High Court Division
The State v Parvez Alam Sumon and another
Death Reference 68/2018 · Decided 17 August 2026
Customs officers at the Foreign Postal Customs Unit, Sylhet opened four undeclared parcels from Pakistan in March 2014 and found about eight kilograms of heroin. The named recipients were dropped from the charge-sheet, and two other men were charged under the Narcotics Control Act, 1990. The Metropolitan Sessions Judge, Sylhet convicted both and sentenced them to death. One accused absconded during arguments. The reference was heard with the other accused's appeals. The State conceded that this was not a case of actual possession but of trafficking by importation, and the case rested entirely on the absconding accused's confession. The High Court Division held that the confession was exculpatory, uncorroborated, self-contradictory and not voluntary, as the Magistrate gave no assurance against further remand after seven days' police remand, so it could not be used under section 30 of the Evidence Act. Call records and travel history were not produced and the recipients were never examined. With no legal evidence, the reference was rejected, the appeals allowed and both accused acquitted.
- Q1
Whether the co-accused's confession, which did not admit his own guilt, was voluntary and true and could be used against him and the other accused under section 30 of the Evidence Act.
- Q2
Whether, without the confession, there was circumstantial evidence connecting the accused with the importation of heroin by post from Pakistan.
- Q3
Whether the co-accused's abscondence during trial supported an inference of guilt.
- A statement that does not admit the maker's own guilt is exculpatory and is not a confession in law, so it cannot be used against the maker or a co-accused under section 30 of the Evidence Act.
- Where a confession follows a long period of police remand, the recording Magistrate should ask how the accused was treated and remove any apprehension of police influence, including by assuring that he will not be remanded if he declines to confess; without this the confession was held not voluntary.
- Where the prosecution seeks a capital conviction based mainly on a confession, the court must be satisfied both that it was voluntary and that it is true and corroborated in material particulars.
- Withholding available call detail records attracts an adverse presumption under section 114(g) of the Evidence Act.
- Abscondence by itself is not conclusive evidence of guilt and, where the only other evidence is an unreliable confession, no adverse inference can be drawn from it.
- Circumstantial evidence must exclude every hypothesis other than guilt; here there was no legal evidence connecting the accused with the heroin, and both were acquitted.
Other than the confession, there is no circumstantial evidence to connect the accused with the offence of heroin dealing. This case is, in fact, a case of no legal evidence.
In the court’s own words.
Death Reference 68/2018, as published by the Supreme Court of Bangladesh. 26 pages, with paragraph numbers for citing.
1
Present:
Mr. Justice Zafar Ahmed
And
Mr. Justice Shathika Hossain
Death Reference No. 68 of 2018
with
Criminal Appeal No. 6884 of 2018
with
Jail Appeal No. 197 of 2018
The State
-Versus-
1. Parvez Alam Sumon
…condemned-prisoner
2. Hossain Ahmed @ Manik (absconding)
…condemned-convict
Mr. Al Amin Siddiqui, with
Mr. Mir Moniruzzaman, with
Mr. Md. Solaiman Howlader, with
Mr. Md. Mijanur Rahman, with
Mr. Md. Aminul Islam, AAGs
………For the State
Mr. Hafizur Rahman Khan, Advocate,
…State Defence Lawyer for condemned-convict Hossain
Ahmed @ Manik (absconding)
Mr. Mohammad Shishir Manir, Senior
Advocate, with
Mr. Md. Ahsanullah, with
Mr. Altaf Hossen Amani, with
Mr. Muhammad Zainul Abedin, with
Mr. Abdullah Sadiq, Advocates
…For the condemned prisoner Parvez Alam Sumon
Heard on: 23.04.2026, 30.04.2026, 12.08.2026,
13.08.2026, 16.08.2026 and 17.08.2026
Judgment on: 17.08.2026
Zafar Ahmed, J.
