Khondker Moshtaque Ahmed Vs.

Bangladesh, 1982, 11 CLC (AD) [1523]

Supreme Court
Appellate Division
(Criminal)
Present:
Kemaluddin Hossain CJ
Fazle Munim J
Ruhul Islam J
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
Khondker Moshtaque Ahmed. Appellant (In both the appeals).
Vs.
Bangladesh through the Secretary, Ministry of Home Affairs.. Respondent (In both the
appeals).
Judgment
November 17, 1982.
Result:
Both the appeals are allowed.
Cases Referred to(1978) 30 DLR(AD)207; (1980) 32 DLR (AD) 216; Kh Ehteshamuddin Vs. Bangladesh (1981) 33 DLR
(AD) 154; Queen Vs. Huggins 1895, I QBD 563; State Vs. Zia-Ur-Rahman PLD 1973 (SC) 49;
Federation of Pakistan Vs. Saeed Ahmed PLD (SC) 151; Jamil Huq Vs. Bangladesh (1982) 34
DLR(AD) 125; A Rouf Vs. Abdul Hamid Khan (1965 17 DLR (SC) 515.
Lawyers Involved:
MH Khandker and Khandker Mahbub uddin Ahmed, Senior Advocates with Nizamuddin Haider,
Advocate, instructed by Shahabuddin Ahmed, Advocate-on-RecordFor the Appellant (In both the
appeals).
K.A. Bakr, Attorney-General, with A W Bhuiyan Deputy Attorney-General, instructed by B. Hossain
Advocate-on-RecordFor the Respondent (In both the appeals).
Criminal Appeal Nos. 11 & 12 of 1981
(From the Judgment and Order dated 29th July, 1981 passed by the High Court Division in Writ
Petition Nos. 928 and 929 of 1979)
Judgment

Badrul Haider Chowdhury J.These are certificated appeal under Article 103 of the
Constitution from the judgment In Writ Petition Nos. 928 and 929 of 1979 discharging the Rule,
Facts are as fellow: The appellant Khondker Moshtaque Ahmed was convicted by the Special
Martial Law Court No. VIII in Case No. 1 of 1977 and Case No. 3 of 1977. Both the appeals were
heard analogously and are disposed of by this judgment.
2. In Case No. 1 of 1977 the allegation it that during the tenure of office the appellant as the
President of Bangladesh in collusion with the Secretary, Ministry of Public Works and Urban
Development got various construction and repair work done in the Dak-Bungalow of the Rabiya
Kabir Kalyan Trust and similar work done in his paternal home at Doshpara at the expense of
the Government through corrupt and Illegal means and by abuse of his official position and
thereby pecuniary advantage of Tk. 4,58,631/-. In the other case the allegation was that the
appellant during his tenure as Minister for Commerce and Foreign Trade from 19-2-74 to 14-875 by corrupt or illegal means and by abusing his official position as such passed Illegal order
for supply of furniture worth Tk. 39.900/- from the Trading Corporation of Bangladesh free of
cost and the said furniture were taken to his private rest house at Sandalpur and thus he
obtained pecuniary advantage to the extent of Tk. 79,900/- and thereby the appellant in
collusion with and active assistance of co-accused Nos. 2 end 3 by abusing his official position
as such and/or by corrupt or illegal means obtained the valuable properties and pecuniary
advantage for himself or for others to the detriment of the economic and financial loss of the
State and thereby committed an offence punishable under Regulation No. 11 of MLR No. 1 of
1975 in both the cases the accused pleaded not guilty to the charge and submitted his
explanation under section 342 of the Code of Criminal Procedure in written statement. The
Special Martial Law Court convicted him in both the cases and in Case No. 1 of 1977 sentenced
him to five years rigorous imprisonment and to pay fine of Tk. 1,00,000/- in default to suffer
rigorous imprisonment for another one year and in Case No. 3 of 1977 sentenced him to suffer
rigorous imprisonment for a term of three years with the direction that the sentence will run
concurrently. The Special Martial Law Court, however, mentioned in the judgment that it took a
lenient view in inflicting sentence considering the service rendered by the accused to the Nation
during the war of liberation and also of his age. The Special Martial Law Court directed that the
proceedings of the case be submitted to the Chief Martial law Administrator for review as
required under Regulation 4 of M.L.R. 1 of 1975. In the first case the order was passed on 24-21977 and in the second case on 31-3-1977.
3. It seems an order of review was passed 6-10-1977 and the order by the Government was
noted in the order sheet of the Special Martial Law Court on 5-11-1977. Khandker Moshtaque
Ahmed filed writ petition on 3-12-79 and on the following day the Rule was issued. In the writ
petition the background of the events between 15th August, 1975 and 26-11-1976 was detailed
mentioning his press statement on 26 11-1976 protesting the postponement of general election
for an indefinite period by the then President Sayem In his address to the Nation on 21-111976, The press statement is Annexure 'A' to the petition. Then it is stated in paragraph 7 that
three days later, on 29-11-1976 the appellant was arrested from his village home at Doshpar
where he had gone for performing Eid and he was brought to Dacca and lodged in the Central
Jail. It is stated:
''This action was taken simultaneously with the assumption of the office of the Chief Martial law
Administrator by the then Chief of Army Staff, vide the Third Proclamation dated 28-11-76.

