IN 1lL SUPRLML COUR1 Ol BANGLADLSl

lIGl COUR1 DIVISION

,SPLCIAL ORIGINAL JURISDIC1ION,
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An application under Article 102 o the
Constitution o the People`s Republic o
Bangladesh,
A N D
IN 1lL MA11LR Ol
M. Anwar lossain and others.
. . Petitioners in \.P.No.236 o 2010.
with
lasanul luq Inu
. . . Petitioner in \.P.No.826 o 2011
with
Major Ziauddin and others
... Petitioner in \.P.1048 o 2011
And
Md. Abdul Mazid
... Petitioner in \.P.1059 o 2011.
Mr. Rokanuddin Mahmud
....lor the petitioners in \.P. 826,2011.
Dr. Shahdeen Malik, with
Mr. Md. 1awhidul Islam, Adocates
... lor the Petitioner in \.P.236,10.
Major Ziauddin and others,,In person,
... In \.P.1048 o 2011
And
Md. Abdul Mazid ,In person,
... In \.P. 1059 o 2011
-Versus-
Goernment o Bangladesh and others
Respondents in all the \rit Petitions.
Mr. Mahbubey Alam, Attorney General with
Mr. ABM Alta lossain, DAG
Mr. Motaher lossain Saju, DAG
2
Mr. Mohammad Salim, DAG and
Mr. Md. Shahidul Islam Khan, AAG
Mr. Amit 1alukdar, AAG
Mr. Shoeb Khan, AAG
Ms. Purabi Saha, A.A.G.
... lor the Respondents 1 and 2.
Mr. M.K. Rahman, Addl. Attorney General with
Mr. A S M Nazmul laque, AAG
Mr. Delwar lussain Samaddar, AAG
... lor the Respondent Nos. 3 and 4.
Dr. Kamal lossain,
Mr. M. Amir-ul Islam,
Dr. M. Zahir,
Mr. M.I. larooqui,
Mr. Akhter Imam,
Mr. A.l.M. Mesbahuddin,
Mr. \usu lossain lumayun,
Mr. Abdul Matin Khasru and
Mr. Z.I. Khan Panna, Adocates
... Amicus-Curaie
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Present:
Mr. Justice A.l.M. Shamsuddin Choudhury
And
Mr. Justice Sheikh Md. Zakir lossain

A.l.M.Shamsuddin Choudhury,J.-

As many as our \rit Petitions, registered as \rit
Petitions no. 236 o 2010, 826 o 2011, 1048 o 2011 and 1059
o 2011 respectiely had been iled challenging the alidity o
the (i) Proclamation dated 20
th
August, 195, whereby the
whole o Bangladesh was placed under Martial Law, ,ii, the
3
Martial Law Regulation No. XVI o 196, published in the
Bangladesh Gazette Lxtraordinary dated 14
th
June, 196 and
,iii, the judgment and order dated 1
th
July, 196 passed by the
Special Martial Law 1ribunal in Special Martial Law Case No. 1
o 196, conicting all the petitioners in all the our petitions
and the deceased husbands o Petitioner Nos. 2 and 3, in \P
236,10 under section 121A o the Penal Code.
All the Petitioners were sentenced to suer imprisonment
or arying terms while Lt. Col. ,retd., M. A. 1aher, Bir Uttam,
husband o the Petitioner No. 2 in \P 236,10, was sentenced
to death, which was executed on 21
st
July, 196. llight Sergeant
Abu \usu Khan, Bir Bikram, husband o the Petitioner No. 3,
in \P 236,10, was sentenced to suer imprisonment or lie.
Since the basic theme and the relie craed in all these
petitions are identical, they are taken up or adjudication as a
lump.
Proessor M. Anwar lossain, an eminent personality in
our academic horizon, endowed with exquisite academic
achieements gained rom arious educational institutes o
uniersal acclamation, who attained wide spectrum notoriety,
not merely by dint o his intellectual pursuit but also because o
his actie participation in our Glorious \ar o Liberation, iled
4
the irst cited petition beore us along with two other
Petitioners, one o whom is his sister in law, inoking Article
102 o the Constitution.
Salient parts o the aerments that emerge rom the irst
aorementioned petition, i.e. the \rit Petition no. 236 o 2010,
run as ollows,
On 20
th
August 195 the whole o Bangladesh was
purportedly placed under so-called Martial Law`, ollowing a
purported proclamation to that eect on the same day. One
Khandakar Mushtaque Ahmed purportedly took oer all and
ull powers o the goernment o the People Republic o
Bangladesh.`
A succession o actions by the then so-called goernment
ollowed the said proclamation, which included the arrest o the
husband o the Petitioner no. 2 on 23
rd
Noember 195 and
the arrest o the Petitioner no. 1 himsel on 15
th
Noember
196. 1hey were apprehended ollowing the J>=H;?G: o a so-
called irst inormation report ,lIR, with the Mohammadpur
Police Station on 4
th
June 196. Section 121 A o the Penal
Code was cited in the said lIR along with some other
proisions o the said Code.
5
1he lIR led to the purported commencement o a case
that was recorded as Special Martial Law 1ribunal Case no. 1 o
196. Both the Petitioners were purportedly ound guilty
ollowing a so-called trial and the spouse o the Petitioner no. 2,
a Valiant lreedom lighter, named Lt. Colonel ,Rtd,, M.A.
1aher, who was decorated with the Gallantry Award, Bir
Uttam, the highest award or a suriing lreedom lighter, or
his spectacular contribution in the Liberation \ar, was
purportedly sentenced to death, while, llight Sergeant Abu
\usu Khan, who was also honoured with another Gallantry
Award, namely Bir Bikram, the spouse o the Petitioner No. 3,
was purportedly sentenced to lie imprisonment, while the
Petitioner No. 1 was purportedly sentenced to a term o ten
years imprisonment and to pay a ine or to suer an additional
term o 2 years in deault o payment. 1he purported erdicts
were deliered on 1
th
July 196.
1he so-called special tribunal was set up under the
purported martial law regulation no XVI o 196, section 3,4,
which equipped the so-called tribunal with power to try any
oence, whether committed beore or ater the
commencement o the regulation. Crimes under Chapter VI
and VII o the Penal Code were also brought within the so-
6
called tribunal`s jurisdiction by section 3,4,,a, o the regulation.
1he so-called regulation empowered the tribunal to sit in
camera at the so-called chair`s discretion.
1he so-called regulation placed a total clog on appeal,
stipulating, No appeal shall lie to any authority rom any
decision or judgment o the tribunal`.
Section 4,10, thereto stipulated that when the tribunal
would sit in camera, the chair would require persons attending
or otherwise participating in the trial to subscribe to an oath o
secrecy against disclosure o anything in connection with the
trial.
1he so-called special tribunal was composed o one Army
Colonel, named \usu laider ,who chaired it,, one Air lorce
\ing Commander an Acting Commander o the Nay and two
Magistrates.
A handout dated 18
th
June 196, issued by the chair o the
so-called tribunal, required some 11 persons to surrender
beore the tribunal on or beore 21
st
June 196 in connection
with the case in which Lt. Col. M.A. 1aher, Bir Uttam, llight
Sergeant Abu \usu Khan, Bir Bikram and the Petitioner No. 1
were purportedly impleaded as accused.
7
1he so-called trial o the so-called Special Martial Law
1ribunal Case no. 1 o 196 proceeded in total secrecy inside
Dhaka Central Jail.
Although the Petitioner No. 1, and the spouse o the
Petitioners no. 2 and 3 were allowed to be represented and
deended by Adocates, the Petitioners No. 2 and 3 were neer
allowed to attend. Because o the so-called oath o secrecy,
participants in the trial could neer diulge any inormation on
the so-called trial to the Petitioners no. 2 and 3.
1he Petitioner no. 2 was neer allowed, despite incessant
requests, to meet her husband. ler written request to that
eect was neer responded to. It is only rom the news paper
reporting that she came to know o the purported coniction
and the sentence that was passed on her husband.
On learning o the purported passage o death sentence
on her husband, the Petitioner No. 2 preerred an application
to the so-called president, to the so-called chie martial law
administrator and to Major General Ziaur Rahman, the so-
called deputy chie martial law administrator, seeking an
abeyance on the conirmation o the sentence and to put the
same on halt.
8
She was, howeer, told in reply, that the president has not
been able to accede to her prayer.
1he purported death sentence on Lt. Col. M. A. 1aher,
Bir Uttam, was executed on 21
st
July 196, whereater his corps
was remoed rom Dhaka Central Jail in a pick up and then was
lown by a helicopter to his illage named Kazla, under
Purbadhala Police Station in Noakhali.
1he Petitioner No. 1 and the spouse o the Petitioner no.
3 were released rom the prison in June 1980, yet they were not
supplied with any oicial document as to their release at any
point o time, not een today. No document or certiied copy
on the trial, the charge, deposition, proceeding, judgment or
any other matter quo the trial was eer gien to the Petitioner
No. 1, although he tried heaen and earth to procure the same.
1hrough a purported Act o Parliament, purportedly
passed on 06
th
April 199, the so-called 5
th
Amendment Act, all
so-called proclamations, proclamation order, martial law
regulations, martial law orders and other laws ,henceorth
collectiely cited as martial law instruments, as well as all
amendments, modiications, substitutions made thereo,
including amendments to the Constitution, brought about by
such proclamations and regulations and all actions and
9
proceedings taken or purportedly taken under those
proclamations during the period between 15
th
August 195 and
9
th
April 199, were ratiied and conirmed.
1hat purported amendment, had, howeer, been declared
oid and non-est by this Diision in the case o Bangladesh
Italian Marble \orks Ltd-V-Goernment o Bangladesh, best
known as the 5
th
Amendment Case, reported in the Special
Issue o Bangladesh Law 1imes 2006.
A leae petition iled with a iew to challenge the said
Judgment o this Diision, was turned down by the Appellate
Diision, though certain minor modiications were inused into
this Diision`s Judgment.
It is the Petitioners` emphatic assertion that since the
Supreme Court has declared the so-called 5
th
Amendment to
the Constitution illegal and oid ab-initio, and has, thereby,
wiped out the purported ratiication, conirmation and
alidation o the so-called martial law instruments, the
impugned purported trial and all the proceeding leading to the
impugned judgment and order dated 1
th
July 196 in the
so-called special martial law tribunal were but deoid o
legal sanction and as such, o no eect in law as being
repugnant to the Constitution. 1hey also assert that the whole
10
notion o camera trial, oath o secrecy, embargo on appeal are
palpably abhorrent not only to our Constitutional Scheme, but
also to minimum tenet o Justice.
By a supplementary aidait the Petitioner No. 1 stated
that one Mr. Lawrence Lischultz, who was the South Asian
correspondent o the lar Lastern Lconomic Reiew, is
possessed o inaluable and, otherwise unobtainable and
untraceable inormation on the whole episode by haing been
in Bangladesh to coer the so-called trial or his named Journal,
although he was, subsequently expelled rom Bangladesh by the
goernment headed by General Ziaur Rahman. It has also been
reealed through the said supplementary aidait that Mr.
Lischultz had uneiled plentitude o precious and, hitherto,
undisclosed, inormation on the trial, he gathered through his
inestigatie journalistic pursuit, which was irst published in
19 in the Special Ldition o an India based Journal, named
Lconomic and Political weekly` ,Bombay, under the caption
1aher`s Last 1estament`. It has urther been stated that on
28
th
January 2011, two treatises authored by him on the so-
called trial were published in Daily Prothom Alo and that they
contained elaborate actual analyses o the said trial as well as
the author`s personal account on Col. 1aher.
11
1he Petitioners went on to narrate that Col. 1aher, Bir
Uttam, inspired his entire amily to actiely participate in the
1riumphant Liberation \ar. le himsel led Pakistan to join
the \ar being propelled by his own conscience to ulill his
long cherished dream, rather than being orced to do so by
subordinates.
As a Sector Commander he led many historic battles to
capture a strong Pakistani outpost, named Kamalpur, which
was known as the Gateway to Dhaka,` and it was his strategy
which was ollowed by the lreedom lighters o Sector 11
along with the allied orces o India to mark their maiden entry
into Dhaka on 16
th
December 191. Although Col. 1aher
himsel could not be present to witness the historic eent due
to the injury he sustained during the war, llight Sergeant Abu
\usu Khan, Bir Bikram, the spouse o the petitioner No. 3,
represented Col. 1aher on the occasion. Indeed, it was lt.
Sergeant Khan, who, along with the Indian Army went to the
Lastern Command lead Quarters o the occupying Pakistani
Army at Dhaka Cantonment on 16
th
December in the morning
to negotiate the terms o surrender with the Pakistan Army and,
as a member o the Victorious Liberation Army, it was him
who plucked the lag rom the sta car o Lt. General Niazi,
12
the deeated chie o the Lastern Command o the Pakistani
Army.
All o the eight siblings, six male and two emale, o Col.
1aher directly participated in the \ar o Liberation, o whom
our receied Gallantry Awards.
1he career o the Petitioner No. 1 as a Lecturer at the
Department o Biochemistry in Dhaka Uniersity, came to an
abrupt impasse with the arrest o his two brothers, Col. 1aher
and lt. Sergeant \usu Khan, which eent plunged his amily
into turmoil. 1he whole amily ound themseles at a
paradoxical jeopardy, they ell prey to the engeance o General
Ziaur Rahman. 1he Petitioner No. 1 had to go to the ground.
On arrest, he was interned in a clandestine torture cell known
as Sae lole`, located inside Dhaka Cantonment, and was
kept there until 15
th
June 196, the day on which he was
handed oer to the Dhaka Central Jail authority. 1he period in
the said torture cell was kept concealed.
1he so-called accused persons, 33 in number, included
reered Sector Commanders and ront line organizers o the
Liberation \ar. It was a conglomerate o Politicians, Military
Personnel, \riters, Journalists, 1eachers, Lconomists and
People engaged in intellectual cultiation, who olunteered to
13
stake their lies to secure the emancipation o their mother land
ater the Pakistan Army unleashed genocide on the Bengali
People.
1he person who chaired the so-called special tribunal,
Col. \usu laider, was one o those who collaborated with
Pakistani Army o occupation. Mr. A1M Azal, subsequently
prized with eleation to the ligh Court Bench, acted as the
special public prosecutor.
Although the martial law regulation, by which the
purported tribunal was ormed, was itsel promulgated on 14
th

June 196, it is that ery day on which the tribunal personnel
isited Dhaka Central Jail and, indeed it was on 12
th
June that
the oice o the Deputy Inspector General o Prison was
acated to accommodate the tribunal.
In his book, titled, Democracy and the Challenge o
Deelopment: A study o Political and Military Interentions in
Bangladesh`, Barrister Maudud Ahmed, a close associate o
General Ziaur Rahman, wrote, \hy did Zia allow 1aher to be
hanged, the person who reed him rom captiity . . . . the
oicers who had not taken part in the liberation war, had ound
a new ally in Zia ater the killing o Mujib and remoal o
Mushtaque. 1hey needed each other to surie both as a class
14
and a orce in the Ciil-Military structure o the country. \hen
it came to sentencing o 1aher, the repatriated oicers wanted
him hanged. Out o the orty six senior army oicers,
summoned by Zia to discuss the issue, all were in aour o this
ultimate and inal orm o punishment` ,page 29-30,. In the
oot note, Barrister Moudud mentioned, 1his was disclosed to
him by Zia himsel`.
In a recent Article under the caption, 1rial in Military
Court. 1he documents o the hanging order o Colonel Abu
1aher`, Dr. AMM Showkat Ali, who was placed as the Deputy
Commissioner o Dhaka in 196, published in the Daily
Prothom Alo on 19
th
September 2010, wrote, At that time
there was martial law in the country. It was alleged that a
summary trial was held by a martial law tribunal ormed by the
then army chie. It is apparent that extrajudicial murder was
committed in the name o trial because i a death sentence is
pronounced by a court which is ormed outside the jurisdiction
o the Constitution, it will be termed extrajudicial murder by
international standards`.
It is obious that the death sentence handed down on
Col. 1aher was not een based on the decision o the mock
tribunal created by Zia, it was, indeed, the ollow up o a
15
decision that was taken at the meeting o the ormation
commanders held at the Army lead Quarters at the
Cantonment, where most o the oicers present had not
participated in the Liberation \ar. It is hence, eident that
General Ziaur Rahman and his collaborators conspired to kill
Lt. Colonel 1aher in disguise o a mock trial: only one in the
meeting opposed the idea.
Major ,Rtd, Ziaudn, another triumphant lreedom
lighter, widely exalted or his rectitudeous contribution in the
\ar o Liberation, also iled an application, along with
Corporal ,Rtd, Shamsul laque and labildar Abdul lai
Mazumdar, engaging Article 102 o the Constitution which was
registered as \rit Petition No. 1048 o 2011, which also
generated a Rule Similar to the one \rit Petition no. 236,
2010 engendered. 1heir aerments, on primoradial counts and
acts, are identical to those laid down by the petitioners in the
earlier \rit Petition and hence we are iguring below only those
aerments which are unique to these Petitioners, in summarised
ersion,
Major ,dismissed, Ziauddin, the Petitioner no. 1 was a
Major in the Bangladesh Army who was dismissed rom the
serice in consequence o his coniction in the aboe
16
mentioned special tribunal case no. 1 o 196, though he was
neer gien any order or document regarding his dismissal. le
actiely participated in the liberation war in 191 and primarily
ought in Sunderban sub-sector under Sector-9 o Bangladesh
Muktibahini. le was impleaded as an accused person in the
special martial law tribunal case no. 1 o 196. le was
commissioned by Pakistan Military Academy on 6
th
September
190. le was in the actie serice with the rank o a Major at
the time o his arrest on or around 4
th
January, 196.
1he Petitioner no. 2 was a Corporal in the Bangladesh Air
lorce, who joined the then Pakistan Army in 1966 and was
posted in the Radar Station in 191. le escaped rom the
captiity in Pakistan and joined the Liberation \ar on 23
rd

August, 191. Ater the Liberation o Bangladesh he joined the
Bangladesh Air lorce on 5
th
January, 192 and was in the
serice until his arrest on the 23
rd
Noember, 195,
1he Petitioner no. 3 was a red-blooded lreedom lighter,
who actiely participated and ought in the liberation war. le
joined the then Pakistan army in 1965. le actiely participated
in the reolt in the Jessore Cantonment on 2
th
March, 191.
le remained posted as a laildar in the 22 Bengal Regiment
until his arrest in the last week o Noember, 195.
17
All three o them were implicated as co-accused in the
Special Martial Law 1ribunal Case no. 1 o 196. 1hey were
kept conined in a small room in the Central Jail, Dhaka all
along, in strict secrecy and in a surreptitious manner.
1hey were neer aware o the charges brought against
them or the alleged oences they were arrested or. At no point
o time were they supplied with any lIR, any complaint or any
kind o paper whatsoeer relating to the alleged arrest, custody
or trial.
1hey were not allowed to talk to any lawyer or Adocate.
Len their closest relaties did not hae any access to them.
1he so-called trial continued or about 1 days, during
which they did not know what were the charges that they were
implicated with, because they were neither supplied any paper
nor were the charges read oer to them. 1hey did not hae the
slightest idea as to the eidence that were to be adduced against
them.
All the accused, including the petitioner no. 1, were used
to be brought in the so-called court room in the Central Jail,
handcued and bareooted and were all put inside a barbed
cage as i they were roman slaes.
18
Neither them nor the lawyers appearing or dierent
accused, were eer allowed to cross examine the prosecution
witnesses, they were escorted by guards to the court and were
hurriedly taken away ater their hasty deposition. 1he accused
were not at all aware o the contents o the deposition.
1he accused persons were hardly gien a chance to say
anything in their deense or to repudiate the accusation brought
against them or to contradict the deposition o the witnesses or
to produce any deense witness.
1he so-called judgment and order was read out on 1
th

