Law
system of rules 1 (also the law) [U] the whole system of rules that everyone in a country or society must obey: If they entered the building they would be breaking the law. * In Sweden it is against the law to hit a child. * Defence attorneys can use any means within the law to get their client off. * British schools are now required by law to publish their exam results. * The reforms have recently become law. * Do not think you are above the law (= think that you cannot be punished by the law). * the need for better law enforcement * (humorous) Kate's word was law in the Brown household. 2 [U] a particular branch of the law: company / tax law * He specializes in international law. see also CANON LAW, CASE LAW, CIVIL LAW, COMMON LAW, PRIVATE LAW, STATUTE LAW one rule 3 [C] ~ (on sth) | ~ (against sth) a rule that deals with a particular crime, agreement, etc: the 1996 law against the hiring of illegal immigrants * The government has introduced some tough new laws on food hygiene. * strict gun / licensing laws * a federal / state law * to pass a law (= officially make it part of the law) * (spoken) There ought to be a law against it! see also BY-LAW, LICENSING LAWS subject / profession 4 [U] the study of the law as a subject at university, etc.; the profession of being a lawyer: Jane is studying law. * (AmE) He's in law school. * (BrE) He's at law school. * What made you go into law? * a law firm police 5 (the law) [sing.] used to refer to the police and the legal system: Jim is always getting into trouble with the law. * She was well known for her brushes with the law. of organization / activity 6 [C] one of the rules which controls an organization or activity: the laws of the Church * The first law of kung fu is to defend. * the laws of cricket * the laws of war of good behaviour 7 [C] a rule for good behaviour or how you should behave in a particular place or situation: moral laws * the unspoken laws of the street in business / nature / science 8 [C] the fact that sth always happens in the same way in an activity or in nature: the laws of supply and demand * the law of gravity 9 [C] a scientific rule that sb has stated to explain a natural process: the first law of thermodynamics see also MURPHY'S LAW, PARKINSON'S LAW, SOD'S LAW, LEGAL, LEGALIZE, LEGISLATE IDIOMS be a law unto yourself to behave in an independent way and ignore rules or what other people want you to do: Boys of that age are a law unto themselves. go to law (BrE) to ask a court of law to settle a problem or disagreement: They went to law to get back their property. law and order a situation in which people obey the law and behave in a peaceful way: The government struggled to maintain law and order. * After the riots, the military was brought in to restore law and order. * They claim to be the party of law and order. the law of averages the principle that one thing will happen as often as another if you try enough times: Keep applying and by the law of averages you'll get a job sooner or later. the law of the jungle a situation in which people are prepared to harm other people in order to succeed: These criminal gangs only recognize the law of the jungle. lay down the law to tell sb what they should or should not do, in a forceful way: My dad started laying down the law about what time I should come home. take the law into your own hands to do sth illegal in order to punish sb for doing sth wrong, instead of letting the police deal with them: After a series of burglaries in the area, the police are worried that residents might take the law into their own hands. there's no law against sth (spoken) used to tell sb who is criticizing you that you are not doing anything wrong: I'll sing if I want to-there's no law against it. more at LETTER n., RULE n., WRONG adj.
