23 July 2013 (Final day of appeal proceedings)
To see previous day's proceedings
The bench officer called the matter and the AG went to the dais and started with, “May it please your ordship.” Before he started, the CJ asked him, “Have you got any written (closing) submission in this matter?” The AG replied, “No, my lord.” He then started to make his submission which was as under:
“My first submission is on ‘concept of vested right’. In this regard my submission is- it is not applicable in this case as exemption of enhancement of sentence in case of criminal matters because the appellate court has always the right to increase sentence. Mr Amirul Islam (amicus curiae) has explained this matter properly.” “In criminal cases no one can say that it is my vested right as the sentence can always be enhanced”, he explained. The CJ argued, “But they said they have the right to get notice.” AG replied, “In this regard my submission is the appellate court has inherent power to enhance the punishment.”
AG then continued, “My second submission is by the amendment of the ICT Act merely a forum of appeal has been created. Since the right of appeal has not been curtailed anyway therefore, the alleged vested right has not been curtailed anyway.
AG then made this third submission, “For the sake of argument if it is held that the accused has got vested right, in conclusion of a trial even the legislature has got full power to make a law with retrospective effect .” He acknowledged that this argument has been taken from 63 DLR (AD) 18 (known as Tarek Rahman case) and 34 DLR (AD) 321 (known as Mofizur Rahman’s case).” He further submitted, “There are 4 amendments have been made to this Act (ICT Act 1973)- 1st, 2nd, 3rd amendment’s effects were prospective but the 4th amendment’s effect was (expressly) retrospective.”
He then addressed forth issue. In his words, “Now the question is- when the law was amended why there was no reference made in the amendment by the legislature? The answer is- the intention of the legislature was not to nullify the judgement.”
At this stage Wahab J. suggested, “You can only submit that legislature did not have any intention to take away his (respondent’s) right- if you make this submission then he will be happy”. He then posed a question, “I have still got a question. Suppose, we decide that this appeal is bad. In that situation whether he still required a fresh notice?” AG simply replied, “No, it is not required.”
AG then moved to his fifth submission- “The law is question is a protected legislatiuon. The amendment in question is also protected.” CJ reminded him, “But the learned counsel Mr Razzaq argued that the amendment is not protected.” Then AG replied, “In this regard my submission will be- even it is not protected, it has not violated the provision of the article of the Constitution as the sentence was always there.”
Then AG submitted, “Your lordships have seen the witness statement of Momena (P.W. in this case) but the tribunal has considered this witness wrongfully but if...” CJ stopped him saying that, “You are not supposed to repeat.” The AG the replied and submitted, “OK, I just want to say one thing on application of Customary International Law- your lordship has seen it has been argued by the learned counsel that ‘death’ need to be defined section 3 of the Act (ICT Act 1973). In this regard my submission is- everyone knows the definition of ‘death’ (therefore, it is not necessary to define it or apply the definition under the customary international law). And there is also ‘any other crime under the international law’ in this section. My submission is- the (definition under the) customary international law is applicable only in this case (any other crime under international law). I have already referred a case (Ex-president Ershad’s passport case) in this regard. We have also got decision in 34 DLR and 63 DLR. Therefore, we do not need to go (rely/follow) any other jurisdiction. Your lordship has seen the fact.”
The AG finally prayed, “Thus their appeal should be dismissed because there is nothing to show that he has not committed the offence. Not mentioning something before the I.O. does not prove the same.”
Thus the hearing started on 1st April 2013 came to an end. After that the CJ declared that the judgment on CAV (‘court awaiting verdict’ i.e. will inform the parties one day before pronouncement). Finally, the CJ M Hossain thanked the counsels of both parties for cooperating the bench.
To see previous day's proceedings
The bench officer called the matter and the AG went to the dais and started with, “May it please your ordship.” Before he started, the CJ asked him, “Have you got any written (closing) submission in this matter?” The AG replied, “No, my lord.” He then started to make his submission which was as under:
“My first submission is on ‘concept of vested right’. In this regard my submission is- it is not applicable in this case as exemption of enhancement of sentence in case of criminal matters because the appellate court has always the right to increase sentence. Mr Amirul Islam (amicus curiae) has explained this matter properly.” “In criminal cases no one can say that it is my vested right as the sentence can always be enhanced”, he explained. The CJ argued, “But they said they have the right to get notice.” AG replied, “In this regard my submission is the appellate court has inherent power to enhance the punishment.”
AG then continued, “My second submission is by the amendment of the ICT Act merely a forum of appeal has been created. Since the right of appeal has not been curtailed anyway therefore, the alleged vested right has not been curtailed anyway.
AG then made this third submission, “For the sake of argument if it is held that the accused has got vested right, in conclusion of a trial even the legislature has got full power to make a law with retrospective effect .” He acknowledged that this argument has been taken from 63 DLR (AD) 18 (known as Tarek Rahman case) and 34 DLR (AD) 321 (known as Mofizur Rahman’s case).” He further submitted, “There are 4 amendments have been made to this Act (ICT Act 1973)- 1st, 2nd, 3rd amendment’s effects were prospective but the 4th amendment’s effect was (expressly) retrospective.”
He then addressed forth issue. In his words, “Now the question is- when the law was amended why there was no reference made in the amendment by the legislature? The answer is- the intention of the legislature was not to nullify the judgement.”
At this stage Wahab J. suggested, “You can only submit that legislature did not have any intention to take away his (respondent’s) right- if you make this submission then he will be happy”. He then posed a question, “I have still got a question. Suppose, we decide that this appeal is bad. In that situation whether he still required a fresh notice?” AG simply replied, “No, it is not required.”
AG then moved to his fifth submission- “The law is question is a protected legislatiuon. The amendment in question is also protected.” CJ reminded him, “But the learned counsel Mr Razzaq argued that the amendment is not protected.” Then AG replied, “In this regard my submission will be- even it is not protected, it has not violated the provision of the article of the Constitution as the sentence was always there.”
Then AG submitted, “Your lordships have seen the witness statement of Momena (P.W. in this case) but the tribunal has considered this witness wrongfully but if...” CJ stopped him saying that, “You are not supposed to repeat.” The AG the replied and submitted, “OK, I just want to say one thing on application of Customary International Law- your lordship has seen it has been argued by the learned counsel that ‘death’ need to be defined section 3 of the Act (ICT Act 1973). In this regard my submission is- everyone knows the definition of ‘death’ (therefore, it is not necessary to define it or apply the definition under the customary international law). And there is also ‘any other crime under the international law’ in this section. My submission is- the (definition under the) customary international law is applicable only in this case (any other crime under international law). I have already referred a case (Ex-president Ershad’s passport case) in this regard. We have also got decision in 34 DLR and 63 DLR. Therefore, we do not need to go (rely/follow) any other jurisdiction. Your lordship has seen the fact.”
The AG finally prayed, “Thus their appeal should be dismissed because there is nothing to show that he has not committed the offence. Not mentioning something before the I.O. does not prove the same.”
Thus the hearing started on 1st April 2013 came to an end. After that the CJ declared that the judgment on CAV (‘court awaiting verdict’ i.e. will inform the parties one day before pronouncement). Finally, the CJ M Hossain thanked the counsels of both parties for cooperating the bench.
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