July, 196. 1he Petitioners were sentenced to suer rigorous
imprisonment o arying terms and to pay ines.
Ater the pronouncement o the judgment and order, the
judges o the tribunal switly went away and the accused were
taken o to their cells.
In May, 196 the Petitioner No. 2 was taken blindolded
to an unknown place and was inhumanly tortured with electric
shocks amongst other, and was intimidated to become a
prosecution witness against the other accused. le came to learn
that his wie was told that he would ace the same consequence
as Col. 1aher would.
19
le was made an accused in the said Case as he reused to
turn into an approer.
1he petitioner no. 3 was arrested around the last week o
Noember, 195 rom 22 Bengal Regiment, was taken to an
unknown place blindolded, was kept in captiity therein or
almost 8 ,eight, days and was subjected to merciless physical
torment.
le was asked to become a prosecution witness against
Col. 1aher and to depose that Co. 1aher was a reolutionary
who injected politics into the Army. le was seerally
excruciated and sent to Central Jail and was made an accused in
the case because o his declination to depose or the
prosecution.
1he Petitioners were arrested along with other co-accused
purportedly or crimes alleged in lIR no. 8, dated 4.6.196 o
Mohammedpur Police Station.
1he aboe noted lIR purportedly animated the Special
Martial Law 1ribunal Case no. 1 o 196 and the accused were
tried and ound guilty by the aorementioned tribunal along
with others on 1.0.196. Lt. Colonel ,retd., M. A. 1aher, Bir
Uttam, was sentenced to death.
20
1he Petitioner No. 1 ranked 4
th
among Bengali oicers,
when he was commissioned in 190. O those 3 ,three, Bengli
oicers, who ranked aboe him, one ultimately retired as a
Lieutenant General and Chie o Army and 2 others as Majors
General, who sered the Army or about 25-30 years. 1he
Petitioner No. 1 would hae been in serice or more or less at
least until 1995 and, gien his initial ranking and participation in
the Great \ar o Liberation, he would and hae retired at least
as a Brigadier General, i not aboe, and as such he would hae
sered the country or another 20 years with corresponding
increase in salary, allowances, rank and status.
1he Petitioner No. 1 achieed highest gradation number
and stood 1
st
among 190 cadets showing the best rate o
achieement and as such he would hae had a bright and
rewarding career in Bangladesh Army or at least another two
decades with due inancial and other beneits along with the
prestige o the rank o a General, o which he was depried due
to the illegal coniction%by a kangaroo court.
1he Petitioner No. 2 and 3 were similarly depried o
their expected length o serice respectiely in the Air lorce
and the Army and were depried o their legitimate serice
beneits due to the impugned coniction and sentence.
21
Proisions o the Army Act. 1952 or o any law relating
to any disciplined orces was not applicable in the impugned
trial, judgment and order as the tribunal included 2 ,two,
ciilian Magistrates, who did not belong to any disciplined orce
and as such the proceeding, judgment and order o the
impugned case is not protected by Article 45 o the
Constitution and thereore being repugnant to the Constitution,
is liable to be declared unconstitutional and oid by this
lon`ble Court.
Reusal o the authorities to proide documents or
papers, including certiied copies o the proceedings, judgment
and order to the Petitioners is KL>J;ALK: o the elementary orm
o rule o law, constitutionalism as embodied in Articles 31 and
32 o the Constitution and as such the impugned proceeding is
liable to be declared to be antipathetic to the Constitution.
Petitioners must not suer the ignominy o haing been
conicted or crimes through an illegal and unlawul
proceedings and as such they desere to be cleared o.
Another set o petitioners iled another application,
inoking 102 o the Constitution, which got registered as \rit
Petition No. 826 o 2011, which also procreated a similar Rule.
Again, aerments scripted by the said Petitioners are, in most
22
respect, identical to those scribed by the Petitioners in the other
\rit Petitions cited aboe. 1hose aerments, which are speciic
to these Petitioners alone, are, summarised below,
1he Petitioner No. 1 is the President o Jatio
Shamajtantrik Dal ,Jashad,, a Member o Parliament and the
Chairman o the Standing Committee on the Ministry o Post
and 1ele-Communications Aairs. le was a leader o erstwhile
Last Pakistan Students` League and Shadhin Bangla Chatra
Sangram Parisad. le had indomitably contributed to our
liberation war as the Chie Instructor o Bangladesh Liberation
lorce ,BLl, 1raining Camp, which was set up at 1andua
within the proince o 1ripura, India. Because o his proen
patriotism, excellent organizational and leadership ability,
sincerity and commitment, the Petitioner No. 1 was made the
General Secretary o Jatio Krishak League, Central Committee
in 192. 1he Architect o Independent Bangladesh,
Bangbandhu Sheikh Mujibur Rahman approed the said
committee. In personal lie he is an Lngineer and obtained
graduation in Chemical Lngineering rom Bangladesh
Uniersity o Lngineering and 1echnology ,BUL1, in early
190.
23
1he Petitioner No. 2 is the Vice-President o Jatio
Shamajtantrik Dal ,Jasad,, Central Committee who also
participated in the listoric \ar o Liberation as the Deputy
Chie o Bangladesh Liberation lront, Jessore Sub-sector and
has been actiely participating in all kinds o social and political
moements since 1969. le is also the ormer Upazila Chairman
o Jessore Sadar Upazila and ormer General Secretary o the
then Last Pakistan Students` League, Jessore District
Committee. By proession he is an Adocate, practicing rom
Jessore District Bar.
During 195-6 both the petitioners were actie in
politics with a progressie-democratic political M<>H<;II:
launched by Jatio Shamajtantrik Dal. 1hey were neer inoled
in any actiities prejudicial to the interest or soereignty o
Bangladesh, or the liberation o which Country, they ought.
1he police arrested the Petitioner No. 1 on 23.11.195
and, without producing him beore a competent court, sent him
to Dhaka Central Jail, wherein, within a week, he was sered
with an order o detention under Special Powers Act 194.
\hile under detention, on 15.6.196, he was taken to a room at
the Dhaka Central Jail gate. On query, he came to know that a
special martial law tribunal has been set up in that room which
24
will sit in camera and try the Petitioners or an alleged oence
in connection with Mohammadpur Police Station case no. 08
dated 4.6.196 under section 121A o the Penal code read with
regulation 1,13 o MLR 196. 1he Petitioners wanted to know
the allegation laid against them and also asked or the copies o
the lIR, charge sheet and other releant papers, but their
requests were turned down.
1he aboe noted criminal case was registered as Special
Martial Law 1ribunal Case no. 1 o 196, wherein the
Petitioners, along with thirty three others, including Lt. Colonel
,retired, Abu 1aher, Bir Uttam, were tried by a special martial
law tribunal. 1he said tribunal, by its so-called and illegal
judgment and order, dated 1..196, purportedly conicted
seenteen accused persons, inclusie o the Petitioners and
sentenced them to dierent terms o imprisonment and,
acquitted sixteen. Out o them, Lt. Colonel ,retired, Abu 1aher,
Bir Uttam, was sentenced to death. Petitioner No. 1 was
sentenced to suer rigorous imprisonment or 10 ,ten, years
with a ine while the Petitioner No. 2 was sentenced to suer 5
,ie, years and to pay ine.
1he so-called proceeding o Special Martial Law 1ribunal
Case no. 1 o 196 went ahead in total soltitude within the
25
bounds o Dhaka Central Jail and the accused were not allowed
to be represented or deended by Adocates. Because o the
oath o secrecy, the participants in the trial could not diulge
any inormation to the Petitioners and their relaties about the
purported proceedings.
Relaties o the Petitioners were neer allowed to meet
them. During the coninement o the Petitioner No. 1, his
mother died, but this lachrymose news was not communicated
to him nor was he allowed to attend his mother`s Namaj-e-
Zanaja. le came to know it rom unoicial sources a couple
months aterwards.
1he news o the coniction was published in the
Bangladesh Obserer on 18.0.196.
According to the news item published in the Bangladesh
Obserer on 18..196, seenteen accused persons, including
Lt. Col. ,retired, Abu 1aher, Bir Uttam and the Petitioners were
ound guilty o oence under section 121A o the Penal Code.
A lero o our Liberation \ar, Lt. Col. ,retired, Abu 1aher, Bir
Uttam, was sentenced to death and within our days he was
executed on 21..196 within the our walls o Dhaka Central
Jail.
26
1he so called trial was conducted in camera, the
petitioners were neer gien any paper or certiied copy or any
other documents relating to the charge, deposition o witnesses,
proceeding, judgment and,or order relating to the case.
1he Petitioner No. 1 was released rom Dhaka Central
Jail on 13.6.1980 while the Petitioner No. 2 was released on
19.10.199, but they were not gien any oicial document o
release or any other documents pertaining to their coniction or
sentence or release at any point in time.
1he Petitioners neer committed any oence under 121A
o the Penal Code at any point o time in any manner, and the
question o commission o any such oence by them did not
arise as they ought or this Country not only by participating in
the \ar o Liberation, but also by organizing the people o the
then Last Pakistan and motiating them politically to take
preparation or the \ar and inally secured the emancipation o
the Bengali Nation. 1heir patriotism, ideological coniction and
commitment or the countrymen were beyond qualm. But the
black ship among the reedom ighters, Lt. Gen. Ziaur Rahman,
with a motie to set the Country against the spirit o the \ar o
Liberation, tried them illegally, arbitrarily, indictiely and
without any constitutional mandate or any other law in orce.
27
le did it to usurp the power directly and to cling on to power
illegally, and to sere the interest o the anti-liberation orces,
and to make sure that no political opposition or resistance
could thwart his misdeeds.
Inspite o being lreedom lighters, Member o
Parliament, people`s representatie, respected politicians, and
aboe all, conscious citizens o the country, the Petitioners are
carrying the stigma o their illegal coniction which labeled
them as being oenders against the Country`, or last 35 years,
and hence they need to be cleared o the slur.
1he Petitioners were not allowed to consult or engage
lawyers o their own choice. Relaties o the Petitioners` were
not allowed to consult or see them.
1he Petitioners urther stated that ater the killing o
Bangabandhu, they and their party protested the illegal
usurpation o power by the military authorities and the killing
o Banabondhu. Lt. Colonel Abu 1aher BU wanted to rom
and organize a new army or the independent Bangladesh,
wiping out the pattern, the colonial rulers established and let
behind as their legacy. On the other hand Major General Ziaur
Rahman, who was the Chie o Army Sta, and at the helm o
state powers, became enious to Colonel 1aher and looked at
28
1aher and other leaders, as his political adersaries as they
protested the killing o Bangabondhu and usurpation o power
by martial law proclamation. Zia did, hence, hatch an intrigue
against them and thus implicated them in a concocted and
ramed case to ulill his diobolic design. Major General Ziaur
Rahman orged an alliance with anti liberation orces and
allowed them to pursue communal politics in the country. le
did not only rehabilitate Rajakers and Al Bodors, but also made
one o the top leaders o anti liberation orces, named Shah
Azizur Rahman, as the prime minister o the country. 1he
Petitioners also asserted that Major General Ziaur Rahman
resorted to all these illegalities to insulate his power against any
challenge. le did not spare reedom ighters as they appeared
to him as stumbling block to his authoritarian power. 1he
Petitioners came to learn that their illegal trial and punishment
were discussed at the meetings o the ormation commanders
led by Major General Ziaur Rahaman at the releant time.
Breaking all ethos o undamental rights, the so called martial
law tribunal concluded the so called camera trial and conicted
and sentenced the Petitioners and others who ought or the
liberation o this country.
29
1he petitioners must not suer the ignominy o haing
been conicted or crimes through an illegal and unlawul
proceeding and as such they desere to be cleared.
\et another petition, registered as \rit Petition No. 1059
o 2011, was iled by Mr. Abdul Mazid, which has also been
adjudicated upon, in conjugation with the three other petitions
discussed aboe.
Again, in substantial respect, his aerments are no
dierent rom those o others, and as such, we are recording
hereunder, in summary orm, those statement which are unique
to him only.
1he Petitioner was a Vibrant lreedom lighter who
joined the Bangladesh Air lorce in lebruary, 192 and
remained posted in Chittagong until June, 196.
le was a co-accused in the Special Martial Law 1ribunal
Case no. 1 o 196 which proceeded in a small room within the
enue o the Central Jail, Dhaka, all along in strict N:G@LNL>?
behind dark curtains.
le was arrested in June, 196 and lown to Dhaka by a
special plane and then was taken to SB Oice and thereater to
Dhaka Court, ater conining him in a car or the whole day. le
was then taken to Dhaka Central Jail.
30
le was neer made aware o the charges or o the alleged
oences, he was arrested and kept in custody or, as no lIR,
complaint or other kind o paper relating to the alleged arrest,
custody or trial, was eer supplied to him.
During the whole period o custody he was neer allowed
to talk to any lawyer or Adocate. Len his closest relaties
were not allowed any access to him.
1he so-called trial continued or about 1 days, during
which time he did not exactly know the charges that were
brought against him because he was neither supplied any paper
nor were the charges read oer to him. le did not hae
slightest idea o the eidences that were to be adduced against
him.
All the accused, including the Petitioner, was used to be
brought in the so-called court room handcued and bareooted
and was put inside a barbed cage as i they were roman slaes.
1he accused was neer allowed to engage any lawyer or
Adocate or een to talk to the lawyers who oluntarily
appeared or others.
Neither the accused nor the lawyers appearing or
dierent accused persons, were eer allowed to cross examine
the prosecution witnesses who were guarded while they were
31
being produced and were hurriedly taken away ater their hasty
deposition, the accused were not at all aware o the contents o
their deposition.
le was hardly gien a chance to say anything in his
deense or to repudiate the accusation brought against him or
to contradict the deposition o the witnesses or to produce any
deense witness.
1he Petitioner was arrested along with other co-accused,
purportedly or crimes alleged in the so-called lIR. 1he
Petitioners were purportedly accused o committing crimes,
among others, under Section 121A o the Penal Code.
1he lIR purportedly culminated in Special Martial Law
1ribunal Case no. 1 o 196 and the accused were purportedly
tried and ound guilty by the aore-said tribunal. 1he impugned
judgment and order was handed down on 1..196.
As the Rule we issued in respect to all the petitions cited
aboe ripened and steps were on the moe or adjudication, we
were intimated by the authorities that no paper in relation to
the indictment, proceeding trial or coniction pertaining to the
case in question could be located despite extensie search
undertaken at all probable locations, apparently because the
goernment o the day had destroyed them to make them
32
untraceable. Mr. A.B.M. Alta lussain, the Learned Deputy
Attorney General, inormed us that een the irst inormation
report could not be traced. All they could detect was a list o
persons that were hanged to death in Dhaka Central Jail in 196
as depicted in the record o the said Jail. Lt. Col. 1aher is
igured at the top o the list, whose death sentence is shown to
hae had been executed on 21
st
July 196.
A document dated 28.10.2010 aixed with the signature
o one Col. Syed Itekharuddin, Additional Inspector General
o Prison, orwarded or our consumption, diulges that a
special martial law tribunal Dhaka, created pursuant to 13 MLR
o 195, handed down death sentence to Lt. Colonel ,Rtd, Abu
1aher, Prisoner no 3621,A, in Mahammadpur P.S. Case no
8,6, 6, Special ML Case no 01,6, under section 121A o the
Penal Code, on 1.0.196 and that in execution o the said
sentence, Lt. Col. Abu 1aher was hanged at 4.30 am on
21.0.196 in Dhaka Central Jail.
1hat document urther states that apart rom a list o the
executed persons, no other inormation has been retained in
Dhaka Central Jail.
Another document, authored by Mahammad Monir
lussaion, Deputy Police Commissioner, Dhaka Metropolitan
33
Police, dated 16
th
January 2011, destined to the Oicer-in-
Charge, Mahammadpur Police Station, reeals that no copy o
the lIR could be pinned down at the GR Section o the
Magistracy in Dhaka. A copy o the letter the GRO addressed
to the said Deputy Commissioner o Police, dated 16.01.2011,
was attached to the Deputy Commissioner`s letter: text o both
o which are reproduced below, erbatim,
| | <||- <<|<
<||- |
-| <||<< <||<
<|< ||< |<|
|<| :|| |, |<|
|== :<|, <, -< |, |<|-::
|<< - ||< /:/-::|t

|,
||< |
|-|'-< ||
|<| :|| |, |<|
|<<<t ||< =|-|< <| <<|<- << *

t -|| -|<|< <| || ---::/: :|-|'-< ||<
|| -- ||<--/:/-:

34
|<<<< ||< ||< <|< ||| | :,
<| ||< =|-|< <| |||< ||< ||< : | <<
|<| |< | =-|<<< | ||< :|t |-|*|< | =< =<|
|<- <<| <|= -< =-* :< <<| -

t :(=<) ||
(|t |< :-|)
|<|--:>>:cc
-| <||< (| -||<)
<|< ||< |<|
|<| :|| |, |<|
|--::::-- |+--::---

<<|<<,
-| <||<< <||<
<|< ||< |<|
|<| :|| |, |<|
|<<<t ||< =|-|< <| <<|<- << *

t :|-|'-< || || -- ||<--/:/-: |t
|<| |<- = :, || :>-: |< ||< :<||< |||
<|<<| :-| | , <| ||< =|-|< |< |-|/||< ||<
-| -< | ||< ||< <| ||< | ||< :<||<
35
$t <<<|<, << =--:/-: || | < $t
<<<|< <|| =<| | |-<| <|| | || ||< ||< <:
: || | <|<<| <| ||< =|-|< <| :<| :<< ||-< T| <|<
||< | = |<<< :<- ||< :<| -| <|< |< |
<| ||< =|-|< <| -| <<| < - |
-| ||< -< <|< :< <|<|
||<
|== |-|, |<|
1he respondents orwarded to our oice another
document, authored by one Jahura Begum, a Senior Assistant
Secretary at the Ministry o Deence, Goernment o the
People`s Republic o Bangladesh, dated 6.12.2010, the contents
o which, reproduced undistorted, reads as ollows,
| | <||- <<|<
|<*| |<
< < +
<<|| <, |<|
/<|-:>:/-:/|--:/:-: ||<t -- -|< :-:-/ :
|< -:
|<<<t +|+| |+ c<|c< |#c<| |<|c< -|c<<< <| ||n +|+|
t > tc
t (<) ->/:/===-:/:::, ||<t - |< -:
36
() |t t (|-:)/<|--->/-:/:--, ||<t :- <
-:
|<<< | < ||< ||| | , :t <
=, =, |-< <|< -:< - -|<|<| ||<< |< |< <|<<
|-/< T|<< =-=| | :|-< :=|
|<|-:< = =| ||- :<< <|< <<| -< :|-<
||< t < =,=, |-< <|< -:< |- :| | |
|<| :< :>-: < | :| | | |< | |<|<<
|< - -| <<| -<| || |<|<< < < : t|<<
:>-- ||< =,|, |<, = << =< : | :>-: ||<
:|<||-| :< << - << : <|< :t < =, =, |-< <|<
-=< |<|< :| || |<|< |< <<| -<
:<|||-=< |< -<| :- |<|< |< :<| | <|
<|<< |- :|-< - :
- |-< :< | < |<| -< <| <||<
<|= -< =- |-= :< <<| -|
t <| :||<<-=< ||
(|-<| :<)
||<< -<|<| |<
|t >::-:>:
||<
|, |<|< - |<<<< |<
=| :|< ||< <||< <,
<||- |<| <, |<|
37
|| -< || <|| (:^|< || <)t
: |<, <| |< (-t |t :|-|'- |< |*- :| |, -<|<|
|<), <||- |<|<, |<|
- |<, |, |<|< - |<<<< |<, <||- |<|<,
|<|
: <||<, <||- | :<|, -|<| |<|, |<|
- |< || :-|, :| =| :|<, =| :|<
||< <||< < <||- | :<| |*, |<|

Another document, dated 2
nd
Noember 2010, which
emanated rom one Major Asi Iqbal, placed at the Armed
lorces Diision o the Prime Minister`s Oice, also reealed
that no document pertaining to the so-called trial could be
discoered.
Lerything stated in all o the documents reerred to
aboe, are scripted herein under in original orm,
<<|
| | <||- <<|<
<||< <||<
<||-| |<|
| <<|| |<-<
|<| :||<|
||t --::->- ||<<
-:--
-:t <<-
t<<.$|.
:- -|< :-:-
->/:/===-:/::: - < -:
38
+|+| |+ c<|c< |#c<| |<|c< -|c<<< <| ||n t
>/>: tc
<<|
t (<) |<| |<, | ||-: |t t (|-:)/<|-
->/-:/:--, ||<t :- < -: (<< <)
() |-<, :=| |<|, |<| :||<| cc-c/- (|-
:-):=| ||< -c < -: (<< <)
: :t < (<t) :|-|'- |< |-< <|< ':< '' |- :|
|| |<| :<, :>-:'' < | :| | | |< |
|<|<< |< - -| <<| -<| , |<|<< < <
| : t|<< :>-- ||< || =,|, |<, = << =< :
| :>-: ||< :|<||-| - << - << : <|< :t
< (<t) :|-|'- |< |-<, <|< -=< |<|< :| | |
|<|< |< <<| -<, :<|||-=< |< <<| -<| :-
|<|< |< :<| | <| <|<< |- :|-< - :
- ||-< <| <<| <|=:< :< <<| -|
(|t || <<|)
<
* |<| |=
|<<t
<|-t
<|=t
39
|<
<| |<
<||- |<|<, |<|
(-| |<<t :|-|'- |< |*- :||
-<|<| |<
|<
|<*| |<
< < =
<<|| <, |<|
1here are seeral other letters which ormed part o the
documents transmitted to our Registrar, text o all o which are
recorded below.
| | <||- <<|<
|<*| |<
< < +
<<|| <, |<|
/<|-:>:/-:/|--:/:-: ||<t :- -|< :-:-/ -
|< -:
|<<<t <| ||n +|+| t >/>: =< -|<<|<| <|< c <
|<<< |-= ||| | :, <| || ||
--::/-:-=< |<<< ||| <|= - <<| -<
(<) ||| <<|< * ||- | <<|< =< |<
||<| |<|-|< ||<, ||< (<|)-:< <|< <<|
-< (<| )
() ||< -|<<| <|< <|< || :<<
:|-< :=| |<|-:< <|< <<| -< =< =< || |
40
<|| |<, |<| |< |<, |, |<|< - |<<<< |<,
=< ||<, ||< (<|) <<|<< :< <<| -< (<| )
() |-< :=| |<| :< | <| || ||<
||< -|<|<| <|< :t < =,=, |-< <|< ( )-=<
|< |<<|| <||< |< |<| ||<, ||< (<|)
<<|<< :< <<| -< (<| )
() :t < =,=, |-< <|< -:< - -|<|<| ||<<
|<| <|<< |-/< T|<< =-=| | <|-
<<|< <| |< <|< << :|-< :=| |<|-:< =
=| ||- :<< |-| -| <<| -< (<| )
- :, ||<< |<|< <|<< |<<< <||-| |<| |
|<<|< =-=| < <| :|-< :< - << ||< -
= < <<| -<
(|-<| :<)
||<< -<|<| |<
|t >::-:>:
|< || :-|
:| =| :|<
=| :|< ||< <||< <,
<||- | :<| |*, |<|
||
<||<
<||- | :<|, |<|
41
| | <||- <<|<
|<*| |<
< < +
<<|| <, |<|
/<|-:>:/-:/|--:/::- ||<t ->-
>--:
|<<<t <| ||n +|+| t >/: |< |#||< |c<|
|<<< |-= ||| | :, =, ||<|< :-|,
|| |< |-|+ |-- < || < <|<|<| | =<
|<|< <|<|| |<| |<|<-|< << <| || || --::/:
||< <<| -< || |<- << :, :>-: |< :t <
|< |-<< :<-|< <|<||< ||< |< << <<| -<|
||< |<< * -< || |< |, |<|< - |<<<<
|<< :, |< |<*| |<< - - :| - < |*
<< |<|< -|<| |<| =<| <| || || -|<< <<
- ||| <<|< * ||T| <<|< =< |<
|||< |<| -|< <|< <<| -|
(|-<| :<)
||<< -<|<| |<
|t >::-:>:
||<
||< (<|)
|, |<|< - |<<<< |<,
=| :|< ||< =< <||<,
|<|
||t
|-< : = | |<|
|<| :||<|
|<|
42
| -|<| |<|< <| :< <<| -| <| ||<
||< -<|<| <|< - << <|< || = |<
: < < < ||< <||< <| = - <<|< <|< <<| -|

| | <||- <<|<
|<*| |<
< < +, |<|
/<|-:>:/:/|--:/:-- ||<t ::.:. -:
|<<<t +|+| |+ c<|c< |#c<| |<|c -|c<<< <| ||n t
>/>: < +|+| |#c<| << - |c-cn< |c|c< <|<=+

t (<)|<< <- (|-:)<|--->/-:/cc,:/:/-:
() |<< <- (|-:) <|-
-->/-:/cc:,:/:/-:
() /<|-:>:/-:/|--:/::-, | ->/:/-:
<| |<<< | |<<< |<| | <| =-
:< <<| -| -|| | :<|< -|<| |<| -|<<< <|
|| --::/-: -|| -|<| << - |-< ||<
<|= -< || <| || --::/-: =< -|<|<| <|<
<|< || |< :<< <<| -< <|< |- =
<|< <<| -|
t <| :||<<
(|-<| :<)
||<< -<|<| |<
|t >::-:>:
43
|-<
: = | |<|
|<| :||<|
|| -< || <|| t
: |<, <| |< <||- |<|< |<|
- |<, | |<|< - |<<<< |< <||- |<|< |<|
: ||<, ||< (<|), | |<|< - |<<<< |<,
|<|

|< <<|
=< ||<< =< < < | |<

| | <||- <<|<
|<*| |<
< < +
< <||<, |<|
/<|-:>:/|--:/:-> ||<t :.:-. -:
|<<<t +|+| |+ c<|c< |#c<| |<|c -|c<<< <| ||n t
>/tc
|<< |<| |< |<< tt (|-:)/<|-
-->/-:/:-- ||<t :--:--: =< |<||| |-
=- :< <<| -|
44
- <| <|<, <| |<< <| < ||--| |<| :t <
|-< <|< < - -|<|<| ||<< |<|< <|<<
|-/< T| <<

=-=| | = |<< <|< || <|- <<|<
|-= <|< <<| -|
(|-<| :<)
||<< -<|<| |<
|t >::-:>:
|-<
: = | |<|
|<| :||<|
|| t-
<| |<
| ||-:
<||- |<|<, |<|

||
|-<
: = | |<|
|<| :||<|
|<|||t --c:: <|<
->:-
:- <|| < :-:-
cc-c/-/(|-:-)/:=| : < -:
<| ||n t- >/>: =< -|<<|<| <|< c< tc
<<|t
45
< |<*| |<< /<|-:>:/-:/|--:/::- ||<t ->
:< -: (<< -)
: <<| < | -< -| |<< << |<| |<|<-|<< <
|< = ||<|< :-| < < -|<< |<<<| |< ||< -
|<|-|< * <|| - <|< :t < = = |-<, <|<
() =< |<<|<|| << <||< |<| ||-< <<|
<|=< =- :< <<| -|
- -| ||-< <| <<| <|=:< :< <<| -|
(|t ||< <--)
<
* |<| = |
t
: -|<|<| <|<-- (- ||)
- |<<|<|| << <||< | (|<|)-- ||

|<<t
<|-t
<|=t

|<
|<*| |< (|--:)
< < =
<<|| <
|<|

46
<|t
||<
||< (<| ||)
|, |<|< - |<<<< |<,
=| :|< ||< =< <||<,
|<|
<|t
<|t
||<< |<< ||
| = |<-<
||

