Sentence
Sentence
The sentence of 4 years
imprisonment is not very short but ordinarily the disposal of appeals take a
long time in view of heavy accumulation of appeals in the High Court Division.
The learned Advocate for the appellant submits that he will take necessary steps
for early disposal of the appeal. In the circum- stances, appeal should be
allowed but with direction for early disposal of the appeal. Abdul Malek Vs.
The State 13BLD (AD) 63
Sentence
Awarding sentence of fine
along with sentence of imprisonment for life can be said to be illegal in view
of section 409 of the Penal Code. A.M.A. Wazedul Islam Vs. The State, 13 BLD
(HCD) 296
Sentence
Awarding sentence is the
discretion of the Court
In consideration of the
fact that the appellants applied for registration of their trade mark and
manufactured goods under a bonafide belief that their application would be
allowed, the Appellate Division modified the sentence to the period already
undergone. Hazi Oziullah and another Vs. The State, 16 BLD (AD) 59
Sentence
Sentence is a complex
matter which needs special considerations in the circum- stances of a
particular case. In the instant case there were hot altercations and exchange
of hot words between the parties immediately preceding the occurrence and there
was grappling by Salam and 2 others on one side and victim Jalal on the other.
In the course of such quarrel and on the hit of passion the condemned prisoner
gave dagger blows to the victim. Under such circumstances, it can- not be said
that the condemned prisoner had premeditation for killing Jalal and as such the
sentence of death is commuted to one of imprisonment for life-Penal Code, 1860
(XLV of 1860) Section 302
The State Vs. Abdul Aziz
Mina and oth- ers, 16 BLD (HCD) 183
Sentence
Sentence is essentially a
matter of discretion of the trial
Where no minimum is set by
law, the Court is required to exercise the discretion judicially and not
fancifully. Al-haj Nurul Islam Chowdhury and an- other Vs. The State, 20BLD
(HCD) 168
Sentence
For the offence under
section 471 of the Penal Code the appellant could at best be punished, as
provided in section 465 of the Penal Code, upto 2 years rigorous imprison- ment
or with fine or with both. The imposition of 4 years rigorous imprisonment
under section 471 of the Penal Code is not legal and it cannot be sustained.
Abul Hossain Mollah alias Abu Mollah Vs. The State, 17 BLD (AD) 170
Sentence
Reduction of sentence on
compassionate grounds
The appellants were
convicted under section 467 of the Penal Code and were sen- tenced to suffer
R.1. for 2 years and to pay a fine of Tk.5,000/- for committing forgery involving
a sum of Tk. 561/- only. As the for- gery was detected before payment of the
bills in question the accused could not actually misappropriate the money nor
could they make any wrongful gain to themselves. In view of the fact that a
small amount of money was involved in the deal and in view of the further fact
that the delinquent official is old man of about 70 years of age, the Appellate
Division took a lenient view in the matter and reduced the substantive sentence
of 2 years R.I. to the period already undergone on com- passionate grounds. Khandker
Md. Shamsul Islam Vs. Mo- hammad Hossain, 18BLD (AD) 4
Sentence
When the trial Court did
not impose fine, the appellate Court for the first time, in addi- tion to a
sentence of imprisonment, cannot impose a sentence of fine. So, the order of
sentence of fine passed by the appellate Court in addition to the sentence of
imprisonment is illegal and without jurisdiction-Muslim Family Laws Ordinance,
1961, S. 6(5)(b)
Mizanur Rahman Vs. Mst.
