dying declaration—Conditions for acceptance

Three conditions will have to be fulfilled before a dying declaration is acted upon. The first condition is whether the victim had the physical capability of making the statement. Secondly, whether the witnesses heard the statement correctly and reproduced the names of the assailants correctly in the Court. Thirdly, whether the maker of the dying declaration had the opportunity to recognise the assailants correctly. Md. Abul Kashem Vs. The State, 15BLD (HCD)205

Section—32(1)

Dying declaration

A dying declaration if believed can alone from the basis of conviction, as it is a substantive evidence under section 32 of the Act. In the instant case the dying declaration was duly recorded by a competent Magistrate who proved the same before the Court. The dying declaration was recorded on 22.5.1989 and the victim died on 15.6.1989. The intestine of the victim came out and he was operated upon immediately. Thereafter on the requisition of hospital authority the dying declaration was recorded by a competent Magistrate which shows critical condition of the victim. Moreover the victim himself corroborated, it by saying that he could not speak further and there- fore merely because the victim died some days after recording the dying declaration will not render the dying declaration inadmissible under section 32 of the Act. The State Vs Akkel Ali and ors, 20 BLD(HCD)484

Section—32(1)

Statement of a dead person when relevant? Statement, written or verbal, of relevant facts, made by a person who is dead is relevant when the statement is made by a person as to the cause of his or her death in cases in which the cause of that person’s death comes into question. The State Vs. Abdul Khaleque, 13BLD (HCD)354 Ref: PLD 1956 (FC)43=8 DLR (FC) 24; BCR 1982 (Special Bench )344; 12 BLD 49; 40 DLR(AD)281; 21DLR(SC)89=PLD 1969 -SC 89; Pakala Narayan Swami Vs. The King Emperor (1939)56 Indian Appeals 66 (76); 27 DLR (AD) 29—Cited

Section 32 – Dying declaration its acceptability

While accepting the dying declaration to form the basis of conviction the court is bound to make scrutiny as to the physical condition and capability of the victim to make the dying declaration. When the recording Magistrate categorically stated that the victim could not speak clearly and the attending doctor stated the condition of the victim was very serious and when the victim did not disclose to anybody else the names assailants during seven days after the occurrence the learned judge the High Court Division held the dying declaration doubtful. The Appellate Division concurred with the findings of the high Division and accordingly dismissed the leave petition. State Vs. Shahin and others 15 MLR (2010) (AD) 37.

Evidence Act, 1872– Section 34 –Conviction can be based on one witness – There is no legal bar convicting an accused on the basis of evidence given by police personnel when the same appears to be trustworthy. Again conviction can well be based on the evidence of solitary witness if found reliable. Bayezid Hossain @ Bijoy Vs The State 11 MLR (2006) (HC) 263.

Section 32—It is not required for a dying declaration that the maker should be in expectation of his immediate death nor it is restricted to homicidal death. Humayun Matubbar vs State 51 DLR 43.

Section 32(1)—Unless the dying declaration as compared to other evidence appears to be true, it cannot by itself form the basis of conviction of the accused. State vs Tota Mia 51 DLR 244

S.32-Dying declaration-In order to be sole basis for conviction on dying declaration alone ing the various circumstances and compare them with the statements in the dying declaration for safe dispensation of justice. A Razik vs State (1965) 17 DLR (SC) 1.

Dying declaration-Conviction can be found- ed on dying declaration alone when it is considered true and genuine.

The legal principle that when more than one conclusion can be drawn from a given set of facts, then the conclusion favourable to the accused should be accepted as correct is not applicable in assessing the truthfulness or otherwise of dying statement of an eye-witness, Abdur Raziq vs. State (1964) 16 DLR (WP) 73

-Expectation of imminent death is not a requirement for treating the declaration as a dying declaration. What is relevant is whether the declaration is voluntary or under pressure from any outside quarter. Conviction can be based on such declaration. Nurjahan Begum Vs. State (1988) 40 DLR 321.

S.32(1)

-Dying declaration-Judge's failure to warn the jury that the declaration was not liable to cross- examination does not vitiate the trial. Abdur Rah- man Vs. State (1959) 11 DLR 494.

-Recorded in English without the language of the deceased-Who made the statement in Bengali- Admissible.

Where the dying declaration made in Bengali has been recorded in English without improving on the language of the deceased, such a dying declaration suffers from no infirmity and is admissible in evi- dence. State Vs. Bahar Ali (1959) 11 DLR 258: (1959) PLD (Dac) 832.

-Record does not contain the exact words of the deceased-Record unreliable. Omar Ali Vs. State (1961) 13 DLR 251; (1962) PLD (Dac) 418.

-Omission to mention in the dying declaration the name of one of the three witnesses due to serious physical condition is not of much significance, Ghu- Jam Hussain Vs. Zainullah (1961) 13 DLR (SC)

147 (1961) PLD (SC) 230. Its evidentiary value-Judge's failure to Caution the jury is a serious omission. Samar Mallick Vs. State (1960) 12 DLR 535 (1961) PLD (Dac) 438.

Made in the course of police investigation Admissible.

A dying declaration though made in the course of investigation to which clause 32(1) applies, would not be hit by section 162 of the Criminal Procedure Code. Shahidullah Khan Vs. State (1960) 12 DLR 537 (1961) PLD (Dac) 1.

When alone can form the basis of conviction. If a dying declaration is found to be genuine and true, it can by itself form a satisfactory basis for conviction. Some of the main tests for determining the gen- uineness of dying declaration are: Whether intrinsi- cally it rings true, whether there is chance of mis- take on the part of the dying man in identifying or naming his assailants and whether it is free from prompting from any outside quarter and is not incon- sistent with the other evidence and circumstances of the case.

If a dying declaration stands the normal test for judging its veracity it becomes a wholly reliable piece of evidence, but if it does not, it is far worse than an ordinary statement of witness because the maker of the dying declaration was not subjected to cross-examination and was not under an oath.

This is not saying that if a dying declaration is false in some particulars, it must always be rejected, but most certainly if it is found that the dying man in his statement has indulged in telling lies even partially, that would put the Courts on guard against accepting the rest of the statement without any corroboration, and the result may well be that the whole of the statement is rejected. Taj Mahmud Vs. State (1960) 12 DLR (WP) 30: (1960) PLD (Lah) 723.

-Dying declaration-Admissibility.

A dying declaration is inadmissible when upon its face it is incomplete and no one can tell what the deceased was about to add. It is a serious error to ad- mit a dying declaration in part. Cyril Waugh Vs. King (1957) 9 DLR (PC) 353.

-It is further and even more serious error not to point out to the jury that it had not been liable to cross-examination. Cyril Waugh vs. King (1957) 9. DLR (PC) 353.

-The provision in section 164 of the Code of Criminal Procedure does not in any way affect the admissibility of a statement made by a person, if it falls within the terms stated in section 32. Dying declarations are admissible even if orally made. They may contravene the general rule of hearsay evidence, but that is because the Legislature has made them expressly admissible. Allah Baksh Vs. Crown (1951) 3 DLR (FC) 388.

-Dying declaration is not to be disregarded be- cause part of it is false. State Vs. Khalilur Rahman (1957) 9 DLR 327.

While dealing with the question of dying declaration the Judge has to discuss this matter from four stand-points:

Firstly, whether the maker had the physical capacity;

Secondly, whether the witnesses who heard the deceased making the statement heard him correctly: Thirdly, the Judge has to deal with the question whether the maker had any opportunity to recognise the assailants;

Lastly, there is no rule of law that a dying declaration must be corroborated before it can be acted upon. Ajmat Ali Vs. Crown (1955) 7 DLR 356.

-Dying declarations are admitted into evidence on the principle of necessity, but a dying declaration can be made the basis of conviction only when the jury are satisfied beyond all shadow of doubt that the man who made the declaration had a good opportunity of recognizing his assailant. Ajmal Ali Vs. Crown (1955) 7 DLR 356.

-Dying declaration-Recorded not as uttered-The investigating officer who recorded the dying declaration of the deceased deposed that as the Bengali of the deceased was not correct, he improved the language retaining the full sense of what the de ceased had spoken.

Held: The dying declaration is not admissible. Rejan Ali Vs, Crown (1955) 7 DLR 141.

-Expectation of death, not necessary

For admissibility of statement, a person should not necessarily be under expectation of death when he made it.

Statement with regard to the cause of death of another person injured in the same transaction in which the person making the statement was injured is also admissible. Mian Khan Vs. Crown (1954)6 DLR (WPC) 213.

-A dying declaration alone can be the basis for a conviction, if it is free from suspicion. Shahbaz Vs. Crown (1957) 9 DLR (WP) I.

-Dying declaration-Its evidentiary value Dying declaration-When admitted under section 32 of the Evidence Act stands on the same footing as any other evidence as to its value and credibility. Tera Mia Vs. Crown (1955) 7 DLR 539 (546).

-Recording of dying declaration in the form of questions and answers-Improper. Sultan Ahmed Vs. Crown (1950) 2 DLR 30.

S. 32(1), 32(1)(2) & 35

(3) That for some time before the deceased's death, the accused had started threatening her with death in case she refused to carry out the afore- mentioned wishes of the accused.

(4) That the accused actually made several attempts on the life of the deceased before she actual- ly died on the 7th of December, 1953. Held: The diary is admissible in evidence. (1956) PLD(Lah) 300.

Letter written by the deceased prior to the occurrence showing relationship with the accused- admissible. Ghulam Ahmed Khan Vs. State (1958) 10 DLR 55 1957 PLD(Kar) 824.

-Practice of recording dying statement in the language other than the language of the declarant should be discouraged. Dying declaration made in one language, but recorded in another language-Admissibility of,-A dying declaration recorded in one language while made in another language will be admissible in evidence if a certificate is given by the recording officer that it was translated into the language of the maker and read it over to the deceased and the latter admitted the same to be correctly written and put his signature or thumb-impression on it.

In the absence of any such certificate in the dying declaration, it cannot be safely said that the facts recorded in the dying declaration were the actual version of the deceased. Rahmat Baksh Vs. The State, (1970) 22 DLR 482,

-Dying declaration-To what extent can be relied on for assessing the guilt of the accused.

To find out the truth or falsity of a dying declaration, the case has to be considered in all its physical environments and circumstances to find out how far the evidence or its different parts fit in with the circumstances and possibilities that can be safely deduced in the case. In the last analysis, as stated in some of the eminent judicial decisions, "the grain, has to be sifted from the chaff in each case, in the light of its own particular circumstances.

Dying declarations of the deceased which have a degree of sanctity under the law, being the statement of a dying man, is that he would not tell a lie and implicate innocent persons on false charges. But in view of the habit in our country that people do add innocent persons along with the guilty to satisfy their sense of revenge, it is difficult to lay down a rigid rule that a person who is under an apprehension of death, would suddenly by gifted, with a clean con science and a purity of mind to shed all the age-old habits and deep rooted rancors and enmities. Tawaib Khan Vs. The State, (1970) 22 DLR(SC) 16.

-Statement of a dead person is a relevant fact as to the cause of his death.

Statement of a dead person is a relevant fact un- der that sub-section, when it is made by that person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Lutfun Nahar Begum Vs. The State (1975) 27 DER (AD) 29.

-"Circumstances of the transaction which resulted in his death considered with reference to the facts of the present case. Lutfun Nahar Begum Vs. The State (1975) 27 DLR (AD) 29.

-A statement made by the deceased two days before his death is not an admissible evidence.

Though a statement alleged to have been made by the deceased two days prior to his death was found to be inadmissible, it was sought to be utilised to furnish a background or, indeed, a notice for the crime and it was held that, "that, however, can- not excuse the reception of inadmissible evidence". Lufun Nahar Begum Vs. The State (1975) 27 DLR (AD) 29.

-Ss. 32(1)(2) and 35-Admissibility of evidence Doctor who prepared injury sheets and post-mortem report resigned and his address was not known-Another doctor proved the reports to be in the handwriting of the previous doctor-Held: Re- ports can be relied upon as substantive pieces of evidence.

Thus the injury sheets and the post-mortem re- port prepared by Dr. Rashid Mahamud (who has since resigned from service, has proceeded to Arabia and his address is not known) in the ordinary course of business and in the discharge of his professional duty are relevant facts and are admissible as substantive evidence. The State Vs. Bakhmir. (1970) 22 DLR(WP) 27.

-S. 32(2): Statements of relevant facts by a person dead or cannot be found.

From a plain reading of clause (2) of section 32 Evidence Act, it will appear that this clause makes all statements admissible, whether written or verbal of the kinds mentioned in it, including statements made in the "ordinary course of business" or in the "discharge of professional duty", if the maker thereof is dead or is not available for being placed in the witness box, because of such other reasons as have been specified in the section. The admissibility, however, is conditional upon such statements being themselves of relevant facts.

In the instant case the entries appearing in the post-mortem report in question are in respect of in- juries on deceased Dulal which relate to a relevant fact, namely, of the cause of Dulal's death. The entries or statements were made in writing by a doctor who was dead. They were made by the said doctor in the "ordinary course of business" and also "in the discharge of professional duty" and as such are relevant under the section. Khoka Jasimuddin Vs. The State, (1973) 25 DLR 181.

Section 32—It is not required for a dying declaration that the maker should be in expectation of his immediate death nor it is restricted to homicidal death.. Humayun Matubbar vs State 51 DLR 43.

Section 32(1)—Unless the dying declaration as compared to other evidence appears to be true, it cannot by itself form the basis of conviction of the accused. State vs Tota Mia 51 DLR 244

Section 32- Dying declaration- A conviction can be based upon a dying declaration if it is found true, voluntary and free from being tutored or influenced by others.

The persons who record the dying declaration must take care in recording the statement of the declarant/victim. A dying declaration is recorded when the attending doctor suspects that there is little chance of survival of the victim and intimates the near ones about his condition or the investigating officer So that the investigation officer can arrange for recording the dying declaration. If the dying man is capable of making a statement, any person may record his statement in the language of the maker. There is no hard and first rule in recording the such statement. It may be recorded by the investigation officer himself or by the attending doctor or by any relation of the victim. The court can act upon the dying declaration without being recorded by a Magistrate if the statement of the witness who proves the recording is found to be true and voluntary. Tofayel Ahmed =VS= The State, [1 LM (AD) 511]

Section 32- Non disclosure of the appellant name of the name at the initial stage and the disclosure after 9 days of the occurrence itself is a good ground to disbelieve it The Appellate Division observed that the High Court Division ought to have considered the non- disclosure of the appellant name at the initial stage and the disclosure after 9 days of the occurrence itself is a good ground to disbelieve it so far the appellant is concerned particularly when there is admitted enmity between the parties. ......Tofayel Ahmed -VS- The State, [1 LM (AD) 511]

Sections 32, 33- Hearsay evidence- It is the cardinal principle of law of evidence that hearsay evidence is to be considered together with circumstances and the material facts depicted. Hearsay evidence is admissible and the Court can rely on it provided it has probative value. (Majority view), (Per Mr. Justice Syed Mahmud Hossain, CJ)....A.T.M. Azharul Islam VS Chief Prosecutor, ICT, Bangladesh, [9 LM (AD) 593]

Section-32, 33- Hearsay evidence- Mr. Shajahan repeatedly complained that the Tribunal below erred in admitting hearsay evidence.

Without any insinuation I only wish to express my surprise as to how Mr. Shajahan could be oblivious of the express provision in the Act which stipulates that the tribunal shall not be bound by technical rules of evidence and may admit any evidence which is deemed to have probative value, and of the express provision in Rule 56 (2) which confers discretion on the Tribunals to accord due consideration to hearsay evidence

Again, it is not only our Act, hearsay evidences were admissible in the IMT in Nuremberg and Tokyo Tribunal as well as by other national tribunals such as US Military Tribunal in Nuremberg and Soviet Tribunals and the British Tribunal that tried war criminals before as well after the hostility ended in 1945.

Statutes of modern UN sponsored tribunals such as ICTY, ICTR, SCSL, STL and even that of International Criminal Court (ICC) do not proscribe hearsay evidence for very cogent reasons. The very nature of the crimes concerned and the manner of their commission are such that credible hearsay evidence are indispensable.s

Although there is no rule governing the admissibility of hearsay evidence before the ICTY, ICTR and SCSL, the Trial Chambers of all these tribunals have refrained from adopting a practice to exclude all hearsay evidence. There is no rule declaring hearsay rule per se inadmissible. scheme General for admissibility of evidence set out in Rule 89 for ICTY, ICTR and SCSL has guided the chambers in their deliberation on hearsay evidence.

In Prosecutor-v-Galic, the Appeals Chamber of ICTY defined the scope of admissibility of hearsay evidence pursuant to Rule 89(1) saying that the said Rule "permits the admission of hearsay evidence in order to prove the truth of such statements rather than merely the fact that they were made. According to that decision a hearsay evidence may be oral i.e. where someone else had told him something out of Court or in black and white, for example when an official report, written by someone who is not called as a witness, is tendered in evidence. The Appeal Chamber expressed that Rule 89(c) clearly encompasses both these forms of hearsay evidence" (Decision on Interlocutory Appeal, June 7, 2002). The Trial Chamber of ICTY expressed in Prosecutor -v-Tadic on a defence motion on hearsay (5th August 1996), "out of Court statement that are relevant and found to have probative value are admissible".

The same position was taken by the Trial Chamber of ICTY in Prosecutor-v-Blaskic, while deciding on the standing objection of the defence to the admission of hearsay evidence with no inquiry as to its reliability. (January 21, 1998).

It was held that hearsay evidence must have indicia of reliability in order to be admissible: reliability is not merely a matter of going to the weight of the evidence.

Similar view was also expressed in Prosecutor-v-Natelic and Martionovic, ICTY Appeal judgment, May 3, 2006, para 217 and 516, Prosecutor-v- Aleksovski, decision on prosecutor's appeal on admission of Evidence, 16th February 1999, para 15, Prosecutor-v-Milosevic, decision on testimony of defence witness, Dragan Jasovic, April 15, 2005, page 4 Prosecutor-v-Mihitino Vic, decision denying prosecution Second Motion for admission of evidence pursuant to Rule 92, (13th September 2006, para 5.)? Prosecutor- v-Prlic, decision on appeals against decision admitting transcript of Jadranko Prlics questioning into evidence, (23rd November, 2007, para-52).

It has been held by all these tribunals that hearsay evidence can be admitted to prove the truth of its contents, and the fact that it is hearsay does not necessarily deprive the evidence of its probative value and that the chamber must be satisfied of its reliability given the context and character of the evidence for it to be admitted (Prosecutor - V- Aleksovski- ICTY, decision on Prosecutor's appeal on admissibility of evidence, 16th February 1999, para Prosecutor-v-Semanza, decision 15, on the defence motion for exclusion of evidence on the basis of violations of the rules of evidence, Res Gestae Hearsay and violation of the Statute and Rules of the Tribunals, 23rd August 2000.