11. The instant death reference under Section 374 of the Code of Criminal Procedure, 1898 (in short, the “Cr.P.C.”) arises out of
the judgment and order of conviction and sentence dated 11.06.2018 passed in Sessions Case No.1985 of 2016 arising out of G.R. No. 39 of 2014, Sylhet Dakhin Surma Police Station Case No. 8 dated 13.03.2014 by the learned Metropolitan Sessions Judge, Sylhet convicting Parvez Alam Sumon and Hossain Ahmed @ Manik (absconding) under Table 1(Kha) appended to Section 19(1) of the মাদক িনয় ণ আইন, ১৯৯০ (Narcotics Control Act, 1990) and sentencing them to death as well as a fine of Tk. 10,000/- each. 2. Condemned prisoner Parvez Alam Sumon filed Jail Appeal No. 197 of 2018. He also filed Criminal Appeal No. 6884 of 2018. The death reference, Jail Appeal and the Criminal Appeal are heard together and disposed of by this single judgment. Convict Hossain Ahmed @ Manik was present before the Court during the trial. During arguments, Manik absconded. Till date, he is absconding. 3. Md. Mizanur Rahman, Assistant Revenue Officer, Foreign Postal Customs Unit, Sylhet (PW13) is the informant of the case. It is stated in the First Information Report (FIR) that the informant party, at their office, received 4 parcels from
2Pakistan through the Postal Department. No declaration was found on those parcels. On the top of the parcels, the names of (1) Zakir, (2) Goural, (3) Babul, and (4) Zamil, along with their addresses and mobile phone numbers, were written as recipients of the parcels. 4. On 09.03.2014, the parcels were opened at the office of the Foreign Postal Customs Unit, Sylhet. 442 mini polypacks containing a total of 7.95 kgs of suspicious-looking powder were found. Samples of the powder were sent for chemical examination. On 12.03.2014, the chemical examination report was obtained, wherein it was opined that the samples contained heroin. Thereafter, the FIR was lodged on 13.03.2014 against Zakir, Goural, Babul, and Zamil under Section 25B of the Special Powers Act, 1974 read with the relevant section of the Customs Act, 1969. 5. During the course of investigation, the convict Manik was arrested. He made a judicial confession. Md. Jamsed Alam, an Inspector of Police (PW29), who is the 5th Investigating Officer (I.O.) of the case, submitted the charge-sheet dated 02.11.2015 against the convicts Parvez Alam Sumon and
Manik under Table 1(Kha) appended to Section 19(1) of the Narcotics Control Act, 1990. 6. Parvez Alam Sumon and Manik were implicated in the chargesheet based on the seizure list, chemical examination report, confessional statement of Manik, CDR (Call Detail Record) of mobile phones, and other evidence. The FIR named four accused persons, and another were dropped from the chargesheet. Parvez Alam Sumon was shown arrested in the case on 20.09.2016. 7. Charge was framed against Parvez Alam Sumon and Manik on 22.11.2016 under Table 1(Kha) appended to Section 19(1) of the Narcotics Control Act, to which they pleaded not guilty. 8. The prosecution examined 34 witnesses. They were crossexamined. The convicts were examined under Section 342 of the Cr.P.C. The defence did not examine any witness. 9. The defence case is that the accused are innocent. They did not commit any offence as alleged by the prosecution. 10. The Narcotics Control Act, 1990 has been repealed by the Narcotics Control Act, 2018. Despite the repeal, the Act, 1990
3shall apply to the appeal by virtue of the savings clause contained in Section 69 of the Act, 2018. 11. Heroin is a prohibited narcotic under Section 19 of the Narcotics Control Act 1990. Section 19 provides penalty for breach of Section 9. Section 9(1) is relevant in the case.
