Third and Fourth Periodic Report on CRC - Unicef

Convention on the Rights of the Child
SUBMISSIONS ON BEHALF OF THE CONDEMNED PRISONER/ APPELLANT
Mr. Md. Abdul Jabbar, learned advocate appearing on behalf of the condemned prisoner-appellant, submits that the
accused was a minor at the time of his trial. In particular, he points to the order dated 22.1.2001 by which he was found to
be below the age of 16 years. He submits that, therefore, he should have been tried by a Juvenile Court in accordance with
the provisions of the Children Act, 1974. He submits that the Nari-o-Shishu Nirjatan Daman Tribunal neither had the
jurisdiction to try the accused as he was under the age of 16, nor could it transform itself to a Juvenile Court since the
Tribunal is not empowered as such under section 4 of the Act. He submits that, therefore, the trial is illegal ab initio for lack
of jurisdiction of the Court to try the accused-appellant. He further submits that the trial Judge in his judgment has adverted
to the earlier finding of the Sessions Judge in the order dated 22.1.2001 <strong>and</strong> has in fact reviewed that decision by which the
age of the accused had been established. He submits that the prosecution did not appeal against that order <strong>and</strong> the trial
Judge had no jurisdiction to review the earlier order <strong>and</strong> finding of the Sessions Judge.
With regard to the merit of the case, the learned advocate submits that there is no eyewitness to the occurrence <strong>and</strong> the
only basis of the conviction is the so-called confessional statement of the accused. He points out that admittedly the
confession of the accused was recorded after keeping him in police custody for three days. Referring to Farid Karim Vs. The
State, 45 DLR 171, he submits that the unlawful detention of the accused in police custody before recording his confession,
rendered his statement involuntary <strong>and</strong>, therefore, it cannot be used as evidence against him. He also refers to Akhtar
Hossain alias Babul Akhtar alias Akhtar Ali <strong>and</strong> another Vs. The State, 44 DLR 83 <strong>and</strong> Abdul Jabbar Vs. The State, 16 BLD
552. He further points out that from the evidence of the informant himself, it appears that the accused was tortured before
he made his confession <strong>and</strong> this is supported by the evidence of P.Ws.1 <strong>and</strong> 2. He also points out that the informant, who
is the father of the victim, categorically stated in his evidence that he had no complaint against the accused <strong>and</strong> that as far
as he knew the accused was not connected with his daughter’s murder. The learned advocate also points out that the police
arrested the accused, who was apprehended <strong>and</strong> h<strong>and</strong>ed over to them by one Kamal. He submits that said Kamal is a
material witness who was not examined by the prosecution <strong>and</strong> as such a negative inference should be drawn against the
prosecution under Section 114(g) of the Evidence Act, inasmuch as, if Kamal had been examined, he would not have
supported the prosecution case. He further points out that the evidence of the witnesses shows that Kamal had l<strong>and</strong> dispute
with the accused <strong>and</strong>, therefore, his apprehension <strong>and</strong> h<strong>and</strong>ing over to the police was driven by an ulterior motive <strong>and</strong> clearly
an act of vindictiveness. The learned advocate submits that there is absolutely no legal evidence to sustain the conviction
of the accused <strong>and</strong> for that prays that he may be acquitted.
Since the matter raises a point of law with regard to the applicability of the Children Act, 1974, we took the opportunity to
seek the opinion of Dr. Shahdeen Malik, learned advocate, who has researched into the Children Act <strong>and</strong> written a book on
the subject.
SUBMISSIONS OF THE AMICUS CURIAE
Dr. Malik, as amicus curiae, submitted that, so far as the accused is concerned, it appears that he was at the material time
a minor <strong>and</strong> could only have been tried by the Juvenile Court under the provisions of the Children Act, 1974. In this regard
he takes support from Md. Shamim Vs. The State, 19 BLD (HCD) 542, State Vs. Deputy Commissioner, Satkhira <strong>and</strong> others,
45 DLR 643, Baktiar Hossain vs. State 47 DLR 542, <strong>and</strong> Shiplu <strong>and</strong> another vs. State, 49 DLR 53. He submits that the cases
show that when the accused is below the age of 16 he is to be tried by the Juvenile Court <strong>and</strong> any other Court assuming
jurisdiction would render the trial as void ab initio. He also submits that the Nari-o-Shishu Nirjatan Daman Tribunal could not
lawfully assume the jurisdiction as Juvenile Court since that would be contrary to section 4 of the Act, which specifically
empowers the Courts listed therein as the Juvenile Court, <strong>and</strong> no Tribunal is included in that list. With regard to the
provisions of Section 3 of the Nari-o-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995, the learned advocate submits that,
although this is a subsequent enactment, it cannot take away the rights given to the child accused, known as ‘youthful
offender’ under the Children Act, 1974, since those rights were given under the provision of Article 28(4) of the Constitution.
Those rights having been given as positive rights derived from Article 28(4) of the Constitution, they cannot be taken away
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