Case Title

State vs Md Ali Reza and Nurul Faysal Mahmud 71 DLR (AD) 332

Court

High Court Division of the Supreme Court of Bangladesh (Judgment Set Aside)

Summary

In State vs Md Ali Reza, the accused were caught after committing a robbery—Md Ali Reza with a revolver and Nurul Faysal Mahmud with stolen goods. Only Md Ali Reza was charged under the Arms Act, as he was in actual possession of the firearm. The court ruled that the charge of carrying firearms does not apply to both jointly. It also held that the accused is entitled to sentence deduction under Section 35A of the Code of Criminal Procedure, 1898. The High Court Division’s earlier judgment was set aside, ensuring fair application of individual criminal liability.

Facts

The case arises from a robbery incident. It involves two accused persons—Md. Ali Reza and Nurul Faysal Mahmud. They were apprehended by law enforcement agencies at the scene of the crime. Md. Ali Reza was found in possession of a revolver, while Nurul Faysal Mahmud had in his possession booties and gold ornaments. That was allegedly obtained during the robbery.

After their arrest, a charge sheet was submitted against Md. Ali Reza under Sections 19A and 19(f) of the Arms Act. On the other hand a report was submitted in favor of Nurul Faysal Mahmud, indicating that he was not in possession of any firearms.

Issues

• Whether the accused respondent is entitled to the benefit under Section 35A of the Code of Criminal Procedure, 1898.
• Whether the period of pre-trial imprisonment should be deducted from the sentence.
• Whether the charge of possession of firearms under the Arms Act applies to both accused or only the one found in actual possession.

Decisions

• The accused respondent is entitled to the benefit under Section 35A of the Code of Criminal Procedure, 1898, that mandates deduction of the period already spent in custody from the total term of imprisonment.
• Only Md. Ali Reza, who was in actual possession of the firearm, is liable to be charged under Sections 19A and 19(f) of the Arms Act, 1878.
• Nurul Faysal Mahmud cannot be charged under the Arms Act, as he was not found in possession of any firearm.

Accordingly, the judgment of the High Court Division that may have been inconsistent with these findings was set aside.

Legal Reasoning and Justifications

The court reaffirmed the principle that criminal liability under the Arms Act requires actual possession of a firearm. Joint commission of a s does not extend firearm-related charges to co-accused who are not individually in possession of arms. The prosecution’s evidence and the charge sheet corroborated that only Md. Ali Reza was in possession of the firearm, while Nurul Faysal Mahmud carried stolen property but no weapons.

Furthermore, under Section 35A of the Code of Criminal Procedure, 1898, any period of detention already undergone by an accused before conviction has to be deducted from the total term of imprisonment. This principle is grounded in considerations of fairness and prevention of excessive punishment through double detention.