SurmaKha- tun, 18BLD (HCD)512
Ref: IBLD (1981)
(HCD)165-Cited
Sentence
A sentence must not be
lenient vis-a-vis the nature of the offence committed and at the same time it must
not be harsh either so that the offender is sent to a point of no return
turning him vindictive to the society thinking that he has been treated too
harshly instead of repentant thinking. Husain Mohammad Ershad Vs The State,
20BLD (HCD) 446
Sentence
Sentence in a lump
Sentence passed in a lump
without specifying as to what is the sentence under each of the sections i.e;
448 /380 of the Penal Code is only an irregularity and not an illegality and it
does not affect the competence of the learned Magistrate to pass the order of
conviction and sentence. Haider Ali Khan Vs. The State, 14 BLD (AD) 270
Sentence
Leniency in the matter of
Sentence While setting aside the order of acquittal passed by the High Court
Division, the Appellate Division took a lenient view in the matter of sentence
and reduced it to the period already undergone on the ground that the Respondent
faced two trials and he had to take two appeals until he was acquitted by the
impugned judgment. The State Vs. Abdul Muttaleb Khan, 14BLD(AD)12
Sentence
Reduction of sentence on
compassionate ground
When the age of appellant
No. I is recorded to be 90 years in his statement under section 342 Cr.P.C. and
there is no material to hold to the contrary, his sentence of R.I. for one year
is reduced to the period undergone. Hasan Ali and others Vs. The State,
15BLD(AD) 37
Enhancement of Sentence
If the sentence of fine is
to be enhanced. then a Rule should be issued upon the appel- lant to show cause
as why the sentence to pay a fine imposed upon him under the impugned judgment
should not be enhanced. Moram A.M.A. Wazedul Islam Vs. The State, 13 BLD)(HCD)
296
Ref: 32 DLR(AD)100; A.LR.
(32) 1945 (PC) 48; 25 DLR 192-Cited
Enhancement of sentence
In an appeal from a
conviction, sentence may be reduced by an appellate Court but sentence cannot
be enhanced. From sub- section (1)(bb) of section 423 Cr.P.Code it is also
clear that sentence can be enhanced only in an appeal for enhancement of
sentence and that can be done after giving the accused an opportunity of showing
cause against such enhancement.
In the instant appeal, the
appellate Court had no power to enhance the sentence of the appellants who
filed the appeal under section 408 of the Cr.P.Code against their conviction by
the trial Court. Obviously, the enhancement of sentence of the appellants was
illegal and without jurisdiction. Moktar Ali Bepari Vs. The State and an-
other, 19BLD (HCD) 259
Enhancement of sentence
Sentence can be enhanced by
the High Court Division after giving a reasonable opportunity to the accused of
showing cause. against such enhancement when an appeal is filed under section
417A of the Cr.P.Code by a complainant against any sentence on the ground of
its inadequacy. In view of the pro- visions of section 404 of the Code no appeal
shall lie from any judgment or order of a criminal Court except as provided by
the Code. So, except under the provisions of section 417A of the Code, there is
no other provisions for filing any appeal for enhancement of any sentence. Moktar
Ali Bepari Vs. The State and an- other, 19BLD (HCD) 259
Death Sentence
In a reference by the learned Sessions Judge/Additional Sessions Judge under section 374 Cr.P.C the proceedings shall be sub- mitted to the High Court Division and the sentence shall not be executed unless it is con- firmed by the High Court Division. The State Vs. Md. Tuku Biswas, 13 BLD (HCD)306 Ref: 21 DLR (SC) 109; PLD 1969 (SC) 89 Cited
Death sentence
Sentence of death passed by a Court of Session shall have to be referred to the High Court Division for confirmation. A sentence of death was passed by a Special Martial Law Court and confirmed by the Chief Martial Law Administrator, but the sentence remained unexecuted till the with- drawal of Martial Law. The case must be referred by the Sessions Judge to the High Court Division for its confirmation. In such a case although the sentence of death has not been passed by the Sessions Judge himself, the sentence passed by the Special Martial Law Court having not reached its finality for non-execution, the Sessions Judge is under a legal obligation to refer the case to the High Court Division under section 374 Cr.P.C. for confirmation of the sentence of death. Abdul Baset and another Vs. Government of Bangladesh and others, 15BLD (HCD)210
Ref: 41 DLR 484, 44DLR(AD)16-Cited
Death Reference
A Death Reference under u/s. 374 Cr.P.C may be disposed of by this Court even if the condemned accused is absonding. The State Vs Md. Tuku Mia Biswas, 13 BLD (HCD)306
Ref: 21 DLR (SC) 109; PLD 1969 (SC) 89 Cited
DEATH SENTENCE