In the case of notorious Milosevic, though the Appeal Chamber of ICTY held that hearsay evidence will usually be given less weight than that given to the testimony of a witness who has given it under a form of oath and who has been cross examined, it nevertheless also stated, "it depends upon infinitely variable circumstances of the particular case ...". (Prosecutor -V - Milosevic, decision on admissibility of Prosecution Investigator's evidence, September 2002, para 18.

ICTY Chamber also made it abundantly clear that the right to cross examination incorporated as part of the fair trial provisions of Article 21(4)(e) Statute and Article 20(4)(e) of ICTR statute "applies to the witness testifying before the Trial Chamber and not to the initial declarant whose statement has been transmitted to this Trial Chamber by the witness" (Prosecutor -v- Blaskic, decision on standing objection of the defence to the admission of hearsay with no inquiry as to its reliability, 21st January 1998, para 29).

The SCSL in Prosecutor-v-Brima (decision on joint defence evidence to exclude all evidence from witness, 24th May 2005, para 12) observed "it is now well settled in the practice of international tribunals that hearsay evidence is admissible". It went on to say, "the probative value of hearsay evidence is something to be considered by the Trial Chamber at the end of the trial when weighing and evaluating the evidence as a whole, in light of context and nature of the evidence itself, including the credibility and reliability of the relevant witness".

The Appeal Chamber in Prosecutor-v- Norman, (Fofana appeal against bail refusal, 11th March 2005, para 22) held that the relevant rule has conferred a broad discretion upon the tribunals to admit hearsay evidence.

Even the East Timore's Special Panel for serious Crimes held hearsay evidence to be admissible, though hearsay upon hearsay will deserve little weight (Prosecutor-v- Marques, 11th December 2001).

The ICC in Prosecutor-v-Katanga of Ngudjolo (decision on the confirmation of charges, 30th September 2008, ICC-01/04- 01/07-717, para 137) held that though any challenge on hearsay evidence may affect its probative value, it may not affect its admissibility. ICC further stated in that case that hearsay is admissible even if the source of the evidence is anonymous.

Whilst relying on ECHR jurisprudence propounded in Kostovski-v-The Netherlands, judgment delivered on 20th November 1989, the pre-trial Chamber of ICC, in Prosecutor-v-Katanga of Ngudjolo, supra, reiterated previous finding of the Pre-Trial Chamber in Prosecutor -v- Labanga that there is nothing in the statute or the Rules which expressly provides that the evidence which can be considered hearsay from anonymous sources is inadmissible per se. In addition, the Appeals Chamber has accepted that, for the purposes of the confirmation hearing it is possible to use items of evidence which may contain anonymous hearsay, such as redacted versions of witness statement. (Prosecutor-v-Labanga ICC-01/04-01/06- 803, para 101). The Pre-Trial Chamber further stated that the probative value of anonymous hearsay evidence will be determined in the "light of other evidence".

The International Military Tribunal in Nuremberg allowed the use of hearsay evidence through affidavits, but it also required that any such affiant to be available for cross examination.

Its charter, developed under the Moscowe Declaration 1943, provided for a criminal procedure that was closer to civil law than to common law with wide allowance for hearsay evidence.

The London Charter enunciated simple evidentiary rule repeatedly propounded in the US internal position papers, reading; "The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and non-technical procedure and shall admit any evidence which it deems to have probative value" which stands virtually reproduced in provisions are not dissimilar) (Paras:713-731); ..Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76]

Section 32(1)-Dying declaration- It appears that such dying declaration cannot be considered as the sole basis for conviction and awarding sentence to the appellant, specifically in the absence of any of the witnesses who were present in the hospital during the time when the alleged dying declaration was made by such a critically injured person who was under intensive care and not supposed to be in conscious. As such the finding of the High Court Division that 'the prosecution has clearly established the motive of the case and the oral dying declaration has also been supported by the medical evidence and other circumstances and materials on record' is not sustainable in law. Consequently, the impugned judgment passed by the High Court Division basing on the such uncorroborated oral dying declaration against the present appellant is liable to be set aside. Accordingly, this criminal appeal is allowed.... Rashed =VS= The State, [6 LM (AD) 70]

Section 32-There appears some vagueness in the alleged verbal dying declaration and that is why before relying upon such dying declaration it is the rule of prudence that necessitates the corroboration of the same by reliable evidence Gadu Miah vs State 44 DLR 246.

Section 32-Expectation of imminent death is not a requirement for treating the declaration as a dying declaration. What is relevant is whether the declaration is voluntary or under pressure from any outside quarter. Conviction can be based on such declaration. Nurjahan Begum vs State 40 DLR 321.

Section 32-Dying declaration-If it stands the normal test for judging its veracity it becomes a wholly reliable piece of evidence, but if it does not, it is far worse than an ordinary statement of a witness. The value of dying declaration depends in a case on its own facts and the circumstances in which it is made.

If a dying declaration is found to be false in material particulars it must re-act on its genuineness as a whole because in the case of dying declaration the veracity of the contents is presumed on the basis that it happens to be the words of a dying man, who on normal human behaviour would not at the close of his life like to tell a lie. Therefore, if a single matter is introduced in the dying statement which has a bearing on the result of the case and is found to be false, it will hit the whole dying declaration. It cannot then be said that it is the statement of a truthful person who has made the statement in realisation of his obligations to adhere to the truth while he is quitting his worldly existence to join his Creator, to Whom he is answerable for his deeds. Babu vs State 45 DLR 79.

Section 32-Hearsay evidence-The witness stated that he had heard from the deceased that the accused hired his van and were taking him to Jessore. This part of the evidence, though hearsay, is admissible in evidence being circumstances of the transaction resulting in the death of the deceased. Abul Kashem vs State 42 DLR 378.

Section 32-Dying declaration-Conditions to act upon such declaration-The court is to see whether the victim had the physical capability of making such a declaration, whether witnesses who had heard the deceased making such state- ment heard it correctly, whether they reproduced names of assailants correctly and whether the maker of the declaration had an opportunity to recognise the assailants. Hafizuddin vs State 42 DLR 397.

Section 32-Dying declaration-A dying man incapable of making any statement may by some gesture, sign or symbol express something which may be interpreted as his statements admissible under the law. But it is to be seen whether his expressions intrinsically ring true or not.

Dying declaration may be judged from several standpoints; whether the victim had physical capacity to recognise the assailant or whether he had the opportunity to recognise the assailant or whether there is any chance of mistake as to the identity of the assailant or whether it was free from outside prompting and lastly, if the evidence could be relied upon under the given facts and circumstances of the case. A Alim vs State 45 DLR 43.

Section 32-lt is not required for a dying declaration that the maker should be in expectation of his immediate death nor it is restricted to homicidal death. Humayun Matubbar vs State 51 DLR 433

Section 32-There is nothing in the evidence that after recording the dying declaration in English any person present at the time of recording of dying declaration translated the same in Bengali and that explained the statement to the maker and that the maker admitted the correctness of the same. This being the position the correct- ness of the dying declaration is very much doubtful. State vs Babul Hossain 52 DLR 400.

Section 32-To make the Dying declaration the basis for sentencing an accused to death or any other sentence the same is required to be found reliable. State vs Babul Hossain 52 DLR 400.

Section 32-An injured person under the impediment of death, while making oral or written dying declaration, will not falsely implicate even the persons inimical to him. Milon @ Shaha- buddin Ahmed vs State 53 DLR 464.

Section 32-The first information report is a matter of special importance when its maker died shortly after he made it. The FIR is clearly admissible in evidence. This may also be treated as a dying declaration in view of the fact that victim himself dictated the ejahar at a time when his condition was really critical. State vs Rashid Ahmed 54 DLR 333.

Section 32-If the Court can unhesitatingly accept it and act upon it, a dying declaration by itself can form the basis of conviction under given circumstances. State vs Rashid Ahmed 54 DLR Section 32-Identification by torch light or hurricane light, at dead of night is not sufficient unless the distance is in close proximity and when there is a background of enmity and the witnesses are chance witnesses and not natural witnessess and natural and independent witnesses were not produced, it is unsafe to rely on the chance witnesses to connect the accused with the crime. Nepoleon Khondker alias Lepu vs State 54 DLR 386.

Section 32-The dying declaration of victim has not been reduced to writing, yet when it has been proved by overwhelming ocular evidence to prove the guilt of accused appellant, the dying declaration of victim itself stands out as a strong piece of evidence proving the guilt of the appellant. Salim vs State 54 DLR 359.

Section 32-When a dying declaration of the victim is stated by the witnesses and the declaration is not taken exactly in the own words of the deceased, but is merely a note of the substance of what had stated, it cannot be safely accepted as a sufficient basis for conviction. State vs Kabel Molla 55 DLR 108.

Section 32-A dying declaration enjoins almost a sacrosanct status as a piece of evidence as it comes from the mouth of a person who is about to die and at that stage he is not likely to make a false statement. Court's duty is to scrutinise the statement and to separate grain from the chaff of the said statement. Babul Sikder and others vs State represented by the DC 56 DLR 174.

Section 32-Dying declaration-If the dying declaration is acceptable as true conviction can be based upon the dying declaration alone in the absence of corroborative evidence on record. State vs Abdul Hatem 56 DLR 431.

Section 32-A dying declaration may be recorded by any person who is available and it may be written or it may be verbal; it may also be indicated by signs and gestures, in answer to questions, if the person making it is not in a position to speak. There is no requirement of law that a dying declaration should be recorded by a Magistrate as in the case of the confessional statement of an accused under section 164(3) CrPC. Sahabuddin vs State 61 DLR 54.

Section 32-Dying Declaration-In the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making declaration. Sahabuddin vs State 61 DLR 54.

Section 32-Dying Declaration-Dr Kamrul Ahsan had not been produced in the Court by prosecution and he was withheld. In the event of his offering evidence in support of Dying Declaration, fitness of deceased Shah Alam Babul and his capability to make declaration could be tested by way of cross-examination. Sahabuddin vs State 61 DLR 54.

Sections 32 and 157-The evidence of the doctors and the report of the postmortem examination cannot be substantive evidence, but can only be corroborative evidence. Uzzal alias Elias Hossain vs State 59 DLR 505.

Sections 32 & 157-A fundamental rule in the law of evidence is that in any given case the evidence must be direct and to that extent the rule against hearsay is an exclusionary rule. The hearsay rule excludes evidence because the evidence given in Court is not direct evidence. The main reason for excluding such evidence, inter alia, is that the person who is said to have made the statement is not before the Court and cannot be subjected to cross-examination and thus the veracity of that statement could not be tested. Uzzal alias Elias Hossain vs State 59 DLR 505.

Section 32(1)- Unless the dying declaration as compared to other evidence appears to be true, it cannot by itself form the basis of conviction of the accused. State vs Tota Mia 51 DLR 244.

Section 32(1)- Deceased Shajneen, on two occasions, reacted sharply against conduct of culprit Hasan. Her utterances made then unfold a bitter relationship between her and Hasan. Such reactions of Shajneen a few hours before the occurrence are admissible in evidence. These facts fall in the category of "statement" of the deceased "as to any of the circumstances of the transaction which resulted in her death". The proximity of the reaction are relevant and therefore falls under the purview of section 32(1) Evidence Act. State vs Shahidul Islam alias Shahid 58 DLR 545.

Section 32(1)- Conspiracy is a secretive activity and it can hardly be seen. It may be perceived and may also be inferred from the circumstances of a particular case. State vs Shahidul Islam alias Shahid 58 DLR 545.

Section 32(1)-Dying declaration need not be identical and of the same but if substance of the same fulfils other conditions to act upon such declaration, then it is admissible in evidence. A detailed statement cannot necessarily lead to the inference that the statement is fabricated one. It is now well settled that a dying declaration, oral or written, when established as true can form the sole basis of conviction. State vs Moinul Hoque 60 DLR 298.

Section 32(1)-Dying declaration-Its probative value (by majority): A dying declaration although a piece of substantive evidence has always been viewed with some degree of caution as the matter is not liable to cross-examination. It stands on the same footing as any other piece of evidence and has to be judged in the light of surrounding circumstances and common human experience. When there is a record of such statement of the deceased the Court has to satisfy itself, in the first place, as to the genuineness of the same keeping in view all the evidence and circumstances in which the statement of the deceased was said to have been recorded. The alleged dying declaration, the only piece of evidence against the appellant, having not been free from reasonable doubt, the accused is entitled to the benefit of doubt. Sk Shamsur Rahman vs State 42 DLR (AD) 200.

Section 32(1)-Dying declaration- Statement of a person about the cause of his death or circumstances leading to his death is substan- tive evidence under section 32(1) of the Evidence Act-If found reliable, it may by itself be basis for conviction even without corroboration.

Statement falling under section 32(1) of the Evidence Act is called a "dying declaration" in ordinary parlance-A dying declaration may be recorded by any person who is available and it may be written or it may be verbal or it may be indicated by signs and gestures in answer to questions even-There is no requirement of law that a dying declaration should be recorded by a Magistrate as in the case of the confessional statement of an accused under section 164(3) CrPC. Nurjahan Begum vs State 42 DLR (AD) 130.

Section 32(1)- Legislature in its wisdom has put a dying declaration at par with evidence on oath for the simple reason that a man under the apprehension of death is not likely to speak falsehood and involve innocent persons in preference to his assailant.

When a Probationer Officer actually recorded the statement in presence of, and under the observation of the Superior Officer (PW 9), there was hardly any wrong in his Evidence that he recorded it in presence of the witnesses. Nurjahan Begum vs State 42 DLR (AD) 130.

Section 33-When the concerned witness could not be produced in the dock for further cross-examination for the fault of the accused it cannot be said that the evidence of the witness is inadmissible. Bakul vs State 47 DLR 486.

Section 33-A case of prejudice likely to be suffered by an accused must depend on the facts of the case and no universal straitjacket formula would be laid down that non-examination of investigating officer per se vitiates a criminal trial. Babul Sikder and others vs State represented by the DC 56 DLR 174.

Section 33 Relevancy of evidence-Right and opportunity to cross-examine-It is the right to cross-examine and not the exercise of such right that is material for the purpose of application of the provision under section 33 Evidence Act. Shaikh Baharul Islam vs State 43 DLR 336.

Section 33-Evidence of the recording Magistrate was not placed before the trial Court under section 33 of the Evidence Act-Hence this cannot be used as evidence. But that statement of the Magistrate recorded in the earlier case cannot be taken into conside- ration in this case as it was not recorded in the presence of accused appellant and also because he did not have the opportunity to cross-examine the said Magistrate. This appellant was then a witness. So the evidence of the recording Magistrate cannot be considered in this case and the confessional statement cannot also be used against the appellant. Angur vs State 41 DLR 66.

Section 33- Burden of proof-Prosecution to discharge its burden by producing unimpeach- able evidence of reliable witnesses-Benefit of doubt goes to the accused if doubt arises. State vs Manik Bala 41 DLR 435.

Section 33—When the concerned witness could not be produced in the dock for further cross-examination for the fault of the accused it cannot be said that the evidence of the witness is inadmissible. Bakul and others vs State 47 DLR 486.

Section 33— Use of evidence recorded by Magistrate of Marine Court by Admiralty Court- Whether permissible— The evidence of the witnesses recorded by the Magistrate of the Marine Court cannot be used by the Admiralty Court for determining the amount of compensation. Bangladesh Inland Water Transport Corporation Vs. Al-Falah Shipping Lines Ltd. and others. 3, MLR (1998) (AD) 59.

S.33-Failure of the Court to record an order regarding its satisfaction for non-production of a wit- ness will not render the evidence inadmissible. State vs. Badsha Khan (1958) 10 DLR 580.

-Statement of prosecution witnesses recorded by the committing Magistrate transferred to Sessions record on the ground that their depositions were of a formal nature-Procedure illegal-Defect not curable under section 537, Criminal Procedure Code.

Depositions of some witness were transferred to the Sessions record without summoning them on the ground that their evidence was of a formal nature and with a view to avoid unnecessary expenses to the state, and the order of the learned Judge was ac- quiesced in by the counsel for the accused.

Held In a criminal case, the provisions of section 33 of the Evidence Act cannot be waived; the evidence of the witnesses, illegally admitted, must be excluded. Ali Haider vs. State (1958) 10 DLR (SC) 193.

-Doctor's evidence given in an earlier trial-Doctor's evidence given in an earlier trial- cannot be accepted under the section on a mere statement in a petition that he is ill. Matia Badia vs. State (1957) 9 DLR 414.

-Judicial proceeding-A proceeding be- fore a Court which had no jurisdiction to entertain it is not a "judicial proceedings" within the meaning of section 33 and the deposition of witnesses given in such a proceedings could not legally be put in the Court of the Sessions Judge under section 33. A. Mannan vs. Crown (1952) 4 DLR 519.

Incapacity to appear must be established. Ad- mission of evidence under the section is illegal un- less the incapacity of the witness failing to appear is established, State vs. A.Rahman (1958) 10 DLR 61.

-The Magistrate who recorded the confession of the accused was not examined as a witness in the Court of Sessions nor evidence was adduced to show that the Magistrate was not available so as to let in his evidence under section 33. The confession was admitted in evidence and referred to in the course of the charge to the jury.

Held: The confession not being proved accord ing to law was illegally admitted in evidence. Hiralal Das vs. Crown (1951) 3 DLR 383.

Where the deposition of witnesses were taken down under section 512, Cr.P.C., and the prosecu tion subsequently put them in the Court of Sessions under section 33, the Judge, while allowing them to be used as evidence, failed to give caution to the jury that the witnesses, whose evidence were so put in, had not been subjected to cross-examination, this omission vitiated the charge. A.Rahman vs. Crown. (1950) 2 DLR 285.

-Where a prosecution witness had made a statement favourable to the accused before the com- mining Magistrate, but the witness was not traccable at the time of the Sessions trial, and was not examined, and where the accused's application asking that the witness's statement before the committing Magistrate be brought on the record "as a prosecution witness or as a defence witness" was rejected by the Sessions Judge on the prosecution plea that the witness was a hostile witness and, therefore, his evidence could not be admitted under section 33 of the Evidence Act.

Held: The evidence ought, under the circum- stances, to have been brought on the record under section 33. Makhan Lal Vs. Emperor I PCR 116.

-Where the Magistrate who held the test identification parade could not be available for examination in the Court of Session before three days from the date when his absence was being explained in the Sessions Court and the Sessions Judge merely al- lowed the Magistrate's evidence in the committing. Court to be put in under section 33, without giving adequate directions to the jury, and the circumstances of the case shows that it was important that the Magistrate should be available for cross- examination.

Held: The Sessions Judge failed to give adequate directions to the jury with regard to the evidence of the Magistrate and the conviction was set aside, Kaloo Mandal Vs. Crown (1950) 2 DLR 307.

-Adverse party-What it refers to. The expression "the adverse party" in section 33 is used to distinguish that party from "the party who calls the witness. A party calling a witness does not become "the adverse party" because the witness gives evidence which favours the adverse party or is hostile to the party calling the witness. Makhan Lal Vs. Emperor 1 PCR 116. -When the person who made the statement un- der section 164 Cr.P.Code, is himself an accused person in the case, the statement, if self- incriminatory, can only be proved against him. Pro- visions of sections 32 & 33 of the Evidence Act are not available to render such a statement admissible. Mst. Fazlan Vs. Crown (1956) 8 DLR (FC) 1 (13 r.h.col).