In the backdrop o the dismaying messages on the
traceability o trial records as depicted aboe, we reckoned that
people who were, at the time under scrutiny, placed as the
releant goernment unctionaries, should be directed to
disclose, through aidaits, whateer inormation they are
possessed o.
Beore that, howeer, we asked ourseles about the
permissibility o taking eidence in a judicial reiew matter and,
on perusal o some authorities and instruments came up with
the ollowing inding,
A proceeding o the kind we are adjudicating upon is a
ciil proceeding and hence, although proisions o the Code o
47
Ciil Procedure should generally apply, a proceeding, whereby
judicial reiew o administration or legislatie action is craed,
is a proceeding o extra-ordinary nature. Unlike other ciil
proceedings the ate o the petition in a judicial reiew case is
determined by reerence to indisputable acts as are narrated in
the aidait, where eidence on acts, as a matter o general
norm, can not be taken. 1he proceeding is o summary nature
and actual questions are to remain beyond controersy. 1his
iew, howeer, does not relect a rule o thumb, and there are
cases, ery sparing though, where the Courts can, i the interest
o justice so warrant, take eidence, and can ask a deponent to
proceed with erbal elaboration and that is consistent with the
ligh Court Rules which proide, all questions arising or
determination o such petition shall be decided upon aidaits.
But the Court may direct that such questions, as it may consider
necessary, be decided on such other eidence and in such
manner as it may deem it and in that case it may ollow such
procedure and make such Orders as may appear to it to be
Just` ,Rule 11,.
lence it is enisaged by the Rules that the Court may, in
the interest o Justice, take oral eidence at its discretion.
48
1he Indian Supreme Court in I1O-V-M,S Seth Brothers
,AIR 190 SC 292, ordained that it is within the competence
o the ligh Court to take or call or appropriate eidence at
any stage o the proceeding when such a course appears to the
Court to be essential or a just decision o the case and the
exercise o such power is certainly called or where the Court
eels that such a moe is necessary or the protection o the
Court against any arud and deception attempted to be
practiced upon it.
In Smt. Guwant Kaur and others-V-Municipal
Committee, Bhathnda and others ,1969,3, SCC 69,, the
Indian Supreme Court expressed, 1he ligh Court is not
depried o its jurisdiction to entertain a petition under Article
226 merely because in considering the petitioners` right to relie
questions o act may all to be determined. In a petition under
Article 226, the ligh Court has jurisdiction to try issues both o
acts and law. Lxercise o the Jurisdiction is, it is true,
discretionary, but the discretion must be exercised on sound
Judicial principles. \hen the petition raises questions o act o
complex nature, which may, or their determination require oral
eidence to be taken, and on that account the ligh Court is o
the iew that the dispute may not appropriately be tried in a
49
writ petition, the ligh Court may decline to try a petition.
Rejection o a petition in JLIL?: will normally be justiied,
where the lgih Court is o the iew that the petition is
riolous as because o the nature o the claim made, dispute
sought to be agitated or that the petition against the party
against whom relie is claimed, is not maintainable or that the
dispute raised thereby is such that it would be inappropriate to
try it in the \rit Jurisdiction, or or analogous reasons.`
In Century Spg. And Mg.Co Ltd-V- Ulhas-nagar
Municipal Council ,190 I SCC 582,, the Supreme Court o
India obsered merely because a question o act is raised, the
ligh Court will not be justiied in requiring the party to seek
relie by the somewhat lengthy, dilatory and expensie process
by a ciil suit against a public body. 1he questions o acts
raised by the petition are elementary`
In ABL International Ltd and Another-V-Lxport Credit
Guarantee Corporation o India Ltd and Others ,2004 3 SCC
553,, the Indian Apex Court came up with a clear inding that
in an appropriate case the \rit Court has the Jurisdiction to
entertain a writ petition inoling disputed questions o act
and there is no absolute bar or entertaining a writ petition een
i the same inoles some disputed questions o act.
50
In mosin Shari-V- Bangladesh 2 DLR 186, it was held
that the Court may allow one party to cross examine the other
with a iew to ascertain the eracity o the deponents sworn
statement In APSR1 Corp.--Satya Narayan ,AIR 1965 SC
1303,, the top Court o India expressed the iew that to
ascertain the truth rom conlicting stories igured in two
counterailing aidaits, cross examination o the deponents
may be desirable.
1he actual matrix that the petitions beore us inite are
to be decided on the anil o the aboe cited authorities,
because it can be said with all certitude that this is one o the
most apposite cases where we ought to exercise our discretion
to take eidence gien that no document pertaining to crucial
act on the trial under reiew could be located, and the
petitions can, by no means, be termed, exatious.
Mostaa Kamal J stated \rit Petitions are generally
disposed o on aidaits and on acts admitted or accepted by
apposing contenders` ,Page 143, Bangladesh Constitution:
1rends and Issue,. \hat we deduce rom the aboe quoted
obseration is that acts narrated through aidait and acts
admitted or accepted by adersaries can be taken account o in
judicial reiew proceedings. In the petitions beore us
51
statements made by the deponents are ,a, in the orm o
aidaits and ,b, they hae either been admitted or at least
been accepted as true by all the parties. In other words no
dispute had been raised as to their authenticity and as such, no
question o determination o the eracity o those statement
through examination and cross examination, cropped up.
As Mr. Rokanuddin Mahmud rightly opined oral
statement made by some deponents at our instance, were in
elaboration o their aidait statement, not by opening any new
window o eidence.`
laing so concluded, we admitted aidait statement,
coupled with explanation and elaboration, rom Dr Shaukat Ali,
who was employed as the Deputy Commissioner Dhaka at the
time in question and, who eentually retired as a Secretary to
the Goernment, Mr. Maqbul lussain, who acted as the Sub-
Diisional Oicer and Magistrate o Dhaka Sadar ,South, and
retired as an Additional Secretary, Mohammad Abdul Ali, who
was positioned as a irst class Magistrate Dhaka Sadar ,south,
and retired as a Joint Secretary, who was indeed a member o
the so-called special tribunal, Khandakar lazlur Rahman, who,
was a Magistrate too in Dhaka at the pointed time and then
ended up as the Secretary at the National Parliament, and who,
52
in his capacity as a Magistrate, witnessed the eent o execution
o Lt. Col. 1aher, Bir Uttam, in Dhaka Central Jail as they came
orward to enligten us with such inormation as we desperately
needed on the eent. Major General Nurul Islam transmitted
his aidait only, rom the United States attributing rail state
o health or his inability to appear. All sae the last one, made
themseles aailable beore us with aidaits, portraying the
acts they are amiliar with. \e had been gien to beliee that
Mr. Lawrence Lischultz, who, as an internationally approbated
journalist o a prestigious global magazine named lar Lastern
Lconomic Reiew, may also proe to be a eritable mine o
inormation and, hence, we asked him as well to emerge with
his ersions, and he complied. 1hey all urnished such mega
scopic inormation, which are truly indispensable.
Prized inormation also emanated rom all o the
Petitioners who, as accused persons in the same purported
proceeding had irst hand knowledge on the sequence o eents
under scanning. Aerments placed by them hae already been
igured aboe.
All these deponents were present in the Court and
proided elaboration and clariication on their sworn statement
as and when we asked or.
53
Mr. Lawrence Lischultz, whose name and identity hae
already been scripted aboe, sprang up as the singularly most
important ountain o such tiding.
lollowing the receipt o the Petitioner No. 1s`
supplementary aidait, Mr. M.K Rahman, the learned
Additional Attorney General, gae us to beliee that it may be
possible on Mr. Lischultzs` part to appear beore us in person
i that be our desire, to proer comments and elaboration on
his aidait: he can shortly ly. laing perused the articles, Mr.
Lischultz had authored on the bout, we elt that he may turn
up to be a treasure troe o inestimable inormation and hence,
we reckoned that the interest o justice may be impregnated
with spectacular wealth i we can take elaboration rom Mr.
Lischultz on his sworn statement.
Ater some uncertainties, Mr. Lischultz eentually ound
it possible to make his odyssey to Dhaka, haing receied our
direction, which we channeled through the Secretary at the
Ministry o loreign Aairs, Goernment o the Peoples
Republic o Bangladesh. 1he Secretary, Mr. Mizarul Qayes and
his colleagues as well as Mr. M.K. Rahman, the Additional
Attorney General, are owed a lot in acting with a commendable
54
degree o promptitude, demonstrating their deep sense o
commitment.
Beore his arrial, howeer, Mr. Lischultz iled a couple
o aidaits, one o which was sworn in the United States and
had been duly authenticated by our Mission in that Country, as
he is an American citizen and is ordinarily resident in that part
o the world.
Aerments Mr. Lischultz igured in his aidaits are
recorded below, erbatim,
1.! My name is Lawrence Lischultz. I am an
American citizen and a writer by proession. I am
resident o Stony Creek, Connecticut in the
United States.
2.! On January 21,2011 I was contacted by email by
M. K. Rahman, the Additional Attorney General
o Bangladesh and inormed that the Supreme
Court had made a request that I appear beore it
by January 26, 2011 in order to share with the
Court necessary inormation as to the so-called
trial and coniction o Colonel Abu 1aher by a
Special Military 1ribunal in 196.`
55
3.! 1his is a request I had hoped to receie or more
than 30 years. I would consider it one o the great
honors o my lie to stand in Justice
Shamsuddin`s and Justice lossain`s court room
in Dhaka. In my iew a tragic crime was
committed in Dhaka during June and July 196. I
was one o the ew witnesses to what happened
in this case. On June 28, 196 I stood in ront o
Dhaka Central Jail. It was the day the so-called
trial` o Abu 1aher and his Colleagues began in
secret hidden, behind the walls o a prison. \hen
I arried that morning, the security around the
prison appeared as i the Army was preparing or
a war. Machine gun nests were set up all along
the prison walls with their guns pointing
outwards. \hat were these guns deending
Secrecy \ho were they prepared to shoot \hy
was a trail taking place in a prison instead o in
Court
4.! As one o the only independent witnesses at the
prison that day, I beliee it is my responsibility to
describe what I saw and why I beliee these
56
eents transpired as they did. In a letter to
Justices Shamsuddin and lossain I explained it
was impossible or me to trael to Dhaka at this
moment. My son was recently in a serious
accident. le was badly injured. le is in the
process o recoery and has passed a critical
point in a three month process o recuperation.
My presence is required or at least another
month. lurthermore, another matter has also
made it impossible or me to trael to Dhaka
until the end o lebruary. 1hus, not wishing to
delay the proceedings o the Supreme Court in
this matter, I am submitting an aidait.
5.! In 196 I was South Asia Correspondent o the
lar Lastern Lconomic Reiew ,long Kong,. I
had been based in New Delhi. 1wo years earlier I
lied in Dhaka, where I was the Bangladesh
Correspondent o the Reiew. 1hus, I knew
many o turmoil and conlict then roiling
Bangladesh society.
6.! In June o 196 I arried in Dhaka rom
Katmandhu. Abu 1aher had been arrested
57
ollowing the Noember
th
Uprising. As South
Asia Correspondent o the Reiew, I reported on
the tragic eents o august 195 when Sheik
Mujib was murdered. I also returned to Dhaka
ollowing the insurrection and O:M>E Mutiny o
Noember
th
. 1his is not the place to reiew
these eents. I hae written elsewhere in detail
about these matters.
.! In my iew the critical issue which aces the
Supreme Court is whether Abu 1aher`s
constitutional and human rights were
undamentally iolated, by a military regime that
had no democratic or constitutional legitimacy.
On what legal basis was Special Military
1ribunal No. 1` constituted \ere those acing
trial beore this 1ribunal gien adequate time to
prepare their deense Or, in act were they
denied access to legal representation until only a
ew days beore the proceedings began \hat
standing did this 1ribunal hae constitutionally or
morally to pass a death sentence \ould it be
accurate to describe the 1ribunal headed by
58
Colonel \usu laider as simply a kangaroo court
which implemented a sentence pre-determined
1hese are the questions that need to be addressed
and answered. lurthermore, those need to be
answered within the ramework o rights deined
and ostensibly guaranteed to all the citizens o
Bangladesh by the country`s Constitution.
8.! I wish to place beore the Court an important
point o eidence that I beliee may assist in
answering these questions. \hen I arried in
Dhaka in early June 196, I contacted General
Mhd. Manzur. I indicated that I was in
Bangladesh. At the time Manzur was Chie o
General Sta. I had preiously met General
Manzur in New Delhi in the summer o 194
when he was Bangladesh`s military attach in
India. At that time I was curious to speak with
him about his experiences in the Liberation \ar
and his escape as a junior oicer rom Pakistan
ollowing the Pakistan army`s iolent crackdown
in Dhaka on March 25, 191.
59
9.! Manzur, together with Abu 1aher and
Mohammed Ziauddin, braely crossed the border
into India administered Kashmir in order to join
the Liberation \ar. \ithin weeks all three would
become sector commanders. 1aher, who I had
already met in Dhaka, suggested that summer o
194 I meet Manzur in New Delhi on my way
back to the United States. I was in the process o
moing to New Delhi to become the Reiew`s
South Asia Correspondent. 1he day I met Mazur,
the two o us spent most o a long aternoon
talking about history.
10.! 1hus, two years later in June 196, when I called
and told him I was in Dhaka he was pleased to
hear I was in town. loweer, I was soon to
discoer he had a great deal on his mind. le told
me that he would send someone to meet me in
order to make arrangements or us to get
together. le insisted that we meet late at night at
his headquarters in the Cantonment. I arried
about nine in the eening. I stayed or nearly
three hours.
60
11.! During the eening, General Manzur ocused
most o all on speaking to me about 1aher who
by then had been in prison or more than six
months. le told me 1aher had been kept mostly
in solitary coninement. le asked me about my
trael plans. I told him I was expected in the
United States by the end o June. le urged me
not to leae. le eared that Zia would go
through with plans to put 1aher on trial. Manzur
and other oicers who participated in the
Liberation \ar were trying to dissuade Zia but in
early June Manzur was uncertain he could stop
the trial proceeding. le spoke o repatriated
orces that had not participated or supported the
independence moement as haing a growing
inluence in the Army. le again emphasised to
me that I should stay in Dhaka. le said i there
was a trial someone should report on it in the
international press. I could see he was worried. I
changed my trael plans and stayed.
12.! I did not see General Manzur again that June.
1ension was mounting in Dhaka. I attempted to
61
interiew General Zia. lis sta asked me to write
out a list o questions. 1hey coered many issues
such as the larraka Barrage which at the time was
emerging as a crisis between India and
Bangladesh. But, the list also included seeral
questions concerning the Noember
th
Uprising
and Abu 1aher`s arrest. I asked Zia, among other
matters, to conirm that 1aher and orces under
his command had saed Zia`s lie that eening. I
that were the case, why had he arrested 1aher
and reed those who had, in act, detained him. I
was not granted an interiew by Zia. 1his was not
surprising. 1he General had other plans and they
did not include being asked troubling questions.
13.! I was arrested and deported in the midst o
1aher`s trial. On the 30
th
Anniersary o 1aher`s
execution I spoke at a memorial gathering at
Dhaka Uniersity in which I described how an
eort was made to impose complete and total
censorship o the trial. ,See 1he 1rial o Colonel
Abu 1aher` by Lawrence Lischultz, 1he Daily
Star, July 24, 196. See also 1he 1aher I Knew`
62
by Lawrence Lischultz, 1he Daily Star, July 23,
196. Both articles are attached as exhibits to this
aidait.,
14.! 1he reason I hae brought up my meeting in
early June 196 with General Manzur is because
o what happened later. 1he night I met Manzur
at the Cantonment he clearly eared that Zia
would go ahead with 1aher`s trial but he did not
say that he eared this would end with 1aher`s
execution. I don`t think at that stage such a thing
was quite imaginable. loweer, seeral months
ater the trial Manzur sent me a message through
an intermediary. I was then liing in Cambridge,
Lngland. Manzur`s emissary told me that Manzur
wanted me to know that he had tried to stop the
trial but clearly had been powerless to do so een
though he ranked third in the Army`s ligh
Command. lis opposition to 1aher`s trial had
made him a marked man inside the Army among
those who wanted 1aher dead. Although many o
us had suspected it, Manzur`s representatie told
me that General Manzur also wanted me to know
63
one thing aboe all else: Manzur knew with
absolute certainty that Zia had personally taken
the decision beore the so-called trial` een
began that 1aher would be hanged. Subsequently,
this act was also conirmed to me by two high
ranking military oicers who were close to Zia at
that time.
15.! \hat are the implications o such a act within
the ramework o the judicial reiew taking place
today by the Supreme Court Can what happened
in Dhaka Central Jail in July 196 een be termed
a trial I the death sentence was determined
prior to the 1ribunal conening, then was the
1ribunal in reality simply a mechanism used by
extra-judicial orces to stage an execution. I this
is the case, then Special 1ribunal No. 1 which sat
only once, and was neer conened again, should
be named or what it truly was. In reality it was
an illegal entity established to commit murder and
to imprison men and women who were denied
their constitutional rights. lopeully, the
Bangladesh Supreme Court will today, in an
64
atmosphere largely ree o the ear, threat and
coercion that so peraded the past, ind its way to
oerturning a erdict o a 1ribunal which in eery
respect was a negation o the principles
underlying Bangladesh`s Constitution and the
rights guaranteed to its citizens by law.
16.! I beliee independent o the act that the erdict
was pre-determined beore the 1ribunal
conened there are ample grounds to oerturn
1aher`s so-called coniction and to acate the
erdict. 1aher`s execution ought to be called not
only a miscarriage o justice but a crime
committed by the state`. Such a crime ought to
be remedied by an institution o the State that has
power and capability to look back historically on
crimes o the past. 1his has been done by seeral
societies in modern times including Germany,
Argentina, Chile and South Arica, to name only
a ew. One institution that has that capability is
Bangladesh`s Supreme Court.
1.! 1hose on trial were denied access to adequate
legal representation. 1heir undamental rights
65
under the Bangladesh constitution were iolated.
1he trial was in secret beore an illegal entity
which had no oundation in law. 1he trial was
held in a prison, not a Court o Law. 1he press
was shackled so public anger at the injustice
being carried out in camera would be contained.
Journalists were threatened and deported.
Imagine the public response. I 1aher`s closing
speech beore the 1ribunal had been published
the day ater he spoke
18.! lere, being tried in secret, was a Sector
Commander o the Liberation \ar who lost his
leg in a battle or his country`s independence and
who was awarded the highest military distinction,
Bir Uttam, or courage, shown by those who
ought and suried the 191 war. By what
iction could any Court maintain that 1aher`s trial
was lawul
19.! lie years ago, when I spoke at the 1eacher-
Student Center at Dhaka Uniersity, I made the
ollowing obseration: 1hirty years hae now
passed. \e are all aware o what happened.
66
1oday marks the 30
th
anniersary o 1aher`s
execution. It is time in many iew or a public act
by the state and judicial authorities to publicly
declare that Abu 1aher was wrongully tried and
wrongully executed. 1he erdict o July 1, 196
should be acated and a public acknowledgment
should be made that 1aher`s ciil and legal rights
were grossly iolated by the goernment which
put him on trial........Appropriate mechanisms to
accomplish this task need to be ound. Justice
requires that the erdict be ormally oerturned
and that there be an oicial acknowledgement
that the entire so-called trial o Abu 1aher` was a
iolation o proper legal procedure and
represented a iolation o the undamental rights
o the accused to due process.....My own iew is
that some uture goernment |or Court[ will act
in a moral and ethical way on this issue. \e must
not rest until the erdict in the 1aher case has
been oerturned. It is, my riends, a matter o
justice.` ,1he 1rial o Abu 1aher`, Keynote
Address by Lawrence Lischultz, Dhaka
67
Uniersity, 1he Daily Star, July 24, 196. See also
Colonel 1aher, Lischultz & Our Collectie
Guilt` by Syed Badrul Ahsan, 1he Daily Star, July
26, 196.,
20.! Justice Shamsuddin and Justice lossain, you
hae beore you a great moral and legal challenge.
\hateer you decide in this case will hae historic
signiicance. 1he 1aher case in my iew has
important international implications. 1he
petitioners in this case hae been on a long journey.
It is a journey that or so many men and women is
painully elusie. 1o ind justice at the end o such a
long road or an eent that had shaken one`s lie
happens so rarely in human experience. I know
each o the petitioners in this case. 1hey desere
our proound respect and respect o the world.
1here is only one way to proide that respect to
them. It is to proide them a sense that inally at the
end o a journey o more than three decades, justice
has been done. 1his is your task.
21.! I submit this Aidait to the Bangladesh
Supreme Court by electronic mail through the
68
oice o M. K. Rahman, the Additional Attorney
General, who contacted me on behal o the
Supreme Court. Simultaneously, there ollows by
courier a notarized and authenticated copy o this
aidait and its attachments which will be
orwarded to the Bangladesh Supreme Court by
Shabbir Chowdhury, Consul General o
Bangladesh in Now \ork City through the oice
o the loreign Secretary in Dhaka. It is with great
regret that I cannot be present beore the Court
in Dhaka to delier my aidait in person. It
would hae been a great honor which I would
hae treasured or the rest o my lie.
1he other aidait by Mr. Lischultz is also reproduced
below, to the letters,

I, Lawrence Lischultz, son o Sidney Lischultz, a
resident o Stony Creek, Connecticut, USA, 06405, Post
Box No. 3056, presently on a isit to Bangladesh, staying
at Ambrosia, louse No. 1, Road No. 3, Dhanmondi
R,A, Dhaka-1205, Bangladesh, aged about 61 ,sixty one,
69
years, by proession a writer by Nationality-American, do
hereby solemnly airm and say as ollows:
1. 1hat the instant writ petition was iled challenging the
constitutional alidity o Martial Law Regulation No. XVI
dated 14
th
June, 196 proiding or trial in camera
|section 4,2,[, prohibition o any appeal against decision
or judgment and sentence o the Special Martial Law
1ribunal |section 4,8,[, proision o oath o secrecy o all
participants in the proceedings o the Special Martial Law
1ribunal |section 4,10,[ and the pronouncements o guilt,
and the sentence o death purportedly under section
121A o the Penal Code upon Lt. Col. ,retd., M. A. 1aher
Bir Uttam ,the husband o the petitioner No. 2, and his
execution on 21
st
July, 196, and this lon`ble Court
issued Rule Nisi as prayed or.
2. 1hat during hearing o the Rule Nisi this lon`ble Court
by Order dated 20,01,2011 directed the loreign
Secretary, Goernment o the People`s Republic o
Bangladesh and Mr. M.K. Rahman, Additional Attorney
General or Bangladesh to approach me with a request to
appear beore this court at my conenience by
26,01,2011 to intimate this lon`ble Court with
70
necessary inormation as to the so called trial and
coniction o Colonel Abu 1aher by a Special Martial
Law 1ribunal in 196, and it was also desired by this
Court to communicate the Order to me through my e-
mail address.
3. 1hat accordingly the loreign Secretary o the
Goernment o the People`s Republic o Bangladesh
contacted me through the Consulate General o
Bangladesh, New \ork, about the Order o the Court and
Mr. M. K. Rahman, Additional Attorney General or
Bangladesh also communicated with me inorming about
the Order o the court through my e-mail address, and
haing receied the aore-said communications I agreed
to come to Dhaka with a iew to stand beore this Court
to make an statement in connection with the tragic crime
committed in Dhaka during June and July, 196 which
ended in the hanging o Colonel Abu 1aher through a so
called trial by a Special Martial Law 1ribunal.
4. 1hat this lon`ble Court, I understand that, on the prayer
o Mr. M. K. Rahman, the learned Additional Attorney
General extended time or my appearance beore this
lon`ble Court to enable me to make a statement as stated
71
supra, or which I am extremely gratiied and obliged to
this Court.
5. 1hat in this connection, I airmed an Aidait on
January 31, 2011 beore the Notary Public, Connecticut,
USA stating the entire acts relating to the so called trial
o Colonel 1aher and his execution by a Special Martial
Law 1ribunal, and the said Aidait haing been duly
authenticated by the Consulate General o Bangladesh
was transmitted to Mr. M. K. Rahman, Additional
Attorney General or Bangladesh or submitting the same
beore this lon`ble Court, accordingly the same was
submitted beore this lon`ble Court on 14,03,2011
,electronic transcript o the Aidait was earlier
submitted to this lon`ble Court on 03,02,2011,.
6. 1hat responding to the request o this lon`ble Court or
which I hae been waiting or more than 30 years and
considering the same as a great honor o my lie, I arried
in Dhaka on 12,03,2011 and made written and erbal
statement beore this lon`ble Court regarding the so
called trial o Colonel Abu 1aher by a Special Martial Law
1ribunal and his execution.
72
. 1hat the written statement that I handed oer to the
lon`ble Court is required to be brought on record to
arrie at a correct decision in the matter, accordingly the
nine page statement signed by me is annexed hereto and
marked as Annexure 1`.
1ext o the Statement in Annexure 1 are recorded below
word to word,
A S1A1LMLN1 BLlORL 1lL SUPRLML COUR1
Ol BANGLADLSl
By Lawrence Lischultz
Re: \rit Petition 236 o 2010
Regarding the 1rial & Lxecution o Abu 1aher in July 196
My name is Lawrence Lischultz. I am a writer by
proession. In July 196 I was South Asia Correspondent o the
lar Lastern Lconomic Reiew ,long Kong, and a contributor
to the BBC and 1he Guardian ,London,. In January this Court
requested that I appear beore in order to gie eidence on
what knowledge I may possess pertaining to the case o
Colonel Abu 1aher.
On 3 lebruary 2011, M.K. Rahman, the Additional
Attorney General o Bangladesh, read out my Aidait to this
Court. I was unable to trael to Bangladesh in January because
73
a amily member had recently been in a serious accident and I
was simply unable to leae.
1oday it is one o the great honors o my lie to be
present beore you in this Court. As the Court drew its
deliberations to a close, you again graciously made a second
request that I trael to Dhaka and appear beore you. By then
circumstances had changed and I was able to make the journey.
\e are all here because o one o the most essential
elements o ciilized society. It is called memory`. \e hae
come to remember what happened in this city nearly thirty-ie
years ago. Some o us remember it well. Others were just
children then. But, we are here because many o us reused to
orget. It became our duty to remember.
lor thirty-ie years it has been my hope that one day I
would stand in a courtroom aware that a erdict would soon be
rendered in 1aher`s case, and that the erdict would declare,
whether or not, Abu 1aher`s trial and execution in 196 had
been illegal, but also a undamental iolation o both his
constitutional and human rights.
I did not know until a ew months ago that it would be
your Courtroom, nor did I know your names would be Justice
Shamsuddin and Justice lossain. \e do not pre-judge your
74
erdict. But, like others, I hae hoped or a day like this one,
these many decades. Only last week, 1aher`s daughter Joya told
me, I hae been waiting my whole lie or this particular
moment.` She was ie years old when her ather died. So you
see, ater a lietime o waiting, many hae come beore you in
search o Justice or Abu 1aher.
A year ater Abu 1aher was executed a meeting was
organized at Conway lall in London by a group o relaties
and some o 1aher`s ormer colleagues. Only a year ater he
had died people gathered to remember him. As you know, such
a meeting in Dhaka would hae been impossible in 19. many
who might hae attended were in prison. I was asked to speak
at the Conway lall meeting. As a journalist, I was not certain I
should accept the initation. \ould my independence and
objectiity be questioned At the time I explained to those in
attendance why in the end I accepted the initation to speak.
Certain o the remarks I made then I beliee still hae meaning
today.
As I stood at a podium in Conway lall, I said:
As a writer and journalist, I make a distinction, which
some may ind hard to see, between objectiity and neutrality.
1here can be no compromise or qualiication on objectiity, as
75
there can be no compromise with the pursuit o accuracy, but I
also recognize there is no neutrality` on certain questions. 1hat
is why I hae accepted the 1aher Memorial Committee`s
initation to speak. \hen it comes to a question o secret trials
and secret executions, I am not neutral. I condemn them
whether they hae been carried under the orders o lranco,
Stalin or General Ziaur Rahman.`
A year ago, by a coincidence o timing, I happened to
arrie in Bangladesh as just such as case was about to begin, ull
o its own dimensions o death, betrayal and tragic
injustice.... I am an American by nationality, and in
American we too hae had in our history amous incidents o
exceptional judicial debasement, where the institutions o law
hae been used to commit crimes or reasons o state`. In
America the names and memory o the executions o the
Rosenbergs, Joe lill and Sacco & Vanzetti stand out most
starkly.`
1oday I am reminded most clearly o Nicola Sacco and
Bartolomeo Vanzetti, two poor Italian immigrants who came to
American or a better lie and instead ound a rame-up. 1hey
were killed because we in America also hae our Salauddin
Ahmeds and our A.M.S. Sadars. In the time o Sacco and
76
Vanzetti they were called Attorney General Palmer and J. Ldgar
looer.`
1oday I mention Sacco and Vanzetti because last month
|June 19[-50 years ater their execution-Goernor Michael
Dukakis o the State o Massachusetts declared that in the
oicial iew o the state, Sacco and Vanzetti were innocent
men and were wrongly executed. Goernor Dukakis declared
that each year, on the anniersary o their execution, the people
o the State o Massachusetts where these two men were
executed would obsere Sacco and Vanzetti Memorial Day`. I
doubt whether it will take the people o Bangladesh so long to
set right what happened on the gallows o Dhaka Central Jail a
year ago.`
\ho could hae known it would hae taken this long
lity years hae not passed as in the Sacco and Vanzetti case.
loweer, nearly thirty-ie years hae elapsed since 1aher`s
death. 1he time has come to ace the issues squarely. Can we
een call what 1aher and his colleagues aced a trial`, there
existed a special Military 1ribunal No. 1` which conened in
Dhaka Central Jail. I was there. I stood outside the prison. I
watched men, like Colonel \usu laider, the so-called
1ribunal`s chairman, walk through the prison gates.
77
Although they tried to hide themseles and coer their
aces, I took their photographs. Soon they took my camera, my
ilm and arrested me, under what charge I was neer told. But,
today no records can be ound o this ghost` 1ribunal. Len,
back then, they were trying to coer their tracks and keep
hidden what they had done. Perhaps, only George Orwell,
could explain to us where the records and transcripts hae
gone.
1hese men who committed this crime against 1aher, were
not like us, who gather here today. 1hey did not want anyone in
the uture to come together to remember what they had done
and who they were. 1hey preerred that their crime stay hidden.
As this Court has discoered, there are no documents. 1here
are no transcripts. 1here are no oicial records`. At the outset
they sought to coer up what they were doing.
\hat these men o power` did not reckon on was the
persistence and determination o a handul o people that this
history would not be lost but would be remembered. \e are
here to remember, and the Supreme Court o Bangladesh has
now become an integral part o a process o remembrance`.
1his Court has arduously reconstructed a picture o what
took place by requesting witnesses to oluntarily appear and
78
also ordering reluctant witnesses to gie testimony. 1he Court
has also ordered a search or any and all suriing documents.
\ou are to be commended or your diligence and seriousness
o purpose.
As I indicated in my Aidait, I do not beliee what
happened can een be ormally called a trial`. It was not een a
show trial` because the military goernment did not want to
show it`. Generally Zia`s regime eared the repercussions o
an open court o law and the public reaction that would hae
ensued had a trial been held by a lawully constituted court with
a ree press being able to report.
In my January 31
st
Aidait I hae described in some
detail how I met General Mhd. Manzur, Chie o General sta,
at his oice in the Cantonment a month beore the Special
1ribunal. I had known Manzur or seeral years. I also
explained how Manzur had opposed 1aher`s so-called trial, and
according to what he told me in June 196, he was doing
eerything he could to see that it would not take place.
Clearly, Manzur was outnumbered and outlanked. It
would only be a matter o time beore they would come or
him. loweer, as I discussed in the Aidait, Manzur sent an
emissary to see me in Lngland ater 1aher had been executed.
79
le wanted me to know that he knew positiely that General
Zia had personally taken the decision to executed 1aher well
beore Colonel \usu laider and his team opened or
business`, albeit sordid business, behind the walls o Dhaka
Central Jail.
At the end o January, Moudud Ahmed, who I once knew
as a young human rights lawyer, made certain claims in the
press, citing my work repeatedly but in almost eery instance
inaccurately. Mr. Ahmed has traelled ar rom the principles I
once associated him with when he was young. 1his is not an
uncommon phenomenon on the road to power. But, he did
make one claim, which i true, has importance or this Court`s
deliberations.
Moudud Ahmed claimed that Ziaur Rahman had
conened a gathering o 46 repatriated` oicers to discuss the
sentence that should be passed on 1aher. It is well known that
not a single oicer who had participated in the Liberation \ar
was willing to sere on special Military 1ribunal No. 1. But,
General Zia`s special conocation o repatriates appears to hae
ended with a unanimous decision. 1hey wanted 1aher to hang.
Moudud claims his source or this story was General Zia
himsel. In this respect, Moudud`s ersion o eents tallies with
80
what General Manzur claimed to me regarding General Zia
haing personally taken the decision on what the erdict would
be. One man, Ziaur Rahman, decided, on his own, to take
another`s lie. le then asked a group o about ity military
oicers to endorse his decision.
\hat can we say about this By what stretch o the
imagination can we call this a lawul procedure` by what
authority or law did this klatch o military men render unto
themseles the role o judge and jury Military dictatorships
write their own rules and that is precisely what happened in this
instance.
In my iew, perhaps the most accurate way to describe
the eents that took place behind the gates o Dhaka Central
Jail in July 196, would be to recognize that what really
occurred was simply a orm o lynching` organized by the
Chie Martial Law Administrator, General Ziaur Rahman.
1here was no trial. A aade was created and dressed up to look
like a trial. \et, een the aade quickly crumbled. I it was a
trial, why was it not taking place in a Court It took place in a
prison. \hat sort o trial occurs in a prison 1he answer is a
trial that is not a trial.
81
Joya 1aher has characterized what happened to her ather
as an assassination`. 1he Special Military 1ribunal No. 1 was
the mechanism by which the assassination was accomplished.
Perhaps, Joya 1aher`s iew is closest to the mark.
Syed Badrul Ahsan, has called the 1aher case murder
pure and simple`. In an article published in July 2006, Ahsan
writes, \hen he |Lischultz[ speaks o Colonel Abu 1aher and
the macabre manner o his murder ,it was murder pure and
simple,, in July 196, he reies within our souls all the pains
we hae either careully pushed under the rug all these years or
hae not been allowed to eel through the long march o
untruth in this country.` ,Syed Badrul Ahsan, Colonel 1aher,
Lischultz & Our Collectie Guilt`. 1he Daily Star, 26 2006.,
Ahsan was only partly right. \hen he called the 1aher
case murder pure and simple`, he let out the element o
premeditation or perhaps he assumed it. Moudud Ahmed,
whateen else he has done, has made clear that General Zia
went about his murderous work in a premeditated ashion, and
pre-meditation under the law, has great signiicance.
It means you understood what you were doing and you
planned your crime accordingly. In criminal law premeditated
82
murder is murder in the ires degree. ,\hy Mohdud Ahmed
was an associate o this man and a minister in his goernment
is a question or another day.
In his 2006 article Ahsan also reerred to the long march
o untruth` in Bangladesh. le was certainly correct about the
state o aairs` ie years age. loweer, new phase appears to
hae opened. 1he Supreme Court has declared the 5
th
and
th