Prisoner-Death sentence Section 30 sub-section 1 of the Act provides that every prisoner under sentence of death shall, immediately on his arrival in the prison after sentence, be searched by, or by order of, the Jailer and all articles shall be a taken from him which the Jailer deems it dangerous or inexpedient to leave in his possession. Sub-section (2) of Section 30 of the Act further provides that every such prisoner shall be confined in a cell apart from all other prisoners, and shall be placed by day and by night under the charge of a guard. Major (Retd.) Bazlul Huda Vs. The State, 20BLD (HCD) 204
Deduction of Sentence
Reduction of sentence cannot be allowed when minimum period of sentence is provided in the law. Habibur Rahman alias Raju Vs. The State, 20BLD (HCD) 177
Majority view
Per Mr. Justice Syed Mahmud Hossain, CJ, concurring with the majority decision:
Section 35A of the Code of Criminal Procedure: Having gone through substituted section 35A of the Code of Criminal Procedure, it appears that there is no scope to say that the power conferred on the Court is a discretionary power. The language used in amended section 35A is clear and unambiguous and that the Court cannot disregard the intention of the legislature expressed in plain language and is to deduct the period of actual detention from imprisonment for life prior to his conviction. ... (Para 21)
Section 59 (f) of the Prisons Act 1894, Chapter XXI of the Jail Code and section 401 of the Code of Criminal Procedure 1898: In exercise of the power conferred by section 59, sub-section (5) of the Prisons Act,1894 (IX of 1894) Rules were made in chapter XXI of the Jail Code to regulate the shortening of sentences by grant of remission. Any remission calculated by jail authorities under the provisions of the Jail Code are to be referred to the Government for release under section 401 of the Code of Criminal Procedure. But such remission recommended by the Jail Authority cannot be turned down by the Government without assigning any valid reason in writing as the rules relating to remission under Chapter XXI of the Jail Code were made under the mandate of section 59(f) of the Prisons Act,1894. ... (Para 31)
The power of commutation and remission is within the domain of the executive Government, but the Courts have the jurisdiction to determine the entitlement: The power of commutation and remission as contained in the Penal Code, Code of Criminal Procedure and the Jail Code are within the domain of the executive Government and such privilege may be extended by the Government to the convicts undergoing imprisonment for life. But the Courts have the jurisdiction in certain circumstances to pass an order directing that the accused shall not be entitled to the benefit of Penal Code, the Code of Criminal Procedure and the Jail Code in respect of commutation, deduction and remission. ...(Para 34 & 35)
Per Mr. Justice Hasan Foez Siddique, J, Honorable Author Judge of the Majority Decision:
Section 35A of the Code of Criminal Procedure is applicable to convict sentenced to life imprisonment: Thus, the convicts who are convicted and sentenced of the offences not punishable only with death are entitled to get the benefit of section 35A of the Code of Criminal Procedure in respect of the period of their imprisonment which was spent during investigation or inquiry or trial in a particular case. To deny the benefit of section 35A of the Code of Criminal Procedure the convict sentenced to life imprisonment would be to withdraw the mandatory application of a benevolent statutory provision. ... (Para 186)
Sections 45, 53, 55 and 57 of the Penal Code with Sections 35A and 397 of the Code of Criminal Procedure: If we read Sections 45, 53, 55 and 57 of the Penal Code with Sections 35A and 397 of the Code of Criminal Procedure together and consider the interpretations discussions above it may be observed that life imprisonment may be deemed equivalent to imprisonment for 30 years. The Rules framed under the Prisons Act enable a prisoner to earn remissions- ordinary, special or statutory and the said remissions will be given credit towards his term of imprisonment. ...(Para 201)
A whole life order can be imposed in serious case: If the Court, considering the facts and circumstances of the case and gravity of the offence, seriousness of the crime and general effect upon public and tranquillity, is of the view that the convict should suffer imprisonment for life till his natural death, the convict shall not be entitled to get the benefit of section 35A of the Code of Criminal Procedure. In the most serious cases, a whole life order can be imposed, meaning life does mean life in those cases. In those cases leniency to the offenders would amount to injustice to the society. In those cases, the prisoner will not be eligible for release at any time.