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Dying declaration :: Its probative value::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 pieces of evidence ad 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 Rahaman Vs. The State (1990) 42 DLR 200. Dying declaration – statement of a person about the cause of his death or circumstances leading to his death is substantive evidence under section 32(I) of the Evidence Act- if found reliable , it may by itself be basis for conviction even without corroboration. Statement falling u/s. 32(I) of the Evidence Act is called a “Dying Declaration” in ordinary parlance- A dying declaration may be recorded by any person who 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) of Cr.P.C. Nurjahan Begum Vs. The State (1990) 42 DLR 130. Legislature in its wisdom has put a dying declaration at per with evidence on oath for the simple reason that a man under the apprehension of s death is not likely to speak falsehood and involve innocent persons in preference to his assailant. When a probationary officer actually recorded the statement in presence of, and under the observation of, the Superior office, there was hardly any wrong in his evidence that he recorded it in presence of witnesses. Nurjahan Begum Vs. The State (1990) 42 DLR 130. Dying Declaration :: Recorded not as utteredThe investigation 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 deceased had spoken. The 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 exception 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) 9 DLR 6. 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 537 A diary kept by the accused , on which the prosecution placed reliance, as produced to prove:` 1. That the deceased was married to the accused and continued to be his wife till her death when she was pregnant from him for about two weeks. 2. That in view of his impending marriage elsewhere, the accused was insistent that the deceased must have an abortion and leave the city. 3. That for some time before the deceased’s death the accused had started threating her with death in case she refused to carry out the aforementioned wishes of the accused. 4. That the accused actually made attempts on the life of the deceased before she actually died on the 7th of December 1953. The 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 Ahamed Kan Vs. State (1958) 10DLR 55. Related articles
Constitution of BangladeshArticle 102
Election Tribunal- Election Dispute-Recounting of ballot papers- It is within the competence of the Election Tribunal to pass order in an appropriate case for recounting of ballot papers for the the purpose of proper adjudication of dispute. SM Fazlul Haque Manikvs Md Habibullah Bahar (Civil) ----p 66 Evidence Act (I of 1872) Section 34 Circumstantial evidence -In a case based on circumstantial evidence before any hypothesis of guilt is drawn up on the circumstances the legal requirements is to prove the circumstances themselves like any other fact beyond reasonable ground doubt. State vs Resalder Moslemuddin (criminal)--------p 310 Section 106 In absence of evidence as to the presence of the condemned-petitioner in the occurrence house with his family , the condemned petitioner cannot be taken to be liable to prove the fact as to how his wife and daughter met their death. The onus of proof that it was the condemned petitioner and one else who killed his wife and daughter was all along on the prosecution and it never shifted on the condemned petitioner in absence of any proof beyond reasonable doubt that he was present in the occurrence house when the occurrence took place. Hasan Malik @Titu vs State (criminal)----- 303 Section 114(g) Benefit of doubt- It was the failure on the part of the investigating officer to detect all the 5 assailants who had entered inside the jail, otherwise none of them could deserve any sort of lenient a attitude from the Court because of there involvement in such horrendous crime, but these 2 condemned prisoners namely Dafader Marfat Ali shah and LD Dafader Abul Hashem Mridha cannot be connected with the crime beyond reasonable doubt. Thereof , the two condemned prisoners are entitled to be acquitted on the principle of benefit of doubt. State vs Resalder Moslemuddin (criminal)----------p 310 Section 134 The accused persons did not deny the occurrence but they denied there participation. Apart from PW 2 and PW 7 there are independent eye-witness like PW 6 who appeared on scene immediately after the occurrence and PW 8 who deposed and corroborated (Support with evidence or authority or make more certain