-Evidence of an absent witness can- not be admitted unless conditions are ful- filled.

The evidence of absent witnesses cannot be ad- mitted under section 33 unless the conditions laid down in the section are recorded which would justify the admission of evidence taken before the commit- ting Magistrate. Accordingly, a bare statement of witness that two of the police-officers concerned had opted for India and their present whereabouts were unknown cannot be regarded as sufficient to justify the admission of evidence under section 33 of the Evidence Act 53 CWN (DR) 98.

-Dying declaration-Made elsewhere than at the police station, of more evidentiary value.

Dying declaration made elsewhere than at a tha- na is more worthy of reliance than one made in the presence of the police when also the relatives who have brought the injured man to the thana are gener- ally present and usually can not be prevented from putting a prepared case through the mouth of the deponent. Ghulam Farid Vs. State (1966) 18 DLR (SC) 460.

Evidence of a prosecution witness who died before he was tendered for cross-examination are not admissible under section 33 of the Evidence Act on the ground that he is dead. Syed Idris Vs. State (1972) 24 DLR 101.

-The requirement of law is that the court before transferring the lower court evidence to sessions records under section 33 of the Evidence Act must be satisfied by proof of the conditions laid down in the section. State Vs. Abdul Hashem (1968) 20 DLR 834.

Conditions laid down in section 33 of the Evidence Act are to be strictly proved in order that a statement made before the committing Magistrate is qualified to be transferred to the Court of Sessions.

The statement made by Rahim Khan, P.W (who was not produced in the Sessions Court to tender evidence and whose absence has been excused under section 33) in the committing Court was transferred to the Court of Sessions in view of the following statement made by Aslam Chowkidar (P.W.9):-

"Rahim Khan, P.W. has gone to Karachi in search of livelihood and his whereabouts are un- known." On the basis of his statement, the Public Prosecutor informed the Court that the whereabouts of Rahim Khan P.W, were not known. None was deputed to serve any summons on Rahim Khan.

Held: The statement of Aslam Chowkidar is insufficient to show that any search was made to find out Rahim Khan, P.W. or any effort was made to procure his attendance. In absence of any other evidence on the file it is not certain whether unnecessary delay and expense would have been involved in the production of Rahim Khan in the trial Court. The conditions laid down in section 33 of the Evidence Act are to be strictly proved in order that a statement made before the committing Magistrate is qualified to be transferred to the Court of Sessions.

Only such a person could make a statement of fact on that point as had been engaged in the task of searching for him for the purpose of serving the summons for his appearance. In the absence of any direct evidence that mere declaration that "delay and unnecessary adjournment" would be involved in pro- curing the appearance of the witness is not sufficient for satisfying the relevant condition of section 33 Farid Khan Vs. The State (1969) 21 DLR (WP) 49

-Evidence under section 33 cannot be brought on record after the examination of accused person under section 342 of the Code of Criminal Procedure.

If any event is admitted from the evidence under section 33 of the Evidence Act and relied on it, it should be put to the prisoners during their examination under section 342 of the Code of Criminal Procedure. The State Vs. Dendu alias Deanat Ali (1969) 21 DLR 71.

-Previous deposition of a witness can be tendered in evidence in a subsequent proceeding between the same parties when the other party had an opportunity of cross-examining him, when such witness could not be produced in circumstances stated in s.33.

When a witness is not available but he previously has given evidence in a proceeding between the same parties involving the same issue or issues and the party had the right and opportunity to cross- examine him in the first proceeding, section 33 of the Evidence Act permits the previous deposition of such witness to be given in evidence in subsequent proceeding between the same parties. Proof of unavailability of the witness is however a necessary pre- requisite for the admission of former deposition. Salauddin Vs. State (1980) 32 DLR 227.

Section-33

The market value of the vessel of the plaintiff was determined by the Admiralty Judge on the basis of Ext. 25 series which is the deposition of seven witnesses (employees of the plaintiffs’ vessel) who appeared before the Magistrate, 1st. Class, Marine Court, Dhaka. It is really unfortunate that deposition of those persons who deposed in a criminal proceeding before the Marine Court s relied upon by the Admiralty Judge. Under section 33 of the Evidence Act that proceeding was not between the same parties. As a matter of fact, Ext. 25 series is not admissible in this admiralty proceeding and Ext. 25 series cannot be legally accepted as the basis for determining the market value of the vessel and consequently the passing of the decree of Tk. 80,10,000/- is without any legal evidence and the same cannot be awarded in favour of the plaintiff as has been done by the learned Admiralty Judge. BIWTC Vs. Al-Falah Shipping Lines Ltd. & Ors. 6BLT(AD)-103

Section-34 read with Bankers Books Evidence Act, 1891;

Section-4

Section 4 exempts a banker from producing bankers’ books namely ledgers day books, cash-books, account-books and any other books used in the ordinary business of a bank to prove its claims. Instead, it’ a bank shall produce a certified copy of any entry or entries in the books of the bank in a manner as provided by section 2(8) of said Bankers’ Books Evidence Act. Even when such certificate is produced and proved to have been so written that will not if so facto prove the claim of a bank. Such entries would have to be corroborated by independent evidence. BCCI Ltd. Vs. Bangladesh Electrical Industries Ltd. & Ors. 12 BLT(HCD)-502

The defence counsel's consent did not do away with the necessity of the Court being satisfied by proof on the requirements of section 33 of the Evidence Act. Allah Ditta Vs State (1959) 11 DLR (SC) 38: 1958 PLD(SC) 290

S.34.-Account books are not "valuable securities" and an entry in them cannot be the basis of charging a person with liability of what is noted therein.

Although entries in an account book which might be signed by a constituent and may form the basis of charge against him in view of his acknowledging the liability and the correctness of the con- tents noted in that entry, an account book as such does not create any right, and any and every entry in the account book cannot be the basis of charging an accused with the liability of what is noted therein. Hence, account books are not valuable securities within the meaning of section 477 P.P.C. An entry in a book of account by itself does not create a right or constitute a liability. It is merely evidence of certain alleged facts and to that extent relevant evidence, under section 34 of the Evidence Act. The entry may or may not be correct. Radhaballav Das Vs. Santosh Ch. Saha (1960) 12 DLR 72: 1960 PLD (Dac.) 371.

Conviction for an offence based on mere entries in the book of account, bad in law. Golam Mowla Vs. Chief Secretary of E.Pak. (1963) 15 DLR 125.

-Entries in a book of accounts can be used as corroborative.

Where entries in a book of accounts (of a firm of partners) were sought to be relied on as corroborating a witness's deposition in Court, the book not being a private book, the entries made in such a book can be accepted as corroborative evidence of the oral testimony of the witness. Makhan Lal Vs. Crown (1950) 2 DLR 223

Section 34-It was incumbent on the Courts below to properly scrutinise the material circumstances for determining whether the chain of circumstantial evidence is so complete as to lead to the only conclusion of the appellant's guilt. Osman Gani vs State 54 DLR (AD) 34.

Section 34- Circumstantial evidence- When such evidence can be relied upon-Circum- stantial evidence relied upon by the prosecution must be cogent, succinct and reliable. The circumstances must be of an incriminating nature or character. All the proved circumstances must unequivocally point to the guilt of the accused and exclude any hypothesis consistent with his innocence. Mostain Mollah vs State 44 DLR 295.

Section 34- The exception taken by the Counsel for non-examination of all or reasonable number of witnesses cited in the prosecution report is of no merit since it is for the prosecution to decide amongst the cited witnesses how many it will examine for establishing its case against the accused persons. Zahed Ali Foreman (Driver) vs State 56 DLR (AD) 29.

Section 34- Circumstantial evidence-In a case based on circumstantial evidence before any hypothesis of guilt is drawn up on the circum- stances the legal requirement is to prove the circumstances themselves like any other fact beyond reasonable doubt. State vs Resalder Moslemuddin 61 DLR 310.

Section 35-A seizure list, a post mortem report, a confessional statement recorded under section 164 of the CrPC or any statement of any person recorded under section 161 of the Code not being in public or other official book, register or record, they are not admissible under section 35 of the Evidence Act. State vs Ershad Ali Sikder 56 DLR 185.

S.35-A register kept in the police station is a public document-A report entered in a register kept in the police station under section 155, Cr.PC.. in which reports of non- cognizable offences are recorded is a public document. Such a report is relevant under section 35,8 PLD (Lah) 293

-When an entry in a public document is a relevant fact.

An entry in any public document, official register or records, stating a fact in issue or relevant fact, made by a public servant in the discharge of his official duties or by any other person in performance of a duty specially enjoined by law of the country is by itself a relevant fact. Kazi Mozaharul Hug Vs. State (1981) 33 DLR 262.

Section—35

Entry in School Register — Its admissibility in evidence — Entry in School Register, Admit Cards and Board’s Certificate is that such Registers, Cards and Certificates are public documents, and are admissible in evidence, but the evidentiary value to be attached to the entries will vary from case to case. Abul Hashem (Bulbul) Vs. Mobarakuddin Mahmud; 6BLD (HD) 25O Ref. I.L.R. 14 (Lahore) 473; A.I.R. 1965 (SC)282 — Cited.

Sections 35-When the cases, previous one and present one, arises out of same transaction or same fact, there is no reason that the evidence of the previous case cannot be used in the present case. The provisions of section 35 of the Act does not bar use of the evidence of the previous case in the present case. Giasuddin-al-Mamun (Md) vs State, 65 DLR 375

S.41-Civil suit by the wife for declaration that marriage between parties had been repudiated Criminal proceeding started by husband under section 498 P.P.C. Wife's application for stay of criminal case till the decision of the civil suit not maintainable-Civil court not a court of matrimonial jurisdiction within the meaning of section 41. Mst. Muni Vs. Habib Khan (1956) 8 DLR (WPC) 25.

S.43-Judgment of Criminal Courts, to what extent admissible in civil cases. The findings of Criminal Courts are not admissible in evidence in civil suits.

Recitals of admissions in the judgments in criminal cases are admissible in certain circumstances only but are otherwise inadmissible.

A judgment of acquittal in a criminal case only decides that the accused had not been proved to be guilty by the Crown of the offences with which he had been charged and to this extent only and no more is it to be taken as correct and conclusive in a subsequent civil suit between private parties, the opinions and conclusions expressed in the judgment being otherwise irrelevant and inadmissible in such proceedings. S.N. Gupta Vs. Sadananda Ghosh (1959) 11 DLR 470.

-Judgment of another criminal case in respect of different charge not admissible even though the witnesses in both the cases are the same who have been disbelieved.

The accused with several others were put on trial for illegal entry into Pakistan. The accused were further charged for possessing arms without licence under the Arms Act. The case against the accused was adjourned but the other persons were tried for il- legal entry into Pakistan and convicted by the trial Court. On appeal the Sessions Judge acquitted those person holding the prosecution witnesses deposed falsely. The accused was subsequently put on trial and he took up the defence that the prosecution case must fail both on the charge of illegal entry as well as under the Arms Act as the same set of witnesses who disposed against him has been disbelieved in the earlier case against the other accused and for this purpose wanted to utilise the judgment of the earlier Appellate Court in support of his contention. The trial Court convicted him on both the charges but the Appellate Court, on the ground that the witness having been found to have deposed falsely so far as the charge of illegal entry was concerned, acquitted him but maintained the conviction on the other charge. The question arose whether the judgment in the earlier case was admissible in the present case in relation to a conviction under the Arms Act.

Held: Judgment of the earlier case which dealt with the charge for illegal entry is not admissible in the present case under the Arms Act. Neither the judgment is relevant under section 8 of the Evidence Act. Muhammad Khurshid Vs. State (1963) 15 DLR (SC) 102.

An order under section 144 Cr.P.C. regarding possession cannot be treated as substantive evidence of possession. Criminal Court's finding regarding possession not conclusive. S.N. Gupta Vs. Sadanan- da Ghosh (1959) 11 DLR 470.

-Finding of Civil Court not relevant-Finding of Civil Court not relevant in dispute with respect to same matter in Criminal Court 1956 PLD (Lah) 490.

Section—43

Findings of the Criminal Court are not binding on the Civil Courts — An order under section 145 Cr. P.C. cannot be treated as substantive evidence of possession — A judgment of acquittal in a criminal case only decides that the accused has not been found guilty of the offence with which he had been charged but the opinion and the conclusion expressed in the judgment are not admissible in evidence in civil Courts. Akhtar Hossain Sharif and others Vs. Munshi Akkas Flossain and others; 3BLD (AD)334

Section—43

Relevance of previous judgment — When a judgment, though not inter parties, may be admissible — Ordinarily a judgment cannot be used as evidence against a person who is a stranger thereto — But the judgment in a prior suit together with the plaint-and other steps taken in connection there with is evidence of an assertion by the holder of the judgment of the right which he claims to acquire and is then admissible in evidence of his right. Hazi Waziullah alias Waziullah Miah and others Vs. The Additional Deputy Commissioner (Revenue), Noakhali and Assistant Custodian, Vested and Non-Resident Property and others; 9BLD(AD)135 Ref.2IDLR (SC) 94; 2 C.W.N 501; 58 Indian Appeals 125: A.I.R. 1937(PC)69 — Cited.

Section—43

Findings in the judgment of a criminal case — Whether can be relied upon in a subsequent civil suit between the parties — The findings and decision in a criminal case relating to the subject matter of the suit Scan n be relied upon — the fact that the accused was acquitted in a criminal case can be relied but not the opinion or conclusion expressed in such judgment. Md. Arshad Ali Vs. Abed Ali and other, 4BLD (HCD)150

Section—44 Benamdar — Whether a decree against a benamdar is binding on the real owner — Whether real owner can agitate in another suit that the decree obtained against his benamdar was fraudulent and not binding on him — It is now a settled principle of law that a decree on the ostensible owner is binding on the real owner — The plaintiff obtained the decree against the benandar fraudulently knowing full well that the real owner defendant was in possession — When a decree is obtained by the plaintiff practicing fraud it is not necessary to file a separate suit for avoiding such decree but the said decree can be impugned in another suit by such person aggrieved by such fraudulent decree — The real owner can avoid the transfer by his benamdar provided that no reasonable care was taken by the transferee in getting the transfer from the Benamdar — Transfer of property Act (IV of 1882) S.41. – Sultan Ahmed Vs. Md. Waziullah and others; 7BLD(HCD) 235 Ref. 24 DLR 63 — Cited.

Section—44

Plea of Fraud—Under section 44 of the Evidence Act, whether it is competent for a party to a suit or proceeding to show that a document or a decree proved against him was obtained by fraud without having it set aside. Under section 44 of the Evidence Act it is competent for a party to a suit or other pro-ceeding to show in it that a document or a decree which has been proved against him by his adversary in that suit was obtained by fraud without having it set aside — When subsisting judgment, order or decree is set up by one party as a bar to the claim of the other, the latter can show that the judgment, order or decree was delivered by a Court without jurisdiction or was obtained by fraud, collusion and it is not necessary for him to have it previously set aside by a separate suit — A party to a proceeding is never disabled from showing that a document has been obtained by the adverse party by resorting to fraud. Abdul Gani Khan Vs. Shamser Ali and others; 12BLD (HCD) 90

Section 44- The date 30.05.1971 was written by different ink and different hand writing. From the report of delivery of possession, it appeared that, in fact, no delivery of possession was given and no witnesses were present during delivery of possession as there was no signature of any witness on exhibit 1(ka).

Findings and decision arrived at by the High Court Division having been made on proper appreciation of law and fact do not call for interference. Shamsul Alam Mia =VS= Sirajul Hoque & others, [1 LM (AD) 316]

Section 44

For declaration of title and cancellation of dead ......(2)

As the question whether the property is abandoned property or not has already been decided in that civil suit, the deci- sion is binding upon the Government. The present petitioner was not made re- spondent in Writ Petition No.165 of 1998 and it was not brought to the no- tice of this Court in that writ petition that there is a decision of the Civil Court about the nature of the property which was subject matter of that writ petition. In view of the above position, we are of the view that the petitioner cannot be evicted form the property in question." Md. Jahangir Alam vs. Md. Shamsur Rahman Sarder (S.K. Sinha J) (Civil) 8 ADC109

Section 44- Fraud vitiates a decree- The real owner's title will not be extinguished in any manner in a mortgaged property, even after passing a decree, if it is found that the mortgagors have no right, title and interest in the property mortgaged. Therefore, whatever decree the mortgagee will get, such the decree is subject to the mortgagor's title in the said property. Fraud vitiates a decree and the real owner can also ignore the decree under section 44 of the Evidence Act. Sekandar (Md.) -VS- Janata Bank Ltd., [3 LM (AD) 448]

Section 45- The opinion of a doctor, unless supported by reliable evidence, does not carry any value. Siraj Mal vs State 45 DLR 688.

Section 45- Opinion of expert evidence and opinion of expert deserve consideration like any other evidence but such evidence has to be received with great caution. Sheikh Salimuddin vs Ataur Rahman 43 DLR 18.

Section 45-The High Court Division rightly found that it was unsafe to convict the accused persons on the uncorroborated opinion of handwriting and fingerprint, expert. State vs Raihan Ali Khandker 50 DLR (AD) 23.

Section 45-The Court was not justified in convicting the accused without examination and comparison of the disputed signature on the back of the cheque by handwriting expert with his specimen signatures. Khadem Ali Akand vs State 49 DLR 441.

Section 45-Naither the finger prints forwarded to the expert were taken as per order nor in presence of the Court. Under the facts and circumstances conviction based solely on expert report is liable to be set aside. Sobha Rani Biswas vs State 52 DLR 293.

Section 45-Medical evidence is only corroborative in nature, the ocular evidence of the eye-witness which substantially corroborates the major injuries on the person of the deceased be accepted. State vs Md Shamim alias Shamim Sikder 53 DLR 439.

Section 45-Where the direct evidence is not supported by expert evidence, and evidence is wanting in the most material part of prosecution case it would be difficult to convict the accused on the basis of such evidence. Nepoleon Khondker alias Lepu vs State 54 DLR 386.

Section 45-Medical evidence The mate- rial obtained on the swab must be preserved and forwarded for examination by the expert for the presence of human spermatozoa which is a positive sign of rape. It seems that the doctor examined the external part of the injuries of vagina and failed to make detail dissection so as to ascertain to prove the actual occurrence of rape. State vs Harish 54 DLR 473.

Section 45-The evidence of an expert cannot alone be treated and used to form basis to find an accused guilty and to form basis of his conviction independent of the substantive evidence of the PWs in the case. Kalu Sheikh alias Kalam Sheikh and others vs State 54 DLR 502.

Sections 45 & 73- The expert's opinion is not a substantive piece of evidence. The Courts below were quite competent to arrive at their own conclusion as to whether or not the signatures appearing on Ext 3 series were those of the petitioner. Nurul Huq alias Md Nurul Hoque vs State 50 DLR (AD) 88.