amendments to be at ariance with the Constitution thereby
inalidating the attempt o two successie martial law regimes
to retrospectiely immunize their past actions rom any orm o
accountability. 1his Court in my opinion is boldly taking on
issues that are at the ery heart o a new and challenging period.
1his Court is an integral part o the culture o this society
and it is potentially an instrument o charge. In the United
States the \arren Court broken down the doors o racial
segregation and became a critical orce in changing American
society. Bangladesh in 191 sought to break rom the disastrous
traditions o Pakistan`s history o martial law regimes and
dictatorship. I the iniolability o the Constitution and the
rule o law` are to mean anything, the ciilian courts must
become paramount, indeed hegemonic.
83
It must become impossible or a small group o military
oicers to een again establish themseles as judge and jury`
and thus supersede the ciilian judicial authorities. 1his is the
heart o the matter. 1he question is not only whether the rule
o law` will be paramount, but also whether the judiciary can
acquire the strength to secure its paramount position 1he
Supreme Court clearly shows its intent on doing so. O course,
there is no guarantees.
1he mindset`, so characteristic o the Pakistan Army
and other military dictatorships, must be broken i democracy
and democratic reedoms are not once again to be endangered
in this court. 1he courts can play a critical role in strengthening
the institutions o democratic rule. By oerturning the 5
th
and

th
amendments a signiicant step has been taken in making
unambiguously clear to the armed orces that i they eer cross
the line again and embrace armed dictatorship, they will ace
grae consequences or breaching the Constitution and the
rule o law`.
1he challenge beore the Supreme Court in the 1aher
cases is to determine whether the procedures that were
ollowed by Special Military 1ribunal No. 1` can be
84
considered in any way to hae been legal or constitutional. I
they were not, they should be appropriately characterized.
lor 1aher`s amily this is the essential matter. \ill the
erdict` o a 1ribunal that had no legal standing under the
Constitution and whose own records hae disappeared`` be
allowed to stand, or will the secret proceedings o July 196 at
Dhaka Central Jail be oerturned and declared to hae been
unconstitutional and illegal 1o 1aher`s wie and three children
this is what matters. Lerything else is detail.
Now I am eagerly waiting or the erdict,` 1aher`s
daughter, Joya, wrote me ten day age. 1he erdict will not
bring back my Dad,` she said, but it will bring an end the kind
o assassination` which took her ather rom her and her two
brothers at such an early age. 1o hae their ather exonerated,
and admired or the remarkable man he was, will bring some
peace to their hearts. I you accomplish this Justice Shamsuddin
and Justice lossain, you will hae accomplished a ery great
and good deed.
It was almost exactly thirty-ie years ago this month that
I inished writing Abu 1aher`s Last 1estament`. It was the
spring o 19. I was young then. I was only twenty-six. Less
85
than a year had passed since 1aher`s trial and my deportation
rom Bangladesh. I was liing in Cambridge, Lngland at that
time. I remember when I typed the last page. I reread the text
and put a copy in an enelope.
I was liing in a small house on Clare Street. I remember
waling around the corner to a tiny post oice where I knew the
sta. I bought the requisite number o stamps and two Air Mail
stickers. 1he enelope was addressed to Krishna Raj, Lditor o
the Lconomic & Political \eekly in Bombay. I wondered i he
would publish it. I slipped the enelope into the mailbox.
It was published as a Special Issued o LP\ in August
19 and would soon become part o a book on Bangladesh.
1he book would be banned in Bangladesh or oer a decade.
O course, my irst desire would hae been to publish the
manuscript in Bangladesh. \et, or obious reasons that was
not possible.
1wo crucial eents compelled me to writ 1aher`s Last
1estament`. I had been trying to decide how to write an
account o all that had taken place. 1hen two things happened.
A copy o 1aher`s secret testimony beore the Special Military
1ribunal arried on my doorstep. Someone had called me rom
86
London saying they were mailing me an important document
that had been brought rom Dhaka. \hen I receied it, I read
remarkable courage and integrity.
\hat happened next settled the matter. I receied a
translation o letter that Luta, 1aher`s wie, had written to her
brother at Oxord. It was one o the most beautiul letter I`e
eer read.
I would like to conclude my testimony to this Court by
reading an excerpt rom Luta`s letter. She is here today.
my dear bora bhaijan,
I cannot think o what to write you today. I cannot realize
that 1aher is no longer with me. I cannot imagine how I will
lie ater the paratner o my lie has let. It seems the children
are in great trouble. Such tiny children do not understand
anything. Nitu says, lather, why did you die \ou would hae
been alie, i you were still here.`
1he children do not understand what they hae lost.
Lery day they go to the grae with lowers. 1hey place the
lowers and pray, Let me become like ather.` Jishu says that
ather is sleeping on the moon...
87
I am ery ortunate.... \hen he was alie, he gae
me the greatest honour amongst Bengali women. In his death
he gae me the respect o the world. All my desires he has
ulilled in such a short time. \hen the dear riends and
comrades o 1aher coney their condolences to me, then I
think: 1aher is still alie amongst them, and will lie in them.
1hey are like my own olk. I am proud. le has deeated death.
Death could not triumph oer him......
Although it is total darkness all around me and I cannot
ind my moorings, and am lost, yet I know this distress is not
permanent, there will be an end. \hen I see that the ideals o
1aher hae become the ideals o all, then I will ind peace. It is
my sorrow that when that day comes, 1aher will not be there.
Aectionately,
Luta
laing ound him in the Court room we asked Mr.
Lischultz, to adance some elaboration and clariication on his
aidaits. Some abstracts rom what he stated, are put below in
black and white.
88
In July 196 I was South Asia Correspondent o the lar
Lastern Lconomic Reiew ,long Kong, and a contributor to
the BBC and 1he Daily Guardian ,London,.
loweer, nearly thirty-ie years hae elapsed since
1aher`s death. 1he time has come to ace the issues squarely.
Can we een call what 1aher and his colleagues aced, a trial`
1here existed a special military tribunal no.1` which conened
in Dhaka Central Jail. I was there. I stood outside the prison. I
watched men, like Colonel \usu laider, the so-called
tribunal`s chairman, walk through the prison gates.
Although they tried to hide themseles and coer their
aces, I took their photographs. Soon they took my camera, my
ilm and arrested me, under what charge I was neer told.
Moudud Ahmed claimed that Ziaur Rahman had
conened a gathering o 46 repatriated` oicers to discuss the
sentence that should be passed on 1aher. It is well known that
not a single oicer who had participated in the Liberation \ar
was willing to sere on special military tribunal no. 1. But,
General Zia`s special conocation o repatriates appears to hae
ended with a unanimous decision. 1hey wanted 1aher to hang.
Moudud claims his source or this story was General Zia
himsel. In this respect, Moudud`s ersion o eents tallies with
89
what General Manzur claimed to me regarding General Zia
haing personally taken the decision on what the erdict would
be. One man, Ziaur Rahman, decided, on his own, to take
another`s lie. le then asked a group o about ity military
oicers to endorse his decision.
In my iew, perhaps the most accurate way to describe
the eents that took place behind the gates o Dhaka Central
Jail in July 196, would be to recognize that what really
occurred was simply a orm o :lynching`, organized by the
chie martial law administrator, General Ziaur Rahman. 1here
was no trial. A acade was created and dressed up to look like a
trial. \et, een the acade quickly crumbled. I it was a trial,
why was it not taking place in a Court It took place in a prison.
\hat sort o trial occurs in a prison 1he answer is a trial that is
not a trial.
Md. Maqbul lusain, ormer subdiisional oicer and
subdiisional magistrate, Dhaka Sadar ,South, who retired as an
Additional Secretary, Goernment o Bangladesh, also iled an
aidait, texts o which are reproduced below erbatim,
I Md. Maqbul lusain, son o Asmat Ali ,since
deceased,, ormer Subdiisional oicer and Subdiisional
Magistrate, Dhaka Sadar ,South, and retired Additional
90
Secretary, Goernment o Bangladesh, now residing at louse
No. 25, Road No. 2, Block No. l, Mohammadpur Pisciculture
Co-Operatie lousing Society, Adabar, Dhaka: Bangladesh:
aged about 0 ,seenty, years, by proession-retired
Goernment Serant, by aith- a Muslim, by Nationality-
Bangladeshi, do hereby solemnly airm and say as ollows:
1hat the instant writ petition was iled challenging the
constitutional alidity o Martial Law Regulation No. XVI
dated 14
th
June, 196 proiding or trial in camera |section
4,2,[, prohibition o any appeal against decision or judgment
and sentence o the Special Martial Law 1ribunal |section 4,8,[,
proision o oath o secrecy o all participants in the
proceedings o the Special Martial Law 1ribunal |section 4,10,[
and the pronouncements o guilt, and the sentence o death
purportedly under section 121A o the Penal Code upon Lt.
Col. ,retd., M. A. 1aher Bir Uttam ,the husband o the
Petitioner No. 2, and his execution on 21
st
July, 196, and this
lon`ble Court issued Rule Nisi as prayed or.
1hat during hearing o the Rule Nisi, a writ Bench o this
lon`ble Court comprising their Lordships Mr. Justice A. l. M.
Shamsuddin Chowdhury and Mr. Justice Sheik Md. Zakir
lossain directed the deponent to appear beore this Court on
91
19.01.2011 to make statement proiding with necessary
inormation as to the so called trial and coniction o Colonel
Abu 1aher by a Special Martial Law 1ribunal in 196.
1hat accordingly I appeared beore this lon`ble Court on
19.01.2011 and made erbal statements in connection with the
tragic crime committed in Dhaka during June and July, 196
which ended with the hanging o Colonel Abu 1aher, BU,
through a so called trial by a Special Martial Law 1ribunal.
1hat the erbal statement that I hae made is required to
be brought on record to arrie at a correct decision in the
matter and hence this Aidait.
1hat rom lebruary, 196 to March, 19, I sered as the
Subdiisional oicer and Subdiisional Magistrate, Dhaka Sadar
,South,. During June and July, 196, Colonel Abu 1aher. BU
was tried by a Special Martial Law 1ribunal sitting in camera in
Dhaka Central Jail. 1he case records including the lIR and
other connected papers were neer placed beore me but in law
those were required to be placed beore me or taking
cognizance and necessary orders as Subdiisional Magistrate.
Mr. Mohammad Abdul Ali, Magistrate lirst Class, Dhaka Sadar
,South, was posted as one o the ie members o the Special
Martial Law 1ribunal which tried Colonel Abu 1aher and
92
others and beore his posting it was neer discussed with me
and such posting was beyond my knowledge. 1he whole
country was under Martial Law and the trial was conducted
wholly in camera by the Special Martial Law 1ribunal.`
Dr. A. M. M. Shawkat Ali, the person who was placed as
the Deputy Commissioner and District Magistrate, Dhaka, at
the germane time and retired as a Secretary to the Goernment
o Bangladesh and also acted subsequently as an Adisor to the
Caretaker Goernment during 200-2008, iled an aidait, in
ollowing terms,
I Dr. A. M. M. Shawkat Ali, son o M. lossain Ali ,since
deceased,, ormer Deputy Commissioner and District
Magistrate, Dhaka, and retired Secretary, Goernment o
Bangladesh and ormer Adisor to Caretaker Goernment
during 2008, now residing at louse No. 44, Road No. 23,
Block-B, Banani, Dhaka-1213 Bangladesh, aged about 68 ,sixty
eight, years, by occupation-retired Goernment Serant, by
aith a Muslim, by Nationality- Bangladeshi, do hereby solemnly
airm and say as ollows,
1hat the instant writ petition was iled challenging the
constitutional alidity o Martial Law Regulation No. XVI
dated 14
th
June, 196 proiding or trial in camera |section
93
4,2,[, prohibition o any appeal against decision or judgment
and sentence o the Special Martial Law 1ribunal |section 4,8,[,
proision o oath o secrecy o all participants in the
proceedings o the Special Martial Law 1ribunal |section 4,10,[
and the pronouncements o guilt, and the sentence o death
purportedly under section 121A o the Penal Code upon Lt.
Col. ,retd., M. A. 1aher Bir Uttam ,the husband o the
Petitioner No. 2, and his execution on 21
st
July, 196, and this
lon`ble Court issued Rule Nisi as prayed or.
1hat during hearing o the Rule Nisi, a writ Bench o this
lon`ble Court comprising their Lordships Mr. Justice A. l. M.
Shamsuddin Chowdhury and Mr. Justice Sheik Md. Zakir
lossain directed the deponent to appear beore this Court on
18.01.2011 to make statement proiding with necessary
inormation as to the so called trial and coniction o Colonel
Abu 1aher by a Special Martial Law 1ribunal in 196.
1hat accordingly I appeared beore this lon`ble Court on
18.01.2000 and made erbal statements in connection with the
said trial held in Dhaka during June and July, 196 which ended
with the hanging o Colonel Abu 1aher, BU, through a so
called trial by a Special Martial Law 1ribunal sitting in camera in
Dhaka Central Jail.
94
1hat the erbal statements which I hae made are
required to be brought on record to acilitate the disposal o the
instant writ petition.
1hat rom 196 to 198, I sered as the Deputy
Commissioner and District Magistrate, Dhaka, During June and
July, 196, Colonel Abu 1aher. BU and others were tried by a
Special Martial Law 1ribunal sitting in camera in Dhaka Central
Jail. \hile sering as Deputy Commissioner and District
Magistrate, Dhaka, the Goernment in the Ministry o Law and
Parliamentary Aairs, Justice Brach, by Notiication No. 430-
JI,21-2,6 dated 14.06.196 constituted a 5,ie, member
Special Martial Law 1ribunal in exercise o powers conerred
by paragraph no. 3 o the Special Martial Law 1ribunal
Regulation, 196 ,Regulation No. XVI o 196, with
Mohammad Abdul Ali, Magistrate lirst Class, Dhaka Sadar
,South, as one o its Members. Beore his appointment as a
Member o the 1ribunal, I as the District Magistrate, Dhaka
was neer consulted nor inormed by the releant authority
although procedures and conention demand that.
1hat 1ribunal sat in Dhaka Central Jail in camera and
proceeded with the trial o Colonel Abu 1aher, BU and others.
Since the country was under Martial Law and the Special
95
Martial Law 1ribunal concluded the trial o Special Martial Law
1ribunal Case No. 1 o 196 in a hurry in camera. I came to
know that the case ended in coniction and in sentence o
death on Colonel Abu 1aher and or dierent terms o
sentence on other accused by a pronouncement dated
1,0,196. 1he trial was not air and impartial under the
Martial Law dispensation. Lt. Colonel Abu 1aher, BU much
beore the trial by the Special Martial Law 1ribunal retired rom
Army and joined as Director, Dredger Diision, Bangladesh
\ater Deelopment Board and thus during trial he was no
longer in the serice o the Bangladesh Army. lad it been so
that he was inoled in any crime, he could be tried under the
Penal Code by ordinary Court. It is urther stated that Lt.
Colonel Abu 1aher, BU actiely participated in the historic war
o Liberation and sered as a Sector Commander and took part
in ront ighting and lost one o his legs. Beore he joined the
Dredger Diision o B\DB as its Director in 194, he met me
in oice when I was Member Director o B\DB.`
Mohammad Abdul Ali, ormer Magistrate irst class,
Dhaka Sadar ,South,, and a retired Joint Secretary, Goernment
o Bangladesh, also iled his aidait, contents in which are, as
hereunder,
96
I, Mohammad Abdul Ali, son o lajee Abul Quasem
,since deceased,, ormer Magistrate, lirst Class, Dhaka Sadar
,South, and retired Joint Secretary, Goernment o Bangladesh,
now residing at 50,A Azimpur Goernment Colony, Dhaka,
Bangladesh, aged about 0 ,Seenty, years, by proession-
retired Goernment Serant, by aith-a Muslim, by Nationality-
Bangladeshi, do hereby solemnly airm and say as ollows:
1hat the instant writ petition was iled challenging the
constitutional alidity o Martial Law Regulation No. XVI
dated 14
th
June, 196 proiding or trial in camera |section
4,2,[, prohibition o any appeal against decision or judgment
and sentence o the Special Martial Law 1ribunal |section 4,8,[,
proision o oath o secrecy o all participants in the
proceedings o the Special Martial Law 1ribunal |section 4,10,[
and the pronouncements o guilt, and the sentence o death
purportedly under section 121A o the Penal Code and 13
MLR, 195 upon Lt. Col. ,retd., M. A. 1aher Bir Uttam ,the
husband o the petitioner No. 2, and his execution on 21
st
July,
196, and this lon`ble Court issued Rule Nisi as prayed or.
1hat during hearing o the Rule Nisi, a writ Bench o this
lon`ble Court comprising their Lordships Mr. Justice A. l. M.
Shamsuddin Chowdhury and Mr. Justice Sheikh Md. Zakir
97
lossain directed the deponent to appear beore this Court on
13,01,2011 to make statement proiding with necessary
inormation as to the so called trial and coniction o Colonel
Abu 1aher and others by a Special Martial Law 1ribunal in
196.
1hat accordingly I appeared beore this lon`ble Court on
13,01,2011 and made erbal statements in connection with the
tragic crime committed in Dhaka during June and July, 196
which ended with the hanging o Colonel Abu 1aher, BU,
through a so called trial by a Special Martial Law 1ribunal.
1hat the erbal statements which I hae made are
required to be brought on record to arrie at a correct decision
in the matter and hence this Aidait.
1hat rom March, 195 to 14,10,196, I sered as the
Magistrate lirst Class, Dhaka Sadar ,South,. During June and
July, 196, Colonel Abu 1aher. BU and others were tried by a
Special Martial Law 1ribunal sitting in camera in Dhaka Central
Jail. \hile sering as Magistrate lirst Class, Dhaka Sadar
,South,, the Goernment in the Ministry o Law and
Parliamentary Aairs, Justice Brach, by Notiication No. 430-
JIV,I1-2,6 dated 14,06,196 constituted a 5,ie, member
Special Martial Law 1ribunal in exercise o powers conerred by
98
paragraph no. 3 o the Special Martial Law 1ribunal Regulation,
196 ,Regulation No. XVI o 196, with me as one o its
members. Beore my appointment as a member o the
1ribunal,
I was neer consulted nor inormed.
1hat 1ribunal sat in Dhaka Central Jail in camera and
proceeded with the trial o Colonel Abu 1aher, BU and others.
Since the country was under Martial Law and the Special
Martial Law 1ribunal concluded the trial o Special Martial Law
1ribunal Case No. 1 o 196 in a hurry in camera. 1he trial
concluded awarding sentence o death on Colonel Abu 1aher
and dierent terms o sentence on other accused by a
pronouncement dated 1,0,196.`
In reply to our question this deponent stated that no
document Relating to the case and no ile was gien to him
during the trial, that he knew the laws inoking which Col.
1aher was indicted, did not proide or death sentence as on
the date the trial commenced, but the chair o the tribunal did
not ask or his iew on the coniction or the sentences, there
was no consultation between the members, procedure ollowed
in an ordinary criminal trial was not ollowed and that, as the
99
country was under martial law, he was let with no choice but
to aix his signature on the coniction and sentencing orders.