or confirm) the informant. In the case of Khoka vs State reported in 4 BLC (AD) 86 this Division held that believing only one eye-witness conviction is legally permissible and conviction can be based on sole evidence of one witness. Zwkir Hossain vs State (Criminal) ----p 70 Penal Code (XLV of 1860) Section 302/109 Circumstances even if found to have been proved, in that case too there is a missing link or , in other word , it can be safely said that the circumstances available in the instant case even if proved by the prosecution in that too those cannot lead us to any irresistible conclusion that there was no other hypothesis except the guilty of the accused. State vs Resalder Moslemuddin (criminal)----------p 310 Code of Criminal Procedure (V of 1898) Section 161 Under certain circumstances delay of few days even, may render the testimonies of the prosecution witness doubtful but yet there may be cases in which delay of years together may not do so. State vs Resalder Moslemuddin (criminal)----------p 310 Section 161 Benefit of doubt - It was the failure on the part of investigating officer to detect all the 5 assailants who had entered inside the jail, otherwise none of them could deserve any sort of lenient attitude from the Court because of there involvement in such a horrendous crime, but these 2 condemned prisoners namely Dafader Marfat Ali Sha and LD Dafader Abul Hashem Mridha cannot be connected with the crime beyond reasonable doubt. Therefore , the two condemned prisoners are entitled to be acquitted on the principle of the benefit of doubt. State vs Resalder Moslemuddin (criminal)----------p 310 section 265C & 561A Procedural law is generally applied retrospectively. In the cases here neither cognizance has been taken nor charge framed. As such it cannot be said that proceeding was pending before the Magistrate, when the law comes into operation. Shafiqul Islam(Md) vs State (Criminal)--------------- p 280Section 561A Nor this sections put any embargo on the power of a police officer to make search seizure or to arrest any person or to investing into a case and there is also nothing in the said Ain requiring a police officer to obtain prior permission of the Director General Madak Drabya Niantron Adhidoptor to investigate in a case or to search, seize and to arrest any person who has committed or is committing or is likely to commit an offence under the said Ain. Liton Bhuiya (Md) vs State-----------------------p 277 Code of Civil Procedure (V of 1908) Section 115 At the end of the day it was submitted on behalf of the petitioner that the suit may be sent back to the trial Court on remand for fresh decision on taking evidence for the ends of justice. I find no merit in this contention since both oral and documentary evidence are available to decide the case on merit. Abul Kalam Mridha(Md.) vs Md Moslem Miah (civil) ---------- 273 Order I Rule 9 Since objection as to non-joinder of parties was not taken at the earliest possible opportunity such objection cannot be taken subsequently and such right of the defendant shall be deemed to have been waived. Order I, rule 9 of the civil Procedure provides that no suit shall be defeated by reason of mis-joinder or non-joinder of parties and Rule 13nof the said Order provides that all the objections on the grounds of non-joinder or mis-joinder shall be taken at the earliest possible opportunity and such objection not so taken shall be deemed (Keep in mind or convey as a conviction or view )to have been waived. Ali Azam saial vs Joynal Abedin Saial (Civil) -------------------299 Order IX rule 9 On 24-7-2001 Miscellaneous case no. 11 0f 2000 (Pre-emption) was dismissed for default for the cause of the appearance of pre-emption. Thereinafter on 20-8-2001 Miscellaneo us Case No 27 of the 2001 under order IX , rule of the Code of Civil Procedure was filed within time. The ground urged in the application appear to be satisfactory but the learned judge without assigning any cogent reson disbelieved the grounds of the application and rejected the case. On the contrary, learned Judge of the Court of appeal below without deciding the merit of the application under Order IX , rule 9 of Code of Civil Procedure decided the merit of miscellaneous case for pre-emption which is not at all permissible in law. Amena Begum vs Md Ruhul Amin (Civil) -----------310 The may issue will be full fill soon. It is very important to understand Dying Declaration in Bangladesh with its case laws. Without case laws nothing is fulfill under law. So, I am going to discuss Dying declaration and Bangladesh view on the case laws.