Amendments of Regulations 4 and 11 of the Martial Law Regulation No.1 of 1975 (purporting to
include "President" within the mischief of Regulation 11 and giving power of review to the Chief
Martial Law Administrator) were elected immediately thereafter, vide Regulation No. XXXIII of
1976 dated 28-12 1976."
Paragraphs 8 and 9 read as follows:
8. That the amendments of the Martial Law Regulation No. 1 of 1975 will clearly indicate that
there was maneuvering for power and all steps were being taken in a calculated manner to
ensure elimination of your petitioner from the field of political activity, by keeping him behind
the bars. As salient Instances of such amendments the following may be mentioned(a) Constitution of Special Martial Law Court originally was with a Sessions Judge as Chairman.
This was changed in such a way as to enable constitution of each Court with an officer of the
Army as Chairman and another Army officer as member thereof, which together would
constitute majority in the Court.
(b) There was provisions for an appeal to the Government in cases where the Special Martial
Law Court would be divided in opinion; this was changed and the right to appeal was altogether
withdrawn, leaving only a review of the Judgment of such Court by the Government.
(c) Even this 'review' by the government was possibly not considered by the authorities that
were, to be 'good enough and the provisions was changed for review by the Chief Martial Law
Administrator.
So the whole position was that a Special Martial Law Court could be constituted by the Chief
Martial Law Administrator with two of the three members, including the Chairman, from the
Army and of his own choice and the Chief Martial Law Administrator himself would review the
judgment of such a Court.
9. That when the machinery was, thus, organised according to the choice of they then Chief
Martial Law Administrator, three cases, i.e. Martial Law Cases Nos. 1, 2 and 3 of 1977 were
started against your petitioner under Regulation 1 of Martial Law Regulation No. 1 of 1975,
simultaneously Special Martial Law Court No. VIII was constituted to those cases. The Court was
constituted with Col. M. Mashaned Chowdhury as Chairman and Lt. Col. Saberul Islam
Chowdhury and Mr. Md. Alam Haque, Magistrate, 1st Class, as members thereof."
4. On such averments is wag contended before the High Court Division that inclusion of the
word 'President' by Regulation No. XXXIII of 1976 on 28-12-1976 just after the arrest of
Khandker Moshtaque was mala fide and simultaneous constitution of the Martial Law Court No.
VIII with a Chairman from the Armed Forces was "another act of mala fide intention on the part
of the Government." It was further argued that the original provision for appeal was completely
recast on the same day and by Regulation IV a new Regulation was substituted providing Chief
Martial Law Administrator as the authority for the review, but the review was not done by the
Chief Martial Law Administrator and an order of review was passed by the Government on 610-77 long after six months of the trial. It shows the mala fide intention.
5. The learned Judges of the High Court Division repelled the contention chat inclusion of the
word President can be taken as mala fide. It was observed:
"Moreover, the validity of the law shall not depend upon the mala fide or bona fide of law."