Section—45

Expert’s opinion — Value of — Opinion of an expert, such as a hand-writing expert, is only a relevant fact — The Court will certainly consider the expert’s opinion but it is the Court which alone will come to its own conclusion regarding the matter — An expert’s opinion, particularly that of a handwriting expert, is always received with great caution. Ekias Khan and others Vs. Prajesh Chandra Das and others, 7BLD (AD) 142

Section 45-The findings made in the impugned judgment and also in the case of Mohiuddin Khan Alamgir [15 BLC 107, Para 97] shall be deemed to have been modified in respect of the assessment made by the PWD officials in that the assessment of valuation of any property made by PWD officials shall have evidentiary value when no such assessment is made and accepted as correct by another independent department of the Government authorized in that behalf. State vs Faisal Morshed Khan, 66 DLR (AD) 236

Section 45-There may be a situation when there is no assessment of valuation by any competent authority of the Government exercising power in that behalf and in such a case, the Anti- Corruption Commission has no other option but to take the assistance of the PWD officials in making assessment of the valuation of any property. Therefore, it cannot be said that the assessment of valuation made by the PWD officials does not have any evidentiary value in all situations. State vs Faisal Morshed Khan 66 DLR (AD) 236

Section—45

Assessment or evaluation of the evidence of hand writing expert — Requirements of law as to plaintiff’s obligation to prove his own case — Court to come to findings on assessment of the materials on record. Evidence of an expert witness is of very weak nature — The evidence and the opinion of the expert deserves consideration like any other evidence but such evidence has to be received with great caution — In assessing or evaluating the evidence of a handwriting expert on the question of genuineness of a signature, the following facts must be kept in view : (1) very few people sign in the same manner on all occasions. (2) expert opinion of the genuineness of the signature should be received with great caution, especially in a case when there is positive evidence of persons who saw a person sign. (3) all the test evidence by the expert in the matter of comparison of hand writing and signature is merely tentative in character. (4) Opinion is weak evidence. (ii) Law requires that the plaintiff must prove his own case to the hilt by cogent and sufficient evidence—He cannot succeed merely on the weakness of the defence — Disbelief of the defence case ipso facto does not make the plaintiff’s case believable. (iii) The Court is required to come to a finding on assessment of the evidence on record that the plaintiff has been able to prove his case — The plaintiff must prove his case with sufficient evidence to obtain even an expaite decree in his favour. Sheikh Salimuddin Vs. Ataur Raharnn and others; 11BLD (HCD)386 Ref. 7 BLD (AD)142; IODLR(PC)l; 25 DLR(SC)90; 3 BLD(AD)225 — Cited.

Section 45-Medical evidence is only corro- borative in nature-Ocular evidence of the eye- witness which substantially corroborates the major injuries on the person of the deceased must be accepted. Abdul Quddus vs State 43 DLR (AD) 234.

Section 45- Deposition of a doctor giving certain opinion formed by examining certain facts is not an absolute truth. Abdur Rahman Syed vs State 44 DLR 556.

Section 45—The High Court Division rightly found that it was unsafe to convict the accused persons on the uncorroborated opinion of handwriting and fingerprint expert. State vs Raihan Ali Khandker and others 50 DLR (AD) 23.

Section 45—The Court was not justified in convicting the accused without examination and comparison of the disputed signature on the back of the cheque by handwriting expert with his specimen signatures. Khadem Ali Akand (Md) vs State 49 DLR 441.

Sections 45 & 73—The expert's opinion is not a substantive piece of evidence. The Courts below were quite competent to arrive at their own conclusion as to whether or not the signatures appearing on Ext 3 series were those of the petitioner. Nurul Huq alias Md Nurul Hoque vs State 50 DLR (AD) 88.

Sections—45, 47, 67 and 73

Mode of proof of hand-writing or signature—It is well-known that the Evidence Act has provided for the following 4 modes for proving hand-writing or signature of a person in any document namely: (1.) By proof of the signature or handwriting of the person alleged to have signed or written the document by evidence vide section 67 of the Evidence Act. (2.) By the opinion of an expert who can examine and compare the handwriting or signature in a scientific process vide section 45 as the Evidence Act. (3.) By a witness who is acquainted with the handwriting or signature of the person by whom the same is supposed to be written and signed, vide section 47 of the Evidence Act. (4.) Also by comparison of the signature or handwriting of the person with his other admitted and proved handwriting on signature by the Court it self vide section 73 of the Act. In the instant case when it is the duty of the plaintiffs to prove the identity and genuineness of the signature of the petitioner in thealleged document, the plaintiffs may avail of any of the methods as enumerated above — He or they cannot be forced by the defendants to resort to any particular method of proving the alleged signature. Shree Dulal Benerfee alias Moni Vs. Shree Sharat Chandra Pal and another; 12BLD (HCD) 277

S.45-Opinion of a finger-print expert.

In his evidence the finger-print expert stated that he was trained in the Finger-Print Bureau of C.I.D. and he has given his reasons for arriving at the opinion. He stated in cross-examination that he examined all the ridges of the impressions sent to him but he compared only 18 ridges. The ridges beyond those 18 ridges were not compared by him. He could not say if the ridges beyond the 18 examined by him were identical between the two sets, but science states that if 18 ridges of one impression were found identical with those of others, it could conclusively follow that other ridges were also identical.

Held: The opinion given by the expert is reliable. Rahimuddin Vs. State (1960) 12 DLR 453: 1960 PLD (Dac.) 975.

-Accused may be convicted on the uncorroborated opinion of finger-print-expert provided the opinion is found by the Court to be correct. The Judge must apply his mind to the question whether it is correct or not. The expert must not only give his opinion but also record the grounds for such opinion at the time when he examines the impression and explain them to the Court in presence of the accused. Imtiaz Mia Vs. Crown (1955) 7 DLR 218.

-The opinion of a certain number of witnesses that a photograph is not obscene is not the true test, or the correct method by which the obscenity of an object is to be decided, and the duty of determining obscenity must ultimately devolve upon the Court which will take into consideration the evidence be- fore it but which will ultimately be the judge of the question. Yakub Vs. State (1960) 12 DLR (WP) 45:1959 PLD (Lah) 172.

Where the features relied upon are physical characteristics which are susceptible of examination by scientific methods, with a view to identification, or differentiation, it is advisable that such aids should be called in for the resolution of doubts, which in the absence of reliable direct evidence must necessarily attach to such features, regarded as evidence. It can only be in very rare case that mere vis- ual inspection with the naked eye, unaided by scientific training or methods, can afford the necessary degree of satisfaction. S.M.K. Alvi Vs. Crown (1953) 5 DLR (FC) 161 (184)

-Empty cartridges stated to have been fired) from gun recovered from the possession of the accused-Not by itself sufficient to prove complicity in crime. 6 PLD (Lah) 179

-The evidence of a handwriting expert is usual- ly of a weak kind and it is unsafe to base a conviction thereon. Suptd. and Rememb, of L. Affairs Vs. Mozharul Hug (1954) 6 DLR 146.

-Hand-writing expert-Opinion of- Admissible but a conviction cannot be sustained merely on the expert's opinion. Md. A. Quyum Vs. Crown (1951) 3 DLR (WPC) 30.

-It is very dangerous to convict a person on the sole testimony of a handwriting expert. The ex- pert testimony, specially the opinion of hand- writing expert, must always be received with great caution. Md. Hasan Vs. Crown (1953) 5 DLR (WPC) 9.

-As for the evidence on hand-writing, it would be extremely dangerous to rely entirely on the evidence of experts. (1952) 4 DLR (Bal) 1.

-Handwriting-Presence of all peculiarities of a handwriting in the disputed handwriting does not by itself exclude possibility of the disputed hand- writing being forgery. Rafiq Ahmed Vs. State (1959) 11 DLR (SC) 91: 1958 PLD (SC) 317.

-Digestion of food-Medical views not always correct. Shahidullah Khan Vs. State (1960) 12 DLR 537: 1961 PLD (Dac.) 1

-Expert opinion On matters which are with in the exclusive knowledge of medical experts, the opinion of Court should better be founded on expert evidence of some text book of acknowledged authority. Md. Sarfaraz Khan Vs Crown (1953) 5 DLR (FC) 280

Statement of doctor as to ago-Not supported by reliable evidence carries no value. Ghulam Quader Vs. Nur Ahmed (1954) 6 DLR (WPC) 178.

-The evidence of a doctor as regards the age of a person is nothing more than an opinion of an ex- pert and is of little value unless it is corroborated by convincing material on the record. Ghulam Rasul Vs. Crown 2 PCR 225.

-In a case of arsenic poisoning, the Chemical Examiner besides making his own tests, elicited in- formation from three doctors who had attended on the deceased, before and immediately after death, regarding symptoms observed, and the treatment undertaken by them in dealing with the deceased, the steps taken were not approved, the High Court re- marking: Perhaps it might have been more proper on the Chemical Examiner's part to have confined himself to his own examination.

It is not fair to try to discredit the test made by an expert witness with reference to books with which he was not confronted during his cross-examination. 1956 PLD(Lah) 300.

-According to section 45, it is for the Court to decide whether a person is qualified to give evidence as a medical expert regard to the point in issue before it 1950 PLD (Pesh) 19.

The opinion of a doctor as to the age of a person is a relevant piece of evidence. It is, however, a different question as to what weight in a particular case ought to be attached to such an opinion. 1950 PLD (Pesh) 19.

The evidence of eye-witnesses could not be rejected merely on the strength of some confused statements in the postmortem report about which the doctor was not questioned at all in Court. 1950 PLD (Lah) 90.

-The opinion of an export is never binding on a Court. It is admitted in evidence only to help the Court in arriving at a correct decision. But it does not follow that the opinion of an expert is always correct. 1950 PLD (Lah) 507.

-Physical examination of the girl by the doctor without subjecting her to scientific test not conclusive for determination of her age.

Evidence brought on record is the evidence of Dr. Miss Surraya Hamiduddin. This doctor was examined as a Court witness, and her evidence is to the effect that the age of the girl on the date of the incident was about 17 years. The age of the girl had been determined by Dr. Miss Surraya Hamiduddin by physical examination of the body of the girl and her teeth. The girl had not been sent to any Radiologist nor were any X-ray photographs taken of her for the purpose of determining her age. The evidence of Dr. Miss Surraya Hamiduddin in these circumstances on the question of age will not be conclusive. Banney Khan Vs. State (1966) 18 DLR (WP) 28.

-Evidence of doctors-To what extent it can be relied on.

A Court can either believe the prosecution evidence unreservedly or rely upon the medical evidence. The first method can be applied only in those cases where the oral evidence is above reproach and inspires confidence. Where the evidence is not of that character and the medical evidence is not open to any doubt or suspicion the only safe and judicial method of assessing evidence is the second method, i.e. medical evidence.

Medical Officers, while giving their opinion in medicolegal cases do it as a mere formal duty with- out proper care and attention. The evidence of a medical expert, particularly of a doctor who had conduct- ed a post-mortem examination is a very important! piece of evidence in criminal trials and medical officers who are entrusted with this work should visualize that it is not a mere formal duty to give evidence in the Courts of law, but the real purpose is that a doctor should give a correct opinion to enable a Court to arrive at a correct decision. Sabir Hussain Vs. The State, (1969) 21 DLR (WP) S Handwriting expert's opinion needs very care. Tul examination and should be supported by corroboration to form basis of conviction.

With regard to the evidence of a handwriting ex- pert the Courts have frequently observed that by it self it should not be made the basis of conviction and the Courts should look for corroboration.

Though there is nothing in the Evidence Act which required the corroboration of the testimony of a handwriting expert before it can be acted upon, I am also of the view, if I may say so respectfully, that this evidence needs very careful examination and should also generally be supported by corroboration to be the basis of conviction in a criminal case.

In the ultimate analysis if on comparison the Court reaches a firm and definite conclusion with regard to a particular writing even though that conclusion is against the opinion of the handwriting expert such a conclusion can prevail. Muhammad Umer Vs. The State (1969) 21 DLR (WP) 12.

Examination of Doctor

Mere filing of an application by the Public Prosecutor that the doctor concerned is away from the country cannot be permissible substitute for legal evidence as it does not fulfil any of the conditions laid down in law- Cr.P.CS. 509(A)

Ataur Rahman and others Vs. The State,14BLD(HCD)391

Ref:: 37 DLR 157-Cited

Expert's Opinion

The expert's opinion is not a substantive piece of evidence. The Courts below were quite competent to arrive at their own conclusion as to whether or not the signatures of the petitioner in Ext.3 series were of the petitioner. Nurul Huq alias Md. Nurul Hoque Vs. The State, 18BLD (AD) 83

Opinion of the handwriting expert as to the authorship of the questioned writings or signatures is not infallible; on the contrary it is not a safe- guard for leading to any conclusion. Md. Shamsul Hoque Vs. The State (1968) 20 DLR 540.

-Necessity of examining the doctor in court who held the post-mortem examination-Reliance on testimony of other witnesses in matters where expert's opinion- ion is necessary.

Of late a tendency has grown to discard the testimony of seemingly reliable and natural witness to a crime on speculation as to the manner in which the deceased person in the case was injured or about the time of occurrence with reference to the contents of the stomach. While we appreciate the anxiety shown by the learned judges to test the credibility of the eye-witnesses with reference to the circumstances at tending upon the commission of the crime, it falls to be said that Judges are not experts in medical science to form a safe opinion on these matters. It is desirable, therefore, as observed by the Judicial Committee in Natha Singh Vs. Emperor to summon the doctor who examined the injuries or per- formed the autopsy as a witness and investigated the reasons for his opinion. The same holds true of the opinion given by a Ballistic Expert. Usman Khan Vs. The State, (1969) 21 DLR (SC) 194.

-Weight which can be attached to expert's opinion considered when other authentic evidence conflicts with expert's opinion-An expert's opinion may be considered by the Court in forming its own opinion on the is- sue before it. Section 45 of the Evidence Act does not say that the opinion of an expert is binding upon the Court. The evidence of an expert is considered in order to enable the Court to come to a satisfactory conclusion. An expert giving his opinion must give reasons in support of his opinion and if the Court thinks that the reasons are not cogent or that there is other authentic evidence on the point and that evidence is in conflict with the opinion of the expert then the court is quite competent to prefer that evidence to the expert's opinion. Prafullah Kamal Bhattacharya Vs. Ministry of Home (1976) 28 DLR 123.

Section 45

Seeking for a decree of specific per- formance of contract for sale of the land Md. Abul Hossain and others vs. Abdul Hamid Mandal and others (Mohammad Seeking declaration of title in respect of the land of first schedule and for recov- ery of khas possession in respect of the land of second schedule upon evicting first group of defendants and for declar- ing that the kabala described in the 4th schedule is fraudulent, fabricated, ille- gal and void and not binding on the plaintiffs. Md. Nazrul Islam and others vs. Monowara Begum and others (Md. Ruhul Amin J) (Civil) 4 ADC 838

Section 45

Respondent No. 1 instituted Other Class Suit No.3 of 1999 seeking declaration of title in respect of the suit land. The suit was dismissed by the trial Court. He took an appeal in the lower appellate Court and in the said appeal he filed an application for comparing the thumb impression of one Abdur Rashid ap- pearing in a deed dated 6th February, 1977, by which Abdur Rashid said to have gifted the suit land in favour of the defendant No.1, by a finger print expert. Kabir Ahmed vs. Korban Ali (S.K. Sinha J) (Civil) 9 ADC 749

Sections 45-51- District Registrar could be regarded as an expert within the meaning of sections 45-51 of the Evidence Act- The High Court Division was also wrong in relying upon the opinion of the so-called expert, i.e. the District Registrar, Dhaka by just making some query to him regarding the deed in question when he appeared before it. We brought the records of the civil revision from the High Court Division to see whether any statement of the so-called expert was reduced to writing, but we found nothing. The procedure adopted by the High Court Division does not have also any legal backing and by no means, the District Registrar could be regarded as an expert within the meaning of sections 45-51 of the Evidence Act. Mr. Bhuiyan also failed to point out any provision either from the Code of Civil Procedure or the Evidence Act to support the procedure adopted by the High Court Division. Whether the kabala in question was antedated nor not, in other words, genuine or not, is a question of fact and that had to be decided on the evidence adduced in the suit. But the High Court Division without considering the evidence on record took an unusual course to come to a fact as stated hereinbefore and thereby committed a serious error of law in passing the impugned judgment and order and as such, the same cannot be sustained in law and must be set aside. .....Zainal Abedin =VS= Mohammad Kala Miah, [4 LM (AD) 348]

S.47-Acquaintance with signature obtained in the ordinary course-Enough.

Under section 47 of the Evidence Act a person proving a document need not be personally acquaint- ed with the writing or signature of the writer of the document. It is enough if he becomes acquainted with them in the ordinary course of business. Supdt. & Remb. of L. Affairs. Vs. Muzharul Hoq (1954) 6 DLR 146.

-Explanation-If details are not brought out in cross as to how a witness was acquainted with a man's handwriting-Testimony unchallenged to be accepted.

When once a witness states in his examination-in-chief that he is acquainted or familiar with the handwriting of a person the details as to how he is acquainted with, being a matter of explanation to section 47 of the Evidence Act, is the duty of the cross-examiner. If no such cross-examination is done, it will be assumed that the competency of the witness was not challenged. Muhammad Sadiq Javeed Vs. The State (1969) 21 DLR (WP) 62.

S.49-Witness deposing to words used by accused while accepting bribe-Witness's opinion as to meaning of words, not relevant. 1957 PLD (Lahore) 473.

Section 50- Section 50 of the Evidence Act declares that "when the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct as to the existence of such relationship of any person, who as a member of family or otherwise, has special means of knowledge on the subject is a relevant fact". Illustration (a) to section 50 says; "the question is, whether A and B were married. The fact that they were usually received and treated as husband and wife, is relevant". This section says when the question arises as to the presumption of marriage, the opinion that makes relevant is opinion expressed by conduct as to the existence of such relationship and not merely as to that relationship. It is for the Court to weigh such evidence and to come to its own opinion as to the relationship in question. When the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct, as to the existence of such relationship, of any person who, as a member of family or otherwise, has special means of knowledge on the subject, is a relevant fact.

Even in the absence of formal proof of a valid marriage, a marriage can be presumed by evidence of conduct and reputation, and the question of consummation forms often an important element in the status of valid marriage. A presumption of consummation is raised from the retirement of the husband and wife, i.e. there should be no third person at the place and that the place should not be a public one, like a public bath, public road, a mosque etc. Where there has been prolonged and continuous cohabitation as husband and wife, in the absence of direct proof a presumption arises that there was a valid marriage. The law permits no specific ceremony for the contractual performance of a marriage: and no religions rites are necessary for contracting a valid marriage. There are even opinions that a marriage may be constituted without any ceremonial and even in the absence of direct proof, indirect proof might suffice. The High Court Division, in the premises, erred in holding that mere living together as husband and wife did not bring it within the bound of marriage. Apart from acknowledgment by either party, if there is continual cohabitation between a man and woman as husband and wife, there is presumptive marriage and legitimacy provided that the parties were not prohibited from intermarrying.

