Important caselaws from 61 DLR (May)

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.