and then proceeded to consider the grievance that on the same date of arrest the Chief of
Army Staff became the Chief Martial Law Administrator and immediately thereafter the First
Information Report in both the cases were filed and constitution of the Special Martial Law
Court was made on 18-1-77 by the Chief Martial Law Administrator and on the date of arrest no
warrant was issued but only after amendment of the Regulation No.1 of 1975 on 28-12-76 by
Regulation No. XXXIII of 976 the two F.I.R.s were filed. The learned Judges observed:
''When the petitioner was arrested there was no charge against the petitioner under Regulation
No. XI of Martial Law Regulation No. 1 of 1975 which was amended afterwards. These facts,
however, colorful mala fide might be this Court cannot go into that question in view of the fact
that the Martial Law Regulation by which the amendments have been made to implicate the
President in an offence under Regulation No. XI is immune from challenge in any Court."
The learned Judges considered the decision of this Court reported in 30 DLR (AD) 207, 32 DLR
(AD) 216 and 33 DLR (AD) 154 and added:
"Of course, it has been held in those cases that if the action of the authorities are without
jurisdiction and mala fide the Supreme Court can go into the question.
The learned Judges then observed:
''In these cases since the law cannot be struck down on the ground of mala fide we do not find
that the trial and convictions of the petitioner are without any Jurisdiction."
Thereafter the learned Judges considered the argument on review and notice the decision of
this Court in Criminal Appeal No. 24 of 1980 Government of Bangladesh vs. Syed AM Mahbubur
Rashid and observed:
"Whatever may be our view with regard to the question of review the decision of the Appellate
Division stands in our way in coming to any finding with regard to the question whether the
review that is referred to in Regulation 4 is a judicial review or not. We, however, think that is
reviewing the Judgment of the M.L. Courts the Government should exercise its judicial mind
that should be apparent on the review passed by the Government and that is absent in the
present cases. But In view of the Appellate Division's judgment we cannot hold that the review
in the instant cases were not in accordance with law."
Lastly, to meet the contention on the ex post facto legislation regarding inclusion of the word
President the learned Judges observed:
"That because of the decision of the Appellate Division we cannot go into those questions over
again, because of the fact it has been decided there that the said laws are immune from
challenge in view of the proclamation of 20th August, 1975 contained in clause (d), (a) and (g)
thereto."
The learned Judges discharged the Rule wish the observation:
"The points argued by the learned Advocate of the petitioner are covered by the decisions of
the Appellate Division and in that view of the matter these two petitions must fail."
6. Mr. M. M. Khandker, the learned Counsel appearing for the appellant canvassed that the
High Court Division had given reasoning for discharging the Rules though the basis of reasoning
that was followed, led them to the inevitable conclusion that the conviction requires to be