Khandoker lazlur Rahman, a ormer Magistrate, Dhaka
District Magistracy and a retired Secretary, Bangladesh National
Parliament, in his aidait recorded the ollowing statements,
I, Khandoker lazlur Rahman, son o Khondoker Lutur
Rahman ,since deceased,, ormer Magistrate, Dhaka District
Magistracy and retired Secretary, Bangladesh National
Parliament, now residing at 89,119 ,89,3 old, RK Mission
Road, Gopibagh, Dhaka-1203, Bangladesh, aged about 65
,Sixty ie, years, by proession-retired Goernment Serant, by
aith-a Muslim, by Nationality-Bangladeshi, do hereby solemnly
airm and say as ollows:
1hat the instant writ petition was iled challenging the
constitutional alidity o Martial Law Regulation No. XVI
dated 14
th
June, 196 proiding or trial in camera |section
4,2,[, prohibition o any appeal against decision or judgment
and sentence o the Special Martial Law 1ribunal |section 4,8,[,
proision o oath o secrecy o all participants in the
proceedings o the Special Martial Law 1ribunal |section 4,10,[
and the pronouncements o guilt, and the sentence o death
100
purportedly under section 121A o the Penal Code and Lt. Col.
,retd., on M. A. 1aher Bir Uttam ,the husband o the petitioner
No. 2, and his execution on 21
st
July, 196, and this lon`ble
Court issued Rule Nisi as prayed or.
1hat during hearing o the Rule Nisi, a writ Bench o this
lon`ble Court comprising their Lordships Mr. Justice A. l. M.
Shamsuddin Chowdhury and Mr. Justice Sheikh Md. Zakir
lossain directed the deponent to appear beore this Court on
19,01,2011 to proide necessary inormation as to the so
called trial and coniction o Colonel Abu 1aher and others by
a Special Martial Law 1ribunal in 196.
1hat accordingly I appeared beore this lon`ble Court on
19,01,2000 and made erbal statements in connection with the
tragic crime committed in Dhaka during June and July, 196
which ended with the hanging o Colonel Abu 1aher, BU,
through a so called trial by a Special Martial Law 1ribunal.
1hat the statement that I hae made is required to be
brought on record to arrie at a correct decision in the matter
and hence this Aidait.
1hat rom Noember 25, 195 to January, 198, I sered
as Deputy Magistrate in the Dhaka District Magistracy and by
an order dated 20.0.196 issued by the Additional District
101
Magistrate, Dhaka, I was deputed as Magistrate to remain
present during the execution o Lt. Colonel Abul 1aher, Bir-
Uttam, accordingly ater midnight o 20.0.196, that is in the
early hours o 21.0.196, I went to the Dhaka Central Jail with
a iew to complete the legal ormalities in connection with the
execution o Lt. Colonel Abu 1aher, Bir-Uttam and met him in
ront o condemned cell, wherein he was kept conined. le was
ery calm and quiet, asked me about my well-being and oered
me a cup o tea, to which I humbly declined. le urther
requested me as to whether he can be taken to the gallows
without mask and in reply I ery humbly said that the rule does
not permit. At this stage Colonel 1aher requested me to
complete the process o execution within the shortest possible
time. Ater the wordings, he recited a poem wherein it was
stated that unjust would be perished under the rolling stone.
Beore he was taken to the gallows, Colonel 1aher said that the
1ribunal and the trial by which he was conicted and sentenced
was not legal and air. lis last words on the gallows PJ>?H%JLK:%
IE%G>D?A<EI:?%;?=%Q;?HJ;=:N@R*
1hat on being asked by the lon`ble Court, I replied that
the question o this trial would be raised later and or that
matter, I presered the oice order made by ADC ,General,
102
Dhaka. I also inormed the lon`ble Court that the death
warrant issued by the Special Martial Law 1ribunal sent to
Dhaka District Magistracy or taking steps or execution was
reerred to the Ministry o lome Aairs, seeking clariication
whether the death warrant o Colonel 1aher could be executed
in the ciil jail, ollowing which the Ministry o lome Aairs
got the Jail Code amended by Presidential Order to execute the
death warrant issued by Special Martial Law 1ribunal in ciil
Jail and Accordingly Colonel 1aher was executed in Dhaka
Central Jail.`
Major General Nurul Islam, who retired rom the
Bangladesh Army as a Major General in April, 199,
transmitted an aidait rom the United States, where he is
now permanently settled as a citizen, claiming his total
ignorance on the eent as he was, as he says, posted at the
Bangladesh Mission in Rangoon at that time.
As none o the respondents iled any aidait to rebut
any statement, assertions, insistence, allegation, aspersion,
insinuation that ound places in the pleadings o all the
petitioners, which are broadly identical, under the rules
pertaining to pleadings, we are ordained to accept those as
admitted and accurate.
103
As the hearing dawned a plethora o Adocates o iconic
gradation with adulation beyond our realm, appeared to assist
this court, a couple o them to represent some petitioners while
the others did so pro-bono, with their treasure troe o high
proile juristic excellence.
1hey included none other than Dr, Kamal lussain, Mr.
M. Amirul Islam, Dr. M. Zahir, Mr. M. I. laruqui, Mr.
Rokanuddin Mahamud, Mr. Aktar Imam, Mr. AlM
Mejbahuddin, Mr. Abdul Matin Khashru, Mr. \usu lussain
lumayun and Mr. Z. I. Khan Panna, Dr. Shahdeen Malik and
ocourse Mr. Mahbubey Alam the Attorney General, Mr. M.K.
Rahman the Additional Attorney General and a brigade o law
oicers.
1he petitioner in \rit Petition no. 826 o 2011 were
represented by Mr. Rokanuddin Mahmud while Dr. Shahdeen
Malik appearing with Mr. 1awhidul Islam, represunted the
Petitioners in \rit Petition no. 236 o 2010. 1he learned
Attorney General appeared or the state with his ully equipped
contingent, composed o Deputy Attornies General Mr. A.B.M.
Alta lussain, Mr. Motaher lussain Sazu, Mr. Mohammad
Selim, and Assistant Attorneies General Mr. Shahidul Islam
Khan, Mr. Amit 1alukdar, Mr. Shoeb Khan and Ms. Purabi
104
Shaha. Mr. M K Rahman, the learned Additional Attorney
General, appeared with Mr. A S M Nazmul laque, AAG Mr.
Delwar lussain Samaddar, AAG or respondents no 3 and 4.
\ith a rare exhibition o unanimity, they all agreed that
the so-called trial was but a arce, a pure and simple mockery in
the pretext o the judicial process and hence, at the end, what
was done in the garb o a judicial order, was a cold blooded
murder. It was not een a show trial,` said Dr. Kamal, and
the so-called tribunal can not be described een as a kangaroo
court,` louded Mr. M. Amirul Islam. 1he whole episode, in Mr.
Rukonuddin Mahmud`s isualisation, put a stigma on our
nation. According to Mr. Aktar Imam, who submitted a well
researched comprehensie treatise, proered with an stentorian
emphasis, that the so-called trial did not relect een
microscopic trace o what should be the attributes o a criminal
proceeding. Mr. M. I. larooqui in his philosophically tuned
written submission underscored the impoartance o air trial
with reerence to the historical deelopment o human rights
and projected Col. 1aher as a champion o those propitious.
1he learned Attorney General termed the trial as a
national disgrace while M,S Khashru, lumayun and Panna
branded it as a deplorable syndrome in our history.
105
Mr. MK Rahman and Dr. Malik termed the so-called trial
and its ater math as diabolically outrageous, which, in their
iew, is relectie o a crude act o endetta, reminiscent o the
medieal eud.
All the learned Adocates, inclusie o Dr. Kamal
lussain and Mr. M. Amirul Islam tabled their submission with
dispassionate rhetoric, suggesting that trials een under an
authoritarian regime contain certain norms to gie it at least
some kind o judicial acade yet, in the instant case, een those
pretentious elements were missing. 1he erdict,` said Dr.
lussain, was pre-determined, not by the so-called tribunal,
but by the persons who were at the helm o the state aairs.`
Mr. Islam said it as clear as a see through crystal stone
that the purpose behind the whole gimmick was indictiely
designed with a mind set to annihilate Colonel 1aher Bir
Uttam, who shall neer disappear rom the minds o the people
because o the contribution he let behind to secure the
emancipation o the Bengali People.
Dr. lossain, Mr. Islam, Dr. Zahir, Mr. laruqui, Mr.
Rokanuddin Mahmud, Mr. Imam, Mr. Kashru, Mr. lumayun
and Mr. Z. I. Khan Panna, expressed without any equiocation
that nothing can be designated as a judicial or een a quasi
106
judicial proceeding where the accused is not eeded with the
inormation as to the indictment, is not allowed legal
representation, to cross examine witness, hae access to what
the prosecution witnesses are to depose, to call deence
witnesses. Absence o right to appeal rendered the scenario
worse een.
Mr. Rokanuddin Mahmud, representing Mr. lasanul
laque Inu ,\.P. No. 826,2011, and others, relied on the 5
th

Amendment judgment and said the subject trial is not coered
by condonation as it was not a routine work that could be
undertaken by a lawul goernment. le went on saying that it
was not an ordinary martial law court and that the proclamation
o 8
th
Noember 195-is not condoned by this Courts`
Judgment in the 5
th
Amendment case.
On the question as to our competence to receie
eidence, he illuminated that aidaits are the basis o Article
102 cases- they are not depositions. 1here is no disputed
question o act and hence there is nothing to stop us to
procure inormation rom those who are amiliar with all that
we need to know or the appropriate disposal o the Rules.
Lxtracts rom his marathon submission are as under,
107
Oral statement made by swering deponents were by way
submission in urtherance o what they stated in their aidaits,
they were not deposition in the strict sense, but submissions.
1hey did not submit on any disputed question, they are
jurisdictional questions. 1his Bench is not examining any
disputed question o act, but jurisdictional, collateral acts. 1he
deponents only adanced clariication on their aidait
statement when the courts asked or. 1his Court has all the
power to ask questions to deponents or lawyers or
clariication.
le stated an act o execution is a murder i killing is not
authorised by law: execution through lawul trial is only
exception- that is why it is a murder.`
1he Magistrate can not escape sanction.`
Mr. Mahmud went on to say,
1he lather o the Nation, Bangabandhu Sheikh Mujibur
Rahman was brutally killed along with his other amily
members on the ill-ated morning o 15
th
August, 195, and
Khandaker Moshtaque Ahmed along with his other
accomplices, ater most illegally usurping state power
proclaimed so-called martial law oer the country on 20
th

August, 195, during which period, arious martial law orders,
108
regulations, notiications including the Martial Law Regulations,
195 and the Special Martial Law 1ribunal Regulation, ,which
gae birth to the tribunal concerned, were passed. Although
they purportedly legalised by the Constitution ,lith
Amendment, Act, 199, the lon`ble ligh Court Diision, in
the landmark Judgment deliered in \rit Petition No. 6016 o
2000 ,popularly known as lith Amendment Case, declared
that the Act was in toto unconstitutional, illegal and oid ab
initio and without any lawul eect and all the proclamations,
regulations, orders and notiications were equally
unconstitutional and oid and as such and all acts purportedly
done under those proclamations, regulations, orders were also
illegal and oid subject to some condonations and rom that
point o iew the so-called tribunal was totally beret o alidity
and authority, as a corollary all the purported conictions were
non-est.`
In his iew Lt. Colonel 1aher was in any eent, totally
depried o a air trial in as much as no proper deense was
allowed in the secluded trial inside the jail without any or little
access to lawyers. 1his is one o the inalienable undamental
right o all the citizens o the country to deend himsel
through lawyers o his choice`, said Mr. Mahmud. le
109
reminded us that in one o his Judgment | 1he State s. Purna
Chandra, DLR ,190,, 289-92[, a Bench presided oer by
Justice AM Sayeem, set aside a capital punishment, saying the
Code o Criminal Prodecure coners a right on eery accused
person brought beore a criminal court to be deended by a
lawyer. 1hat right extends to access to the lawyer or priate
consulation and also aording the latter an adequate
opportunity o preparing the case or the deense. A last
moment appointment o an adocate or deending a prisoner
accused o a capital oence not only results in a breach o the
proision o the 6
th
paragraph o Chapter XII o the Legal
Remembrance`s Manual ,1960,, and rustrates the object
behind the elaborate proision o that Chapter.......1he denial o
this right must hae reduced the trial into a arcical one.`
Mr. Mahmud raised a question as to how the same Justice
A. M. Sayem, as the then president and the chie martial law
administrator oerlooked his own judgment and rulling and did
not accept the mercy petition o Col. 1aher and sent him to the
gallows.
le asserted that it is also well established that under the
constitutional jurisdiction o the lon`ble ligh Court Diision,
eery sentence o death must be placed beore this lon`ble
110
Court or conirmation, and this is a constitutional saeguard to
which eery citizen o this counrty is entitled, as an imutable
right, yet the Special Martial Law Regulation did not proide
or any such sety ale. 1he coniction,` he said, was wholly
unconstitutional and oid.`
According to him the right to preer appeal against any
coniction is a part and parcel o the notion o air trial, and the
act that the Regulation No. 4,8, o the MLR XVI o 196 took
away that right o an accused, by itsel made trial and
coniction passed by that tribunal wholly unacceptable,
unconstitutional and oid.
As he looks at it, a criminal trial must be held L?% MDFJLG
as ordained by Article 35,3, o the Constitution and the idea o
a criminal trial in camera is absolutely unknown and repugnant
to the Constitution and to the basic notion o air trial. It is an
unortunate part o our history that an unlinching lreedom
lighter like Col. 1aher had to ace a so-called trial in the dark
chamber o the jail`, oiced Mr. Mahmud.
le went on saying,
It was malaide on the part o the martial law rulers at
that time. It is anybody`s guess when it is seen how hastily Col.
1aher was executed within 4,our, days o the coniction,
111
which by itsel depicts that the authorities o the day were bent
to annihilate him at all cost.`
It is so melancholic and anguishing to think that a
person who had wagered his lie or this country and, lost one
o his legs in the \ar o Liberation, had to ace such disgrace
and injustice in this land or which he sacriiced so much,`
erbalised Mr. Mahmud.
In his iew the perpertrators, who are usurpers o the
Constitution and the state power, utterly and oertly
disregarded, disrespected and distorted all notions o justice
while conicting and executing a man like Col. 1aher.
luman ciilization has witnessed ery ew o such a
traesty o the truth and justice: the martial law rulers, to gratiy
their own grotesque ambition, killed an intrerpid lreedom
lighter and righteous man in the pretext o so-called justice.`
Dr. Shahdeen Malik, the Learned iling lawyer or Pro
Anwar lussain and others ,\.P.No. 236,2010,, asked us to
take particular note o the statement, the person who was a
member o the so-called tribunal, made to the eect that no
paper was placed beore him when he was sitting in the
tribunal and the procedure which are mandatory or criminal
trials, were not ollowed. It was an absolutely weird situation,
112
which can only be branded as a cruel joke, which eentually led
to an extra judicial homicide,` Dr. Malik uttered. le also
echoed the theme that ater the decisions in 5
th
and
th