4Section 9(1) states:
5“৯।(১) এ ালেকাহল তীত অ কান মাদক ে র চাষাবাদ, উৎপাদন,
6ি য়াজাতকরণ, বহন, পিরবহন, আমদানী, র ানী, সরবরাহ, য়, িব য়, ধারণ, সংর ণ, দামজাতকরণ, দশন েয়াগ ও বহার করা যাইেব না, অথবা এত ে ে কান েচ া বা উে াগ হণ, অথ িবিনেয়াগ িকংবা কান িত ান
7াপন, পিরচালনা বা উহার েপাষকতা করা যাইেব না”। 12. The learned defence Counsel, at the outset, draws our attention to the charge. The relevant portions of the charge are reproduced below:
8“এত ারা আপিন আসামী পারেভজ আলম মন ও হােসন আহমদ @ মািনকেক, িন িলিখত েপ অিভ কিরেতিছ য, িবগত ০৯-০৩-২০১৪ ি ঃ তািরখ র ০১.০০ ঘ কায় অ মামলার বাদীর গাপন সংবােদর িভি েত িসেলট জলার দঃ রমা থানাধীন বেদিশক ডাকঘর ইউিনট িসেলট এর কাযালেয়র সামেন পাকা রা ার উপর স ীয় ফাস সহ উপি ত হইয়া ০৪
9পাে ল এর িভতর (৮+১০+১০+১০) = ৩৮ কাপেড়র াগ রেয়েছ। ০৪
10ােগর িভতের ৪৪২ িমিন পিল াক ৭.৯৫ কিজ পাউডার জাতীয় উ ার বক জ কেরন যাহা আপিন অৈবধভােব িব েয়র উে ে িনজ দখল হফাজেত রািখয়ািছেলন”।
13. The trial Court observed in the judgment, “উপেরর আেলাচনা থেক ইহা তীয়মান হয় য, আসামী হােসন আহমদ @ মািনক এবং আসামী পারেভজ আলম মন এর দখল ও িনয় ণ থেক ৮.৪৫ কিজ হেরাইন িবগত ০৯/০৩/১৪ ি .
11তািরেখ র ১.০০ ঘ কায় উ ার হেয়েছ মেম সে হাতীতভােব মািণত হেয়েছ”.
12Learned defence Counsels submit that according to the FIR, the place of occurrence is the “Office of the Foreign Postal Customs Unit, Sylhet”, whereas, it is stated in the charge that the place of occurrence is the “pucca road situated in front of the Office of the Foreign Postal Customs Unit, Sylhet”. 14. Learned defence Counsel next points out that the charge mentions recovery of 7.95 kgs of “powder-like articles”. The FIR mentions about 7.95 kgs of heroin, which is corroborated by PW13 (informant). But PWs 1, 3-5 mentioned about 8.45
13kgs of heroin, PWs 6-8 mentioned about 8.95 kgs of heroin, and PWs 9-10 mentioned about approximately 9 kgs of heroin.
14The seizure list (ext. 1) mentions about 8.45 kgs of heroin, which has been reflected in the judgment. In this regard, we note that the difference as to the quantum of heroin recovered from the parcels will not have any bearing on the outcome of
the case. The reason would be unfolded in the later part of the judgment. 15. Learned defence Counsel lastly submits that according to the charge, the convicts kept the “পাউডার জাতীয় ” in their possession whereas there is no allegation or iota of evidence whatsoever against them that they kept the articles in their control and possession. This factual aspect is also reflected in the judgment passed by the trial Court, wherein it is observed, “উপ ািপত সা পযােলাচনায় দখা যায় য, যখন জ ত হেরাইন উ ার ও জ করা হয় তখন আসামী ইজেনর কহই ঘটনা েল উপি ত িছল না। য পােসলস হ পরী া কের উ হেরাইন উ ার করা হেয়েছ, স পােসেলর াপেকর কানায় কান আসামীরই নাম নই”. The learned defence Counsel argues that the charge was grossly defective and as such the conviction of the accused for possession and control of the heroin cannot be sustained. 16. The learned Assistant Attorney General (AAG) refers to Section 537 of the Cr.P.C. and submits that the defect in the charge cannot be a ground for setting aside the conviction. 17. Section 537 provides that a finding or sentence passed by a competent Court shall not be reversed or altered on appeal on
15account of any error, omission or irregularity in the charge.
16Explanation to Section 537 states that in determining whether any error, omission or irregularity in any proceeding has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. 18. The learned AAG frankly concedes that the instant case is not a case of actual and physical control and possession of heroin;
17rather, it is a case of heroin trafficking through importation by the convicts, which has been proved beyond reasonable doubt.
18Per contra, learned defence Counsel argues that there is no iota of evidence to connect the convicts with the importation of heroin as alleged by the learned AAG. 19. Out of 34 PWs, 5 PWs were tendered. 12 PWs were employees of the Postal Department. 7 PWs were employees of the Customs Department. 7 PWs were from the Police Department. 1 PW was the Magistrate who reordered the confessional statement of Manik. 1 PW was the Chemical Examiner, and 1 PW was the seizure list (ext. 6) independent witness.
