CASE STUDIES

Some High Profile Cases

ELEPHANT WRIT

Elephants have been revered for centuries in Asia, playing an important role in maintaining the ecosystem they inhabit and also in the continent’s culture and religion. Bangladesh is one of the 13 Asian Elephant range countries and holding the responsibility to contribute to the global effort for conserving this majestic animal.

Asian elephant populations in Bangladesh are under danger due to the negative consequences of a lack of food, habitat loss and degradation, and outright murder. Furthermore, there is a significant amount of confrontation between humans and elephants in Bangladesh, which leads to human deaths, crop theft, resource destruction, and, eventually, the retaliatory slaughter of elephants by damaged local populations.

For many years elephants have travelled through a specific path which is called the “Elephant Corridor”. Elephants have been using this corridor whenever they migrate to this country which is supported by the reports of IUCN. The Asian elephants have utilized the Chittagong hills as a migration path for decades, going back and forth from Myanmar. Wild elephants have been spotted in the Chunati of Lohagara-Satkania, Banshkhali-Rangunia, Bandarbon, Sherpur and Rangamati areas, according to the International Union of Conservations of Nature (IUCN). As per the IUCN’s 2016 elephant census, 63 wild elephants were discovered in Cox’s Bazar’s southern forest division, with another 205 observed in the country’s other regions, including Bandarban, Sherpur, and Mymensingh.

These elephants’ secure habitat in Cox’s Bazar and the surrounding forests has been deteriorated as a result of a number of issues, including illegal encroachment, illegal farming in the forest areas, a lack of sufficient food, and severely constrained corridor movement.

The Wildlife and Nature Conservation Department of the Chittagong Circle has reported that since 2001, some 120 elephants have perished for a variety of causes, including direct killings. Between 2001 and 2017, 90 elephants were wiped off in Bangladesh. Meanwhile, in just 20 months from January 2020 to August 2021, roughly 28 elephants were brutally butchered. Twenty-three of them were slain in Cox’s Bazar alone. If the killing continues then within a near future the number of elephants will be reduced drastically as Asian elephants are specified as “critically endangered”.

Thus it is essentially important to take steps immediately to reduce the risk of extinction of the Asian elephants.

The Honorable High Court Division passed an Order issuing a Rule Nisi that –

 

To show cause

as to why the inaction of the Respondents to declare the Elephant Corridors as the protected area as Corridors, and as to why the Respondents should not be directed to declare the Elephant Corridors as the protected area as Corridors by notification in the official gazette as per the provisions of section 20(1) read with section 2(10) of the Wildlife (Conservation and Security) Act 2012,

as to why the inaction of the Respondents to take immediate necessary steps to preserve and safeguard the lives of elephants from being subjected to unlawful killing by local inhabitants and vested quarters in flagrant violation of the provision of section 36(1) of the Wildlife (Conservation and Security) Act 2012, should not be declared as illegal, without lawful authority and is of no legal effect, and

also to take immediate necessary steps to preserve and safeguard the lives of elephants from being subjected to unlawful killing by local inhabitants and vested quarters in flagrant violation of the provision of section 36(1) of the Wildlife (Conservation and Security) Act 2012.

Take immediate necessary steps to immediately stop the ongoing unlawful killings of elephants and to submit before the Hon’ble Court a report of the steps taken to prevent such unlawful killings of elephants.

Ohona Death case reported in 29 BLT (HCD) 2021

Ohana, the victim, died on August 23, 2014, at the age 4 ½ years, from a brain tumor that had gone undetected for a long time by the accused no. 1 and was then wrongfully and negligently mistreated by accused nos. 2-4, all of whose documentary evidence was filed by the Petitioner. Square Hospital failed to detect the victim’s brain hemorrhage in their Medical Report dated 17.08.2013, but the Medical Report of the Bangkok Hospital on the same day, revealed two brain hemorrhages of the victim, and spanning over a period of 48 hours ended all possibilities of the victim surviving. Furthermore, throughout this time Square Hospital saw no need to do a CT scan or an MRI on the victim, and this omission was not only negligent but also deadly in the case of a neuro-patient like the victim. The learned Magistrate, on 11.01.2015, examined the complainant under Section 200 of the Code and forwarded the complaint petition for investigation to the Vice-Chancellor, Bangabandhu Sheikh Mujib Medical University, Dhaka, who formed a medical team and submitted its report. After a considerable period of time, the investigation team presented its final report on July 19, 2016, without complying with three (three) recommendations made by the learned Magistrate in his order of September 17, 2015. – The learned Magistrate’s order dated 16.11.2016 dismissed the accused-opposite party Nos.2-4 and only took cognizance of the offence under Section 304A of the Penal Code against the accused No.1 of the complaint petition. The revisional court then summarily rejected the revision and upheld the ruling of November 16, 2016.

The key issue in the instant case was whether or not Square Hospital Limited followed the International Treatment Protocol, is a matter for trial that can only be determined after both contesting parties have presented evidence, which cannot be done in this forum under Section 561A of the Code of Criminal Procedure. The High Court held that the order of the learned Sessions Judge affirming the learned Magistrate’s order of 16.11.2016 discharging the accused-opposite party nos.2-4 was not legal, and as a result, set aside the order and directed the learned Magistrate to conduct further investigations and act in accordance with the law.

