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Mir Quasem Ali vs Govt of Bangladesh [Review verdict]

Appellate Division of the Supreme Court of Bangladesh

2016


CRIMINAL REVIEW PETITION NO.58 OF 2016. (From the judgment and order dated 08.03.2016 passed by the Appellate Division in Criminal Appeal No.144 of 2014)

Abstract

While Dismissing the Review plea, the Supreme Court observed:

"We have already held that a review is available if there is error apparent on the face of the record. There cannot be a ground for review if of two or more views are argued on a point, it cannot be a ground for review. A review is not a rehearing of the matter afresh. It is only a clerical mistake or mistake apparent on the face of the record that can be corrected but does not include the correction of any erroneous view of law taken by the court. The basic philosophy inherent in it is the universal acceptance of human fallibility but the points raised by the learned counsel are beyond the principles on which a review can be allowed. This court has given guidelines in Abdul Quader Mullah’s case in which cases a court can interfere with a matter in respect of offences of this nature. We cannot take any different view.

On the question of sentence this court held that there was no mitigating ground to commute the sentence of death in respect of the charge. This court affirmed the findings of the tribunal observing that the tribunal rightly held that ‘accused Mir Quashem Ali has incurred criminal liability which may legitimately be taken into account as an aggravating factor for the purpose of determination in the degree of culpability and awarding sentence.”
As regards the submission on the question of the commutation of the sentence on taking into consideration the petitioner’s contribution towards the economic development of the country by establishing business conglomerate and employing thousands of citizens in his business establishments which is not a legal ground to commute the sentence. It is within the jurisdiction of the executive. The court is only concerned with the culpability of the petitioner and the law governing on the sentencing principles. Crimes against humanity are taken as serious types of offence. The word ‘humanity’ signifies humanness-mankind collectively. The term ‘crimes against humanity’ has come to mean anything atrocious committed on a large scale. These crimes are committed against civilian population during war. These offences by nature are heinous. If any person commits crimes against humanity and if the court finds that the offender directly participated in such crimes the court is left with little discretion in awarding the minimum sentence particularly in respect of serious crimes. This court has considered this aspect of the matter and on consideration of the culpability of the petitioner disagreed with the opinion of the tribunal regarding the petitioner’s culpability and found him guilty as the principal offender. Therefore, there is no scope to commute the sentence.
This court has already settled the question of contradictory statements of a witness and held that the contradiction as available in general law will not be applicable in trials under the Act of 1973. Contradictions can be taken only to the subject matter of the statement of a witness made in his examination-in-chief only and not otherwise.
As observed above, the tribunal found the petitioner guilty in respect of charge Nos.2, 3, 4, 6, 7, 9, 10, 11, 12 and 14 and sentenced him accordingly. This court maintained the conviction and sentence of the petitioner in respect of charge Nos.2, 3, 7, 9, 10, 11 and 14, but through oversight it has not mentioned in the operating part of the judgment in respect of his conviction in respect of charge No.14, although in the body of the judgment this court found that the prosecution has been able to prove the said charge and that the tribunal was justified in finding him guilty. Inadvertently this court did not make any order in the operating part in this regard. The operating part of judgment is accordingly modified."

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Entry Type : Case Law, ICT-BD Judgments and Orders
Uploaded By : Rayhan Rashid
Upload date : Tuesday, 30 August 2016

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