Amendment cases, the purported erdict o the so-called
tribunal is bound to all apart in any eent.
Submissions adanced by the learned Adocates, who
made themseles aailable ex-gratia, some in writing, are
recorded below, a bit elaborately in the interest o precision.
S<*%T;I;J%6>NN;L?%
It was as i army was preparing or a war-
1urmoil put eerything topsy tury in the icinity.
On what legal basis` asked Dr. lossain.
It was nothing else than a kangaroo court, where the
erdict was pre-determined by those in de-acto authority. 1hey
super imposed it on the so-called tribunal.`
Quoting General Manzoor, Dr. lossain stated that
1aher was in solitary coninement. I death sentence was
determined prior to the trial, it was illegal`, insisted Dr.
lussain. Journalists were threatened and deported. According
to him, justice now seems to be trailing through the right track
ater 3 decades.
113
le went on saying, Justice reigns some where in the
unierse-crime should neer go unpunished: pannacle o power
neer lasts long, it did not gloriy litler or Lewis 14
th
. Many
were tried-people can not commit crime in the name o the
state.`
Dr. lossain, through the written part o his proerment
asserted that in 196 when liing in Oxord, he was contacted
by Mr. Syed Ishitaq Ahmed, who had just relinquished the
oice o the Attroney General o Bangladesh, and arried in
London. le inormed Dr. lossaion that as the Attorney
General he had been sent the ile relating to the case o late
Col. 1aher, containing the judgment by which the latter had
been conicted and sentenced to death, containing the
proceedings o the purported trial held in Dhaka Central Jail,
and he had ormed his iew that the judgment bore no relation
to those proceeding and Mr. Ahmed thereore, expressed his
inability to gie his opinion regarding the alidity o the
judgment and instead, tendered his resignation.
Dr. lossain emphasised the omnipatence o air
Inestigation, equality, right against torture, and the
requirement ordained by Article-35 o the Constitution. le
expressed in black and white that right to legal assistance, duty
114
to keep record right, to be tried by competent, independent,
qualiied judges- right to a public hearing, right to examine
witnesses, right to appeal are all inseperable adjuncts o a air
trial.
le continued to state that right o ree trial is part o Due
Process and that to prepare the deence case, access to papers,
to lawyers, right to cross examination, are minimum
desideratum warranted by any ciilised standard.
In Dr. lossain`s iew none can deend this so-called trial.
le expressed a dream o ision o the uture.
Dr. M. Zahir submitted that Section 121A o the Penal
Code did not proide or death sentence. MLR 30 was declared
illegal-5
th
Amendment has been declared inalid.
1his case,` said Dr. Zahir, does not come under
condonation, it is not an executie act and it was an action that
was derogatory to the rights o the citizens.`
1hat can not be termed a trial at all`, expressed Dr.
Zahir, where the accused is not told o the oence he stands
in the dock or.` le stated that absence o records sheds a
thick cloud oer the whole scenario. All is not well is
Denmark,` uttered Dr. Zahir. On reception o eidence, he
115
insisted that the \rit Court originates rom the Court o Star
Chamber and hence it has jurisdiction to take eidence.
Zia was bent to kill 1aher,` emphasised Dr. Zahir.
Mr. M. Amirul Islam submittted that the decision in the
5
th
and the
th
Amendment cases are irreersible milestones.
Inalienable rights under Article 30 o the Constitution can not
be snatched away.
le echoed what Justice G. Jackson, Prosecuter in
Nuremberg 1rial had to say on air trial.
le said Article 32 is also inalienable. It is much more
than a basic eature, it is part o our ciilisation.
1he oence was alleged to hae had taken place in July
6, but there was no death penalty or the alleged oence. It
carried custodial sentence o 10 years R.I. only.
1his punishment was the inention o the martial law.
1his is the case o a killing under the pretence o a trial-a
kind o an extra judicial killing. Len Bhutto was a judicial
killing. Justice Nasim lasan is reported to hae said Bhutto was
a judicial killing.`
Right to lie is a person`s most coetted constitutional
possession.
Retrospectie eect was totally outside the arena o law.
116
1aher didn`t commit any crime,` submitted Mr. Islam.
Mr. Islam was in concert with others in expressing that
the nation must be relieed rom the smirch it has been trailing,
by pronouncing that 1aher was actually killed in the pretext o a
trial- It is a national aront`, oiced Mr. Islam, that a
lreedom lighter o his standing had to see the end o his lie
under the gallows.`
Mr. M. I. larooqui, who placed his submission partly in
black and white and partly erbalised, stated that Col. 1aher
was irtually killed- it was clearly a cold blooded murder
through a show trial-1aher was a democrat, a socialist. 1he
people who ascended to power ater Bangabondhu`s killing, elt
1aher would stand on their way-Constitution is a social
contract-wisdom o Rennaisance. 1hey elt 1aher was an
obstacle on their way to change the Constitution. le was ocal
or the basic structure o the Constitution.
It is obious that the trial was without jurisdiction-
le submitted that there is no bar in taking eidence. In
India eidence were taken ater Railway accidents- PIL Cases-A
man was killed with the allegation o sedition- lundamental
Character o the Constitution can`t be changed een by the
Parliament.
117
le reminded us o Reoussau`s Social Contract.
Mr. M. I. larooqui`s written submissions, ounded on
metaplysical consideration, are reprinted below erbatim,
Known trial in Antiquity resulting in the dreadul
sentence o death by drinking a cup o hemlock poison against
Socrates, the greatest thinker o ancient Greece,who gae the
priceless gits o Dialectics` to humanity-his pleading or
taking reason` as the supreme judge o eery thing. le pleaded
or expression o one`s thought. le is said to be the lather o
luman Rights.
In Antiquity when the use o might alone was considered
as the right policy the kings and ruling chies, waged incessant
wars against their neighbouring rials and adersaries and by
sheer orce o arms deeated and brought in chains men,
women, young and old without number. 1he gallant and brae
soliders ighting on the opposite side so long, oernight,
became helpless capties and were put down with brute roce.
In ancient slae-owning Greek States, thousands o sick, old
useless or rebellious slaes were killed and oered as sacriices
on the occasion o national rulers, was unquestionable, none
could een whisper a word in anguish or protest. 1he ery irst
attempt to speak aloud against this outrage, by Socrates, who
118
urged the people and the rulers to test eerything said or done
on the touchstone o reason` was sought to be silenced with a
saage sentecne o death. Socrates emerged as lather o
luman Rights. 1he martyrdom o Socrates gae rise to a rich
crop o ighters or human rights, liberators and
reolutionaries. 1ahir is one o them.
In the middle o iteenth century, particularly in the wake
o scientiic inentions, geographical discoeries, indtroduction
o printing press, improed use o gunpowder, besides the new
awakening ater Reormation and Renaissance, in Lurope, man
came to be regarded as centre o unierse with main ocus
concentrated on human dingity and happiness.
Many prominent thinkers had to pay with their lies,
exiles and imprisonemnt or spreading the gospel o human
dignity, rights and liberty, ater mock trials to gie the saage
erdicts a semblance o legality. loweer with undying
dedication to the cause o humanity new liberators stepped in
declaring that Loss o liberty is worse than death.` 1ahir is
one o them.
Dissenting oice o progressie patriots, journalists and
reedom ighters was gagged by inhuman bans and restrictions
119
during the dark colonial rules. Local customs and traditions
were shot to eternity.
People started sending memoranda and deputations to
the rulers to ameliorate their pathetic plight. Peaceul
demonstrations were, howeer, brutally dispersed with a hail o
bullets and baton blows. leroes like Mahama Gandhi and
Martin Luther King were sentenced to imprisonment een
though they irmly belieed in non-iolence, in trials beore
colonial judges. 1hose like Surja Sen, Madan Lal, Bhagat Singh,
Udhan Singh, who belieed in iolent oerthrow o the colonial
regimes, were led to the gallows on the basis o alse eidence
o police inormers and tutored witnesses. 1hese patriots,
though gone physically, became a source o inspiration or
countless o people at national and international leel.
During colonial period, the courts handed down
barbarous sentences o death, exile and long imprisonment
with hard labour, by resort to notorious conspiracy` cases in
India and other subjugated countries.
Conspiracy trial, in act, solely has eer been aimed at
hastening the prominent deendants to the gallows or prisons
to languish there or years. 1he only ault on their part haing
been their loud oice or reedom to change the socio-
120
economic strata`, which was magniied into allegaions o crime
o sedition` or iolent` oerthrow o the regimes, 1ahir is one
o them.
lis trial is unique. le was subjected to conspiracy trial in
independent Bangladesh, which he, along with the nation,
ought or and won. le wanted to uphold the social contract.
1he trial was made clear when Martial Law decrees ,between 15
August 195 and 9 April 199, amended, among others, the
Constitution`s Preamble and Article 8, when principles o
nationalism, socialism, and secularism were jettisoned.
$@;@:<UN%M>JLALG;J%M@LJ>NM@E%;?=%V>?NALADAL>?9%
1ahir`s political philocophy, we ind enshrined in the ery
Constitution o high ideas o nationalism, socialism,
democracy and secularism, which inspired our heroic people to
dedicate themseles to, and our brae martyrs to sacriice their
lies in, the national struggle` as the undamental priciples` o
Constitutionalism. 1hese high ideas were gien go by. And by
5
th
Amendment the ratiication was sought to be eected. 1his
amendment was howeer declared oid on 29 August, 2005. It
was upheld with some ariations by the Appellate Diision on
lebruary 01, 2010. See 2010 BLD ,Special issue, on judgments
121
on 5
th
Amendment. 1his case has opened the scope or the
judiciary to put` the arcical trial` on trial.
$@;@:<%NM:;WN%X<>I%A@:%NG;XX>J=9%
... I hae gien my blood or the creation o this country.
And now I shall gie my lie. Let this illuminate and inuse new
strength into the souls o our people. \hat greater reward
could there be or me No one can kill me. I lie in the midst
o the masses. My pulse beats in their pulse. I I am to be killed,
the entire people must also be killed. \hat orce can do that
None....` See 1ahir,s letter dated 18
th
July 196 rom Dhaka
Central Jail[ le was conicted on 1
th
July 196, and executed
on 21
st
July 196.
);AL>?%N@>DJ=%<:I:IF:<%$@;@L<9%
1ahir in act ought or the supremacy o the
Constitution o the Republic- the social contract o the nation,
o which he, with entire nation, was a party to, to lead a
national lie in accordance with the dictates o the Constitution.
But the conspiracy was hatched to eliminate him by a ake trial
to gag his strong oice. 1his was in actie amendment o the
Constitution. It was the cold blooded murder in the name o
sham trial that ended with shrouds o secrecy around in central
122
jail with the deense lawyers put under the embargo o oath o
secrecy.
I would suggest we should put up his statue as statue o
CONS1I1U1ION UP-lOLDLR` that may inspire the
nation to ight or the supremacy o the Constitution.`
O>I:% :YA<;GA% X<>I% A@:% Z<LAA:?% NDFILNNL>?% FE% 8ILGDN%
VD<L;:%7<*%8W@A:<%#I;IB%H>:N%;N%@:<:D?=:<[%%
1. Lord Denning said, 1o eery subject in this land, no
matter how powerul, I would use 1homas luller`s words oer
300 years ago: Be you eer so high, the law is aboe you.`
\]>D<L:A%K%^?L>L?%>X%M>NA%(XXLG:%!><W:<N%;?=%(A@:<N%
_15++`1%V8%8JJ%'"a%
1he supreme and undamental law o the land is the
Constitution and all laws ormed or ormulated under and
within the ires o Constitution are recognised by it and
nothing else.
1he law should be applied without ear or aour, malice or
ill will, or prejudice, bias or ear rom others, particularly the
high and mighty. 1his, inter alia means, there must be an
independent and impartial judiciary which is the cornerstone o
any credible justice deliery system in a ciilised country.
2.! OA;ADN%>X%7;<AL;J%b;Z%":HDJ;AL>?%)>*%cd#%>X%15+.%
123
Martial Law Regulation No. XVI and all its contents including
s. 3,1, which set up the Special Martial Law 1ribunal ,SML1,,
has been declared illegal, oid and non-est in the eye o law. In
the 5
th
Amendment case the Apex Court held:
,20, Since the Constitution is the Supreme Law o the land,
the Martial Law Proclamations, Regulations and Orders
promulgated,made by the usurpers, being illegal, oid and non-
est in the eye o law, could not be ratiied or conirmed by the
Second Parliament by the lith Amendment, as it itsel had no
such power to enact such laws as made by the aboe
Proclamations, Martial Law Regulation or orders.
,21, Moreoer the lith Amendment ratiying and alidating
the Martial Law Proclamations, Regulations and Orders not
only iolated the Supremacy o the Constitution but also the
rule o law and by preenting judicial reiew o the legislatie
and administratie actions, also iolated two other basic
eatures o the Constitution, namely, independence o the
judiciary and its power o judicial reiew.` In Siddique Ahmed
Bangladesh and others , \. P. No. 696 o 2010,, otherwise
known as the
th
Amendment case, the ligh Court Diision
echoed the Apex Court`s Decision and held that,
124
,6, 1hese Constitutional proisions hae been mirrored
aboe or the sole purpose o indicating the assertion that ,1,
martial law or any similar usurpation o power has no threshold
under our constitution ,2, our Constitutional Scheme, rom the
top to the toe, owes its existence to the will o the people ,3, it
is the Parliament, elected through popular ote, which is the
centriugal body or all democratic actiities ,4, the lead o the
Lxecutie Goernment, along with his colleagues surie so
long as they command the support o the majority members o
parliament ,5, members o Parliament, who alone enjoy
prerogatie to legislate, with the only exception o parochial
and short lied legislatie power o the President, and who do
eectiely and irtually orm the electoral college or the
ormation o the executie Goernment, are all elected directly
by the people, ,6, a set o undamental rights, which
correspond to the Uniersal Declaration o luman Rights,
1948, and other U N Coenants on human rights, remain
stoutly erected as the Constitutional Arch Stone to insulate
eery indiidual`s undamental rights ,, there is a Supreme
Court, comprising two hierarchical Diisions, to act as the
inincible anguard, to shield the sacrosanctity o the
Constitution by perorming the sacred duty o being it`s
125
Guardian and to protect and enorce the undamental rights,
irmly and inlexibly secured by the Constitution and, most
importantly, to act as the iniolable bastion to keep the
Constitution immune rom extra-Constitutional inringement
and also to ensure that no law, contraening any proision o
the Sacred Instrument, is passed.`
3.%V>D<A%7;<AL;JeOM:GL;J%7;<AL;J%b;Z%V>D<A%><%$<LFD?;J
1he proceedings corresponding to Special Martial Law 1ribunal
Case NO. 1,6 do not all within the ambit o Court Martial as
enisaged under the Army Act 1952, the Air lorce act 1953
and the Nay Ordinance 1961. 1hese legislations proide or
trial by Court Martial o persons subject to the Act` and
contain speciic procedural saeguards ,such as power to
appoint counsel and right to object to being tried by any oicer
sitting on the court, in respect o the rights o the accused.
In contrast, the Special Military 1ribunal was set up purportedly
under a special law. It allowed or ciilian members to sit on the
1ribunal ,two members o the tribunal were magistrates o the
irst class,. Section 4 o the Martial Law Regulation ,MLR, No.
XVI o 196 gae the tribunal the jurisdiction to try irtually
any oence. 1he regulation is completely silent on the rights o
the accused ,the regulation does not een proide or the cross-
126
examination o witnesses,. Shockingly, section 8 o MLR No.
XVI proides that No appeal shall lie to any authority
whateer rom any decision or judgment o the 1ribunal`.
3*! &<>A:GAL>?%>X%b;Z%f%&<>G:NN%>X%b;Zg
4.a, See Mohmudul Islam p. 2.94-2.155
lrom Suspect to 1rial, Andrew Sanders in 1he Oxord
landbook o Criminology, 2
nd
Ldition, edited by Mike
Maguire, Rod Morgan and Robert Reiner:
1he principles underlying dierent criminal justice
systems ary according to history, culture, and ideology. 1he
adersary principle is an important characteristic o the Lnglish
system and o other common law systems such as those o
Australia, Canada, and the United States. 1his principle is oten
characterised as embodying the search or proo` rather than
truth`. 1he search or truth` is usually said to be embodied in
ciil law` systems ,such as the lrench,, which are inquisitorial`.
It would be nice i proo and truth` were synonymous and
sought with equal igour, as one o Britain`s leading Chie
Constables has adocated, but examination o the due process`
and crime control` models deeloped by Packer ,1968, will
show that this is unrealistic
127
Due process` alues prioritise ciil liberties in order to secure
the maximal acquittal o the innocent, risking acquittal o some
guilty people. Crime control` alues prioritize the coniction o
the guilty, risking the coniction o some ,ewer, innocents and
inringement o the liberties o some citizens to achiee the
system`s goals. Due-process-based systems rightly control the
actions and eects o crime-control agencies, while crime-
control-based systems, with their concern or conictions, do
not. A pure crime-control system would prioritize the search
or truth by adersarial law enorcement agencies at literally all
costs. Police oicers who knew` that someone is guilty would
either hae this knowldged accepted as proo by a court or
would be allowed to seek proo o it by any means. Put in this
way, o course, the need or controls in a crime-control system
becomes clear. Objectie proo is needed and law enorcement
methods must be limited by humanitarian or libertarian
standards een at the cost o knowledge. loweer, a pure due-
process system would prioritize proo and controls at literally
all costs. Guilty erdicts would be allowed only on proo
beyond literally all doubt, and law enorcement oicials would
need objectie eidence beore interering with any ciil
liberties, howeer slight. And so we see the criminal justice
128
system dilemma. Absolute proo, and completely innocuous
methods o securing it, cannot be insisted upon. But to insist
on uncontrolled discretion in the way the truth is sought is
equally unacceptable. No system can correspond exactly with
either model ,as no system is entirely adersarial or entirely
inquisitorial,, but in most systems the alues o one or the other
model appear to predominate`.
Due process` includes the ollowing rights o an accused:
-Presumption o Innocence
-Right to be heard
-Right to hae access to Counsel
-Right to be inormed o the grounds o arrest
-Right to speedy and impartial and public trial
Protection against sel-incrimination
-Right to cross-examine prosecution witnesses
Under art. 32 any law depriing a person, citizen or non-citizen,
o personal liberty must not be arbitrary and must be
reasonable and air. Art. 33 proides or speciic procedural
saeguards against arbitrary arrest and detention and together
with arts. 32 and 35 make a total code in respect o arrest,
detention and trial.
129
Implicit in arts. 31 and 32 is the right o access to justice as a
man cannot be said to hae been dealt with in accordance with
law unless he has a reasonable opportunity to approach the
court in indication o his right or grieance ,Liquat lossain
Pakistan PLD 1999 SC 504, 652, see also Mahmudul Islam p.
2.111A,
Mahmudul Islam p. 2.149, lair 1rial- 1he gist o art.
35,3, is air trial which requires public trial by an independent
and impartial court or tribunal. In addition, in a democratic
society, there are speciic saeguards in the orm o rules o
eidence which operate to protect an accused against unlawul
depriation o lie and liberty.
It appears that none o the aboe procedural saeguards
was existent in Special Martial Law 1ribunal ,SML1, Case No.
1,6. Consider the ollowing extract rom 1he trial o Colonel
Abu 1aher`, Daily Star, 24 July 2006, Lawrence Lishultz:
Just oer thirty years ago I stood outside Dhaka Central
Jail. I had arried early or a day that would become a day to
remember.` It was June 28, 196.
A week earlier, Special Military 1ribunal No. 1 had begun
its work in secret. It conened or a single day and then
immediately recessed or a week to permit deence lawyers
130
seen days to prepare or a case which the prosecution had
been working on or six months. 1he trial o Colonel Abu
1aher and more than twenty others had begun. 1he accused,
despite repeated requests throughout the period o their
detention, had been denied access to legal counsel and
communication with relaties.`
In addition, all the deence counsels were sworn to an
oath o secrecy. In act, s. 4,10, o MLR No. XVI proided that
the Chairman o the Special Martial Law 1ribunal would
require any person attending or otherwise participating in the
trial to make an oath o secrecy and the iolation o such oath
was made punishable by imprisonment or a term o up to
3,three, years. 1he act that trial was held within the conines
o Dhaka Central Jail is in itsel eidence that the proceedings
were not just.
It should also be mentioned that no documents
pertaining to the trial, coniction or sentence o the conicted
has eer been made aailable by the authorities. 1he only
reasonable inerence is that all such documents hae probably
been destroyed to hide the eidence o illegalities committed
therein.
131
M.C. Kane, an American lawyer in research on Military
Commissions and the Guantanamo Detainees` titled
Saeguards Missing` obsered as ollows:
One o the most controersial sections inoles the use
o secret eidence. No one can legitimately argue, howeer, that
ital conidential inormation, such as the details o military
operations or the identities o undercoer operaties, should be
disclosed in public. \hether that inormation should be
allowed to conict is another matter altogether. Nonetheless,
statutes and judicial proceedings in the US hae regularly
recognised the necessity or secrecy in certain limited
conditions.
1ypically, when military commissions were used, no
ciilian courts were unctioning adequately to conduct such
proceedings.
Both US and international law hae undergone radical
transormations since military commissions were last used. At
the time o the German trial, much o the Bill o Rights, with
its substantial saeguards, had not been applied in domestic law
outside the ederal judicial scheme. Such additional rights
should then arguably be extended to the military commissions,
much as they were to state judicial proceedings. Internationally,
132
the US has since become party to the International Coenant
or Ciil and Political Rights and many other treaties and
conentions, which require a air trial and protection rom
arbitrary arrest and detention.`
Another commentator has noted:
One o the most undamental principles o human rights
as stated aboe, is the protection o indiidual liberty,
especially rom the undue exercise o state power.` 1his
principle is also applicable at the international leel and the
concern or personal liberty is relected in the Statutes o the
IC1\ ,International Criminal 1ribunal or 1he lormer
\ugoslaia, and IC1R ,International Criminal 1ribunal or
Rwanda, and their rules o procedure and eidence. 1hese
instruments limit the extent to which persons may be depried
o their liberty beor they are brought to trial and set out rules
aimed at preenting the innocent rom being conicted and
imprisoned by protecting the integrity o the trial itsel.`
Stuart Beresord, Redressing the \rongs o the
International Justice System: Compensation or Persons
Lrroneously Detained, Prosecuted, or Conicted by the Ad
loc 1ribunals, 96 AM. J. IN1`L. L. 628, 631 ,2002,.
133
4.b, Special Martial Law 1ribunal ,SML1, Case No. 1,6 held
in camera and conducted in an aura o utmost secrecy by
SML1 whose constitution, jurisdiction, authority, unction and
procedure wihtout any right o appeal are and hae been held
to be ultra ires the Constitution and outside all ciilised norms
o criminal justice deliery system.
4.c, 1he unholy and unnatural haste in rejecting the mercy
petition and executing Lt. Col. ,ret, M. A. 1aher was ex-acie
mala ide and or a collateral purpose and beyond,outside, and,
repugnant to all ciilised cannons o Justice and Articles 31, 32
and 35 o the Constitution.
5. V>?=>?;AL>?N%;N%A>%M;NA%;?=%GJ>N:=%A<;?N;GAL>?N%
In the 5
th
Amendment case, questions arose as to whether to
preent chaos and conusion and to aoid anomaly and to
presere continuity, the actions and the legislatie measures
taken during Martial law period needs to be condoned,cured
by the doctrine o necessity.
1he doctrine o necessity originated rom the ollowing
maxims:
-Id Quod Alias Non Lst Licitum, Nexessitas Licitum lacit ,that
which otherwise is not lawul, necessity makes lawul,,
134
-Salus populi Suprema lex,saety o the people is the supreme
law,, and
-Salud republicae est suprema lex ,saety o the State is the
supreme law,
BIM\ Ltd. Vs Bangladesh and Others 2006 ,Special Issue,
BL1 lCD |Part XXXV at pg. 214-216[ ,hereinager reerred to
as the 5
th
Amendment case, lCD,
1his doctrine o State Necessity is no magic word. It does not
make an illegal act a legal one. But the Court in exceptional
circumstances, in order to aert the resultant eil o illegal
legislations, may condone such illegality in the greater inerest o
the community in general but on condition that those acts
could hae been legally done at least by the proper authority.`
In the case o Asma Jilani Goernment o Punjab PLD
192 SC 139, lamoodur Rahman, C.J. held at page 20,
I too am o the opinion that recourse has to be taken to
the doctrine o necessity where the ignoring o it would result
in disastrous consequence to the body politic and upset the
social order itsel but, I respectully beg to disagree with the
iew that this is a doctrine or alidating the illegal acts o
usurpers. In my humble opinion this doctrine can be inoled
in aid only ater the court has come to the conclusion that the
135
acts o the usurpers were illegal and illegitimate. It is only then
the question arises as to how many o these acts, legislatie or
otherwise, should be condoned or maintained, notwithstanding
their illegality in the wider public interest. I would call this a
principle o condonation and not legitimization. Applying this
test, I would condone ,1, all transactions which are past and
closed or no useul purpose can be sered by reopening them
,2, all acts and legislatie measures which are in accordance
with or could hae been made under the abrogated constitution
or the preious legal order ,3, all acts which tend to adance or
promote the good o the people ,4, all acts required to be done
or the ordinary orderly running o the State and all such
measures as would establish or lead to establishment o in our
case the objecties mentioned in the Objecties Resolution o
1954. I would not howeer condone any act intended to
entrench the usurper more irmly in his power or to directly
help him to run the country contrary to the legitimate
objecties. I would not condone anything which seriously
impairs the rights o the citizens except in so ar as they may be
designed to adance the social welare and national solidarity.`
1he proceedings that hae been impugned in the present
writ petition undoubtedly were carried out as a means or
136
entrenching the then usurpers more irmly in power. 1he
proceedings were merely a mechanism or a military ruler to
remoe certain progressie, pro-people, pro-democratic
elements that were willing to challenge the authority o the said
ruler.
In the
th
Amendment case, the ligh Court Diision in
relation to the issue o condonation obsered,
So where does the petitioner stand in the backdrop o
our unequiocal indings as igured aboe, particularly in the
light o the synthesis that martial law courts were beret o
authority as much as the martial law itsel was 1his would, a
ortiori, entail that conictions passed by such purported courts
are o no eect in the eye o law. In iew o the act that such a
inding can create in-surmountable administratie problems,
and can, to some extent, import conusion, wilderness and
anarchy, this Diision, in the lith Amendment case, granted
condonation to a number o circumstances and eents, which
was endorsed by the Appellate Diision with some
modiication.`

137
In the 5
th
Amendment case ,AD, the Appellate Diision at
para 353, modiied the condonations made by the ligh Court
Diision and condoned, inter alia, the ollowing:
,a,!All executie acts, things and deeds done and actions
taken during the period rom 15
th
August 195 to 9
th

April, 199 which are past and closed,
,b,!1he actions not derogatory to the rights o the citizens,
,c,!All acts during that period which tend to adance or
promote the welare o the people, and
,d,!All routine works done during the aboe period which
een the lawul goernment could hae done.
1he ligh Court Diision applied the aboe test in the
th

Amendment case and held that:
1he aboe index o condonation being binding upon us,
there is no need to repeat them, sae saying that so ar as the
instant case is concerned the index shall apply mutatis
mutandis.
laing thus auto incorporated the aboe list in this
judgment, our iew is that the said list does not apply to the
petitioner. As his sentence is still executory, he cannot be
compartmentalised within the past and closed criteria`.
Additionally, the petitioner`s case inoled questions o his
138
citizen`s rights` protected by clause ,b, in the Appellate
Diision`s catalogue printed aboe.
1he petitioner`s entitlement to hae access to air justice in
accordance with the proision contemplated by the
Constitution, i.e. through the Courts created by statutes in
accordance with Constitutional commandments, not through
Kangaroo courts, set up by extra-Constitutional means, is
indeed his Constitutional right as secured by Articles 2, 32, 33,
35.`
Similarly, in the instant writ petition, the Petitioner`s case
inoles questions o their and Lt. Colonel ,retd., M.A. 1aher`s
citizens right and as such, the sham proceedings carried out
against them cannot be condoned.
In this regard, Justice A. B. M. Khairul laque`s mentioned
o the case o Lx parte Milligan in the 5
th
Amendment Case,
lCD also merits consideration.
BIM\ Ltd. Vs Bangladesh and others 2006 ,Special%Issue,
BL1 ,lCD, at page 6:
1he amous case o Lx parte Milligan 1 US ,4\all, 2,
L.Ld. 281 ,1866,, gloriied the rights o people een during war.
Milligan, a ciilian resident o Indiana, was a Southern
sympathizer. On an allegation o treason against Northern
139
America, he was arrested on October 5, 1864 and on the orders
o General loery, he was tried by a military commission and
sentenced to be hanged on May 19, 1865.
On a writ o habeas corpus, the ollowing questions were
beore the Supreme Court o the United States:
I)! \hether the Court had jurisdiction in iew o
legislation suspending the writ o habeas corpus,
II)! \hether Milligan should be discharged.
1his was a time when ciil war was raging or more than
three years and the ery existence and oundation o the
Republic was seerely threatened. Len in that trying and
precarious situation the lon`ble Judges o the Supreme Court
did not relent rom upholding the undamental principles o the
Constitution in obedience to their oath and held that Congress
was without Constitutional authority to suspend the priilege o
habeas corpus and to allow exercise o Martial law in the State
o Indiana where there was no rebellion at the releant time.`
In the
th
Amendment case howeer, the lCD was not
inclined, under their writ jurisdiction, to interere with the
Petitioner`s coniction and sentence and held:
Our aboe obseration notwithstanding, we are still not
inclined to interere with the coniction, with the reckoning
140
that this is not the proper orum because o the ollowing
reasons:
lirstly, although the coniction was handed by a oid
orum, a military court, original cognisance was neertheless,
taken by a properly constituted Court Viz, a Court o Session,
and hence the notion o justice will be rustrated i through a
writ o certiorari the coniction is completely set aside, because
in that eent he will go scot ree without acing a resh trial de-
noo. Secondly, other complicated issues are also blended with
this case, such as whether a second lIR is recognised by the Cr
PC and what consequences would low i it is not recognised,
which issues are not apposite or a writ Bench . . . . .`
It is submitted that instant petition is distinguishable rom
the
th
amendment case in that it is apparent rom the acts
aailable beore this Court that there was no case to be made
out against the accused in Special Martial Law 1ribunal ,SML1,
Case No. 1,6. Numerous accounts hae since conirmed that
the military regime had decided on the punishment long beore
the trial had een begun. Martial Law Regulation ,MLR, No.
XVI o 196 was proclaimed or the sole purpose o conening
a tribunal so that pre-determined punishments could be
imposed on potential opposition. It should also be mentioned
141
that the 1aher trial` was the irst and the last time such a
tribunal eer conened under Regulation XVI o 196. It is also
submitted that the impugned sentences hae already been
executed. In act, Col. 1aher was executed purportedly or a
crime which carried a maximum sentence o imprisonment up
to 10 years.
8. linally, a delay o 35 years does not render alid or
constitutional what are otherwise inalid and unconstitutional
in that those acts were not challenged in iew o the so-called
cloak o constitutionality surrounding the 5
th
and
th

Amendments in particular in iew o the ratiications thereo by
the then Parliament. Just because no one has challenged beore
and no preious case can be ound where it has been done
beore, it cannot be said that the amendments hae been
accepted and are now immune rom legal challenge.
(;GW:<%K%&;GW:<%\154-a%,%8JJ%'"%1,+%at page-129l, per
Denning L.J. \hat is the argument on the other side Only
this, that no case has been ound in which it has been done
beore. 1hat argument does not appeal to me in the least. I we
neer do anything which has not been done beore, we shall
neer get anywhere. 1he law will stand still while the rest o the
world goes on, and that will be bad or both.`
142
1he Appellate Diision was in agreement with Denning
L. J. in the lith Amendment Case
Accordingly, we are also o the iew that it is ar, ar
better thing that we do now, what should be done in the
interest o justice, een i it was not done earlier` ,at p. 132,.`
Mr. A l M Mesbahuddin echoed the iew that in the
backdrop o this courts unequiocal pronouncement in the 5
th

and the
th
Amendment cases, all the Rules are but destined to
end in success and that the unlawul conictions handed down
by the illegally constituted tribunal is not saed by condonation.
le had no qualm on the assertion that the whole episode was
gestated by General Ziaur Rahman to indicate his personal
ambition. le insisted that the history will not orgie General
Zia or this heinous act.
Mr. \usu lussain lumayun outlined the illegality o the
tribunal and the rogue nature o the trial process insisting that
the hole episode was :IF<E>H:?:NLN= or the sole purpose o
impelling General Ziaur Rahman`s diabolic lurch, a bit
indexterously though. Mr. lumayun urged that this court does
set up an example to iliy and thwart potential ;=K:?AD<LNAN.
le expects a judgment that shall surie through eternity and
143
aspires that General Zia should ace the same consequence as
Olier Cromwel did.
Mr. Matin Khashru submitted that the authority o the
1ribunal was oid ab-initio. It was an usurpation o power in
the name o martial law. Duty o the state is to uphold the
lies and liberties o the citizens,` said Mr. Khashru. le added
that usurpation o power is treason and the perpetators should
be brougnt to the book with the ultimate sanction o the penal
laws.
le cited Mexican constitution and submitted that Rule o
law is a undamental eature o our constitution too, which can
not be changed een by the Parliament.
It was Jungle law, masterminded by Ziaur Rahman`, said
Mr. Khashru.
le insisted that this court has eery jurisdiction to
consider eidence and that by reersing the purported erdict
o the so-called tribunal, we should show the world that we are
a ciilised nation.
It is more than a cold blooded murder`, submitted Mr.
Khashru, adding that it was a betrayal.
144
le concluded submitting that this Court should come up
with a judgment that must act as a deterrent against any
;=K:?AD<LNA%like Zia.
Mr. Z. I. Khan Panna commenced submission by
adducing some books to show that during the period rom 5-
81, innumerable killings took place and Gen Zia was the prime
culprit.
In his iew Absence o papers proe that an attempt was
made to conceal acts. Blayat Sing`s trial was also in public`,
said Mr. Panna.
le said Zia is the only traitor ater Mirzaor`
\e hae no inormation about Zia`s role in the war o
liberation` uttered Mr. Panna.
le expressed that an Inquiry Commission be set up to
examine how many and who were killed by Zia. 1hat
Committee should include journalists, adocates, people rom
other proessions, retired Supreme Court Judges, etc and
should be independent.
According to him coniction handed down by the so-
called tribunal has no leg to stand on ater this Court`s
judgments in the 5
th
and
th
Amendment cases. le asked us to
accept Mr. Lischultz`s statement as gospel.
145
Mr. Mahbubey Alam, the learned Attorney General,
representing the state tabled comprehensie submission with
ormidable stimulus, leaing no stone untouched.
On the 5
th
and
th
Amendment judgments` impact on the
special tribunal, the learned Attorney General was quite
spontaneous and erent in uttering that it goes without saying
and, can be asserted een without any pre-meditation, that the
ratio in the decisions o the two aboe cited judgments throw
the alidity o the so-called special tribunal into total
abnegation. le iterated that the alidity o the so-called
tribunal, coniction and the sentence passed by it are not
embraced by the principle o condonation as projected by the
Appellate Diision in the 5
th
Amendment case.
On the propriety o the trial the learned AG emphasised
that een a mockery has a limit and een that limit was not
honoured by the then so-called authorities in respect to 1aher
case. le insisted that all that we hae heard rom well endowed
people can lead us to one synthesis only, which is that the
whole melodrama was directed by General Ziaur Rahman who
was bent to appease anti liberation orces and to perpetuate his
authoritarian power. 1he learned AG wished to hae us to
accept that we do not hae to trael too ar to be swayed to the
146
equation that Zia decided the ate o Col. 1aher Bir Uttam, well
beore een the tribunal was up as this act is obious rom
Barrister Moudud Ahmed`s writing, which stands corroborated
by what Mr. Lischultz narrated in his sworn statement, citing
General Manzur. le asked us to attribute due weight to Mr.
Lischultz`s statement, who was an objectie, yet a
conscientious obserer.
Mr. Alam submitted that ery ew examples o such a
bizarre trial can be ound in the whole world. le insisted that it
was a dastardly murder at the behest o General Zia and his anti
liberation cohots. le echoed the iew that the authorities o
those days deliberately destroyed all the documents to coer up
the truth, and submitted that this is an appropriate case where
we hae quite cogently and lawully resoled to take eidence
rom those acquainted with pertinent acts, which are not in
dispute any way. le lent support to the iew that suriing
accomplices in 1her murder should be brought to justice.
le shared with others the emotion in expressing that it
was a national tragedy that an intransigent lreedom lighter like
1aher was murdered ollowing such a recreant yet, dreadul
intrigue.
147
Mr. M. K. Rahman, representing the respondents no. 3
and 4, ound no alternatie but to lend his unhesitant and
oerwhelming support to the contention the exalted Adocates
propounded. le placed utmost emphasis on what Mr.
Lischultz obsered, who, in Mr. Rahman`s ision, is a
disinterested person-the only interest he had, was to see that
the rule o law reigned supreme, which, unortunately aced a
rantic hacking by the so-called tribunal and those who
animated it.` Mr. Rahman echoed that een a ILG<>H:?LG dew
o judicial norm can not be discoered rom the purported trial.
le shared Mr. Lischultz`s iew that it can only be termed as a
pre-ruminated murder. le expressed that Mr. Lischultz`s
presence showered a 3d` dimension to the instant proceeding.
Mr. Rahman, in orchestra with all other learned Adocates,
proered that in any eent, the trial and the erdict as a whole
is bound to be declared illegal as that must be the only outcome
i the ratio o the decisions in the 5
th
and the
th
Amendment
cases are ollowed without distortion. le concluded saying that
the nation should be spared o the burden o slur it has been
carrying or three decades, by cruciying the purported erdict
o the misbegotten tribunal.
148
At one stage o the proceeding beore us, Mr. Maudud
Ahmed, who had authored the book reerred to aboe, titled,
Democracy and challenge o Deelopment: A Study o
Political and Military Interention in Bangladesh,` appeared in
the court room in G>??:YL>? with a dierent case, he was
engaged in. \e took that opportunity to ask him whether he
was actually the author o the book, and whether it is truly him
who wrote the passages, Mr. Lischultz reerred to and
produced beore us.
\ith the highest degree o candour, Mr. Moudud Ahmed
intimated that he had indeed authored that book and the
quoted passages, stating urther that he had a erbal discussion
with General Ziaur Rahman, on 1aher`s ate and he has
reproduced in his book exactly what General Zia told him.
In order to adjudicate upon this Rule we are, we reckon,
to address the ollowing questions: ,i, whether the proclamation
dated 20
th
August, 195 subjugating the whole country with
martial law, enjoyed legal alidity or not, ,ii, whether the
judgment and order dated 1
th
July 196 was with lawul
authority or not ,iii, whether, i the answer to ,ii, aboe be in
the negatie, this case alls within the index o condonation set
apart by the Appellate Diision in the 5
th
Amendment case, ,i,
149
irrespectie o the question o the constitutionality o the so-
called martial law instruments, whether the so-called trial and
the erdict in any eent went hand in gloes with the minimum
standard required or a air trail, ,, whether Col. 1aher`s
execution can aptly be described as a cold blooded murder as
suggested by many o those who appeared beore us, inclusie
o Mr. Lischultz and some learned Adcoates ,i, whether the
Petitioners are entitled to the relies they crae.
At the ery inception we wish to put on record that we
are about to express our detailed judicial iews on an eent that
has, or a couple o decades, remained puzzled in the maze o
obscurity. It is generally known, and we take judicial notice o
it, that Lt. Colonel Abu 1aher, an acclaimed lreedom lighter
with unquestionable reerence, who was an inincible and
resilient Sector Commander and was, ater liberation,
decorated with the highest Gallantry Award or liing lighters,
Bir Uttam, was hanged within the precincts o Dhaka Central
Jail on 21
st
July, 196. \hat howeer, hae remained in
obuscation are the inquisities as to why he was hanged, what
were the charges against him and his co-accused, what
eidences were adduced, whether the trial was in concord with
accepted and recognised judicial norms, etc.
150
\e do not see much o a hurdle in resoling the irst
issue in the Petitioners` aour.
1here was a time, not beyond the caity o memory,
when the reigning judicial attitude was retreat prone, superior
courts were ready to endorse martial law proclamation and all
that ollowed. 1hat attitude, in our introspection, preailed due
to judicial timidity. Such a judicial recoiling was based on
agreeability to concede deeat rather than on any legal dogma,
though Kelsen`s theory o state necessity` was requently
inoked, we beleie, to justiy decisions which were in truth,
relection o appeasement.
1hat taboo has, howeer, graceully been dismantled by
this Court through the decision in the celebrated case o
Bangladesh Italian Marble \orks Ltd --Bangladesh, the so
called 5
th
Amendment Case, whereby this Diision
unequiocally declared ultra ires the purported 5
th