1920. The oral testimony of PW32 (chemical examiner) and the chemical examination report (ext. 8) have established that the recovered articles were heroin. The learned defence Counsels do not dispute it. 21. The informant was examined as PW13. He supported the FIR story in his testimony. He did not mention the names of the convicts. The oral testimony of PW13 establishes that the heroin was imported to Bangladesh from Lahore, Pakistan in four parcels through the Postal Department. 22. PW28 is the 2nd I.O. of the case. He is the star witness. He admitted during cross-examination that he did not arrest the four accused named in the FIR, whose residence and that of Manik are in the same area. PW28 further deposed that Manik was arrested based on mobile phone CDR. However, the CDR was not tendered in evidence. 23. It appears from the seizure list (ext. 6) that on 19.05.2014 at 10.30 pm five mobile phone sets and a black basket with a chain said to be used for carrying heroin were recovered from the house of the convict Manik. The basket in question was not examined by an expert. Five mobile phones and one packet
and foam inside the packet (not black basket) were produced before the Court and were marked as material ext. I series. In this regard, we note that four mobile phone numbers of the recipients written on the parcels containing heroin as stated in the FIR (recipients were dropped from the charge-sheet) and five mobile phone numbers recovered from Manik’s house are different. Neither the recipients nor their mobile phone numbers were examined by the police. 24. Learned AAG and the defence Counsels admit that the entire prosecution case revolves around the confessional statement of Manik. Learned AAG submits that the confessional statement of Manik is inculpatory and the same is true and was made voluntarily. Learned defence Counsels, on the other hand, submit that the confession is exculpatory; the same was neither true nor voluntarily made. 25. The relevant portions of Manik’s confessional statement are reproduced below:
20“… আমার আপন ভািগনা পারেভজ আলম মন।… স িবগত ১৫ বৎসর যাবৎ সপিরবাের ল েন থােক। আিম আমার পিরবার পিরজন িনয়া আমার ভািগনার দেশর বািড়েত থািক এবং তার স ি দখা না কির। মন ায়ই দেশ আেস। গত িডেস র মােস মন আমােক তার না ার "০০৪৪৭৪৫৪১৮২২২৪" থেক আমার
মাবাইল ন র ০১৭১১-৯১০০৯৬ [seized vide seizure list (ext. 6)] এ ফান দয় এবং আমােক দেশর এক ি র মাবাইল ন র িদেয় বেল ঐ ি র সােথ যাগােযাগ করেত। মন আেরা বেল ঐ ি র সােথ যাগােযাগ করেল ঐ ি আমােক এক ােকট িদেব। মন এর কথামত আিম ঐ ি র সিহত িডেস র মােসই যাগােযাগ কির মাবাইলএ। ঐ ি র নাম আমার জানা নাই। ঐ ি পরিদন স ার সময় সাবহািনঘাট এ অবি ত লকিল িমি র দাকােন থাকেত বেল আমােক। তার কথামত আিম পরিদন স ার সমেয় সখােন উপি ত হই এবং ঐ ি আমােক টপ াচােনা এক মাঝাির ব আমােক দয়। ব পিলিথেনর ােগ িছল। আিম াগ িনয়া বািড়েত চেল যাই। এর ১০/১৫ িদন পর মন দেশ আেস। এই ঘটনার িক িদন েব ঐ একই ি ঐ একই জায়গায় আমার সােথ দখা কের একই রকেমর আেরা এক ব আমােক দয়। মন বািড়েত আসার পর আিম ই ব ই তােক দই। পের নেত পাই মন কািরয়ার সািভেস উ ব ই ল েন পাঠান স আমাের বেল বসা করার জ ল েন মােলর sample পাঠালাম। গত ফ য়ারী মােস মন ল ন যাবার েব আমােক বেল স দেশর চারজেনর চার কানা পািক ান পাঠাইেছ। তােদর নােম চার ােকট আসেব। তারা আমার কােছ মাল িল িদয়া যােব। স আেরা বেল যায় মাল িল আিম পাওয়ার পের উ চারজনেক িক কের টাকা িদেত। মন ল েন আমার বরাবের ৭৮,০০০/- পাঠায় এবং বেল টাকা িদেয় তােদরেক অথাৎ উ চারজনেক িশ কের িদেত। মন মাচ মােসর র িদেক দেশ আেস। আিম তখন তােক িজ াসা কির তামার না িক মাল আসার কথা িছল? স বেল উ মাল আর আসেব না, িক সম া হেয় গেছ। স মােচর শষভােগ আবার ল ন চেল যায়। মনেক উ মালামাল স েক িজ াসাবাদ করেল স উ তমােনর গ জা বিলয়া জানায়। … মন আমােক িবগত ০৮/০৩/১৪ ইং তািরেখ জানায় িসেলট foreign post office এর কা মস িবভাগ হইেত ােকেটর গােয় উি িখত মাবাইল ন র এ কল িদয়া মনেক মাল আনেত যাইেত বেল। মন তখনও দেশই িছল। ৪ সীম না ারই মেনর িছল। যখন মন ঝেত পেরেছ তার মাল িল ধরা খাইেছ তখন