The circumstances which are required to be considered for taking such decision are: (1) surroundings of the crimes itself;
(2) background of the accused;
(3) conduct of the accused;
(4) his future dangerousness;
(5) motive;
(6) manner and
(7) magnitude of crime. This seems to be a common penal strategy to cope with dangerous offenders in criminal justice system. ... (Para 202)
Summary of the majority view:
In view of the facts and circumstances, the discussion made above the review petition is disposed of with the following observations and directions:
1. Imprisonment for life prima-facie means imprisonment for the whole of the remaining period of convicts natural life.
2. Imprisonment for life be deemed equivalent to imprisonment for 30 years if sections 45 and 53 are read along with sections 55 and 57 of the Penal Code and section 35A of the Code of Criminal Procedure.
3. However, in the case of sentence awarded to the convict for the imprisonment for life till his natural death by the Court, Tribunal or the International Crimes Tribunal under the International Crimes (Tribunal) Act, 1973 (Act XIX of 1973), the convict will not be entitled to get the benefit of section 35A of the Code of Criminal Procedure. ... (Para 207)
Minority View
Per Mr. Justice Muhammad Imman Ali J:
A convict sentenced to imprisonment for life also gets benefit of section 35A of CrPC:
A Court cannot take away the benefit given to a citizen by law. When a law is enacted by a democratic Parliament every citizen is duty bound to abide by it. Equally, no Court of law can ignore a mandatory provision of a validly enacted statute without first striking down that provision as ultra vires the Constitution. Accordingly, in the case of any convict sentenced to any term of imprisonment, including imprisonment for life, the Court passing sentence shall deduct the total period spent by the convict in custody in connection with that offence before the date of his conviction, as provided by section 35A of the said Code. ...(Para 53 and 54)
A Court cannot award any sentence other than that provided by the law: On the question of sentence, I have to say first and foremost that the Supreme Court is neither above nor beyond the law of the land and is bound to award a sentence which is permitted by law. Hence, when awarding sentence for an offence under section 302 of the Penal Code, just as the Supreme Court could not award a sentence of “rigorous imprisonment for 20 years”, it cannot also award a sentence of “imprisonment for rest of the life”. Neither of those two punishments mentioned is permitted by the Penal Code. Section 302 provides that, “Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.” Without amendment of the Penal Code, when an accused is convicted of an offence under section 302 of the said Code, the Supreme Court or any other Court cannot award any sentence of fixed term of imprisonment for a finite number of years nor “imprisonment for the natural life” or any such term. Equally, when commuting the sentence of death, a Court cannot award any sentence other than that provided by the law, which in the case of conviction under section 302 would have to be “imprisonment for life”. ... (Para 57) [15 SCOB [2021] AD 1]
Commutation of death sentence
The facts that at the relevant time the appellant was having a parasitical existence on the family of his maternal grand-father and he was at their biddings, he did not take any part in the act of killing Hazera, the real culprits escaped punishment for want of legal evidence and that upon confessing his guilt in court he begged for mercy, were considered extenuating circumstances for commutation of the sentence of death to imprisonment for. Abdul Awal Vs. The State, 14BLD(AD) 224
Commutation of sentence of death
When before causing the death of his wife the condemned prisoner suffered for some time from a bitter sense of being wronged by his wayward wife, a case for commutation of death sentence is made out. The sentence of death is therefore commuted to one of imprisonment for life.
