The Prosecution miserably failed to prove the case of dowry. So no case was proved under section 11(ka) of the Ain rather it has proved the case of murder under section 302 of t he Penal Code. Invoking Articles 104 of the constitution, the sentence should be altered to imprisonment for life under section 302 of the Penal Code instead of death under section 11(ka) of the Ain 2000- Anarul @Anarul Huq vs State (Criminal),67 DLR (AD) (2015) 172,Section 302
Though accused Mobile Quader was not Charged under section 302/109 of the Penal Code. In view of the provisions of section 535 of the Code,we do not find any legal difficulty in finding him guilty under the sections and convicting and sentencing him there under as there are abundance of evidence against him to warrant the conviction under the sections. Moreso,we do not see any any prejudice to be caused to accused- Mobile Quader for non framing of charges against him under sections 302/109 of the Penal Code by the Tribunal as he got all the opportunities to defend him by cross-examining the prosecution witnesses- State vs Abdul Quader @ Mobile Quader (Criminal) (2015) ,67DLR(AD) 6, Section – 302/109
The Provisions of Sub Section (2) and (4) of section 6 deprive a tribunal from discharging it’s constitutional duties of judicial review whereby it has the power of using discretion in the matter of awarding sentence in the facts and circumstances of a case and thus,there is no gain saying that sub-sections(2) and (4) of section 6 of t he Ain as well as section 303 of the Code run contrary to those statutory safe -guards which give a tribunal the discretion in the matter of imposing sentence- Bangladesh legal Aid and Services Trust (BLAST) vs State (Cuvil),67 DLR (AD) (2015) 185,Section 303
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