We find that the High Court Division has totally overlooked the presumption of a muslim marriage and relying upon paragraph 252 of Mulla's Mohammedan Law disbelieved the appellant's claim of marriage. If the High Court Division had considered paragraphs 254 and 268 of Mulla's Mohammedan Law, its decision would have been otherwise. The High Court Division based its decision on piecemeal consideration of Mulla's Mohammedan Law and arrived at a decision which is not supported by any of the authors of Mohammedan Law. It has tried to apply a doctrine of Muslim Marriage against the established schools of Mohammedan Law. Therefore, the decision of the High Court Division is based on a misconception of the basic principles of Mohammedan Law and thus the interference of the judgments of the Courts below is an error of law apparent on the face of the record. The evidence on record sufficiently proved that there was existence of legal marriage between the appellant and respondent.... Momtaz Begum(Mst.) =VS= Anowar Hossain, [10 LM (AD) 188]

S.54-Evidence of bad character- Evidence of bad character of accused persons is not admissible in evidence in view of the provisions of section 54 of the Evidence Act. On such evidence the accused cannot be held to be collaborators within the meaning of Article 2(b) of P.O. No.8 of 1972. Abdul Aziz Vs. State (1981) 33 DLR 402.

-When an entry in a public document is a relevant fact.

Under the Law of Evidence an entry in any public document, official register or records, stating a fact in issue or relevant fact, made by a public servant in the discharge of his official duties or by any other person in performance of a duty specially enjoined by law of the country, is by itself a relevant fact. Kazi Mazharul Huq Vs. State. (1981) 33 DLR 262.

Section 55-It is necessary that the testimony of interested witness must be viewed with high decree of caution and the Court should also look for independent corroboration. Pashan Ali vs State 60 DLR 602.

Sections 57 & 60—The Appellate Division will set no example before the Courts to make reference to booklets of unknown origin. State vs Abdul Khaleque alias Abdul Khaleq Howlader 49 DLR (AD) 154.

Section—57 Judicial Notice of a period of general dislocation — Momentous changes took place when Benches of the High Court Division were established outside the capital — the cases arising from Barisal were initially sent to the Jessore Bench and then after the establishment of the Barisal Bench, to Barisal — It was a period of general dislocation of which judicial notice should be taken. Mvi. Md. Keramat Ali and another Vs. Syed Munsur Ali and others; 11BLDAD97

S.57(7)-Signatures of gazetted officers-The Court will recognize them without proof-When a sanction for prosecution purports to have been given under the signature of a gazetted officer, the Count would take judicial notice of the signature of the officer. Nurul Huq Vs. State (1956) 8 DLR 562: (1958) 10 DLR 328.

Sections 57 & 60—The Appellate Division will set no example before the Courts to make reference to booklets of unknown origin. State vs Abdul Khaleque alias Abdul Khaleq Howlader 49 DLR (AD) 154.

Section 57- Courts can take judicial notice of the ordinary course of events- Courts can take judicial notice of the ordinary course of events. That a matter is judicially noticed means that it is taken as true without the necessity of being formally proved on evidence. Taylor in his Law of Evidence states that a man is not the father of a child, where non-access is already proved until within six months of the woman's delivery. Nor is it necessary to prove the course of the heavenly bodies, or the like, that a matter is judicially noticeable means that it is taken without offering of evidence by the party who should ordinarily have done so. This is because the court assumes that the matter is so notorious that it will not be disputed. A proclamation of emergency is a matter of general information of which a court can take judicial notice. A matter of public history may be such a fact (Wigmore section 2567). Facts of which judicial notice may be taken are not limited to those of the nature specifically mentioned in clauses (1) to (13) of section 57 of the Evidence Act.... (Surendra Kumar Sinha, J)......State VS= Dafader Marfoth Ali Shah & ors, [4 LM (AD) 430]

Sections 57 & 60-The Appellate Division will set no example before the Courts to make reference to booklets of unknown origin. State vs Abdul Khaleque alias Abdul Khaleq Howlader 49 DLR (AD) 154.

Section 57, 81, 78(2)- The Court may take judicial notice under Section 57 of the Evidence Act certain matters which are so notorious or clearly established that evidence of their existence is deemed unnecessary.

A report in a news paper or magazine is only hearsay evidence. It is not one of the documents referred to in section 78(2) of the Evidence Act by which an allegation of fact can be proved. The presumption of genuiness attached under section 81 to a magazine report cannot be treated as proof the facts reported therein. (Per S. K. Sinha, J) ... Major Md. Bazlul Huda(Artillery)=VS=The State (Banga Bandhu Murder Case), [9 LM (AD) 386]

Sections 58 and 90- The revisional Court could not re-open the case unless it was shown that the findings were based on non-consideration or misreading of material evidence.

The Appellate Division observed that the High Court Division observed that the plaintiff could not produce any single document of title, showing his acquisition of right, title and interest in the suit property. The plaintiff also failed to prove its possession in the suit land by producing any witness in support of its claim. The High Court Division concluded that since the question of title and possession had been finally decided by lower appellate Court, the revisional Court could not re- open the case unless it was shown that the findings were based on non-consideration or misreading of material evidence. The High Court Division also noted that the defendant's applications to get lease of the suit tank could not be a ground for passing a decree in favour of the plaintiff, who must establish his own case in order to succeed. .....Sylhet Pourashava =VS= Purnendu Bikas & others, [1 LM (AD) 69]

S.59-Reliance on oral evidence of the interested witnesses in utter disregard of the principle of law of evidence deprecated. Abani Mohan Saha Vs. Asstt. Custodian (1987) 39 DLR (AD) 223.

Ss.59, 62-Basis of oral testimony is registers but it is not known why primary documentary evidence was with held by prosecution during trial. Abdul Majid Vs. State. (1987) 39 DLR 414. Best evidence rule-Primary evidence is the best evidence affording the greatest certainty of facts. Abdul Majid Vs. State. (1987) 39 DLR 414.

To establish charge of criminal breach of trust distinct proof of criminal misappropriation is necessary. Abdul Majid Vs. State. (1987) 39 DLR 414.

Entrustment or dominion over the property implies handing over the property-But evidence disproved handing over. Abdul Majid Vs. State. (1987) 39 DLR 414.

-The learned judge relied much on moral conviction than on legal testimony. Abdul Majid Vs. State. (1987) 39 DLR 414.

S.60-Oral evidence as to the existence of any material thing supplemented by an order to produce that thing in Court for inspection.

Section 60 of the Evidence Act embodies the second important rule about oral evidence, viz. that it must in all cases be direct. Second proviso to section 60, however, provides that if oral evidence refers to the existence or condition of any material thing the Court may require the production of such material thing for its inspection. Phani Bhusan Halder Vs. State (1975) 27 DLR 254.

Section 60-There is no evidence that the victim made any statement as regard the incident to anybody other than PW 8. So the claim of PW 4 that victim stated to him about the incident of setting fire in her body by the condemned convicts can hardly be considered reliable. State vs Babul Hossain 52 DLR 400.

Section 60-PW 1 has not implicated the accused with any overt act on the basis of charge but reiterated the statement as to derivative knowledge of involvement as mentioned in the FIR and in the charge-sheet which is an inadmissible evidence. State vs Lieutenant Colonel Syed Farook Rahman 53 DLR 287.

Section 60-Hearsay evidence In the absence of examination of Abdus Sattar, the Evidence of PW I narrating the story as was told by the former is inadmissible in evidence. Akhtar Hossain vs State 44 DLR 83.

S.62. Please see s. 59 in the matter of Abdul Majid Vs. State (1887) 39 DLR 414 Supra.

S.63-Secondary evidence of forged document-Though by production of a copy secondary evidence of the contents of a document might be said to be given, secondary evidence of a forged document itself would not thus be given in evidence, Sanmukh Sing Vs. King (1951) 3 DLR (PC) 3.

In Nowabul Alam and others vs The State, 1995 BLD (AD) 54 = 45 DLR (AD) 140 the trial Court convicted 10 accused on a double murder charge and sentenced four of them to death and six others to life term imprisonment relying on some eyewitnesses (PWs 2, 3 and 5) who were relations to the victims. One of them was also injured witness. Their evidence was corroborated by two other prosecution witnesses, namely, PWs 4 and 11. There were six circum- stantial witnesses (PWS 1, 6-8 and 10-11) who saw the assailants to run away from the place of occurrence with deadly weapons in their hands. In that case prior to lodging the formal FIR there was a GD made at the instance of PW 4, but no name of the assailants was mentioned. High Court Division on the resultant death reference commuted the death sentence to life. imprisonment of the four and acquitted the six. Ultimately the Appellate Division in a majority. judgment acquitted the rest four relying on the cases of Hamida Bano vs Ashiq Hussain and others, 15 DLR (SC) 65; Ali Ahmed vs State, 14 DLR (SC) 81 and Masalti vs State of Uttar Pradesh, AIR 1965 (SC) 202 where Mustafa Kamal, J (as his lordship then was) observed:

"The principle that is to be followed is that the evidence of persons falling in the category of interested, interrelated and partisan witnesses, must be closely and critically scrutinised. They should not be accepted on their face value. Their evidence cannot be rejected outright simply because they are interested witnesses for that will result in a failure of justice, but their evidence is liable to be scrutinised with more care and caution than is necessary in the case of disinterested and unrelated witnesses. An interested witness is one who has a motive for false implication of an accused person and that is the reason why his evidence is initially suspect. His evidence has to cross the hurdle of critical appreciation. As his evidence. cannot be thrown out mechanically because of his interestedness, so his evidence cannot be accepted without critical examination. (para 17)

In the case of Bangladesh (State) vs Paran Chandra Baroi, BCR 1986 (AD) 225 victim Nikhil Chandra Bala was killed in broad day light at 9-30 am allegedly in presence of his wife and two others (PWs 4-6). There was admitted long standing enmity between the parties. On information received by the police a GD was recorded with no name of assailant. A Sub-Inspector of Police rushed to the PO and held inquest on the dead body, met the eyewitnesses and prepared a report where nobody mentioned the names of the accused. The trial Judge on consideration of evidence convicted accused Paran Chandra Baroi and sentenced him to death. In the resultant death reference and a jail appeal preferred by him the third Judge of the High Court Division on critical appreciation of evidence doubted the truthfulness of the eye-witnesses, considered the omission of his name in the inquest report and acquitted him of the charge. In so doing learned third Judge of the High Court Division relied on three cases of Indian jurisdiction one reported in AIR 1978 SC 1558 and two in AIR 1975 SC 1252, 1962. On appeal the Appellate Division affirmed the judgment of the High Court Division and observed:

"It will be seen that the learned Judges started doubting the prosecution case because, as referred to above, the Investi- gating Officer wrote in the inquest report that the names of the culprit or culprits would be available from his relations later on. In other words till the time of making inquest at 2-00 pm on the date of occurrence nobody apparently disclosed the name of the respondent or any other person to the IO as the killers of Nikhil although all the eyewitnesses met the Investigating Officer at or about the time of inquest." (para 15)

In the case of Abu Taher Chowdhury and others vs The State, 1991 BLD (AD) 2 = 42 DLR (AD) 253 as cited by Mr Shajahan five accused were put on trial on a murder charge under sections 302 and 34 of the Penal Code. In that case victim Zafar was killed in the night following 29-4-1984 and after exhaustive search on the next day his dead body was found in a tank 250 yards away from his house, victim's father lodged FIR at about 3-00 pm strongly suspecting three of the accused. Most of the witnesses of fact were present, when the 10 came to the place of occurrence and stayed there up to 11-00 pm, but none of them made any disclosure to him. Subsequently PW 3 made a statement before the Upazila Nirbahi Officer under section 164 of the Code of Criminal Procedure claiming himself to be an eyewitness and deposed in trial in the same line. His father PW 10 corroborated his evidence in part. Some other witnesses also claimed that they had seen the accused around the place of occurrence at the material time. There was admitted enmity between the principal accused and their uncle Abdul Bari Chowdhury (PW 17), employer of PWs 3 and 10. Trial Court convicted all the accused and sentenced one to death and four to transportation for life. On the resultant death reference and appeal by the convicts, the conviction was upheld by the High Court Division but the death sentence of one was commuted to transportation for life. The Appellate Division critically reappraised the evidence, and disbelieved the eyewitness and ultimately acquitted all the five accused by a majority judgment relying on the cases of Taleb vs State, 19 DLR (SC) 135 and Abdur Rashid Khondkar vs Chandu Master and others, 16 DLR (SC) 605 where Shahabuddin Ahmed, CJ discussed the inconsistencies, improbability and absurdities of the main witnesses and observed:

"...Explanation of PW 3 for not disclo- sing the matter when the dead body was recovered or when he moved with the Daroga in the place of occurrence, is his mortal fear of the accused. Neither of these explanations is worthy of any credit; the only reason that may be attributed is that their story is an afterthought and product of a dress-rehearsal given by the IO for 8 hours." (para 17)

"...no critical examination of the deposition of the witness has been made and whatever they have said in examination-in- chief has been accepted as gospel truth" [para 18 (a)]

In Khaleda Akhter vs State, 37 DLR 275 a question was raised as to whether a video cassette was a document and admissible in evidence within the scope of the Evidence Act. In replying the question ATM Afzal, J (as his lordship was then) relied on AIR 1968 SC 147 and accepted it as an admissible evidence if otherwise relevant. In the said case of Khaleda Akhter the person who recorded the video was examined. In State vs Md Rafiqul Islam alias Shakil and seven others, 70 DLR 26 objection was raised to admissibility of some video footages, paper clippings and still photographs of the news of occurrence on the grounds that the respective journalists/photographers were not examined. A Division Bench where one of us was the author Judge considered the footages as evidence under the particular facts and circumstances of that case observing that the said footages were officially supplied to the Detective Branch of Police by the respective TV channels and handed over to the Investigating Officer under a seizure list. The seizure list and official correspondence were duly proved.

In an unreported decision in Criminal Miscellaneous Case No. 27276 of 2012 (Joynal vs The State) heard and disposed of with a bunch of cases arising out of common judgment and order, a Division Bench where two of us were parties discussed some cases of the Appellate Division including Abdul Quader Chowdhury and others vs The State, 28 DLR (AD) 38 and observed:

"...it is clear that the High Court Division sitting on an application under section 561A of the Code can see whether 'the evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge'. It is needless to say that without re-examination and independent assessment of evidence, no Court can arrive at any such finding of fact. In other words, the High Court Division is fully competent to re- examine and assess the evidence indepen- dently sitting on an application for quashing a judgment and order of conviction in exceptional circumstances for securing the ends of justice."

Evidence Act (I of 1872)

Sections 62, 63, 65 and 74

In order to prove a private document the original needs to be produced and proved unless a case of secondary evidence is made out. According to section 62 of the Act original document is primary evidence and secondary evidence is replica of the original one, which is more particularly described in section 63 thereof. In certain cases replica of private document can be adduced as secondary evidence under the provision of section 65. [73 DLR (2021) 514]

Section 63- Photostat copy of its original being the secondary evidence is admissible in evidence. Durnity Daman Commission vs Md Tarique Rahman, 68 DLR 500

Sections 63-If a true copy of a document is proved by the maker on oath giving explanation that the original is missing from the record, it satisfies the requirement of secondary evidence within the meaning of section 63 of the Act. Where secondary evidence of the contents of a document alleged to have been destroyed/ untraceable is admitted by the court of first instance without objection, even without any foundation for the reception of secondary evidence having been laid down, the opponent is estopped from taking any objection to the admissibility of such documentary evidence in the appellate Court. Even oral evidence of the contents of the original document can be proved when the original is admitted to have been lost. (SK SINHA, J, AGREEING WITH NAZMUN ARA SULTANA, J) State vs Dafader Marfoth Ali Shah, 68 DLR (AD) 13

Section—64

Admissibility of newspaper report — Probative nature of such report — Although a newspaper is admissible in evidence without formal proof, yet the paper ipso facto is no proof of its contents — The newspaper cannot be treated as proof of the facts. Nurul Islam and others Vs. The State, 7BLD (HCD) 193 Ref. A.I.R. 1925 (Lahore) 299: A.I.R. 1961 (Pun) 215; AIR. 1951(SC)1376 — Cited.

Sections—64 and 65 Best evidence — The rule of evidence is that the best evidence which the case in its nature is susceptible should always be given — Primary evidence is the best evidence as it is that kind of proof which in the eye of law affords the greatest certainty of facts in question — Unless it is shown that the production of this evidence is out of the party’s power, no other proof of fact is generally admitted — Overall testimony to prove shortage of stay and stationery is inadmissible in evidence when documentary evidence to prove the same was available and purposely withheld. S.K. Abdul Majid Vs. The State; 7BLD (HCD) 413

Section 65— Secondary Evidence-When admissible— When the original is lost or destroyed the copy thereof as secondary evidence is admissible under section 65 of the Evidence Act. Abdul Khaleque Mollah Vs. Mr. A.B.M. Zakaria & another. 3, MLR (1998) (AD) 57.

Section 65-Newspaper report cannot be admitted into evidence unless the correspondent of such a report comes to the witness box to vouchsafe in support of the report on oath. Osena Begum alias Babuler Ma vs State 55 DLR 299.

Sections—65 and 66

Admissibility of certified copy of an application — Original called for from the custody of the person granting the copy bi the original not produced — In view of clauses (a) (c) of sections 65 and 66 of the Evidence Act the certified copy of the application is admissible in evidence. Indus Ali and others Vs. Abdul Jabbar Mia, 3BLD (HCD) 258

Evidence Act [I of 1872]

Sections 65C and 79

Certified copies being admissible when the originals are lost, the burden of proof was on the defendants to disprove the genuineness of the certified copies filed by the plaintiff-petitioner and as such, the judgment of the High Court Division is not sustainable. [(2022) 25 ALR (AD) 44]

Section—65

Secondary evidence — Question of admissibility without formal proof — Though no objection was raised when the secondary evidence in the Photostat copy was produced, the party producing it was not exempt from explaining why its original was not produced — If the original is not available, the reason for non-availability must be given. Hazi Waziullah and others Vs. Additionial Deputy Commissionier, Noakhali and others; 9BLD (AD)135 Ref. 20 DLR (SC)205; — Cited.