21স সব েলা সীম ন রই ব কের ফেল। মন এি ল মােসর ০৪ তািরখ ল ন চেল যায়, আর দেশ আেস নাই। …”. 26. It is recalled that Parvez Alam Sumon was shown arrested in the case after submission of the charge-sheet. His alleged involvement in heroin trafficking through importation came to light when Manik mentioned his name in his confession, wherein he stated that Sumon had been staying in London for the last 15 years. He used to visit Sylhet frequently. In February 2014, Manik left Bangladesh for London. Sumon came to Bangladesh at the beginning of March. He left Bangladesh at the end of March or on 4th April. 27. The 4th I.O. of the case (PW18) deposed that he applied to the Special Police Super Immigration (Airport) for supplying information about Sumon’s overseas travel history and for his arrest. Neither PW18 nor any of the I.O.s deposed anything about the outcome of the request to provide the requisite information. 28. In Dogdu, AIR 1977 SC 1759, it was observed that when in a case involving capital punishment the prosecution demands conviction primarily based on confession, the Court must
apply the double tests: (I) whether the confession is perfectly voluntary, and (II) if so, whether it is perfectly true. The ratio declared in Dogdu was applied in Md. Humayun Kabir, 15
22SCOB [2021] AD 76, wherein it was observed that to prove the charge under Section 302 of the Penal Code primarily based on the confession, it is the duty of the Court to ascertain whether the confession was made voluntarily, and if so, whether the same was true and trustworthy. Satisfaction of the Court is a sine qua non for the admissibility of the confession in evidence. True and complete disclosure of the offence is the soul of a true confessional statement, and the same has to be consistent with the prosecution case. 29. In Abdul Wahab & another, 6 BLD (1986) 390, it was held:
23“Confession means admission of certain facts which
24constitute an offence committed by the maker thereof who
25is charged with the offence which is the subject matter of
26the statement. Confession should be directly on the point
27admitting facts. No statement that contains self-
28exculpatory matter can amount to confession. Confession
29must either admit in terms of the offence or at any rate
30substantially all facts which constitute the offence”.
3130. In light of the above-mentioned cases, let us examine Manik’s confession. According to the confession, before leaving Bangladesh for London in February, Sumon told Manik that four packets would arrive in Bangladesh from Pakistan. The local recipients would deliver those packets to Manik. Sumon returned to Bangladesh at the beginning of March. When asked by Manik, Sumon said that the goods would not arrive due to some problems. Sumon further said that the goods were high-quality ganja. 31. In the next part of Manik’s confession, it is stated that Sumon told Manik on 08.03.2014 that he had received a phone call on the number written on the packet from the Foreign Post Office, Sylhet to collect the packets. PW3 (Supervisor of Postal Department) testified that the Office of the Foreign Postal Department, Sylhet received the parcels on 06.03.20214.