Ohona Death Case

Mirza Arunima Shahpar (Ohona), being a patient of brain tumor, died on 23/08/2014 just at the age of over 4.5 years. Ohona’s father, Architect Mirza Shahpar Jalil, conveyed his best effort to save his little daughter and sought treatment from renowned Pediatrician and Square Hospital. However, at one point of time realizing that Ohona was not receiving proper treatment, Ohona’s father took his daughter to Samitivej Children’s Hospital, Bangkok in an air ambulance in his dire attempt to save his little daughter. Even though Square Hospital conducted a VP Shunt operation of Ohona on 15/08/2013, they did not conduct even one follow-up CT scan or MRI even after the lapse of 2.5 days to know the post-operative condition of Ohona’s brain tumor. Seeing no progress of Ohona’s treatment till 17/08/2013, Ohona’s father was compelled to take her daughter to Bangkok for better and effective treatment and on the same day, i.e. on 17/08/2013, the Hospital in Bangkok took Ohona to their PICU and performed CT scan by keeping her in full life support and in that CT scan 2 numbers of hemorrhages were detected. Thereafter, Ohona could not survive even after going through a lengthy treatment procedure.

After the death of Ohona, her exhausted father having lost his most lovable daughter started to go through the concerned medical papers and reports and consult some experts in the area, and gradually he started to realize that Ohona died because of the negligent treatment conducted on her. Being aggrieved, Ohona’s father filed a criminal case in the Court of learned Metropolitan Magistrate, Dhaka, on 11/01/2015 against Dr Kazi Noushad-Un-Nabi, Mr Md Masudur Rahman (the then Consultant of Child Department & PICU of Square Hospital Ltd), Professor Dr Sanawar Hossain (the then Director of Treatment Service, Square Hospital Ltd) and Square Hospital Ltd, under sections 304A/34 of the Penal Code.

The learned Magistrate ordered the then VC of Bangabandhu Sheikh Mujib Medical University (BSMMU) to conduct an enquiry into the truthfulness of the allegations of the case. After the lapse of more than 1.5 years, the concerned inquiry committee submitted a report in the court stating that due to the reasons mentioned in the report, it is not possible to give a complete opinion as to whether or not anyone is responsible for the death of the victim.

On receipt of the report and after hearing the complainant-petitioner’s lawyer, the learned Magistrate took cognizance of the offence against just one accused, Dr Kazi Noushad-Un-Nabi, and discharged everyone related to Square Hospital by passing a detailed order. Against that order, Ohona’s father filed a revision application in the Court of learned Metropolitan Session Judge, Dhaka, and the said Court summarily rejected the application. Being further aggrieved, Ohona’s father filed an application before the Hon’ble High Court Division of the Supreme Court of Bangladesh and a Division Bench comprising their Lordships Madam Justice Farah Mahbub and Mr Justice Mahmudul Hoque issued a Rule in the case.

Subsequently the matter came up for hearing in the Division Bench comprising their Lordships Mr Justice A. K. M. Abdul Hakim and Madam Justice Fatema Najib. After hearing both the contesting parties, their Lordships fixed 23/02/2021 for judgment. Barrister Khan Khalid Adnan has been conducting the case for Ohona representing the complainant-petitioner in the case. 

The concerned High Court Division on 23/02/2021 made the Rule absolute in favor of the Complainant-Petitioner and set aside the order of learned Sessions Judge affirming the order dated 16.11.2016 passed by the learned Magistrate discharging the accused-opposite party nos. 2-4 and directed the learned Magistrate to make further enquiry into the matter and act with the case in accordance with law.

This is a landmark judgment in the area of clinical negligence and the law of cognizance. 

Payel Murder Case

Payel Murder Case is also one of the most important cases conducted by KSRA where a student of North South University named Payel was brutally killed by the staffs of a well-known bus company of the country, named Hanif Enterprise. Our Head of the Chamber, Barrister Khan Khalid Adnan, was engaged as a private prosecutor by Payel’s family in this case. All the three accused in the Payel Murder Case was given death sentence by the Tribunal in November 2020. The Tribunal in this case commented in the judgment that it was not a case of road accident, rather it was a case of clear murder. Further the Tribunal directed the concerned Government authorities to take appropriate steps in ensuring safety and amenities for the passengers during their inter-city travels. This is also a remarkable case in the area of road traffic accident in Bangladesh. In this case, while arguing for the prosecution, Mr Adnan had to make innovative submission respecting the laws of mens rea (mental state) of the accused to prove that they are guilty of murder rather than other form of culpable homicide. This case also received substantive media coverage nationally.

Tareq Masud & Mishuk Munier Case

The Head of our Chamber, Barrister Khan Khalid Adnan, has been appointed private prosecutor in the landmark Tareq Masud & Mishuk Munier Case where a bus driver through his negligent and reckless driving committed homicide respecting some significant media personalities of the country that include Mr Tareq Masud, the world famous film director from Bangladesh, and Mr Mishuk Munier, another well renowned media personality having massive impact in his area of expertise, i.e. journalism and entertainment. In this case, the driver of the bus hitting the vehicle carrying the victims was sentenced to imprisonment for life and this kind of judgment had been one of a kind respecting road traffic accident cases in Bangladesh. There was no such reference respecting road traffic accident cases prior to this case, and this case has been remarkable in its impact in shaping the future of the development of tort law in Bangladesh in the garb of criminal law. After the verdict of guilty with a sentence of imprisonment for life came out in 2017, Parliament repealed the old and outdated Motor Vehicles Ordinance 1983 and enacted the new Road Transport Act 2018. This case received substantial media attention, both at an international and domestic level, and the whole case was covered by the media thoroughly. In this case, team KSRA extensively conducted research as there was no specific precedent in these types of cases where the charge was for culpable homicide not amounting to murder.