Commutation of death sentence
Pangs of separation from the wife, frustrations of the condemned prisoner arising out of the failure of his efforts to get back his wife and the serious torments and agonies preceding the unfortunate killing are sufficient mitigating circumstances for com- mutation of the death sentence. The State Vs. Abul Kalam Azad, 16BLD (HCD)80
Commutation of death sentence
The condemned-prisoner is in the condemned-cell for a period of 4 years and 11 months and he has been suffering mental agony of death within the death cell for all these days. Considering the facts and circum- stances of the case and also fact that the death sentence remained pending for 4 years and 11 months, the High Court Division held that the sentence of life imprisonment instead of death will meet the ends of justice-Cr.P.C; S.376 The State Vs. Md. Monir Ahmed alias Monir Hossain, 18BLD (HCD) 605
Commutation of death sentence
In view of the fact that the murder was not committed by a vicious macho male and before causing the death of his wife the condemned prisoner suffered for some time from a bitter sense of being wronged by his way- ward wife, a case for commutation of sentence of death is made out. The sentence of death imposed on the condemned prisoner is commuted to one of imprisonment for life. Zahiruddin Vs. The State, 15BLD(AD)85 Ref: 36 Cr.L.J. (1935)683; InrePerumalKudumban, AIR 1940 (Madras) 562, 39DLR (AD)(1987) 196; 44DLR (AD) (1992) 225- Cited
Commutation of sentence The condemned prisoner was arrested on 11.12.91, conviction and sentence to death on 20.9.94. He has suffered the agony of death sentence for more than 5 years, moreover he is a man of 25 years. He has an old mother, one wife and two children to support and look after. He is not a hardened criminal. He found his wife (deceased) in illicit connection and in an inappropriate situation with Delwar and thus suffered from a sense of being wronged by her. He cannot be termed as 'vi- cious macho male' and accordingly the sentence of death is reduce to life imprisonment. The State Vs. Billal Hossain, 20BLD (HCD) 45
Vicarious liability and
commutation of death sentence
Since the condemned
prisoners Omar Ali and Quasem Ali did not give the fatal blows they are only
vicariously liable under section 34 of the Penal Code for the offence of
murder. The ends of justice will be met if their sentence is commuted and
reduced to one of imprisonment for life. Since accused Akkeli Ali gave the
channy blow on the stomach and the ribs and there was infection as a result of
that injury the High Court Division inclined to maintain his sentence of death.
The State Vs. Akkel Ali and others, 20BLD(HCD) 484
Defect in a warrant for
committal-when may be ignored
Defect in a warrant for
committal may be ignored when it is issued by the sentencing Court itself or
where it is issued by the sub- ordinate Court after the sentence is passed or
affirmed by the appellate Court or the records disclose no infirmity in the
order of conviction. But where the order of conviction is not made available
with no explanation or excuse for not doing so, it cannot be ascertained
whether the Court that had passed the order of conviction was properly
constituted and it had appropriate jurisdiction and that the Court followed
relevant procedure. Sufia Begum Vs. Government of Bang- ladesh and others,
13BLD(HCD)395 Ref: 44 DLR(AD) 16-Cited
Capital punishment- While it is true that many countries have abolished death sentence, the position as it stands today, is that capital punishment prevails in as many as 55(fifty five) countries and 7(seven) countries retain death sentence for exceptional International cases. (Source: Amnesty and Penal Reform International). Countries that retain capital sentence, include the largest democracy, i.e. India, and 33 component States of the United States of America. Some countries, such as Malaysia, Singapore, Saudi Arabia, Trinidad and Tobago retain mandatory death sentence for murder, while some 13 (thirteen) countries prescribe mandatory death sentence for drug trafficking, while 33 (thirty three) countries have death as an alternative sentence for the said offence. (Penal Reform International). (Para-29); .....Ali Ahsan Muhammad Mujahid =VS= The Government of Bangladesh, [2 LM (AD) 65]
Capital sentence- The Court is bound to award capital sentence- When it is found from the evidence that the death was intentional, the accused used deadly weapon, the incident of murder is gruesome, barbaric and motivated, and there is no extenuating circumstance to award the minimum sentence, the court is bound to award capital sentence. Besides, in the present incident nobody had the opportunity ever to remotely imagine the amount of such ghastly incident. .....Ataur Mridha =VS= The State, [3 LM (AD) 513]