3207.03.2014 and 08.03.2014 were Friday and Saturday respectively. The office was closed on those days. The parcels were opened on 09.03.2014 in his presence. PW3 further deposed that before opening the parcels, they did not inform the recipients and the police. PW13 (informant) also deposed
that the recipients were not informed. PWs 4 and 5 (employees of the Postal Department), who were present at the time of opening the parcels, deposed that before opening the parcels, the recipients were not informed and there is no rule to that effect. PW34 (Customs Officer) testified in cross-examination that the names of the recipients were written on the parcels.
33No notice was given to the recipients by the Customs Department. 32. It is on the face of the record that Manik’s confession has neither been corroborated by the PWs on material particulars nor consistent with the prosecution case. Moreover, it is selfcontradictory in that Manik stated in the confession that Sumon went to London at the end of March, then again, he said that Sumon went to London on 4th April. 33. Section 30 of the Evidence Act provides that where an accused person confesses his own guilt, and at the same time implicates another person who is jointly tried with him for the same offence, his confession may be taken into consideration against such other person as well as against himself. In Ibrahim Mollah, 1987 BLD (AD) 248, it has been held that
when the confessional statement does not implicate the maker, it is not a confession in the eye of law because, from beginning to end, it is nothing but a testimony against the other accused without the maker having involved himself in any part of the commission of the alleged offence. 34. In the instant case, the circumstantial evidence, e.g., Call Detail Record (CDR), which was admittedly obtained by the 2nd I.O. (PW28) and the overseas travel record of Sumon, if any, which was admittedly applied for by the 4th I.O. (PW18), was not tendered in evidence to lend support to the story narrated in Manik’s confession. Manik did not admit guilt in his confession in respect of the offence he was charged with.
34We have no hesitation in holding that the confession is exculpatory. 35. A question arises as to why Manik made the confession. Was he tutored by the police? Was he under the apprehension that if he did not confess, he would be remanded to police custody?
35Can the Court infer such apprehension from the attending facts and circumstances of the case, and if such reasonable apprehension does exist, what would be the consequence?
36Before looking for the answer, a brief discussion of relevant case law would be fruitful. 36. In Dipok Kumar Sarker, 1988 8 BLD (AD) 109, it was held:
37“The only objection as to the confession raised before us
38is that the Magistrate before recording the confession did
39not inform the appellant that he would not be remanded to
40police custody even if he did not make any confession.
41There is no requirement under the law to inform the
42accused as above. Of course, if a Magistrate has any
43reason to believe that the accused is apprehensive of the
44police or that the police might have tortured or prevailed
45upon him during custody, he may assure him by telling
46him as aforesaid but that is not to say that if it were not
47said (in a particular case) the voluntaries of the confession
48would be in doubt. In the present case the appellant was
49produced before the Magistrate for recording confession
50at the earliest possible opportunity, he was arrested in the
51afternoon of 21.12.84 and produced on the following
52morning at 10.00 am. It is on record that as a matter of fact
53the appellant was forwarded to jail custody at 3.00 p.m.
54after recording of confession. There is no material on
55record to show distantly that the appellant was in any
56manner forced by the police to make the confession or that
57the genuineness of the same was not free from doubt”.
5837. In State vs. Abul Hashem, 50 DLR (1988) 17, the abovequoted decision reported in 8 BLD (AD) 109 was discussed.
59It was held:
60“The decision in 8 BLD is distinguishable in this case. In
61the instant case accused persons were kept in police
62custody for two days and therefore it was the duty of the
63Magistrate who recorded their confession to put questions
64as to how they were treated in the police station, why they
65were making confession and that if they made a confession
66or not they would not be remanded to police custody.