Amendment Act, by which the Parliament embarked upon
abortie attempt to alidate all the proclamations, and martial
law instruments ramed by those who usurped state power
through the barrels o guns.
Proculamation o martial law in its entirety, along with
eerything that locked with it, had been declared unlawul and
151
o no eect. All that emassed with the martial law
proclamations, sae certain speciically catalogued aspect, which
had been spared through the doctrine o condonation, had
been raaged along with the illusory application o the so-called
Kelsen doctrin o state necessity`, which ound aour o
Munim J, o Pakistan Supreme Court in the case o State--
Dosso ,1959 11 DLR SC 1,, a case that relects highest
watermark o judicial retreat.
1he Appellate Diision endorsed this Diision`s ratio
with some modiication.
Some extract o this Diision`s olumous judgment in the
5
th
Amendment case needs re-printing or the purpose o
clarity. 1hey run as ollows,
Under the circumstances, we declare the Constitution
,lith Amendment, Act, 199, ultra irus the constitution or
the ollowing reasons:
lirstly, Section 2 o the Constitution ,lith Amendment,
Act, 199, enacted Paragraph 18, or its insertion in the lourth
Schedule to the Constitution in order to ratiy, conirm and
alidate the Proclamations MLRs and MLOs etc. during the
period rom August 15, 195 to April 9, 199. Since those
152
Proclamation MLRs, MLOs etc. were illegal and oid, there
were nothing or the Parliament to ratiy, conirm and alidate.
Secondly, on liting the eil o enactment, we ind that the
real purport and reason, the pith and substance` or the
amendment was or ratiication conirmation and alidation
which do not come within the ambit o amendment` in Article
142 o the Constitution.
1hirdly, the Proclamations etc., being illegal and
constitute oence, its ratiication conirmation and alidation
by the Parliament were against common reason.
lourthly, the constitution was made subordinate and
subserient to the Proclamations etc.
lithly, those Proclamations etc. destroyed its basic
eatures.
Sixthly, lack o long title which is a mandatory condition
or amendment, made the amendment oid.
Seenthly, the lith Amendment was made or a
collateral purpose which constituted a raud upon the People o
Bangladesh and its Constitution.
In short, 1he Constitution ,lith Amendment, Act, 199,
protected the Proclamations, MLR, MLOs etc. and the actions
taken thereon rom being challenged in Court but ater its
153
declaration as oid, all those Martial Law proisions and actions
become justiciable beore the court.
\e hae already ound earlier that the Constitution ,lith
Amendment, Act, 199, ratiied, conirmed and alidated all
those Proclamations, MLRs and MLOs and the actions taken
on the basis ot those Proclamations etc. but since all those
Proclamations etc. were illegal, its ratiication, conirmation and
alidation, by the lith Amendment was illegal and oid. Since
the ery purpose and object o the enactment o the lith
Amendment was illegal and oid ab initio, so also the lith
Amendment itsel, as it was enacted or a collateral purpose.
Besides, since the Martial Law Proclamations etc. were oid and
non-est, there were nothing or the Second Parliament to ratiy
or conirm or alidate by the subsequent lith Amendment.`
\e hae already held that all the Martial Law
Proclamations including the one issued on Noember 29, 196,
were not issued under any legal authority and since we reuse to
acknowledge Martial Law as legally enorceable proision and a
source o law and the oice o the Chie Martial Law
Administrator as a lawul oice, both are non-existent in
Jurispruduce and we emphatically hold that there is no such
concept as Martial Law Jurisprudence or Martial Law culture.
154
As such, in any iew o the matter, handing oer o the oice
o Martial Law Administrator to Major General Ziaur Rahman
B.U., psc. was without any lawul authority.
Under such circumstances, we are unable to accept his
argument as to the existence o the so called Martial Law
Jurisprudence or Martial Law culture, in order to gie alidity to
those.
As such, the legality o the Proclamation dated Noember
29, 196, is next to nothing. It cannot coner any oice or
power on any body, because such way o transerring authority
which was not in existence either under the Constitution or
under any law prealent at the time, cannot be done. \e hae
already ound and held that neither Martial Law nor the oice
o Martial Law Administrator had or has any existence in our
law and Jurisprudence. As such, the handing oer o the oice
o the martial Law Administrator in aour o Major General
Ziaur Rahman B.U., psc., was illegal and oid. Under the
circumstances, the Proclamations, MLRs and MLOs issued
during the period rom Noember 29, 196 to April 9, 199,
were all illegal, oid and non est in the eye o law.
1he same goes or all the Martial Law Regulations and
Martial Law Orders, issued rom the period o Noember 6,
155
195 to Noember 29, 196. \e, howeer, condone the
illegalities in respect o the actions taken on all the MLRs and
MOLs, as past and closed transactions during the said period.
Besides, we also condone arious Ordinances passed during the
aboe period.`
It appears that Justice Abusadat Mohammad Sayem by
his Order No. 1,1,-CD,CS,01 dated April 21, 19,
nominated Major General Ziaur Rahman, B.U Psc. to be the
President o Bangladesh. 1his order was published in the
Bangladesh Gazette Lxtraordinary on Arial 21, 19.
1his kind o nomination in the Oice o President is
unheard o. Len nomination to the oice o President ,or
Chairman, o a mere local union council is not permissible but
it was made possible in the highest oice o the Republic o
Bangladesh. It was done in iolation o the Constitution o
Bangladesh, and as such, it was illegal, oid ab initio and non-
est in the eye o law.
Lieutenant General Olier Cromwell een ater waging
war or more than eleen years, could only become a Lord
Protector in 1653 but Khandaker Moshtaq Ahmed, Justice
Sayem and Major General Ziaur Rahman BU, could attain the
highest oice in Bangladesh apparently without much eorts.
156
It may be noted that on April 21, 19, Major General
Ziaur Rahman, B.U., as the Chie o Army Sta, was in the
serice o the Republic, as such, was oath bound to bear true
allegiance to the Constitution but he assumed oice o the
President o Bangladesh, in utter iolation o the said ery
Constitution.
Under such circumstances, since he assumed the oice o
President in iolation o Constitution and since the Martial Law
Proclamations and MLRs and MLOs were made in iolation o
the Constitution and the Army Act or any other law prealent
at the releant period o time, those Proclamations etc. were all
illegal oid and non-est in the eye o law.`
\e hae held earlier in general that there was no legal
existence o Martial Law and consequently o no Martial Law
Authorities, as such, all Proclamations etc. were illegal, oid ab
initio and non est in the eye o law. 1his we hae held strictly in
accordance with the dictates o the Constitution, the supreme
law to which all Institutions including the Judiciary owe its
existence. \e are bound to declare what hae to be declared, in
indication o our oath taken in accordance with the
Constitution, otherwise, we ourseles would be iolating the
Constitution and the oath taken to protect the Constitution and
157
thereby betraying the Nation. \e had no other alternatie,
rather, we are obliged to act strictly in accordance with the
proisions o the Constitution.`
1he learned Adocates or the respondents raised the
possibility o chaos or conusion that may arise i we declare
the said Proclamations, MLRs and MLOs and the acts taken
thereunder as illegal, oid ab initio and non est. \e are not
unmindul o such an apprehension although unlikely but we
hae no iota o doubts about the illegalities o those
Proclamations etc. \hat is wrong and illegal shall remain so or
eer. 1here cannot be any acquiescence in case o an illegality.
It remains illegal or all time to come. A Court o o Law
cannot extend beneit to the perpetrators o the illegalities by
declaring it legitimate. It remains illegitimate till eternity. 1he
seizure o power by Khandaker Moshtaque Ahmed and his
band o renegades, deinitely constituted oences and shall
remain so oreer. No law can legitimize their actions and
transactions. 1he Martial Law Authorities in imposing Martial
Law behaed like an alien orce conquering Bangladesh all oer
again, thereby transorming themseles as usurpers, plain and
simple.
158
Be that as it may, although it is ery true that illegalities
would not make such continuance as a legal one but in order to
protect the country rom irreparable eils lowing rom
conulions o apprehended chaos and conusion and in
bringing the country back to the road map deised by its
Constitution, recourse to the doctrine o necessity in the
paramount interest o the nation becomes imperatie. In such a
situation, while holding the Proclamations etc. as illegal and
oid ab initio, we proisionally condone the Ordinances, and
proisions o the arious Proclamations, MLRs and MLOs sae
and except those which are speciically denied aboe, on the
age old principles, such as, Id quod Alias Non Lst LIcitum,
Necessitas Licitum lacit ,1hat which otherwise in not lawul,
necessity makes lawul,, Salus populi suprema lex ,saety o the
people is the supreme law, and salus republicae est suprema lex
,saety o the State is the supreme law,.
In this connection it may again be reminded that those
Proclamations etc, were not made by the Parliament but by the
usurpers and dictators. 1o them, we would use 1homas luller`s
warning sounded oer 300 years ago: Be you eer so high, the
law is aboe you.` ,Quoted rom the Judgment o Lord
159
Denning M. R., in Gouriet V. Union o Post Oice \orkers
,19, 1 QB 29 at page-62,.
liat justitia, ruat caelum.`
Summary`
. A proclamation can be issued to declare an
existing law under the Constitution, but not or promulgating a
new law or oence or or any other purpose.
8. 1here is no such law in Bangladesh as Martial Law
and there is also no such authority as Martial Law Authority as
such and i any person declares Martial Law, he will be liable
or high treason against the Republic. Obedience to superior
orders is itsel no deence.
9. 1he taking oer o the powers o the Goernment
o the People`s Republic o Bangladesh with eect rom the
morning o 15
th
August, 195, by Khandaker Mushtaque
Ahmed, an usurper, placing Bangladesh under Martial Law and
his assumption o the oice o the President o Bangladesh,
were in clear iolation o the Constitution, as such, illegal,
without lawul authority and without jurisdiction.
10. 1he nomination o Mr. Justice Abusadat
Mohammad Sayem, as the President o Bangladesh, on
Noember, 6, 195, and his taking oer o the Oice o
160
President o Bangladesh and his assumption o powers o the
Chie Martial Law Administrator and his appointment o the
Deputy Chie Martial Law Administrators by the Proclamation
issued on Noember 8, 195, were all in iolation o the
Constitution.
11. 1he handing oer o the Oice o Martial Law
Administrator to Major General Ziaur Rahman B.U., by the
aoresaid Justice Abusadat Mohammad Sayem, by the 1hird
Proclamation issued on Noember 29, 196, enabling the said
Major General Ziaur Rahman, to exercise all the powers o the
Chie Martial Law Administrator, was beyond the ambit o the
Constitution.
12. 1he nomination o Major General Ziaur Rahman,
B.U., to become the President o Bangladesh by Justice
Abusadat Mohammad Sayem, the assumption o oice o the
President o Bangladesh by Major General Ziaur Rahman, B.U.,
were without lawul authority and without jurisdiction.
13. 1he Reerendum Order, 19 ,Martial Law Order
No. 1 o 19,, published in Bangladesh Gazette On 1
st
May,
19, is unknown to the Constitution, being made only to
ascertain the conidence o the people o Bangladesh in one
person, namely, Major General Ziaur Rahman, B.U.
161
14. All Proclamations, Martial Law Regulations and
Martial Law Orders made during the period rom August 15,
195 to April 9, 199, were illegal, oid and non est because,
i,! 1hose were made by persons without lawul
authority, as such, without jurisdiction.
ii,! 1he Constitution was made sub-ordinate and
subserient to those Proclamations, Martial Law
Regulations and Martial Law Orders,
iii,! 1hose proisions disgraced the Constitution
which is the embodiment o the will o the
people o Bangladesh, as such, disgraced the
people o Bangladesh also,
i,! lrom August 15, 195 to April , 199
Bangladesh was ruled not by the representaties
o the people but by the usurpers and dictators,
as such, during the said period the people and
their country, the Republic o Bangladesh, lost its
soereign republic character and was under the
subjugation o the dictators.
,! lrom Noember 195 to March, 199
Bangladesh was without any Parliament and was
162
ruled by the dictators, as such, lost its democratic
character or the said period.
i,! 1he Proclamations etc. destroyed the basic
character o the Constitution, such as, change o
the secular character, negation o Bangalee
Nationalism, negation o Rule o law, ouster o
the jurisdiction o Court, denial o those
constitute seditious oence.
15. Paragraph 3A was illegal, lirstly because it sought
to alidate the Proclamations, MLRs and MLOs which were
illegal`, and Secondly, Paragraph 3A, made by the
Proclamation Orders, as such, itsel was oid`.
16. 1he Parliament may enact any law but subject to the
Constitution. 1he Constitution ,lith Amendment, Act, 199 is
ultra ires, because:
lirstly, Section 2 o the Constitution ,lith Amendment,
Act, 199, enacted Paragraph 18, or its insertion in the lourth
Schedule to the Constitution, in order to ratiy, conirm and
alidate the Proclamations, MLRs and MLOs etc. during the
period rom August 15, 195 to April 9, 199. Since those
Proclamations, MLRs, MLOs etc., were illegal and oid, there
were nothing or the Parliament to ratiy, conirm and alidate.
163
Secondly, the Proclamations etc. being illegal and
constituting oence, its ratiication, conirmation and
alidation, by the Parliament were against common right and
reason.
1hirdly, the Constitution was made subordinate and
subserient to the Proclamations etc.
lourthly, those Proclamations etc. destroyed its basic
eatures.
lithly, ratiication, conirmation and alidation do not
come within the ambit o amendment` in Article 142 o the
Constitution.
Sixthly, lack o long title which is a mandatory condition
or amendment, made the amendment oid.
Seenthly, the lith Amendment was made or a
collateral purpose which constituted a raud upon the People o
Bangladesh and its Constitution.`
1he Appellate Diision inused some modiication into
this Diision`s judgment in the 5
th
Amendment Case and, added
some obseration thereto, in ollowing terms,
Beore we conclude, we would like to quote the
ollowing:
164
1he greatest o all the means . .. . . . . or ensuring the
stability o Constitution-but which is now a days generally
neglected is the education o citizens in the sprit o the
Constitution . . . . . . 1o lie by the rule o the Constitution
ought not to be regarded as slaery, but rather as salation.`
,Artistotle`s Politics ,335-332 BC, pp
233-34``

\e would also quote the ollowing passage rom the
conclusion in an essay on Noni Palkiala in . . . . . Democracy,
luman rights and Rule o Law` edited by Venkat Iyer, 2000
regarding the Period o Deliquency` in India in 195-19:
Despite the traumatic eents o 195-19, the lessons
o that emergency hae now, alas, also been orgotten by
a ast majority o Indian citizenery. It is said that people
do not realize the beneits o reedom until they are lost.
1wenty ie years hae passed and a new generation o
Indians is not een aware o what happened during those
eentul months.
It is essential that i India is to presere her democratic
reedom, each generation must be taught, educated and
inormed about those dark days. Lery Indian needs to
renew and reresh himsel at the springs o reedom.`
165
\e will simply echo those words by replacing the period
and the word India with Bangladesh. \e emphasize each o our
generation must be taught, educated and inormed about those
dark days: the easiest way o doing this is to recognize our
errors o the past and relect this sentiments in our judgment.
1his will ensure that the soereignty o we, the people o
Bangladesh` is presered oreer as a pole star`.
\e are o the iew that in the spirit o the Preamble and
also Article o the Constitution the Military Rule, direct or
indirect, is to be shunned once or all. Let it be made clear that
Military Rule was wrongly justiied in the past and it ought not
to be justiied in uture on any ground, principle, doctrine or
theory whatsoeer as the same is against the dignity, honour
and glory o the nation that it achieed ater great sacriice, it is
against the dignity and honour o the people o Bangladesh
who are committed to uphold the soereignty and integrity o
the nation by all means, it is also against the honour o each
and eery soldier o the Armed lorces who are oath bound to
bear true aith and allegiance to Bangladesh and uphold the
Constitution which embodies the will o the people, honestly
and aithully to sere Bangladesh in their respectie serices
and also see that the Constitution is upheld, it is not kept in
166
suspension, abrogated, it is not suberted, it is not mutilated,
and to say the least it is not held in abeyance and it is not
amended by any authority not competent to do so under the
Constitution.
\e, thereore, sum up as under:
1.! Both the leae petitions are dismissed:
2.! 1he judgment o the ligh Court Diision is approed
subject to the ollowing modiications:-
,a,! All the indings and obserations in respect o
Article 150 and the lourth Schedule in the
judgment o the ligh Court Diision are
hereby expunged, and the alidation o Article
95 is not approed,
3.! In respect o condonation made by the ligh Court
Diision, the ollowing modiication is made and
condonations are made as under:
,a,! all executie acts, thing and deeds done and
actions taken during the period rom 15
th

August 195 to 9
th
April, 199 which are past
and closed,
,b,! the actions not derogatory to the rights o the
citizens,
167
,c,! all acts during that period which tend to
adance or promote the welare o the people,
,d,! all routine works done during the aboe
period which een the lawul goernment
could hae done.
,e,! ,i, the Proclamation dated 8
th
Noember,
195 so ar it relates to omitting Part VIA o
the Constitution,
,ii, the Proclamations ,Amendment, Order 19
,Proclamations Order No. 1 o 19, relating to
Article 6 o the Constitution.
,iii, the Second Proclamation ,Seenth
Amendment, Order, 196 ,Second Proclamation
Order No. IV o 196, and the Second
Proclamation ,1enth Amendment, Order, 19
,Second Proclamation Order No. 1 o 19, so ar
it relates to amendment o Lnglish text o Article 44
o the Constitution,
,i, the Second Proclamation ,liteenth
Amendment, Order, 198 ,Second Proclamation
Order No. IV o 198, so ar it relates to
substituting Bengali text o Article 44,
168
,, 1he Second Proclamation ,1enth Amendment,
Order, 19 ,Second Proclamation Order No. 1 o
19, so ar it relates to inserting Clauses ,2,, ,3,,
,4,, ,5,, ,6, and ,, o Article 96 i.e. proisions
relating to Supreme Judicial Council and also clause
,1, o Article 102 o the Constitution, and
,, all acts and legislatie measures which are in
accordance with, or could hae been made under
the original Constitution.
\hile dismissing the leae petitions we are putting
on record our total disapproal o Martial Law and suspension
o the Constitution or any part thereo in any orm. 1he
perpetrators o such illegalities should also be suitably punished
and condemned so that in uture no adenturist, no usurper,
would dare to dey the people, their Constitution, their
Goernment, established by them with their consent. loweer,
it is the Parliament which can make law in this regard, let us bid
arewell to all kinds o extra constitutional adenture or eer.`
Another case, namely the case o Siddique Ahmed-V-
Bangladesh popularly known as the
th
Amendment case, stated
aboe, reported in the Special issue o the Law Reporter March
2011, came up beore this Court in which the issues reoled
169
round the question o constitutionality o a subsequent martial
law as well as upon the legality o the coniction, a so-called
martial court, created by a so-called martial law instrument,
purportedly handed down. 1his Diision`s judgment, which
was airmed subject to some alterations by the Appellate
Diision, was summed in ollowing terms,
1,! Martial Law is totally alien a concept to our
Constitution and hence, what Dicey commented about
it, is squarely applicable to us as well.
2,! A ortiori, usurpation o power by General
Mohammad Lrshad, lexing his arms, was oid ab-
initio, as was the authoritarian rule by Mushtaque-Zia
duo, beore Lrshad, and shall remain so through
eternity. All martial law instruments were oid ab-
initio. As a corollary, action purportedly shedding
alidity through the Constitution ,Seen Amendment,
Act 1986, constituted a stale, mori-bund attempt,
haing no eect through the ision o law, to grant
credibility to the renzied concept, and the same must
be cremated without delay.
3,! 1he killing o the lather o the Nation, which was
ollowed by successie military rules, with a ew years
170
o intermission, was not an spontaneous act-it resulted
rom a well intrigued plot, harboured oer a long
period o time which was aimed not only to kill the
lather o the Nation and his amily, but also to wipe
out the principles on which the Liberation \ar was
ought.
4,! During the autocratic rule o Khandaker Mushtaque
and General Ziaur Rahman, eery eorts were
undertaken to erase the memory o the Liberation \ar
against Pakistan.
5,! 1wo military regimes, the irst being with eect rom
15
th
August, 195, and the second one being between
24
th
March 1982, and 10
th
Noember 1986, put the
country miles backward. Both the martial laws
deastated the democratic abric as well as the patriotic
aspiration o the country. During Ziaur Rahman`s
martial law, the slogan o the Liberation war, Joy
Bangla` was hacked to death. Many other Bengali
words such as Bangladesh Betar, Bangladesh Biman
were also erased rom our ocabulary. Suhrawardy
Uddyan, which stands as a relic o Bangabandhu`s
th