quashed both on the ground of mala fide and the absence of review by the proper authority
and, therefore, the learned Judges were impelled to give certificate under Article 103 of the
Constitution.
7. To revert to the consideration of the appeal, we find that President Sayem addressed the
Nation on 21-11-1976 declaring the postponement of the General Election for an indefinite
period. Khandker Moshtaque Ahmed issued a statement on 26-11-1976 and pointed out that:
"When election for representative Government has been postponed on the ground of people's
aversion. It is difficult to appreciate how elections of the local bodies are being held and that
too without any demand from any quarter whatever."
He thus concluded:
"We would, therefore, urge upon the Government to allow open political activities in the
country and announce a definite date of Election."
On 29-11-76 the Third Proclamation was nude whereby President Sayem handed over the office
of Chief Marital Law Administrator to Major General Ziaur Rahman, B. U. P.S.C. who shall
hereafter exercise all the powers of Chief Martial Law Administrator including the powers (a) to
appoint new Deputy Chief Martial Law Administrator, Zonal Martial Law Administrator and Sub
Zonal Martial Law Administrator; (b) To amend the proclamation of 20th August, 1975, 8th
November, 1975 and this proclamation; (c) To make Martial Law Regulations and orders and (d)
to add any other act or thing or to take any other action at be deemed necessary in the national
interest or for the enforcement of the Martial Law.
8. It will be convenient to consider the original provisions of Regulation IV. It reads as under.
"IV. APPEALS AND CONFIRMATION.(1) No appeal shall lie from any unanimous judgment or
decision of a Special Martial Law Court or from any judgment or decision of a Summary Martial
Law Court. (2) If any judgment or decision of a Special Martial Law Court it not unanimous, an
appellate Tribunal which shall consist of one member to be appointed by the Government from
among persons who are or have been Judges of the Supreme Court of or any High Court that
functioned at any time in the territory of Bangladesh. (3) All proceedings of Special Martial Law
Courts shall be submitted to the Government for review, and all sentences of death or
transportation for life shall have to be confirmed by the President. (4) All proceeding of
Summary Martial Law Courts shall be submitted to the Sessions Judge within whose Jurisdiction
they held the trial for review, (5) The Government or a Sessions Judge, as the case may be, may,
on review, reduce any sentence, (6) All appeals, under the Regulation shall have to be preferred
within fifteen days of the delivery of judgment (7) An appellate Tribunal may, on appeal,
confirm, set aside, change, vary or modify any judgment or sentence and the decision of such
Tribunal shall be final, (8) An appellate Tribunal shall, for the purpose of hearing an appeal,
have the same power and follow, as nearly as possible, the same procedure as are vested in
and followed by the High Court Division under the Code, (9) Save as provided in the Regulation,
no order, judgment, decision or sentence of a Martial Law Court shall be celled in question in
any manner whatever in or before any Court, including the Supreme Court, (10) No lawyer shall
appear or plead before the Government or a Session Judge at the time of review of a case.
9. This Regulation was substituted by a new one which read as under:

"IV. REVIEWS OF PROCEEDINGS etc.- (1) No appeal shall be from any order judgment or
sentence of a Martial Law Court. (2) All proceedings of Special Martial Law Court shall,
immediately after the termination thereof, be submitted to the Chief Martial Law Administrator
for review. (3) All proceedings of Summary Martial Law Court shall, immediately after the
termination thereof, be submitted to the Zonal Martial Law Administrator, within whose
jurisdiction its trial was held for review. (4) The Chief Martial Law Administrator may, on review,
set aside vary or modify any order, judgment or sentence or make orders for retrial of such
other orders as he deems necessary for the ends of justice. (5) A Zonal Martial Law
Administrator may, on review, set aside, vary or modify any order, judgment or sentence or
make order for retrial or such other orders as ho deems necessary for the ends of justice:
Provided that no order setting aside any order, judgment or sentence or for retrial shall be
made by a Zonal Martial Law Administrator without the prior approval of she Chief Martial Law
Administrator. (6) Subject to review, all orders, judgments and sentences of a Martial Law Court
shall be final. (7) No order judgment, sentence or proceedings of a Martial Law Court shall be
called in question in any manner whatsoever in, by or before any Court, including the High
Court and the Supreme Court. (8) No Court including the High Court and the Supreme Court,
shall call for the records of the proceedings of any Marital Law Court for any purpose whatever.
(9) No lawyer shall appear or plead before the Chief Martial Law Administrator or a Zonal
Martial Law Administrator.
10. In the contest of the aforesaid provisions it is found that Khandker Moshtaque Ahmed was
arrested from his village home on 29th November, 1976 on the very day when Chief of Army
Staff, assumed the office of Chief Martial Law Administrator. After making amendment in the
Martial Law Regulation on the 28th December, 1976 First Information Reports in both the cases
were filed on the following day that Is, on the 29th December, 1976. Charge-sheets were filed
on 19-1-77 in one case and 17-2-77 in the other case. Trial in Case No. 1 of 1977 commenced in
the month of February and another commenced in the month of March. In one case as many as
sixty-four prosecution witnesses were examined and in the other case ninety-seven
prosecution witnesses were examined, He was convicted in both the cases and the judgments
were given on 24-2-77 in Case No. 1 and on 31-3-77 in Case No. 2. In both the judgments the
Martial Law Court recorded that the proceedings of the case be submitted to the Chief Martial
Law Administrator for review. Regulation 4 (2) reads"All proceedings of Special Martial Law Courts shall immediately after the termination
thereafter be submitted to the Chief Martial Law Administrator for review."
Regulation 4(6) reads:
Subject to review all orders, judgments and sentences of a Martial Law Court shall be final."
During the period from 5-1-77 to 5-6-77 the review was to be done by the Chief Martial Law
Administrator. Originally it was in the hands of Government, and the Government exercised
such power between 22-8-75 and 4-1-77. Then again power was reverted to the Government
from 6-6-77 and the order of review that has been passed by the Government was, made on 610-77 and the Court noticed the order of the Government in its order sheet on 16-11-77.
Sequence of events show that the argument of the learned Advocate that all steps were being
taken "in a calculated manner." (paragraph 8) and the machinery so organized according to the
choice of the then Chief Martial Law Administrator" and the constitution of Martial Law Court