Dying DeclarationJudge’s failure to warn the jury that the declaration was not liable to cross-examination does not vitiate the trial. Abdur Rahaman 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 evidence. State Vs. Bahar Ali (1959) 11 DLR 258. Record does not contain the exact words of the deceased –Record unreliable. Omar Ali Vs. State (1961) 13 DLR 251. Omission to mention in the dying declaration the name of the one of the three witnesses due to serious physical conditions is not of much significance. Gulam Hussain Vs. Zainullah (1961) 13 DLR (SC) 147. Made in the course of police investigation- Admissible.A dying declaration though made in course of investigation to which clause 32(I) applies, would not be hit by section 162 of the criminal procedure code. Shahidullah Khan Vs. State (1960) 12 DLR When alone can form the basis of conventionIf a dying declaration is found to be genuine and true, it can by itself from a satisfactory basis for conviction. Some of the main tests for determining the genuineness of dying declaration are : Whether intrinsically it rings true, whether there is chance of mistake on the part of the deceased in identifying or naming his assailants and whether it is free from promoting from any outside quarter and is not inconsistent with the other evidence and circumstances of the case. If a dying declaration stands the normal test for judging its veracity it becomes wholly reliable piece of evidence, but if it does not, it is far worse than an ordinary statement of witness because the make of the dying declaration was not subject to cross-examination and not under an oath. This is not saying that if a dying declaration is false in some particulars, it must away be rejected, but most certainly if it is found that deceased in his statement has indulged in telling lies even partially, that would put the courts on ground 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 Mohmud Vs. State (1960) 12 DLR (WP) 30 Dying Declaration -- AdmissibilityA 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 admit a dying declaration in part. It is further and 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 Dying declaration need not be identical and of the same but if substance of the same fulfills 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 fabricate 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 Haque (2008) 60 DLR 298 --- While dealing with the question of dying declaration the judge has to discuss this matter from four stand-points: 1. Whether the maker had the physical capability; 2. Whether the witnesses who heard the deceased making the statement heard him correctly; 3. The judge has to deal with the question whether the maker had any opportunity to recognise the assailants; 4. 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 Declaration are admitted into evidence on 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 dying declaration had a good opportunity of recognising his assailant. Ajmat Ali Vs. Crown (1955) 7 DLR 356. Related Article 1. Dying Declaration 2. Dying Declaration:: Bangladeshi View (Part-2) Related articles
Class II of Distant KindredRules of distribution:
(i) The nearer in degree excludes the more remote. (ii) Among claimants in the same degree, those connected with the deceased through sharers (Koranic heirs) are preferred to those connected through distant kindred. (iii) Where there are claimants both on the paternal side and on the maternal sider, 2/3 is assigned to the paternal side and 1/3 to the maternal side. The portion assigned to the paternal side is then divided among the ancestors of the father, and the portion assigned to the maternal side among the ancestors of the mother. Class III of Distant KindredAccording to Mulla: Rule I The nearer in degree excludes the more remote. Thus the children of brothers and sisters exclude their grandchildren; the sister’s son excludes the brother’s son’s daughter. Rule II Among the claimants in the same degree of relationship, the children of residuaries are preferred to those of distant kindred. Thus a full brother’s son’s daughter, being a child of a residuary (full brother’s son), is preferred to full sister’s daughter’s son who is the child of a distant kinswoman (full sister’s daughter). Rule III In the same degree of relationship, the subject to Rule II above, the descendants of full brothers exclude those consanguine brothers and sisters. But the descendants of full sisters do not exclude the descendants of consanguine brothers and sisters, and the latter take the residue, if any, after allotting shares to the descendants of full sisters and of uterine brothers and sisters. The descendants of uterine brothers and sisters are not excluded by descendants of either full or consanguine brothers or sisters, but they inherit with them. Order of succession1. Full brother’s daughters, f.s.’s son and d., u.b’s and u.s.’s son and d. 2. F.s.’s son and d, u.b.’s son and d, u.s.’s son and d, con. b.’s d.’s and con.s.’s children, the consanguine group taking the residue. 3. Con.b.’s d.s. , con.s’s children, u.b.’s and u.s.’s children. 4. F.b.’s son’s d.s (children of residuaries) 5. con.b.’s son’s d.s 6. F.b’s d’s children, f.s.’s grandchildren, and u.b. and s’s grandchildren. 7. F.s.’s grandchildren, grandchildren of u.b.s. and s.s., children of con b’s d., grandchildren of con.s. (con –group taking residue.) 8. Con. b’s d’s children, con. s’s grandchildren, u.b. and s’s grandchildren. 9. Remoter descendants of brothers and sisters in like order. Of the above groups each in turn must be exhausted before any member of the next group can succeed. {see also Residuary, Table of Sharers(Sunni), Distant Kindred(Part-1) and Distant Kindred (Part-2)} Related articles