Section 65

We do not dispute the statement of law argued in the case cited by Mr. Mah- mudul Islam. The submission that this document having been marked as ex- hibit without objection became admis- sible in evidence, is a general rule and the same principle is not applicable in all cases. This rule disentitling a party to object to the admissibility of second- ary evidence in appeal, when no objec- tion was taken in the Court of first instance can not have universal applica- tion. The rule contained in section 65 which excludes secondary evidence is not so rigid as to be enforced even if no objection is taken at the trial by the party against whom the secondary evi- dence is offered. Zafela Begum vs. Atikulla (S.K. Sinha J) (Civil) 8 ADC 907

Section—65

Award in respect of a property — When cannot be considered — The original of the alleged award having not been filed in the Court the true copy of the alleged award cannot be considered. Chan Jun Talukder and another Vs. Ching Neshazy Magni and others, 9BLD (HCD)10

Section 65(c)-Where a party can show that non-production was not due to his own default or neglect, secondary evidence would be admissible under this clause to adduce secondary evidence. It is not enough to show that the party who wants to use it cannot produce it because it was not registered. Mufti Abdul Hannan Munshi alias Abul Kalam vs State, 69 DLR (AD) 490

Section 66-A confession made by an accused in connection with another case is found to be relevant in connection with other case and if the offences committed in course of the same transaction and if the confession has been duly recorded in accordance with law. Secondary evidence after fulfillment of the requirements of section 66 may be adduced to prove the confession and if the person making the confession is accused in both or all the incidents of commission of offences. Mufti Abdul Hannan Munshi @ Abul Kalam vs State, 69 DLR (AD) 490

Sections—67 and 68

Presumption of genuineness of a registered kabala — In the absence of proof of its due execution a registered kabala by itself does not raise any presumption of its genuineness. Abdul Malek Sarkar Vs. Govt. of Bangladesh; 3BLD(HCD)1 70

Secitons 67 and 68-Registration, attaches a statutory presumption which extends to the registration of the deed only. Such presumption is never intended to extend to the genuineness of the transaction or to prove execution and/or recitals in the deed. Kamaluddin vs Md Abdul Aziz 56 DLR 485.

Sections—67 and 68

Execution and attestation of a will — I-low is to be proved — Due execution of a will means not only that the testator executed it by putting his signature or affixing his mark but also it requires that the testator executed it in sound mind, fully knowing the nature and effect of his action — It must be proved that the testator had the testamentary capacity’ at the time he put his signature or thumb impression on the Will — The requirements of sections 67 and 68 of the Evidence Act must be fulfilled. Paresh Chandra Bhowmik Vs. Hiralal Nath and another, 4BLD (AD) 199

Evidence Act (1 of 1872)

Section 67 Any call list/information of a private phone company printed on a plain paper without any seal or signature of the person who generated it, production of such document in Court by a third party and making it exhibit do not have the value of legal evidence. Its authenticity must be proved in line with the provisions of section 67 of the Act. The call lists in question as such cannot be considered as legal evidence....... (63) [73 DLR (2021) 514]

Sections—67 and 68- Proof of execution of a document — Whether Registrar’s endorsement is conclusive proof of execution — The certificate of a Registrar although raises a presumption as to the admission of execution by the executant yet such admission cannot be the evidence of due execution against third persons — The execution of a document is required to be proved in the manner provided by sections 67 and 68 of the Evidence Act. Abani Mohan Saha Vs. Assistant Custodian Vested Property and others; 7BLD (AD) 306

Section 68, 79

Without serving any notice under Sec- tion 89 of the State Acquisition and Ten- ancy Act, 1950 and without her knowledge the petitioner being a married women lived with her husband and came to know about the sale when she on Nayor came to her paternal house on 10.03.1980 and thereafter definitely learnt about it on obtaining certified copies of the deeds of sale and filed the pre-emption cases on making deposit of value of case land as per deed with 10% compensation as required by law and total quantity of land held by her would be far less than 100 bighas. Md. Mur- tuza Ali vs. Renu Bibi alias Saifurnessa (Md. Abdul Matin J) (Civil) 6 ADC 508

Section 68- Will This suit was for a declaration that the compromise decree dated 25.01.1997 passed in OS No.7266 of 1996 is not binding on her; that she is the lawful owner of the properties specified in the schedule on the basis of the Will dated 12.03.1980 executed by Ramaiah in her favour. The High Court held that the plaintiff was able to prove the Will dated 12.03.1980 in accordance with law with the evidence adduced by her and hence she was entitled for a declaration as claimed by her in the suit relating to the suit properties. Plaintiff was not a party to the compromise decree dated 25.01.1997 passed in OS No.7266 of 1996, it was not binding on her. Lastly, once the Will dated 12.03.1980 is held proved, in accordance with law, the plaintiff becomes entitled to claim a declaration in her favour that she is the owner of the properties bequeathed to her by the testator as specified in the Will. H.V. Nirmala =VS= R. Sharmila, [4 LM (SC) 26]

Sections 73 & 45—The expert's opinion is not a substantive piece of evidence. The Courts below were quite competent to arrive at their own conclusion as to whether or not the signatures appearing on Ext 3 series were those of the petitioner. Nurul Huq alias Md Nurul Hoque vs State 50 DLR (AD) 88.

S.73-Thumb impressions and signatures-Comparison.

Thumb impressions and specimen signatures under direction of the Court-Unobjectionable in law, Bishu Sheikh Vs. State (1957) 9 DLR 626

Comparison by Courts of signatures in Courts with the admitted signatures Unsafe to base a conviction on such comparison. Nurul Hug Vs. State (1958) 10 DLR 129.

Section—73 Comparison of handwriting and signature by the Court — Court’s power to examine disputed signature is not restricted but the power should be exercised with great caution as an arbitrary exercise of the power may lead to miscarriage of justice Only in appropriate cases the Court may exercise its enabling power where the Court finds that the exercise of this power is necessary in the interest of justice. Syed Nurul Flossain and another Vs. Salema Khatun & another; 1BLD(HCD)474 Ref. 10 DLR 129; 49 C.W.N. 481; 26 C.W.N. 113; 64 C.W.N. 1067—Cited.

Section—73 Comparison of handwriting by Court—Whether conclusion arrived at by comparison of hand writing or signature by the Courts below can be interfered with by the High Court Division in Second Appeal — Comparison of signature with admitted signature is a question of fact — High Court Division is not to interfere with the conclusion of the First Appellate Court on such question — Comparison of signature is a perfectly legal mode of proving hand-writing and, however inconclusive such proof may be, it cannot be considered as an error of law to base a conclusion on such proof alone — High Court in second appeal is not competent to set aside a finding based on such method — Code of Civil Procedure, l908(V of 1908) S. 100 (repealed). Abdul Matin Chowdhary Vs. Chapala Rani Sen and others; 5BLD (AD) 172

Sections 73 & 45-The expert's opinion is not a substantive piece of evidence. The Courts below were quite competent to arrive at their own conclusion as to whether or not the signatures appearing on Ext 3 series were those of the petitioner. Nurul Huq alias Md Nurul Hoque vs State 50 DLR (AD) 88.

Section—73 Expert’s opinion—Whether it is better to have and come to a decision, particularly in case of L.T.L It is true that the Court itself can compare any signature or L.T.1. of any concerned person himself under section 73 of the Evidence Act and come to a decision, but it is better to have an expert’s opinion also, particularly in case of L.T.1. Sk. Abul Qasem and others Vs. Mayez liddin Mondal and others; 12BLD (HD) 161 Ref. 28 D.L.R. 123; A.I.R. 1928(P.C.)277 —Cited.

Section 73- Provision of section 73 of the Evidence Act permits the court to compare the contentious signature with the ad-mitted signature, the safe and best course for the court would be to avoid the practice of comparing the writing or signature etc. and should not stake its judgment. ...Shawkat Hossain(Md.) =VS= Golam Mohammad, [8 LM (AD) 51]

Section 73- Remand the case for fresh trial Reported in 8 BLC (AD) 67. This Division held in that case "in case of contentious writing, signature, etc., though provision of section 73 of the Evidence Act permits the court to compare the contentious signature with the ad-mitted signature, the safe and best course for the court would be to avoid the practice of comparing the writing or signature etc. and should not stake its judgment on the opinion formed or view taken upon resorting to risky or, in other words, unsatisfactory and dangerous procedure and the desired course should be to go for microscopic enlargement and expert advice since the science of examination of signature, writing, etc. for determination of similarity has advanced enough and it has reached to the stag, of accuracy and certainty as well as expertise skill is also available."

Considering the facts and circumstances of this case we are of the opinion that the disputed signature of the defendant No. 1 in the alleged bainapatra-the exhibit-1 should be examined and com-pared with some admitted signatures of the defendant No. 1 by a hand writing expert and for this purpose the suit should be sent back on remand to the appellate court below.

The appellate court will send the alleged bainapatra along with some admitted signatures of the defendant No. 1 to a hand writing expert for his opinion as to the genuineness of the disputed signatures of the defendant No. 1 in the alleged bainapatra-the exhibit-1 and after receiving the hand writing expert's opinion the appellate court below will dispose of the appeal afresh in accordance with law. ...Shawkat Hossain(Md.) VS Golam Mohammad, [8 LM (AD) 51]

Section 73

The court to compare and scrutinize the disputed signatures with the admitted signatures under provision of section 73 of the Evidence Act but the appellate Court has fallen in an error in holding that such comparison of the disputed signatures by the court along with the admitted signatures is not always save. It was the duty of the defendant to get the same proved otherwise by obtaining an opinion of the hand writing expert. Anu Miah vs Gauranga Chandra Sharma (Sved J. R. Mudassir Husain. J) (Civil) IADC 462

Section-73

Handwriting expert opinion as to the identity of the disputed signatures and initials on a questioned document—Contention than the opinion of the handwriting expert is preferable to the court’s exercising the power under section 73 of Evidence Act which is to done very cautiously and the said course is hazardous and inconclusive was rejected— petition dismissed. It is true that long line of decisions have expressed divergent views and one view is that the Court should not take such hazardous steps for expressing any opinion and another view to the contrary. In the context of two views, a Judge naturally hesitates to exercise the power conferred by section 73 to compare handwriting by using his own eyes. This is more so whenever evidence is scanty unreliable or there is no evidence of hand-writing expert but these are mere words of caution. There is no hard and fast rule which prohibits such course by the Judge. The privy Council itself compared the disputed signatures with admittedly genuine signature in Monindra Vs. Tshalaxmi Bank, A. I. R. 1945 P.C. 150 and the same was followed in A.I.R. 1949 PC 325. Mr. Gafur strenuously urged that this court should lay down the law. This contention does not appeal to us in view of the fact that the proceeding is still pending in the Court below and sufficient guidance has been given by the long line of decisions for the Court which do not warrant any further pronouncement. Nitai Chand Shah. & Ors. Vs. Md. Aga. Khan & Ors. 1BLT (AD)-46

Section-73

In the instant case the court by the impugned order allowed comparison of the disputed signature of the plaintiff on the solenama with the specimen signatures of the plaintiff and the signature of the plaintiff on the registered sale deed dated 23.10.1983. The plaintiff petitioner raised serious objection on the ground that the genuineness of the registered sale deed dated 23.10.1983 was challenged in Title Suit No. 334 of 1992

Held: Comparison of disputed nature L.T.I cannot be done by the Expert with the said registered document which is not admitted or proved to the satisfaction of the court. Dinesh Chandra Deb Vs. Dulal Chandra Karmaker & Ors 9BLT (HCD)-202

Section 73

The Land Adminstration Board compe- tent to pass the order challenged in the suit. Resorting to the unsatisfactory and dangerous' mode of comparison of the contentious signature or writing with the admitted writing or signature and there- by arriving at the 'national view' seems to be'. "Appears to be'. May be assumed to or 'perceiving' or guessing probabili- ty of being similar to the admitted writ- ing or signature without the aid in evidence of microscopic enlargement and any expert advice and then stacking judgment thereon is not only risky but unsafe too and consequent thereupon there is serious chance of error in the final decision. Tarak Ghandra Majhi vs Atahar Ali Howlader (Md. Ruhul Amin. J) (Civil) IADC 481

High Court Division is quite competent to make direction to the person perform- ing functions in connection with the affairs of the Republic or of a local authority to refrain from doing thing not permitted by law or to do something required by law to do and that for the purpose of effective compliance of the direction so given the High Court divi- sion is quite within its jurisdiction to make further direction to see that its direction is being executed or to make its Direction effective. M/s Micro Electronic Limited vs M/s Rahimnafroz Batteries Limited (Md. Ruhul Amin J(Civil) IADC 485

Section-73

Opposite party Mossammat Zinnatunnessa categorically denied that she put her thumb impression on each and every page of the alleged deed of gift—Held: I am of the view that in the facts and circumstances of the case it is better to have an expert opinion as to the execution of thumb impression of the opposite party on the alleged deed of gift. It is true that the expert opinion is not binding upon the court to decide as to the genuineness of thumb impression so I am of the view that the opposite party will not be prejudiced in any way if the prayer for expert opinion is allowed. Rather, expert opinion enables the court to come to a satisfactory conclusion. Md. Abdul Hashem Mizi Vs. Most. Zinnatunnessa & Org. 8BLT (HCD)-110

Section-73

It is well settled that Section 73 of the Evidence Act permits the Court to make a comparison of signature or writings and so adoption of such a method cannot be termed as hazardous or dangerous. Zohra Khatoon & Ors. Vs. Ekramul Haque Chowdhury & Ors. 10BLT (AD)-171

Section-73

The Point at issue to be decided was as to whether the deed of Hebabil-ewaz was genuine or not and therefore trial court directed the signature/thumb impression appearing in the deed in question to be compared with that of the admitted thumb impression appearing in another. There is no illegality in that order. Md. Sadequl Islam Sarder Vs. Saimuddin Sarder & Ors. 12 BLT (AD)-73

Section 73

It is well-settled that when both the par- ties have led evidence question of onus is out of place and matter is to be decid- ed on the evidence led by the parties. Herein both the lower appellate court as well as the High Court Division consid- ered the evidence on record adduced by both the parties and came to a concur- rent finding that the defendant-appellant was a monthly tenant under the plain- tiffs-respondents and that the tenancy stood determined by forfeiture. Muhammad Ishaque vs Ekramul Hauge Chowdhury (Mohammad Gholam Rabbani J) (Civil) 2 ADC 50

Section-73

It strikes necked eyes that 17 endorsements were written on 3/4 seating. Name of defendant no.1 on so called acknowledgements as written on 01.01.1987; 31.01.1987; 18.02.1987 and 23.02.1987 appear to be of the same pen and ink; those on 13.06.1987 and 19.07.1988 appear to be of another pen and ink, those of 03.05.1986, 28.05.1986 and 16.07.1986 of different pen and ink and those of 13.07.1986; 19.07.1986 and 23.04.1987 were still of another pen and ink. We have examined the signatures on the acknowledgements with the admitted signature of defendant no.1 on the agreement, exhibit-2 and we do not have any hesitation to say the signatures on the acknowledgements do not tally with the admitted signature of defendant no. 1. Saroj Kanta Sarker & Ors. Vs. Seraj-ud-Dowla & Ors 12 BLT (HCD)-28

Section-73

In case of contentious writing, signature etc. though provision of section 73 of Evidence Act permits the court to compare the contentious signature with the admitted signature, the safe and best course in our view for the court would be to avoid the practice of comparing the writing or signature etc. and should not stake its judgment on the opinion formed or view taken upon resorting to risky or in other words ‘unsatisfactory and dangerous’ procedure. Tarak Chandra Majhi Vs. Atahar Ali Howlader & Ors 13 BLT (AD)03

Section-73

Trial court resorted to the mode as provides in section 73 of the Evidence Act and thereupon comparing signature in the pass port (Ext.14) and in the Power of Attorney (Ext. 1 ‘ka’) with the signature appearing in the deeds of October 27, 1969 held the document of October 27, 1969 forged. The mode so resorted to by the trial Court was erroneous since identity of the plaintiff Jatindra Mohon Roy whose signature claimed to be in Ext. 14, and Ext. 1 (ka), was not established in the background of the contention of the defendants that the said plaintiff is a fictitious Jatindra Mohon Roy and not the real Jatindra Mohon Roy who transferred the property in suit by the deeds dated October 27, 1969 to Ali Ahmed Khandker and Wali Mohammad Siddiqui. The High Court Division concurred with the finding and decision of the trial Court as regard the deeds dated October 27, 1969. Since the finding of the trial Court that by the deeds of October 27, 1969 plaintiff Jatindra Mohon Roy did not transfer the land in suit was arrived at on the basis of inadmissible evidence and upon resorting to a made whereof there was no basis, as such the said finding of the trial Court and the High Court Division was not legally sustainable. A N M W Nabi & Anr Vs. Md.Balai Roy & Ors. 15 BLT (AD) 27

Section —73

It is true that the Court itself can compare any signature or L.T.I. of any concerned person himself under section 73 of The Evidence Act and come to a decision but it is better to have an expert’s opinion also, particularly in a case of L.T.I. Md. Chand Miah & Ors Vs. Md. Ibrahim & Ors. 15 BLT (HCD)306

Section 73

The defendants filed Other Suit No. 11 of 1993 challenging the order of disso- lution dated 13.1.1993 of the said com- mittee praying for a declaration that the said order of dissolutions dated 13.1.1993 was illegal.... (4) Sarder Md. Hashim Zaman & others vs. Thana Nirbahi Officer (Md. Joynul Abedin J) (Civil) 5 ADC 193

Section-73

The Superior Courts warned and cautioned the Court not to be venture to compare the disputed signature with admitted signature as an expert and give its opinion where the dispute in the subject matter in the subject matter is based upon the genuineness of the writing or signature in a deed. The Superior Courts held that the task held that the task of examination of hand writings being a very technical one which should be left with the expert opinion evidence, who by applying scientific method comes to the opinion whether the signature or writings is that of the person by whom it purports to have been written, which cannot be done by comparison with naked eyes by the Court. Namita Rani Biswas & Ors Vs. Rabindra Nath Majhi & Ors 15 BLT (HCD)493

Section 73

The respondents herein, as plaintiffs, filed Other Suit No.110 of 1994 in the 2nd Court of Joint District Judge, Nil- phamari against this present petitioner seeking partition of their joint property. The case of the plaintiffs, in short, is that the divisible property originally be- longed to Md. Hussain who acquired the same by virtue of purchase. Madina Khatun vs. Humaira Khatun (Nazmun Ara Sultana J) (Civil) 9 ADC 425

Section 73

Declaration that the registered kabala deed No.3473 dated 01.08.1987 pur- portedly executed and registered by the plaintiff-petitioner in favour of the de- fendant-opposite party was forged, void, inoperative and was not binding upon the plaintiff. Abdur Rashid Bepari vs. Soleman Ali (Md. Abdul Matin J) (Civil) 6 ADC 139

Section 74

Plaint is a Public document. Swarupa Banu & Ors Vs. Ankura Begum & Ors 15BLT(HCD)118

Section—74

Whether a passport could be accepted as a conclusive evidence. The plaintiff to prove his date of birth being 2.1.1946 has produced his passport Ext. 3 issued under the signature of the Deputy Assistant Director, Immigration and passports. Government of Bangladesh, Dhaka on 16.2.1997 and the date of birth as mentioned in the passport is 2.1.1946. This passport being public document could be accepted as a conclusive evidence to prove the date of birth of the plaintiff in the absence any other reliable, documentary evidence. Md. Ruhul Amin Vs. Latif Bawani Jute Mills Ltd. & Ors. 14 BLT (HCD)361

Sections-74 and 76 read with Transfer of Property Act, 1882

Section- 123

It is the case of the respondent that the deed of gift has been registered. The production of the original deed of gift by the donee and other documents such as mutation paper, municipal record would have indicated that the same has been acted upon. But neither the original deed of gift nor the original lease deed of Dr. Ansari nor any mutation paper nor any municipal record have been procured to prove the claim of the respondent in view of the aforesaid we hold that the High Court Division Misdirected itself in holding that when there was registered deed of gift the respondent has a genuine and strong claim over the property. Bangladesh & Anr. Vs. Mrs. Shirely Anny Ansar 9BLT (AD)-185

Ss. 74, 76 Public documents--Disagreeing orders of Division Bench of High Court-Case referred to a third Judge. Accused applying for copies of Division Bench orders-Copies could not be re- fused on the plea that orders were mere expressions of opinions not amounting to the judgments. Fazlul Quader Chowdhury Vs. Crown (1952) 4 DLR (FC) 104 (107 rt. h. col.).