67Further, it is found in the record that the Magistrate did not
68inform the accused persons that he was not a police officer
69but a Magistrate. On scrutiny we find in the record that
70Magistrate sent the accused persons to the police custody
71after recording their confessional statements. Therefore,
72we find the Magistrate had no idea or acumen that it was
73his legal duty to remove the utter inducement and
74influence of the police completely from the mind of the
75accused before recording their confession. So, therefore,
76we hold that the confessions made by the accused cannot
77be considered either against the maker or against their co-
78accused”. 38. The cases reported in 8 BLD (AD) 109 and 50 DLR 17 were cited in State vs. Ali Hossain, 18 BLD 655, wherein it was held:
79“In the instant case convict accused Jamila Khatun was directed by the police in the evening of 8.6.1992 and she was in the police custody for long two days till her confessional statement was recorded by the Magistrate on 10.6.92. But the aforesaid words of assurance were not administered to him by the Magistrate P.W. 15. The said words of assurance though not a Rule of Law as such but were a Rule of prudence. Such assurance or caution are necessary in case of long detention of the accused in police custody before the confessional statement is recorded. …It is the bounden duty of the recording Magistrate to try to ascertain whether there was any manner of police torture to assure Jamila Khatun that she would not be sent back to police custody whether she made any confession or not in order to remove any apprehension of any torture or influence by the police in police custody. In the absence of such word of assurance or caution we do not consider the confessional statement made by the accused appellant Jamila Khatun true and voluntary and as such, such confessional statement cannot be used against her or against her co-accused. Similar consideration is also applicable in the case of accused appellant Ali Hossain. Ali Hossain was in police custody since the night of 13.6.1992 till 10-30 A.M. on 20.6.1990. Such a prolonged detention in the police custody of Ali Hossain made it all the more necessary for the Magistrate P.W. 15 to assure
him that he would not be sent back to the police custody
80whether he made confessional statement or not. Absence
81of such assurance rendered the confessional statement of
82accused appellant Ali Hossain untrue and not voluntary
83and as such it cannot be used against him nor against his
84co-accused”. 39. Manik was arrested on 20.05.2014. It appears from the order dated 20.05.2014 passed by the learned Metropolitan Magistrate, Sylhet that on 20.05.2014, police produced Manik before the learned Magistrate and prayed for 10 days’ police remand. The Magistrate granted 5 days’ remand. On 25.04.2014, the police produced Manik before the Magistrate with a prayer for a further 5 days’ remand. 2 days’ remand was granted. Then the confession was made and recorded on 28.04.2014. After recording the confession, Manik was sent to jail. 40. PW19 is the Magistrate who recorded the confession of Manik. He stated in cross-examination that he did not inform Manik that he would not be remanded to police custody even if he did not make any confession. It appears from the confessional statement (ext. 5) that Manik was not questioned
as to how he was treated during a total consecutive (5+2) =7
85days’ police remand. The Magistrate did not take any step to remove the apprehension of inducement and influence of the police completely from the mind of Manik. 41. We have already held that Manik’s confession was exculpatory. More so, being fortified with the cases reported in AIR 1977 SC 1759, 15 SCOB [2021] AD 76, and 6 BLD (1986) 390 (on point of corroboration by PWs) and 50 DLR 17 and 18 BLD 655 (on point of assurance by Magistrate to remove apprehension), we hold that the confession made by Manik is untrue and not voluntary and as such the same cannot be used against him and the co-accused as per provisions of Section 30 of the Evidence Act. 42. Accused Manik turned into a fugitive by jumping bail. Till date, he has remained absconding. Can it be considered as an indication of his guilty mind and conscience? Learned State defence Counsel refers to some case laws and submits that the act of jumping bail ipso facto does not prove a guilty mind. In Alamgir Hossain, 22 BLC (AD) (2017) 155, it was observed that abscondence by itself is not conclusive evidence to infer
either guilt or guilty conscience. It may lend weight to other evidence. In this case, there is no other evidence save Manik’s confession, which has already been held to be unreliable.
86Therefore, no adverse inference can be drawn from Manik’s abscondence. 43. In a case like the present one where it is extremely difficult to obtain direct evidence, or there is no direct evidence at all to prove the facts in issue, the prosecution is permitted to adduce indirect, circumstantial or presumptive evidence from which the existence of the given facts can be logically inferred.