Death Penalty:- Abolition of Death Penalty is not Possible- Our social conditions, social and cultural values are completely different from those of western countries. Our criminal law and jurisprudence have developed highlighting the social conditions and cultural values. The European Union has abolished death penalty in the context of their social conditions and values, but we cannot totally abolish a sentence of death in our country because the killing of women for dowry, abduction of women for prostitution, the abduction of children for trafficking are so rampant which are totally foreign to those developed countries. BLAST & others VS Bangladesh & others. [1 LM (AD) 286] Death Penalty:- A law which is not consistent with notions of fairness and provides an irreversible penalty of death is repugnant to the concepts of human rights and values, and safety and security. ...BLAST & others =VS= Bangladesh & others, [1 LM (AD) 286] Imprisonment for life- A death may be commuted to imprisonment for life On the following grounds:- (a) The condemned-prisoner has no significant history of prior criminal activity. (b) Youth of the condemned-prisoner at the time of commission of the offence. (c) The condemned-prisoner would not be likely to commit acts of violence if released. (d) Confinement of the condemned- prisoner in the condemned cell from 09.06.2005 till date i.e. for more than 7 years during which period the sword of death has been hanging on his head. BLAST & another VS Bangladesh & others, [1 LM (AD) 353] Imprisonment for life- Five heads, namely, i) the motive for killing the deceased; ii) last seen theory; iii) recovery of the dead body in a gunny sack together with clothes and a knife; iv) the fact that the two accused persons, who were stated to be brothers, were absconding after the incident and v) the fact that Accused No.2 gave false information. The Sessions Court, on a combination of the aforesaid five factors, ultimately held the two accused guilty of murder and sentenced them to imprisonment for life. There were at least eight factors which led this Court to set aside the judgment passed by the Division Bench of the Andhra Pradesh High Court, on the ground that cumulatively all eight factors would lead to the conclusion that the High Court judgment was perverse. ..... Parasa Koteswararao Sree Hari, VS= Eede [3 LM (SC) 68]
Sentence- The sentence of the appellant is reduced upon submission of his lawyer, who appeared for him all-through, that the appellant is 90 years old as recorded in his statement under section 342 CrPC, although in the record of the appeal his age has not been mentioned. Hasan Ali vs State 47 DLR (AD) 69.
Sentence- The condemned-prisoner accused had not come before the Court to say anything as to commission of such gruesome murder and he being a fugitive from justice and law no lenient, compassionate or sympathetic view can be taken so as to commute the sentence of death. Ansar Chan Mia vs State 53 DLR (AD) 115.
Question of sentence to be imposed on the accused after conviction. Although it is a matter of discretion of the trial Court interference by the appellate Court will be justified when trial Court fails to impose proper sentence. Santosh Mia vs State 42 DLR 171.
Sentence increased from 2 years to 5 years because of the appellant's being a member of the law enforcing agency and the heinousness of the crime. Santosh Mia vs State 42 DLR 171.
A sentence must not be lenient vis-a-vis the nature of the offence committed and at the same time it must not be harsh either, so that the offender is sent to a point of no return turning him vindictive to the society. HM Ershad vs State 53 DLR 102.
Sentence is essentially a matter of judicial discretion but it must be commensurate with the gravity of the offence.
The appellants have already lost their jobs and they have undergone the sustained spectre of the jail for a pretty long time by which they may be deemed to have purged their sins to a considerable extent and the same may be considered a mitigating circumstance for taking a lenient view in the matter of sentence. Abdur Rouf vs State 51 DLR 192.
The trial Courts while awarding sentence must bear in mind that the sentence to be imposed upon the accused must be commensurate with the gravity of the offence. Nurul Alam Chowdhury vs State 51 DLR 125.
As a matter of principle, it is not proper that by instalments the question of sentence should be considered once in the High Court S Division and again in the Appellate Division.
The learned Single Judge of the High Court Division while disposing of the criminal appeal was in seisin of the case both on fact and law and as such, he was competent to reduce the sentence. We do not think that it will be proper in the facts and circumstances of the present case to consider afresh the question of sentence on the ground of old age alone which consideration was there in the High Court Division. Mawlana Abdul Hye vs State, Hatem Ali Howlader vs State 51 DLR (AD) 65.
Since both the condemned prisoners are sentenced to imprisonment for life there is no necessity for a separate sentence to be passed against them under section 201 of the Penal Code. State vs Hamida Khatun 50 DLR 517.