Class-I of Distant Kindred
Principles of Distribution and Exclusion:-Rule–I: (a) Members belonging to the class of distant kindred inherit only in the absence of sharers and residuaries. (b) Among the distant kindred themselves, Class-I (Descendants) excluded Class-II (Ascendants), which in turn exclude Class-III (Descendants of parents), which in turn exclude Class-IV (Descendants of grandparents). Rule-II Nearer in degree more remote. Rule-III Where the degrees are equal, the children of shearers and residuaries are preferred to those of distant kindred. Order od succession: 1. Daughter’s Children. 2. Son’s Daughter. 3. Daughter’s grandchildren. 4. Son’s son’s daughter’s children and remoter heirs. (Of the above, each entirely excludes the one who follows.) Allotment of hares:-After determining on the above principles who the heirs are, let us proceed further and allot the shares to each. The following simple rules must be carefully remembered. Rule-I If the intermediate ancestors do not differ in there sexes, the estate is to be divided among the claimants per capital, the male taking a double share. Rule-II If the intermediate ancestors differ in there sexes, the distribution will take effect according to the following sub-rules : Sub-rule (i) : Two claimants, two lines of descent:- According to Mullah, the simplest case is where there are only two claimants, the one claiming though one line of ancestors, and the other claiming though another line. According to Abu Yusuf--- The sex of the intermediate ancestors is to be disregarded, and the sex of present heirs counts. The allocation of share will be: male and female taking in the proportion of two to one . According to Imam Muhammad –-- This method of distribution is to pause at each degree where the sexes differ. In the above example, the sexes do not differ in the first generation(both are daughters); but in the second generation(one is a son and the other is a daughter). Here, applying the principle that male takes double to female, dead son gets two shares and dead daughter gets one share. These share devolve upon the two present living heirs. These, the son gets one share and the daughter two shares. Sub-rule (ii): Three claimants, three lines of descent:- Where there are three or more claimants, each claiming through a different line of ancestors. Here again, the rule is to stop at first line in which the sexes of the intermediate ancestors differ, and to assign to each male ancestor a portion double that of each female ancestor. But in this case the individual share of each ancestor does not descend to his or her descendants as in the preceding case, but the collective share of all the male ancestors is to be divided among all the descendants claiming through them, and the collective share of all the female ancestors is to be divided among their descendants, according to the rule , as between claimants in the same group, of a double portion to the male. Sub-rule (iii) More than two claimants, two lines:- When there are two or more claimants through the same intermediate ancestor, there is a farther rule to be applied. “ Count for each such ancestor, if male, as many males as there are claimants claiming through him, and if female, as many females as there are claiming through her, irrespective of the sexes of the claimants. {see also Residuary, Table of Sharers(Sunni) and Distant Kindred(Part-1)} Related articles
List of distant kindredThe following is the list of distant kindreds, which are grouped into four classes as that in case of residuaries:
I. Descendants of the deceased
2. False Grandmothers h.h.s. . III. Descendants of parents1. Full brother’s daughters and their descendants. 2. Consanguine brother’s daughters and their descendants. 3. Uterine brother’s children and their descendants. 4. Daughters of full brother’s sons h.l.s. and their descendants. 5. Daughters of Consanguine brother’s sons h.l.s. and their descendants. 6. Sister’s (full, consanguine or uterine) children and their descendants. IV. Descendants of immediate grandparents1. Full parental uncle’s daughters and their descendants. 2. Consanguine parental uncle’s daughters and their descendants. 3. Uterine parental uncles and their children and their descendants. 4. Daughters of full parental uncle’s sons h.l.s. and their descendants. 5. Daughters of consanguine parental uncle’s sons h.l.s. and their descendants. 6. Parental aunts (full, consanguine or uterine) and their children and their descendants. 7. Maternal uncles and aunts and their children and their descendants. and Descendants of remoter ancestors h.h.s (true or false) |
AuthorMd. Shahnewaz Zwaki Advocate The Supreme Court of Bangladesh (High Court Division). Archives
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