87Circumstantial evidence is not direct to the point in issue but consists of evidence of various other factors which are closely associated with the fact in issue, and taken together they form a chain of circumstances from which the inevitable conclusion can be drawn that the accused are the only perpetrators. To fasten the accused with the crime based on circumstantial evidence, the same must be so strong as to eliminate the possibility of innocence of the accused (Balai Chandra Sarkar, 47 DLR 467) or it would exclude any other hypothesis
than that of the guilt of the accused [Md. Rezaul Huq, 16 BLD (AD) 261]. 44. In drugs and/or narcotics cases, it is not difficult for the prosecution to prove the cases of actual and direct control and possession of the incriminating articles. Difficulties arise in drug trafficking cases which are not cases of actual and direct control and possession. This is a global phenomenon. 45. Mr. Shishir Manir, learned Senior defence Counsel refers to the South African case of Muholi, [2006] ZASCA 38 decided by the Supreme Court of Appeal of South Africa, wherein Muholi was convicted on the charge of drug dealing (494.3
88grams of heroin) and was sentenced to 12 years' imprisonment.
89On appeal, the Johannesburg High Court reduced the sentence to a period of imprisonment for 8 years. 46. Relevant facts are that police received a fax informing them that a parcel of drugs was to be routed via London to Ms Muholi. Police collected the parcel from the airport, took it to their office, took photographs of the parcel and opened it. They found baby bath and baby clothes in the parcel. Packets of a substance, subsequently proved to be heroin weighing 494.3
grams, were kept hidden in the parcel. The address of a local parcel handling business was stated on the parcel. 47. The Supreme Court found that there was no evidence as to the importation of drugs by Muholi. The trial Court and the High Court held that circumstantial evidence led to only one inference that Muholi was part of a chain in a drug dealing transaction. The Supreme Court, while setting aside the conviction, held:
90“It may be that the accumulation of facts from which the
91inference of guilt was drawn makes it probable that
92Muholi was the intended recipient, and knew that the
93parcel contained heroin. But each of the facts relied upon
94in order to draw the inference of guilt leads to another
95reasonable inference. Viewing the circumstantial evidence
96cumulatively cannot lead to the conclusion that the
97probabilities add up to proof beyond reasonable doubt.
98Accordingly, there is no proof beyond reasonable doubt
99that she performed any act in connection with the
100collection of heroin”. 48. In the instant case, three important pieces of circumstantial evidence were not led. Firstly, mobile phone numbers of four recipients of the parcels were not examined and no Call Detail Record (CDR) was obtained; secondly, the CDR of Manik’s
five mobile phone numbers was not tendered in evidence although the same was available which draws an adverse presumption against the prosecution as per clause (g) of Section 114 of the Evidence Act, and thirdly, the overseas travel history of the accused Parvez Alam Sumon was not obtained to corroborate Manik’s confessional statement although the 4th I.O. (PW18) applied to the concerned authority for the same. Moreover, the named recipients of the parcels were neither arrested nor examined by the police, although the 2nd I.O. (PW28) testified that the houses of the recipients of the parcels and that of the accused Manik are in the same area. We have already discarded the confessional statement of Manik as being untrue, not voluntary and exculpatory. Other than the confession, there is no circumstantial evidence to connect the accused with the offence of heroin dealing. This case is, in fact, a case of no legal evidence. The instant case is a glaring example of a shoddy and clumsy investigation, if not a motivated investigation.
10149. In the result, the death reference No. 68 of 2018 is rejected.
102Jail Appeal No. 197 of 2018 and Criminal Appeal No. 6884 of 2018 are allowed. The judgment and order of conviction and sentence dated 11.06.2018 passed in Sessions Case No.1985
103of 2016 by the learned Metropolitan Sessions Judge, Sylhet is hereby set aside. The accused Parvez Alam Sumon and Hossain Ahmed @ Manik (absconding) are acquitted of the charge. Parvez Alam Sumon be set at liberty at once, if not wanted in connection with any other case. The warrant of arrest of Hossain Ahmed @ Manik (absconding) is recalled and vacated.
104Communicate the judgment and order at once. Shathika Hossain, J.
I agree.
Related summaries.
From the record to your case.
Our advocates appear before both divisions of the Supreme Court. These are the practice areas that handle matters like this one.
- Supreme Court practice in BangladeshSlips, mentioning, cause lists and appearances→
- Case JourneysHow a case moves through the courts, step by step→
- Limitation and appeal deadline calculatorKnow your last day to file→
- Curative petitions in BangladeshFinality, article 104 and the case for reform→
- Constitution guideEvery article and amendment, animated→
- Bangladesh legal glossaryBangla and English legal terms, explained→