Section—74 Comparison of signature or hand writing — Whether- Court should compare the disputed signature with the admitted signature to come to a decision — reliance by the lower appellate Court on his own comparison of the disputed signatures disregarding and in preference to the positive evidence by an expert is highly unsatisfactory, dangerous and imprudent in a judgment of reversal and such judgment without proper reasons results in an error in the decision on merits occasioning a failure of justice — Code of Civil Procedure, 1908 (V of 1908), S. 115. SK. Anseruddin and others Vs. Usha Raid Ghose; 6BLD (HCD) 26 Ref. A.I.R. I 928(PC)277; A.I.R. I 954(SC) 320; A.I.R. 1979 (SC) 14; 5BLD (AD) 172 —Cited.

Section—74

Whether plaint of a suit is a public document — Whether certified copy of the plaint is admissible in evidence — The plaint of a suit as soon as it is registered by a judicial officer within the meaning of clause (iii) of sub-section (1) of section 74 of the Evidence Act and as soon as it forms part of the record of the judicial officer it is a public document. Certified copy of such document is therefore admissible in evidence. Reazuddin and another Vs. Azimuddin and others; 7BLD (HCD)16 Ref. 19 DLR349; PLD I 967(Lahore) 1051; A.I.R. 1940 (Mad)768; 36 DLR(AD)248; 27 DLR 398: 29 DLR(SC)268; 92 IC. 184 — Cited.

S.74 A fingerprint-slip containing a record of convictions and the finger-prints of the convict is a public document prepared in pursuance of a statutory duty cast upon police officers under the Identification of Prisoners Act, 1923, and the rules contained in the Police Finger-print Bureau Manual, and is, there- fore, admissible in evidence under section 74 of the Evidence Act. The certificate appearing at the bot- tom of the finger-prints is sufficient to prove that the finger-prints are of the person who suffered the previous convictions recorded in that finger-print slip. Md. Ashraf Vs. State (1960) 12 DLR (WP) 27.

Dib-Reports in a register in the police- station-Public document.

A report entered in a register kept in the police- station under section 155 Cr.P.C. in which reports of non-cognizable offences are recorded is a public document, within the meaning of section 74. 8 PLD (Lah) 293.

Sections 77, 78, 78(6) & 86- A foreign judicial record is a public document A public document may be proved by production of the original or by a certified copy under section 77 or in the manner prescribed in section 78. A foreign judicial record is a public document and may be proved by a copy certified in the manner prescribed by sections 78(6) and 86. of the Evidence Act. Reference in this connection is Haranund Chetlangia V. Ram Gopal Chetlangia, 27 IA 1 (PC) and AIR 1964 SC 538. RAJUK =VS=Manzur Ahmed & Others, [1 LM (AD) 1]

Section 78- S.S.C Certificate authentic Unless there is any compelling reason or unless better and more reliable documentary evidence is produced, the information appearing on the S.S.C Certificate must be taken to be authentic- An S.S.C. Certificate showing the date of birth of the candidate is a valid legal document and the information contained therein is deemed to be authentic. So much so that the date of birth given at the time of sitting for the S.S.C. examination and the date of birth shown in the S.S.C. Certificate is taken to be an official reliable record and such information cannot be readily changed. The S.S.C. certificate having been produced in 1997, the BADC should have questioned its genuineness, failing which they are bound to accept the information regarding the writ petitioner's date of birth as stated in the said certificate. We are of the view, therefore, that unless there is any compelling reason or unless better and more reliable documentary evidence is produced, the information appearing on the S.S.C Certificate must be taken to be authentic. .....Bangladesh Agriculture Development Corporation =VS= Md. Abdus Salam, [4 LM (AD) 63]

Section 78(6)- Duplicate copy of the Certificate The authenticity of the certificate has not been certified by an authorised officer of the High Commission Office of Bangladesh stationed in Pakistan Learned Counsel wanted to give an explanation to the effect that the petitioner applied for a duplicate copy earlier but he did not receive the same until November, 2015. This claim has no basis at all since the alleged certificate was issued in 2012. More so, there is no statement at all in this regard in his application. Assuming that he applied earlier for duplicate copy of the certificate it was allegedly issued on 22nd May, 2012. There was no explanation why he did not produce it prior to 16th November, on which date, he filed it in the section. Therefore, no reliance could at all be attached on this certificate it is a forged document which is apparently created for confusing this Court. Further, the authenticity of the certificate has not been certified by an authorised officer of the High Commission Office of Bangladesh stationed in Pakistan. (Para-07); Salauddin Quader Chowdhury -VS- The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 571]

Section 79, 77, 65(e)

The question of admissibility of Ext.A. B and C did not arise at all in as much the sale deeds were executed and regis- tered during the pendency of the pre- emption case and the appellate court, the final court of facts, having found that the sale deeds were collusively created in the name of fictions persons reversed the finding of the trial court to the effect that the pre-emptors having already exhausted their right, title and interest in the case holding by those sale deeds, they had no right for pre-emption. Abdul Wazed Sharif vs. Shudhir Ranjan Biswas (Md. Tafazzul Islam J) (Civil) 5ADC 108

The owner of the property challenged the action of the Government in treating the property in question as abandoned property and finally it was adjudicated that the property is not an abandoned property. (2) Pubali Bank Ltd vs. The Government of the Peoples Republic of Bangladesh. (Md. Ruhul Amin J) (Civil) 5ADC

Section-79 and 114

Whether the deed, exhibit-I. Ekrarnama can he held to he not proved for non- examination of the scribe and the other attesting witness. The exhibit I, Ekrarnama is a registered deed. So, there arises under Sections-59 and 60 and 114 (illustration e) of the Evidence Act a presumption that it was duly presented and registered by defendant 3. Such presumption is. however, rebuttable. But no evidence in rebuttal of such presumption was adduced by the defendant 1 and 2 ,Even, they did not take any step to examine defendant 3 who could have come to the court and denied to have executed the Ekrarnama. The Ekrarnama would then have a decent burial. A licensed deed writer PW-2 on oath testified that the deed was written before him be the scribe, Amir Bux and executed by the defendant 3. The plaintiff also deposed in the same line on the writing of the deed and its execution Sections-67 and 68 of the Evidence Act provide for proof of signature, handwriting and execution of a deed. Ekrarnama is not required to be attested under the law. Even, then it was attested by two witnesses. Any attesting witness can prove the writing and execution of the deed. The appellate court did neither discard nor disbelieve the evidence of PW-2 Abu Backkar Siddique. I also do not find any reason to disbelieve the evidence on the writing and execution of the Ekrarnama. In view of the law and the evidence as stated above, why the execution of Ekrarnama, exhibit I should not be held to have been proved is not understood. So without discarding and or disbelieving the evidence of PW- 1 and 2 and considering the relevant laws, the appellate court erred in law to hold that the plaintiff failed to prove the Ekrarnama. Mrs. Wahida Begum & Ors. Vs. Tajul Islam & Ors. 8BLT (HCD)-238

S.80-Presumption as regards compliance with the provision of law while recording a complaint under section 200 Criminal Procedure Code. A presumption arises that the statement of a complainant was recorded in the presence and hearing and under the personal direction and superintendence of the Magistrate. Anwar Mahmood Vs. Rashidizza- man (1959)11 DLR (WP) 77 1958 PLD (Lah) 196.

-Endorsement that the deposition had been read over-Presumption applied.

The provisions of section 80 will apply to a case where it appears that the usual endorsement that the deposition had been read over and explained was only recorded on the deposition itself, but where not- withstanding such endorsement, the question is raised specifically upon affidavit that the presumption raised by the endorsement was not correct and there had been an omission to read over and explain the deposition.

Held: In such a case the presumption under section 80 applied and the endorsement must be taken to be true unless the contrary was established. Sabiri Bala Vs. Ashaqu Munshi (1956) 8 DLR 154.

-Failure to read over the evidence to the accused-Not duly recorded.

The words "only recorded" in section 288 Cr.P.C. carry wider significance than the words "taken in accordance with law" in section 80. Failure to read over and explain the evidence, in the presence of the accused.

Held: Evidence not duly recorded. Wazed Ali Vs. State (1956) 8 DLR 269.

-Court of Record's record-Of no higher value.

Section 80 confers no higher probative value ,upon the records of a Court of Record than of any other Courts how low-soever, viz. that the courts shall presume their correctness until the contrary is established. Fazal Elahi Vs. Crown (1953) 5 DLR (FC) 44 (86 rt-h. col.).

-A confession recorded by a Magistrate in compliance with the provisions of sections 164 & 364 Cr.P.Code shall be presumed that all the ingredients of s. 80 Evidence Act fulfilled.

When the confession has been recorded in accordance with law by observing all the formalities pre- scribed by law (i.e. by observing all the formalities prescribed by sections 164 and 364 Cr.P.C) and the said confession duly taken is tendered in the Sessions Court, it proves itself under section 80 of the Evidence Act without calling the Magistrate who recorded it. Emran Ali alias Md. Emran Vs. State (1985) 37 DLR 1.

-Two requirements for admitting a confession into evidence.

The two requirements for admitting such a confession into evidence as a self-proved document are (1) that it was taken in accordance with law and that (2) the identity of the accused who made the confession has been satisfactorily proved before the Court. Emran Ali alias Md. Emran Vs. State (1985)-37 DLR 1

Section 80—Non-examination of the Magistrate who conducted the TI parade renders the memorandum drawn by him inadmissible as it is not a judicial proceeding and that cannot be presumed genuine unless proved by the evidence. Mizanur Rahman (Md) vs State 49 DLR 83

Section 80—It is not always necessary that the Magistrate who recorded the confessional statement should be produced in Court as a witness. Section 80 provides that even without production of the Magistrate such statement may be taken into consideration and presumed to be genuine. Abul Khayer and 3 others vs State 46 DLR 212.

Section 80-Nonexamination of the Magis- trate who conducted the TI parade renders the memorandum drawn by him inadmissible as it is not a judicial proceeding and that cannot be presumed genuine unless proved by the evidence. Mizanur Rahman vs State 49 DLR 83.

Section 80-It is not always necessary that the Magistrate who recorded the confessional statement should be produced in Court as a witness. Section 80 provides that even without production of the Magistrate such statement may be taken into consideration and presumed to be genuine. Abul Khayer vs State 46 DLR 212.

Section 80-It dispenses with the necessity of a formal proof of a confession duly recorded by a Magistrate in accordance with the provisions of section 164 of the Code of Criminal Procedure. In such a case the examination of the recording Magistrate is not imperative. State vs Tajul Islam 48 DLR 305.

Section 80-It was injudicious to rely upon confession without calling the Magistrate as a witness. The Court is required to see not only that the forms under sections 164 and 264 CrPC were complied with but the substance underneath the law equally adhered to. Bimal Chandra Das vs State 51 DLR 466.

Section 80-Presumption as to confession- Even though provision is there for making certain presumption in respect of a confession by an accused person produced before a Court taken in accordance with law and purporting to be signed by a Magistrate, having regard to the acts of the case it was injudicious to rely upon such confession without calling the Magistrate as a witness. In respect of a confession the Court is required to see not only that the forms under sections 164 and 364 CrPC were complied with but the substance underneath the law was equally adhered to There must not be any reason for doubt as to the truth of he statements, be it circumstantial or proved otherwise. In this particular case it is difficult to deny accused appellants an opportunity to cross-examine the Magistrate who allegedly recorded their statements. Babul vs State 42 DLR (AD) 186.

Section 80-In the attending facts and circumstances of the case when the veracity of the confessional statement is questionable, the same enjoys no presumption of correctness under section 80 of the Evidence Act. Belal alias Bellal vs State 54 DLR 80.

Section 80-High Court Division wrongly applied the provisions of section 80 to admit into evidence a statement of a witness recorded under section 164 during investigation stage and not in a judicial proceeding. Hossain @ Foran Miah vs State 56 DLR (AD) 213.

Section 80-It is true no child was produced and examined by the prosecution during trial by the defence but it does not render the prosecution unbelievable as contended. In this case, factum of release of child Feroze and Emran in the custody of their mother, and release of child Haider to his father on their production before the Magistrate, Dinajpur by order dated 5-6-97 is a matter of record and this fact has not been challenged by the defence. As such, Courts shall presume the correctness of the record until the contrary is established according to the provision of section 80 of the Evidence Act. Naimuddin vs State 59 DLR 314.

Section 80-The Court is required to see not only that the forms under sections 164 and 364 of the Code of Criminal Procedure were complied with but the substance underneath was equally adhered to. There must not be any reason for doubt as to the truth of the statements, be it circumstantial or proved otherwise. In the circumstances it is difficult to deny the accused an opportunity to cross-examine the Magistrate who allegedly recorded the statements. Sadeque vs State 61 DLR 498.

Section 80—It dispenses with the necessity of a formal proof of a confession duly recorded by a Magistrate in accordance with the provisions of section 164 of the Code of Criminal Procedure. In such a case the examination of the recording Magistrate is not imperative. State vs Tajul Islam 48 DLR 305.

Section 80—It was injudicious to rely upon confession without calling the Magistrate as a witness. The Court is required to see not only that the forms under sections 164 and 264 CrPC were complied with but the substance underneath the law equally adhered to. Bimal Chandra Das alias Vim and 3 others vs State 51 DLR 466

Section—80

Examination of the recording Magistrate

It dispenses with the necessity of a formal proof of a confession duly recorded by a Magistrate in accordance with the provisions of section 164 of the Code of Criminal Procedure. In such a case the examination of the recording Magistrate is not imperative. The State Vs. Tajul Islam and 8 others, 15BLD(HCD)53

Section—80

Memorandum by Magistrate conducting TI. Parade—Not admissible in evidence Memorandum recorded by the Magistrate conducting T.I. Parade is not a judicial proceeding and as such it is not admissible under section 80 of the Evidence Act, unless the Magistrate deposes before the Court and proves it. Non-examination of the Magistrate who held the T.I. Parade renders the memorandum drawn by him inadmissible in evidence. Md. Mizanur Rahman alias Miza alias Mizan Vs The State, 17BLD(HCD)82

S.84-Lack of proof of motive and other attending circumstances in the com- mission of the crime cannot be accepted as a valid plea to absolve the accused. That may be a factor to reduce the gravity of the crime from one u/s.302 to one u/ 5.304 of the Penal Code.

In view of the standard of proof required by law under section 84 of the Penal Code read with section 105 of the Evidence Act, a mere lack of proof by the prosecution of a motive for the offence, cannot be a substitute for the positive proof required of the defence for its plea of insanity. Merely from the char- acter of the crime, its suddenness, cruelty, atrocity and apparent absence of motive, it cannot be presumed that the offender must have been insane at the time of its commission. It would be extremely unsafe to admit such plea and it would amount to condoning the crime because of its atrocity.

Absence of motive or premeditation will not, however, absolve the accused of the crime but will bring down the charge under section 302 of the Code to one under Part I of section 304 of the Penal Code. Abu Nasir Bhuiya Vs. The State(1978)30 DLR 275.

Section – 86

From Ext.3 it transpires that the contract on the basis of which the suit was filed in the Munsif Court, Krishananagar was written by one Nagendra Nath Ghose and the attesting witnesses to the contract belonged to the members of Nagendra Nath Ghose’s community and all of them were citizens of India. But the plaintiff in his evidence in the present suit stated that one Azimuddin Biswas was scribe of the agreement for exchange and Moksed and Moizuddin were attesting witnesses. Thus it appears that the plaintiff instituted the present suit on the basis of a different contract which he could not prove by adducing either documentary or oral evidence and the contract on the basis of which Shibnath Ghose and others filed Title Suit No.17 of 1961 in the Court of Munsif, Krishananagar, as it appears, was on the basis of a different agreement. Md. Abdul Mannan & Ors. Vs. Abdus Samad Mondal & Ors. 14 BLT (AD)198

S.88-Presumption under section-Limited to terms of message transmitted-Presumption as to person by whom such message was delivered for transmission-Expressly prohibited. 1956 PLD (Lah) 949

Section 90- Presumption– As per provisions of Section 90 of the Evidence Act there is a presumption in favour of a thirty years old original copy of a registered deed which is sub- mitted in the court from proper custody. ..(22)

The exhibited copy of thirty years old registered document dated 05.01.1923 is being an original copy and produced before the court from proper custody as such the presumption infavour of deed no.112 dated 05.01.1923 is that the said deed is a genuine one. In such a situa- tion the onus of proof of the allegation of the plaintiffs regarding lending money by taking signature in blank stamp and thereafter used the same to create forged document by the prede- cessor of the defendant nos.67 and 68 lies upon the plaintiffs. .........(23)

It appears that the witnesses produced by the plaintiffs are not independent witnesses and their testimony does not prove possession of the plaintiffs. Furthermore, plaintiffs failed to pro- duce any documentary evidences to prove their claim regarding possession. ......(32)

Kabala dated 09.07.1923 (exhibit-'ga') proves that the predecessor-in-interest of the plaintiffs cultivated the suit land as bargadar of Shushila Sundari i.e. the predecessor-in-interest of the defen- dants and thus they admitted posses- sion of the defendant's predecessor-in- interest. Moreover, defendants filed rent receipts (exhibit-'n' and In-1') in Sreemoti Radha Rani Ghosh vs. Jashimuddin Molia (Borhanuddin J) (Civil) 20 ADC 441

ধারা ৯০–অনুমান–সাক্ষ্য আইনের ৯০ ধারার বিধান অনুযায়ী একটি ত্রিশ বছর বয়সী নিবন্ধিত দলিলের মূল কপির পক্ষে একটি অনুমান রয়েছে যা সঠিক হেফাজত থেকে আদালতে দাখিল করা হয়েছে। ..(২২)

05.01.1923 তারিখের ত্রিশ বছর বয়সী নিবন্ধিত নথির প্রদর্শিত কপিটি একটি মূল কপি হওয়ায় এবং সঠিক হেফাজত থেকে আদালতে দাখিল করায় 05.01.1923 তারিখের দলিল নং ১১২ এর পক্ষে অনুমান হল যে উক্ত দলিলটি একটি আসল। এই পরিস্থিতিতে ফাঁকা স্ট্যাম্পে স্বাক্ষর নিয়ে অর্থ ধার দেওয়ার এবং পরবর্তীতে বিবাদী নং ৬৭ এবং ৬৮ এর পূর্বসূরি কর্তৃক জাল দলিল তৈরির জন্য একই ব্যবহার করার বিষয়ে বাদীপক্ষের অভিযোগ প্রমাণের ভার বাদীপক্ষের উপর বর্তায়। .........(২৩)

দেখা যাচ্ছে যে বাদীপক্ষ কর্তৃক উপস্থাপিত সাক্ষীরা স্বাধীন সাক্ষী নয় এবং তাদের সাক্ষ্য বাদীপক্ষের দখল প্রমাণ করে না। তদুপরি, বাদীপক্ষ দখল সম্পর্কিত তাদের দাবি প্রমাণের জন্য কোনো প্রামাণিক প্রমাণ দাখিল করতে ব্যর্থ হয়েছে। ......(৩২)

09.07.1923 তারিখের কবালা (প্রদর্শনী-'গ') প্রমাণ করে যে বাদীপক্ষের পূর্বসূরি সুশীলা সুন্দরী অর্থাৎ বিবাদীদের পূর্বসূরির বর্গাদার হিসাবে মামলার জমি চাষ করত এবং এইভাবে তারা বিবাদীর পূর্বসূরির দখল স্বীকার করেছে। তাছাড়া, বিবাদীরা শ্রীমতি রাধা রানী ঘোষ বনাম জসিমউদ্দিন মোল্লা (বোরহানউদ্দিন জে) (দেওয়ানী) ২০ এডিসি ৪৪১-এ ভাড়ার রশিদ (প্রদর্শনী-'ন' এবং ইন-১') দাখিল করেছে।

Section 90- 30 years old documents- The plaintiffs have been successful in proving their genealogy of title and possession in the suit land and since the defendants failed to challenge the documents relied upon by the plaintiffs and also failed to prove their case of title and possession, it can clearly be held that the defendants have no title and possession in the suit land. On the other hand the plaintiffs could prove the title of Yeasin Hazi, the C.S. recorded tenant and thereafter devolution of title and possession upon his daughter Duburunnessa who in her turn transferred the same to Khodeza Begum by two registered documents in 1955 and 1956 which are more than 30 years old documents and relying on such registered documents Khodeza Begum's name being recorded in the S.A. record and thereafter Zumuruddin, the predecessor of the plaintiffs having purchased the same got his name mutated in place of Khodeza Begum in the office of the Government, and after his death his heirs, the plaintiffs having got their names mutated, the title and possession of the plaintiffs are found to be proved....... Bangladesh Railway =VS= Jashimuddin, [5 LM (AD) 58]

Section 91

In a suit for permanent injunction the primary question for determination is the possession of the parties who is seeking the decree for permanent injunction and the matter of title of such party in the land in suit is incidentally gone into.