March Declaration as well as that o Pakistani troops`
171
surrender, was conerted into a childrens` park. 1op
Pakistani collaborator Shah Azizur Rahman was gien
the second highest political post o the Republic, while
other reprehensible collaborators like Col. Mustaiz ,I
O in Agartala conspiracy case,, A S M Suleiman, Abdul
Alim etc were installed in Zia`s cabinet. Many
collaborators, who led the country towards the end o
the Liberation \ar, were allowed, not only to return to
Bangladesh, but were also greeted with sae haen,
were deployed in important national positions. Sel-
Conessed killers o Bangabandu were gien immunity
rom indictment through a notorious piece o
purported legislation. 1hey were also honoured with
prestigious and tempting diplomatic assignments
abroad. 1he original Constitution o the Republic o
192 was mercilessly raaged by General Ziaur
Rahman who erased rom it, one o the basic eatures,
Secularism and allowed communal politics, proscribed
by Bangabandhu, to stage a come back.
6,! During General Lrshad`s martial law also democracy
suered deastating haoc. 1he Constitution was kept
in abeyance. Doors o communal politics, wide opened
172
by General Zia, were kept so during his period.
Substitution o Bengali Nationalism by communally
oriented concept o Bangladeshi Nationalism was also
allowed longeity during Lrshad`s martial law period.
,! By the judgment in the lith Amendment Case all the
misdeeds perpetrated by Mushtaque-Zia duo hae
been eradicated and the Constitution has been restored
to its original position as it was ramed in 192.
8,! It is about time that the relics let behind by martial
law perpetrators be completely swept away or good.
9,! Steps should be taken by the goernment to remoe
the impeding actors, the Appellate Diision cited, in
order to restore original Article 6, i.e., Bangalee
Nationalism.
10,! 1hose who adised Lrshad, including his law minister
and Attorney General during his martial law period to
keep the Constitution suspended, should also be tried.
lor the reasons assigned aboe, the Rule is made absolute
in part. 1he Constitution ,Seenth Amendment, Act 1986 is
hereby declared to be thoroughly illegal, without lawul
authority, oid ab-initio and the same is, hence inalidated
173
orthwith through this judgment, subject howeer, to the
condonation catalogued aboe, where they would apply.
Paragraph 19 o lourth Schedule to the Constitution, is
hereby declared extinct whereor the same must be eaced
rom the Constitution without delay.
1he Respondents are urther directed, haing regard to
the Appellate Diision`s modiying Order in the lith
Amendment case, to take steps to clear the impediments, cited
by the Appellate Diision, with a iew to eentual restoration
o original Article 6.
1he Respondents No. 1 is directed to relect this
judgment by re-printing the Constitution.
No Order, howeer, is made to interere with the
petitioner`s coniction or the sentence or the reasons stated
aboe and hence he must surrender to his bail.`
1his Diision in the
th
Amendment Judgment also
expressed,
,6, 1hese Constitutional proisions hae been mirrored
aboe or the sole purpose o indicating the assertion that ,1,
martial law or any similar usurpation o power has no threshold
under our constitution ,2, our Constitutional Scheme, rom the
top to the toe, owes its existence to the will o the people ,3, it
174
is the Parliament, elected through popular ote, which is the
centriugal body or all democratic actiities ,4, the lead o the
Lxecutie Goernment, along with his colleagues surie so
long as they command the support o the majority members o
parliament ,5, members o Parliament, who alone enjoy
prerogatie to legislate, with the only exception o parochial
and short lied legislatie power o the President, and who do
eectiely and irtually orm the electoral college or the
ormation o the executie Goernment, are all elected directly
by the people, ,6, a set o undamental rights, which
corresponds to the uniersal declaration o luman Rights,
1948, and other U N Coenants on human rights, remain
stoutly erected as the Constitutional Arch Stone to insulate
eery indiidual`s undamental rights ,, there is a Supreme
Court, comprising two hierarchical Diisions, to act as the
inincible anguard, to shield the sacrosanctity o the
Constitution by perorming the sacred duty o being it`s
Guardian and to protect and enorce the undamental rights,
irmly and inlexibly secured by the Constitution and, most
importantly, to act as the iniolable bastion to keep the
Constitution immune rom extra-Constitutional inringement
175
and also to ensure that no law, contraening any proision o
the Sacred Instrument, is passed.`
1he ligh Court Diision in the 5
th
Amendment case was
rather repetitie in inalidating martial law and all the
proclamations and the purported edicts that tagged along, while
the Appellate Diision in the said case, denounced martial law
and all its spawns in no ambiguous terms with a iew to warn
potential adenturers.
1his Diision in the
th
Amendment case did not lag
behind in nulliying martial law and its oshoots with
conspicuous audibility but went all the way to make identical
inding on the so-called martial law tribunal`s authority to try
the Petitioner in that case, though, on a technical ground
reused to intererer with the Petitioner`s coniction expressing
that a dierent orum, instead o a \rit Bench, should resole
that question. 1his Diision`s said inding on coniction, was,
neertheless, reersed by the Appellate Diision, which inally
set aside the purported coniction pretentiously handed% down
by a so-called%martial law tribunal on the ground o the nullity
o all martial law M<>?D?GL;I:?A>.
1he ratio in those two decisions, command us to be
swayed to the irrestible and immutatable conclusion that the
176
proclamation dated 20
th
August, 195 and all the so-called
martial law instruments that ollowed were totally diorced
rom legal sanction, which ollows, as day ollows night, that
the purported trial o all the Petitioners, was also a sham one
equally well.
1he questions no ,I, and ,II, are, as such, answered in the
negatie, ie in aour o all the Petitioners in all the \rit
Petitions, iz \.P. 236,10, \.P. 826,11, \.P. 1048,11 and
\.P. 1059,11.
laing ound, as aboe, that the trial coniction and
sentence purportedly pronounced by the said trubunal was oid
rom the top to the toe, we are now swang to address question
no ,III, i e, whether the impugned coniction is, nonetheless,
protected by the index o condonation, the Appellate Diision
inally ormulated, supra.
Again, on perusal o the said table, we are oscillated to the
inariable synthesis that the action purportedly resorted to by
the hollow tribunal, is not embraced by the doctrine o
condonation as enunciated by the Apex Diision, because it
kept within the exclusionary zone actions which were
derogatory to the rights o the citizens.
177
1rue it is that the Appellate Diision directed de-noo
trial o the Petitioner in the
th
Amendment case, but that
scenario was distinctiely at ariance with the instant one in
that in the earlier case initial cognisance was taken by, and the
proceedings irst commenced in, a properly and alidly
constituted court, i.e. the court o sessions, haing its origin in
the Code o Criminal Procedure.
1he issue no ,III, also is, thus, resoled in all the
Petitioners` aour.
Although with our aboe inding we need go no urther
to declare illegal and set aside the trial, sentence and the
coniction o the Petitioners and to make all the Rules absolute,
we are, nonetheless, inclined to explore the quality o the so-
called trial process because o the general inquisitieness on the
question o the propriety o that trial irrespectie o the
Constitutional consideration.
Nothwithstanding an initial quandary and somewhat
enigma that resulted rom the absence o ital documents, we
did not, at the end o the day, ind the issue no ,IV, ery
cumbersone either, because the lacuna so caused was cured by
the inormation otherwise procured rom the aerments o all
the petitioners, as well as rom some people who were placed at
178
the releant oices in those days and also rom the
inormation, an internationally acclaimed journalist, Mr.
Lawrence Lischulz, urnished.
1hose who were proximate state unctionaries during the
period in issue proed immenesly resourceul. 1heir memory
had not aded. 1hey yielded all the inormation we needed to
adjudicate upon the actual L?hDLNLA><L:N.
It goes without saying that inormation and data proided
by Mr. Lawrance Litschulz and assistance proided by the
learned Adocates o great bestowal had been quite proliic
while the Gazette notiicatiions supplied by the Petitioners also
appeared to be o exquisitie alue.
lacts that emerged rom the uncontroerted statement
made by the Petitioners, and those unctionaries who deposed
beore us, as well rom the inormation supplied through
arious documents, we can saely deduce the ollowing acts as
established,
,1,! 1he lather o the Nation along with all the
members o his amily, sae two daughters,
were gruesomely assassinated by a ew
disgrantled army oicers at the early hours on
15
th
August 195, ollowing which Khandakar
179
Mustaque, who was a member o the cabinet,
occupied the seat o the President o the
country as an usurper.
,2,! 1he whole o Bangladesh was placed under
military rule as rom 20
th
August 195, a
couple o days ater the diobolic slaying o the
lounding lather o the Nation.
,3,! Althouth initially Khandakar Mushtaque
Ahmed was seen to hae been placed as the
so-called president, or all practical purposes
real power rested with General Ziaur Rahman.
,4,! On 20
th
August 195, a so-called martial law
was proclaimed with Mostaque as the titular
head.
,5,! A succession o eents ollowed, which
included the arrest o all the Petitioners in all
the \rit Petitions under reiew, as well the
husband o the petitioner nos. 2 and 3, in \rit
Petition No. 236 o 2011.
,6,! 1heir arrest was preceded by the lodging o a
irst inormatiion report with the
Mahammadpur Police Station in Dhaka on 4
th

180
June, 196, inoking martial law regulatiions
as well as Section 121,A o the Penal Code.
,,! A special martial law tribunal was animated on
14
th
June 196 pursuant to so-called power,
purportedly conerred by regulation no. XVI
o 196, section 3,4,, with a Colonel in the
Army as its chair lanked by our members,
one o whom was a \ing Commander in the
Air lorce, another one being an Acting
Commanders o the Nay and 1wo rom
Dhaka Magistratcy.
,8,! 1he said tribunal was purportedly ortiied
with power to try any oence under the so-
called martial law regulations as well as those
coered by Chapter VI and VII o the Penal
Code.
,9,! 1he regulation aorementioned, empowered
the tribunal to sit in camera i the chair so
decided.
,10,! 1he chair could, and did, administer oath o
secrecy to bar those present beore it rom
diclosure o anything on the proceeding.
181
,11,! 1here was no right o appeal against the
tribunal`s purported erdicts.
,12,! 1he case in which all the Petitioners were
tried was registered as Special Martial Law
1ribunal Case No. 1 o 196.
,13,! 1he Proceeding took place within the eclosure
o Dhaka Central Jail in total seclusion and
secrecy: een the close ones were not allowed
to attend or hae access to the accused, it
continuned or 1 days and the erdict was
deliered on 1
th
July 196, by which all the
Petitioners and the spouses o the Petitioners
no. 2 and 3 o the \rit Petition No. 236,
were declared guilty and sentenced to
imprisonment o arious terms, sae the
spouse o the petitioner no. 2 in \rit Petition
no. 236 o 2010, who was condemned with
capital punishment.
,14,! Neither the accused persons nor the lawyers
appearing or dierent accused were allowed
to cross examine the prosecution witnesses.
1he witnesses were ushered to the court room
182
heaily guarded and used to be hurriedly
escorted away ater their hasty deposition.
1he accuseds were not at all aware o what
the witnesses uttered. 1hey were not gien
any chance to say anything in their deence or
to produce any deence witness.
,15,! Some o the accused were not allowed to
engage lawyers or to talk to the lawyers that
oluntarily appeared or other accused
persons.
,16,! Case records, including the irst inormation
report, and other connected papers were
neer placed beore the Sub-Diisional
Oicer, Dhaka Sadar ,South,, although the
law required them to be put beore him or
taking cognisance and passing necessary
orders as the Sub-Diisional Magistrate.
,1,! 1he District Magistrate, Dhaka was neer
intimated that one o the Magistrate under
him would be deployed in the said tribunal as
a member, although the procedure and the
conention demanded it.
183
,18,! As Colonel 1aher retired rom the Army long
ago, he should hae been tried in ordinary
Court.
,19,! No papers pertaining to the indictment was
placed beore the member o the so-called
trubunal, who iled aidait beore us, nor
was the mandatory procedures ordinarily
ollowed or ought to be ollowed in a
criminal, trial, was adopted during the subject
so-called trial.
,20,! Most importantly, none o the oences the
Petitioners were purportedly indicted with,
carried death sentence.
,21,! 1he so-called tribunal went into obliion ater
passing the purported erdict on 1
th
July
196 on the Petitioners, the spouses o the
Petitioner no. 2 and 3 in \P 236,10 and the
co-accused who were simultaneously tried
with them, neer to conene again.
\e ind no reason to deprecate those acts: not only that
they emanated rom persons credited with impeccable integrity,
but also because none came orward to reute them.
184
Question is what nomenclature can be attributed to that
which went on within that chamber o Dhaka Central Jail upto
the period that ended on 21
st
July, 196 Can it be described as
a judicial proceeding
Blacks Law Dictionary contemplates a judicial proceeding
as one whcih encapsulates ,i, the taking o testimony and ,ii,
the trial.
1he same dictionary deines a trial as a ormal judicial
examination o eidence and determination o legal claims in an
adersary proceeding.
A air trial`, according to Blacks Law Dictionary,
encompasses a trial by an impartial and disinterested tribunal in
accordance with regular procdure, specially in criminal trial in
which the deendants` constitutional and legal rights are
respected.
1he concept, air trial` inariably embraces due process,
where the ollowing incidences must show up,
,a,!Presecmption o innocence
,b,!Arraignment
,c,! Right to be heard
,d,!Right to counsel
,e,!Right to be inormed o the grounds o arrest.
185
,,!Right to speedy, impartial and public trial
,g,!Protection against sel incrimination
,h,!Right to cross examine presecution witness.
,i,!Right as granted by Section 342 o the Code o
Criminal Procedure.
Mr, Mahbubey Alam, the learned Attorney General, Dr.
Kamal lussain, Mr. M. Amirul Islam, Dr. Zahir, Mr. M.I.
laruqui, Mr. Rukounddin Mahmood, Mr. Akter Imam, and Mr.
M.K Rahman projected comprehensie lists containing such
aspects which are sin qua non or a judicial proceeding and we
do ully endorse and adopt the catalogue they potrayed.
It is amply clear orm the sequence o eents, displayed
earlier, that the aboe requirements were conspicuously missing
during or at the outset o the trial. 1he so-called regulation that
engendered the so-called tribunal did not lay down the aboe
cited requirements. 1he trial was held in camera and thus it
lacked public character. An oath o secrecy urther deastated
the pellucidity and rendered the purported trial, irtually a
clandastine process.
In this respect we endorse Mr. Lischulz`s iew that it was
not een a show trial as it was not isible.
186
\hile some accused may hae been lucky enough to be
theoritically allowed legal representation, the same was reduced
to burlesque any way because they were not allowed ,i, to cross
examine prosecution witnesses, ,ii, to call deence witnesses.
No accused was allowed to make any eort to reute
what the prosecution witnesses deposed or to make any
submission in their deence. \hat appeared to be more
reproachul was the declination to intimate the accused as to
the so-called allegation against them-they were not supplied
copy o the so-called irst inormation report, charge sheet or
charges as may hae been ramed, een purportedly.
1here was no arraignment, the charges were not read
oer to them, they were not asked about pleading, were not
reminded o their right to call deence witnesses. No copy o
the prosecution witnesses` deposition was made aailable to
them, no examination mandatorily warranted by section 342 o
the Code o Criminal Procedure.
1here was no right o appeal, no procedure or
conirmation by the ligh Court Diision or an alternatie
superior judicial body.
It is quit possible, as Mr. Aktar Imam wished to hae us
to beliee, these documents may ery well hae been destroyed
187
to conceal the eidence o illeglities committed by the tribunal
as well as those who brought it into being.
According to Mr. Alim, who was a member o the so-
called tribunal, no paper was placed beore him.
Death sentence passed on Col. 1aher was, by ar, the
most dreatul actor that totally and, indeed, conspicuously,
inested the whole secnario with squalid stink because the
legislatie schemes, and een the so-called martial law
regulations that were showingly inoked, did not allow the so-
called tribunal to pass death sentence on the date the so-called
trial commenced. 1he purported death sentence was, thus,
imposed relexing sheer gun power in whimsical and ludicrous
deiance o een those laws that were promulgated by the
military usurpers.
Can the execution o the death sentence, be termed as
anything other than a cold blooded murder as some o those
who appeared beore us hae posited 1he answer in our
brooding must be in the airmatie or three reasons, irstly
when an execution is carried out barren o legal sanction, that is
nothing but murder, secondly, and that is irrespectie o the
alidity o the tribunal, it was a murder because een on the
date o the commencement o the so-called trial, none o the
188
charges prescribed death sentences and inally, and indeed most
importantly, as pointed out by Mr. Maudud Ahmed in printed
orm and then erbally beore us, the death sentence was pre-
determined by General Ziaur Rahman well beore een the
tribunal was constituted, at the meeting o the ormation
commandars.
\e hae no reason to brush aside Mr. Maudud Ahmed`s
written assertions, on the truthulness o which he quite
guilelessly owed when we asked him erbally as to his written
ersion. le was, and we do take judicial notice o this act, a
ery close associate o General Ziaur Rahman, which act make
his statement all the more eredible. lis account has been
corroborated in toto by Mr. Lischultz, who relied on the
inormation diulged by General Manzur, who was a reigning
general at the postulated time and, who, in Mr. Lischultz`s
portrayal, attended the decisie meeting o the ormation
commandars. Both o them stated that General Ziaur Rahman
was bent to annihilale Lt. Colonel 1aher, Bir Uttan, beore the
so-called tribunal passed its purported judgment on 1
th
July
196. 1his decision was taken to appease oicers re-patriated
rom Pakistan.
189
Mr. Lischultz`s claim, which lends support to what Mr.
Maudud Ahmed stated, deseres credence as he cited General
Manzur`s statement in this respect.
1hese scenario naturally led to the irresitible narratie that
the so-called tribunal was nothing other than a deice to listen
to its Masters` Voice`, it`s erdicts were spurious and the
capital punishment it inlicted on Lt. Col. 1aher, Bir Uttam,
amounted to an extra-judicial murder, pure and simple, when
the same was executed.
lence, irrespectie o the question o the legal status o
the so-called tribunal, which question has been answered in the
negatie, the eent that proceeded within the canopy o Dhaka
Central Jail, can by no means, be termed as a judicially
recognised criminal trial. It can not een be termed as a drama
o a criminal trial-it was a hoax, in the pretext o a judicial trial.
1he ramiication o the said murder has, as all
conscientious and sel righteous people would agree, been ery
seere indeed. Dastardly killing o Colonel 1aher, Bir Uttam
means depriing this Republic o such a alorous lreedom
lighter whose contribution or our liberation can not be
exaggerated.
190
Be it as may, eerything stated aboe lead to the
ineitable conclusion that all o the 4 Rules under reiew are
oreordained to be crowned on counts no. ,i, through ,i,.
Resultantly, it is reiterated that the proclamation o
martial law dated 20
th
August 195 and all the chicks the said
proclamation breeded, iz, all the proclamations, regulations,
orders, ordinances, directies and instruments and eerything
that lowed thererom, sae those saed by the condonation
indexed by the Appellate Diision in the 5
th
Amendment Case,
supra, were oid and non-est, the so-called martial law
instrument that caused the abortie embryogenesis o the so-
called special Martial Law 1ribunal along with the 1ribunal
itsel is declared to hae been a still born one which ollows
that the purported conictions passed by the said stale tribunal
are but acuous, oid and non est. 1hat leaes us to address the
count no. ,, which relate to the relie craed.
It can not be gainsaid that the sequel o our aboe inding
would inariably impose upon the authorities an obligation to
wipe out the names o all the Petitionres in \.Ps 236,10,
826,11, 1048,11 and 1059,11 and the spouses o the
Petitioners no. 2 and 3 in \.P. 236,10 rom the criminal
records that came into being in consequence o the
191
aorementioned illegal conictions and to project them with
unblemished image, while the execution o Col. 1aher, Bir
Uttam, must be recorded as a clear cut extra-judicial murder.
Orders dismissing Major Ziauddin, Corporal Shamsul laque,
labildar Ahdul lai Mazumdar ,\.P No. 1048,11, and Abdul
Mazid ,\P. No. 1059,11, must also be reersed to treat them
to hae been in the serice till their normal retirement age.
loweer, Major Ziauddin, a lreedom lighter o national
repute claims that gien his commendable achieement during
his cadetship and the \ar o Liberation and gien that his
ellow peers rose to the highest strata o the army, he has eery
reason to beliee that he would also hae rosen at least to the
rank o a Brigadier General had he not been illegally dismissed.
\e are in total agreement with his claim that in the
attendant circumstances and because o his glorious antecedent
he would, in all possibility, hae ended up with such a superior
rank. 1hat said, howeer, we ind ourseles a bit handicapped
to apply the doctrine o legitimate expectation in this respect
or the reason that unlike in the ciil serice, promotion
prospect o the oicers in the armed orces is not automatic or
contemplatable, while recognising that the illegal coniction
192
and the resultant dismissal wrecked a haoc on his personal lie
and career.
\e can, howeer, to mitigate as ar as law permits us, the
losses he suered, as a result o the illegal coniction and
ollowant illegal dismissal, by directing the authorities to pay
him the money he would hae receied as salary and other
beneits till the last day that he would hae sered as a Major
had he not been illegally dismissed. Accordingly we direct the
respondents to remoe the illegal dismissal order and to treat
him to hae been in the serice as a Major till that date on
which he would hae normally retired as a Major and to pay
him all the arrear salaries, and other beneits, inclusie o
retirement beneit, pension etc., he would hae receied. Same
shall apply to Corporal Shamsul laque, labildar Abdul lai
Mazumdar and Md. Abdul Mazid. 1hey must also be treated to
hae been in their respectie jobs until the date on which they
would hae normally retired had they not been illegally
conicted and dismissed, and, shall be paid all arrear salaries,
beneits and pensions accordingly as i they were not
terminated rom their jobs premature.
So ar as Major Ziauddin is concerned it will howeer,
remain open to the authorities to decorate him with superior
193
ranks and honour at their discretion in recognition o his
Spectacular and 1ireless contribution in our \ar o Liberation,
taking into account the predicament he was subjected to by the
said ile trile, which plunged his potentially bright career to
deastation.
Subject to certain reseration as to the relie sought by
Major Ziauddin ,\P. 1048,11, as stated in the preceeding
paragraphs, all the Rules that sprang rom \rit Petitions no
236,10, 826,11, 1048,11 and 1059,11 are made absolute on
all counts with the ollowing declaration and directions,
without, howeer, any order on cost,
,i,! Proclamation o martial law dated 20
th
August 195
and all the ensuing proclamation, orders,
ordinances, regulations, directions, rules, and all
martial law instruments are declared to be oid ab-
initio and non-est.
,ii,! All so-called martial law tribunals and
martial law courts stemming rom or
created by any martial law instrument,
inclusie o the Special Martial Law
1ribunal that operated inside Dhaka
Central Jail in July 196 which purportedly
194
tried and conicted all o the instant
Petitioners o \.Ps 236,10, 826,11,
1048,11 and 1059,11 and the spouses o
Petitioners no. 2 and 3 in \P 326,10 in
Special 1ribunal Case no 1 o 196, are
declared to hae been barren o lawul
authority and hence oid and non-est at all
times.
,iii,! Since all orders, conictions, sentences
purportedly passed by the so-called Special
Martil Law 1ribunal, which purportedly
tried and conicted all o the instant
Petitioners, supra, and the spouses o the
petitioners no 2 & 3 \P 236,10 are
declared to hae been without lawul
authority and hence oid and non-est ab-
initio, inclusion in criminal record o all the
Petitioners, as well as the spouses o
Petitioners no 2 & 3 in \P 236,10, are
declared to hae been without lawul
authority and , hence, oid ab-initio in
respect to the purported conictions
195
passed by the said unlawul Special Martial
Law 1ribunal in Special 1ribunal Case No.
1 o 196, and, as such, the respondents
are directed to erase the names o ,1, Lt.
Col. Abu 1aher, Bir Uttam,,2, llight
Sergeant Abu \usu Khan, Bir Bikram ,3,
Pro. Anwar lussain ,4, Mr. lasanul
laque Inu M. P. ,5, Mr. Rabiul Alam ,6,
Major Ziauddin ,, Corporal Shamsul
laque ,8, labildar Abdul lai Mazumdar
,9, Md. Abdul Mazid
rom the criminal list that was compiled pursuant to the
illegal coniction passed by the aorementioned unlawully
constituted Special Martial Law 1ribunal, mentioned aboe,
and to record as an act o murder the illegal execution o Lt.
Col. 1aher, Bir Uttam, on 21
st
July 196 ollowing the illegal
order passed by the said unlawul tribunal.
,i,! the respondents are directed to eace
illegal dismissal order passed on Major
Ziauddin, Corporal Shamsul laque,
labildar Abdul lai and Md. Abdul Mazid
and treat them to hae been in their
196
respectie jobs until their normal
retirement age rom those positions and to
pay them all arrear salaries, other beneits
and pension money that they would hae
receied had they not been unlawully
dismissed in consequence o the said illegal
orders o coniction and the consequential
illegal orders o dismissal passed on them,
within 180 days rom the date o the
receipt o this judgment ,i, the person,
who according to Mr. Moudud Ahmed and
Mr. Lischultz, pre-determined Col. 1aher
Bir Uttam`s killing, now being dead and
being beyond the clutches o our Penal
Code, the authorities should, nonetheless,
track and indict those who may still be
alie.
,i, Neither the orders passed by the
aorementioned Special Martial Law 1ribunal
unlawully conicting and sentencing all the
Petitioners in all the 4 \rit Petitions and the
spouses o the Petitioners No. 2 and 3 in \P No.
236,10, nor the unlawul orders dismissing rom
197
the serices Major Ziauddin, Corporal Shamsul
laque, labildar Abdul lai and Md. Abdul Mazid
is saed by condonation and, hence, they are
beyond the ambit o condonation.
Beore parting we would take the opportunity to thank all
the Learned Adocates and all those, inclusie o Mr. Lawrence
Lischultz, who deoted their alued time to assist us to
adjudicate upon these Cases.
\e would also like to conclude this judgment by
reproducing hereunder what Dr. lumayun Ahmed, ,popularly
known as lumayun Ahmed,, a liing Mega Star in our literary
horizon, who inspired millions o Bengali people to read
noels, who had succeeded to accumulate immense popularity
rom the Bengali people on both sides o the territorial
boundary, and who had been compared with Immortal Sharat
Chandra Chattapadhya by none other than another Liing
Legend in Bengali literary realm, Mr. Sunil Gangapadhya, once
expressed, while he was in the process o a research work as a
prelude to author a period conined history based noel, to be
named, Deyal`,
198
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I agree.