The question of possession on the establishment whereof the suit could only be decreed, even though title of the land in suit may of the plaintiff, which though in instant case not. The trial Court on detailed discussions of the evidence brought on record from the side of the plaintiff and upon assigning reason for non-accepting the evidence of the wit- nesses examined by the plaintiff on the question of possession made the finding that plaintiff failed to prove her posses- sion in the land in suit. Md. Abu Alam vs. Zarina Begum and others (Md. Ruhul Amin J) (Civil) 4ADC 257

Section 91

The question of possession on the establishment whereof the suit could only be decreed, even though title of the land in suit may of the plaintiff, which though in instant case not. The trial Court on detailed discussions of the evidence. brought on record from the side of the plaintiff and upon assigning reason for non-accepting the evidence of the wit- nesses examined by the plaintiff on the question of possession made the finding that plaintiff failed to prove her posses- sion in the land in suit. Md. Abu Alam vs. Zarina Begum and others (Md. Ruhul Amin J) (Civil) 4 ADC 257

Sections 91 and 92

The suit was filed seeking declaration that the deed of exchange dated March 21. 1993 is not a deed of exchange but a deed of sale. Abdul Majid alias Mujibur Rahman Molla vs. Md. Abdul Matin and others (Md. Ruhul Amin J) (Civil) 4ADC 56

Section 91, 92

When the terms of a contract or of a grant, or of other disposition of proper- ty, have been reduced to the form of a document no evidence shall be given in proof of the terms except the document itself, or its secondary evidence where permissible. Md. Mosharraf Hossain vs Daulat Ahmed (Md Ruhul Amin, J) (Civil) IADC 445

Section 92- Specific performance of contract to execute the sale deed- We find that the High Court Division correctly observed that the appellate Court admitted into evidence the bainanama of defendant No. 1 but did not at all consider the same and against such non-consideration the defendants did not take any step. We also find it curious that the bainanama of defendant No. 1 having been allegedly executed in the year 1983 the agreement was not put into effect until almost 10 years later, and there was no explanation why such a delay occurred. In any event the lower appellate Court in allowing the appeal of the defendants in the suit did not take into consideration the alleged bainanama of the year 1983. Furthermore, the High Court Division correctly referred to the provision of section 92 of the Evidence Act and held that the oral and extraneous evidence contradicting the contents of a written instrument is not admissible. We do not find any illegality or infirmity in the impugned judgement and order of the High Court Division. Accordingly, the appeal is dismissed, without however any order as to costs. ...Gopal Goyala VS Molina Rani(Sree). [9 LM (AD) 9]

Evidence Act [I of 1872]

Section 92

The Patta dated 04.03.1947 was produced from the custody of the plaintiffs and the endorsement on the back of the Patta showing that the Patta was returned on receipt of the money, and the fact that it was torn at the top indicates that the transaction was a mortgage and not a sale or settlement.

The Appellate Division notes that the case cited above was of the district of Khulna and the present case is of district Satkhira, which was at that time within district Khulna. In that case the defendant borrowed Rs.1000/- from the father of the plaintiff but a kabala was drawn up on account of the provisions of the Bengal Money Lenders Act. In pursuance of an oral agreement, the defendants paid back the entire consideration money of Rs.1000/- to the plaintiff's father in the presence of a Salish and he returned the land and the kabala on 4th Baishak, 1361 B.S. and endorsed as such on the back of the kabala. Abdulla, J. sitting in the High Court Division observed that the lower court had rightly referred to the provisions of section 92 of the Evidence Act, but held that the document as a whole, including the endorsement is required to be considered by the Court. The fact of the oral agreement was written in the document as it was presented before the Court. His Lordship also considered that the number of documents produced by the defendants to show that the transactions were in fact mortgages and that, that was the practice in the locality is quite sufficient. The present case being of the same locality, we are of the view that the practice of endorsing return of consideration money on the back of the deed of transfer is sufficient to indicate a mortgage. It is not a case of oral evidence contradicting the terms of a written document. Here, the term of the Patta deed is amended by written endorsement which has been signed by the maker of the endorsement. Moreover, the endorsement on the back of the Patta is supported by the witness to the endorsement, namely, Md. Abdul Aziz Mulla (P.W.3) and the fact that the original Patta with the endorsement was returned to the predecessor of the plaintiffs is evidenced by the fact that it was produced in court from the custody of the plaintiffs. The Appellate Division notes the half-hearted attempt of the defendants while cross examining P.W.1 to prove that the Patta deed was cleverly taken by P.W.1 from D.W.1 at the settlement office. This was not supported by the sole witness of the defendants, namely D.W.1. In view of the above discussions, the Appellate Division finds merit in the appeal, which is accordingly allowed. [(2022) 25 ALR (AD) 38]

Old Document

Code of Civil Procedure [V of 1908]

Section 115(1) read with

Evidence Act [I of 1872]

Section 90

Mere filing of a rent receipt or a private document without formal proof thereof and without proving the contents of such documents cannot fulfill the requirements of law.

The patta Ext.2 is more than 30 years old document has come before the Court from proper custody and certainly carried a legal presumption of due execution and correctness under section 90 of the Evidence Act.

A Court of revision under section 115(1) CPC can interfere with the findings of fact, as has been arrived at by the appellate court below as being the final Court of facts, only in exceptional circumstances when the findings are shockingly perverse or these are vitiated by non-reading and misreading of the material evidence or misconstruction of any important documents affecting the merit of the suit.

It appears to the Appellate Division that the trial Court appointed an Advocate Commissioner who inspected the suit land and submitted a report on 31.10.2000 which has been accepted by the trial court on 05.05.2003 in a modified form after rejecting the objection raised by the defendants. The Advocate Commissioner reported that there are as many as four shops on the suit land. The plaintiff Nur Jamal while deposing as PW1 stated that he constructed four shops and rented them out to four persons, namely, Asharf, Aminul, and Jogodish for performing their. business as shopkeepers. Thus, it appears that the Commissioner's report corroborated the oral evidence of PW1 which directly supported the plaintiff's title and possession. But the learned Judge of the Single Bench of the High Court Division without adverting those evidence on record made the Rule absolute holding that the plaintiffs have hopelessly failed to prove their case. The Appellate Division hold the view that the finding of the learned Judge of the Single Bench of the High Court Division and as well as the trial Court below are shockingly perverse and those are vitiated by non reading of the material evidence and misconstruction of evidence on record affecting the merit of the cases. Thus, it appears that the learned Judge of the Single Bench of the High Court Division without properly assessing the evidence on record arrived at a wrong decision and thereby set aside the finding of the appellate Court below, which is liable to be interfered with. Accordingly, the Appellate Division finds merit in the appeal. Thus, the appeal is allowed without any order as to costs. The impugned judgment and order delivered by the learned Judge of the Single Bench of the High Court Division is set aside and the judgment and order passed by the appellate Court below is restored...(27-30) [(2022) 25 ALR (AD) 43]

Section-90

Once such a document more than 30 years old is produced from proper custody Section 90 of the Evidence Act entitles the Court to presume that it is a genuine document. A.D.C. (Revenue) Vs. Md. Reazuddin PK & Ors 8BLT (AD)-185

Presumption as to documents

The benefit of the presumption as to document more than 30 years old applies to any document and not necessarily only to registered document Hence, the presumption under section 90 of the Evidence Act is applicable in the case of the amalnama of the year 1926. The appellate Court did not reverse the finding of the trial Court with regard to the amalnama being accepted as genuine as it was a document more than 30 years old. [73 DLR (AD) (2021) 124]

Section-90

Exhibit I being supported by exhibit 6 being an age old document of over 30 years. It had presumptive value under Section 90 of the Evidence Act and the Exhibit 1(ka), the certified copy of the original sale deed being admitted in evidence without objection in the trial court and as such no objection can be raised at his stage challenging the legality and propriety of the said certified copy of the sale deed. At the same time in the written statement the defendants have taken burden of proof that the certified copy of the sale deed. Exhibit 1(ka) as forged and fraudulent but the defendants failed to prove the same and as such the certified copy of an old document of over 30 years old having presumptive value under Section 90 of the Evidence Act admissible in evidence. Exhibit 1 (Ka) cannot be thrown out of consideration and rent receipts being filed by the plaintiffs are the collateral evidence of their possession being followed by title. Md. Sadek Uddin Chowdhury & Ors. Vs. Md. Anowarul Haque Chowdhury & Anr. 11BLT (HCD)-72

Section-90

That the legal presumption of 30 years old document by virtue of provision of section 90 of the Evidence Act is rebuttable. The mere fact that a document is 30 years old does not make it immune from attack by the other side on the question of its genuineness. Md. Biseruddin Sardar & Ors Vs. Md. Tofazzal Hossain Biswas & Ors. 15 BLT(AD)47

Sections-91 & 92

Section-91 of the Evidence Act is about the manner of proof of a document which has been reduced to the form of a document and which is required by law to be reduced to the form of a document. The document itself has to be proved, or where secondary evidence is admissible, secondary evidence of its contents may be proved. The terms of the document cannot be proved by any other mode of proof. The impugned kabala has been proved under Section-91.

Sections—91 and 92 Evidence —Its admissibility in a preemption case — No evidence is admissible to vary the contents of the documents by any oral evidence — In a pre-emption case it is the transfer which is sought to be pre-empted. Jaynal Abedin Molla Vs. Aliar Rahmax and others; 3BLD (AD) 105

Sections—91 and 92

Admissibility of oral evidence? In a pre-emption case sale or exchange can be decided — Whether evidence can be adduced to prove that the document is not what it purports to be When the disputed Kabala is between stranger to the document in question and a party thereto, there is no bar in leading oral evidence to prove that the document in question is not what it purports to be but when it is between the parties to the document such evidence is not admissible — There is no error of law in holding that the transaction is an exchange and not a sale and as such exempted from preemption — State Acquisition and Tenancy Act, 1950 (XXVIII of 1951), S. 96 Brindaban Das and another Vs. Ershad Ali Mondal, 6BLD (HCD)85 Ref. 17 DLR 15; 26 DLR(SC) 59; 35 DLR(AD)230; A.I.R. 1958 (SC)448 — Cited.

Sections—91 and 92

Admissibility of oral evidence — Whether a sale deed can be declared a mortgage deed solely on oral evidence — Oral or extraneous evidence to contradict the terms of the contents of a document is inadmissible — It is an established rule of evidence that oral evidence is inadmissible for the purpose either of construing the terms of a document or of ascertaining the intention of the parties thereto — Evidence of the witnesses that the document is not a sale deed but is a mortgage deed is clearly inadmissible. Mrs. Feroza Majid and another Vs. Jiban Biina Corporation, represented by its Managing Director, 7BLD(AD)124 Ref. 27 l.A. 58 — Cited.

Sections—91 and 92 Exclusion of oral evidence—Admission of oral evidence of the acts and conducts of the parties in determining the true nature of the transaction does not infringe upon the provision of section 92 of the Evidence Act — it can be shown by oral evidence that though a document in a particular form was executed, in fact it is different from what it appears to be — When a document is meant merely as an informal memorandum of transaction and not as a document embodying disposition of a property, oral evidence is not excluded. A.M. Abul Kashim Vs. Nasiruddin Ahmed and others; 8BLD (HCD) 33 Ref. 37 DLR 87 — Cited.

Sections 91 and 92—Documentary evidence- Exclusion of oral evidence— As provided under section 91 no evidence other than the document itself is admissible when the terms of contract or disposition of property are reduced to a document. Similarly section 92 prohibits contradiction of the contents of documents by oral evidence. Nadabipatra neither creates any interest nor it transfers title. Khorshed Ali Bhuiyan being dead his heirs Shamsun Nahar and others Vs. Gunjor Ali and others. 2, MLR (1997) (HC) 38.

Section—91 Kabalas under pre-emption under section 96 of the State Acquisition and Tenancy Act — recitals in documents are of out and out sale — no mention about any exchange or compromise. Section 91 of the Evidence Act will not bar any challenge as to the character of the disputed documents — But for that reason, the kabalas in question cannot be construed as instruments of exchange, simply because the ownership of the case land was not transferred for the ownership of any other land — State Acquisition and Tenancy Act, 1951 (XX VIII of 1951), S. 96. Abu Hassan (Minor) and others Vs. Basiruddin Ahmed and others; 11BLD (AD) 231, 12 BLD(AD)191

Sections 91, 92, 110

Seeking declaration of title and confirmation of possession in the suit land. Syed Ali Mondal vs. Dulal Chandra Biswas (Md. Tafazzul Islam J) (Civil) 4 ADC 964

Whether Evidence is admissible given by pardanshin women

The question of special onus with regard to a transaction entered into with a pardanishin lady and the question of proof of an independent advice is indispensable in case of a transaction where the protection to a pardanishin woman is available came up for consideration. Mustafizur Rahman Vs Md. Amjad Hossain (Md. Ruhul Amin J(Civil) 3 ADC 319

S.91 The provisions of section 91 (Evidence Act) preclude interpretation by oral evidence of the contents of a document. Syed Ali Vs. State (1974) 26 DLR 392.

Section—92 Evidence — whether it is admissible to vary the terms of a written and registered document — Oral evidence though not admissible to vary, modify or alter the terms of a written registered document, will however be admissible to prove that the nature and character of the instrument is different from what it is alleged to be or that the instrument was a mere paper transaction that it was never intended to be given effect to or acted upon. Mozem Par and others Vs. Fazie Karim Biswas and others; 4BLD (HCD) 173 Ref. 19 DLRI7; 38 l.A. Page-85; (1924) 51 l.A. Page-305; 38 C.W.N. Page — 883; 20 C.W.N. Page-347; 16 DLR(SC)629; PLl968(Karachi) 307; A.LR. 1936 (PC) 61 — Cited.

Section-92 of the Evidence Act provides that when a document described in Section- 91 has been proved according to Section-91, “no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to or subtracting from, its terms.” Tambia Khatun Vs. Rafiqullah 8BLT(AD) -230

Section 92 and 115

An estoppel arises when a representa- tion is acted upon as true by the party to whom it is made. Generally the ele- ments of estoppel are the representa- tions made under circumstances which amounted to an intentional causing be- lief in another. The principle which is incorporated in section 115 of the Evi- dence Act is a simple and equitable doc- trine which lays down that if a person has acted to his detriment or altered his position on the basis of any declaration, act or omission of another person that other person will not be allowed in any proceedings between himself and the other person to go back upon it to the detriment of the other party. The rule is that the party will not be allowed to go behind the facts admitted in writing. If a person has by his conduct permitted the other party to believe that the agreement was other than it is embodied in the doc- ument, and has caused him to act upon that belief, he can not fall back upon section 92 of the Evidence Act and thereby escape the consequences of his own action. The Privatization Commis- sion vs. Golam Mostafa (S.K. Sinha J) (Civil) 9 ADC 484

Section 92

Sree Hari Sankar Nandi Majumder vs Sree Promode Chandra Roy Choudhury and 47 DLR (AD) 97 between Sadharan Bima Corporations Vs. Sanjib Kumar Das.

The word action or suit appearing in clause 8(b) should not be interpreted as having identical meaning and the word action would include legal notice served by the insured on the insurer. Chalna Marine Products vs Bangladesh General Insurance Co. Ltd (Mainar Reza Chowdhury J) (Civil) 2 ADC 96

Section 92

It appears that the plaintiffs filed a suit for declaration of title and also for dec- laration that the record of S.A. Khatian in the name of Aushi Miah is wrong. The trial Court decreed the suit land and on appeal, the Court of Appeal below affirmed the judgment and decree of the trial Court. It appears that Rajabdi died leaving by Bangu Sheik and Atabdi as his two sons to inherit the properties left behind him and Bangu Sheikh died leaving behind his wife Rupban and three daughters Joynab, Payrun Nessa and Maju Bibi. Suraiya Begum vs. Misir Ali (Mohammad Fazlul Karim J) (Civil) 7 ADC 945

Section 94—Exclusion of oral evidence by documentary evidence— Deeumentary evidence excltides oral evidence as contemplated under section 94 of the Evidence Act, 1872. Bangladesh General Insurance Co. Ltd. Vs. Chalna Marine Products Co. Ltd. 4, MLR (1999) (HC) 158.

Case Reference

সার্চ ইন্টারফেসে আপনাকে স্বাগতম

Evidence Act, 1872 [Section 1-100] Case Reference

Evidence Act, 1872

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