"that two of the members including the Chairman from the At my and of his own choice and the
Chief Martial Law Administrator himself would review the judgment of such a Court" gives the
impression that the celebrated principle of Lord Hewart that justice should not only be done
but appear to have been done was not kept in view. In the original regulation the constitution
of Martial Law Court was given, in regulation (2) as under;
Special Martial Law Court shall consist of a Chairman and two other members, (iii) The
Chairman of a Special Martial Law Court shall be appointed from amongst the Sessions Judges
or Additional Sessions Judges and of the two other members of such Court one shall be
appointed from amongst officers of the defence services, nor below the rank of Lt. Col. or
equivalent and the other from amongst Assistant sessions Judges or District or Additional
District Magistrates."
This was amended on 12th February, 1976 in the following manner:
"The Chairman of a Special Martial Law Court shall be appointed from among the Sessions
Judges or officer of the Defence Services of Bangladesh not below the rank of Lt. Col. or
equivalent and of the two other members of such Court one shall be appointed from among
officers of the defence service of Bangladesh Rifles not below the rank of Major or equivalent
and the other from among Magistrates of the first class.
11. In plain language the position Is that the original Martial Law Court could only be headed by
the Sessions Judges or Additional Sessions Judge and of the two other members one could be
from the defence services and the other from among the Assistant Sessions Judges or the
District or Additional District Magistrates Out of three member the Chairman must be Sessions
Judge and one from the Armed Forces. But in the charged regulation there could be two from
the Armed Forces and one from the Magistracy without any member from the judiciary. In
point of fact, on 18th January, 1977 the Chief Martial Law Administrator constituted Special
Martial Law Court with Col. Md. Mannan Chowdhury as Chairman and Lt. Col. Saberul Islam
Chowdhury as member and a Magistrate as another member. This composition of the Court
has created apprehension in the mind of the appellant that he will not get fair trial and these
points were canvassed in the writ petition. It is will settled that in the case of bias the crucial
test is that whether there is any likelihood of bias. Mr. M H Khandker has not made any
grievance against the Court itself be said is that the composition of the Court itself has caused
apprehension in the mind of the accused It is further to be observed that all those provisional
changes were made not by ordinary legislation process but by Martial Law Regulation which are
bat executive decree of the head of the Government. The materials on record reveal that all
those charges were brought out to achieve a direct purpose of debarring the appellant from
elective political activities. In the case of Queen vs. Huggins (1895) I QBD 563 the Court quashed
the conviction because one of the members belonged professionally to the class which would
be benefited by the conviction of the accused. The Court quashed the conviction 00 that ground
only in the present case this sequence of events has impelled the learned Judges of the High
Court Division to term the events as "colorful and malafide."
12. With respect to the learned Judges they misted the ratio of the cases mentioned by them.
In 30 DLR (AD) 207 the case of Halima Khatun this Court considered the scope of Martial Law
Regulation No. VII of 1977 (Abandoned Properties Supplementary Provision Regulation 1977;
but did not consider any of such questions that has been raised in this appeal. A case is the

authority for the proposition which it lays down on the facts of the case and in that case the
question was whether in view of the Martial Law Regulation VII those petitions have abated and
the answer to the question was in the affirmative,
13. In 32 DLR (AD) 26 the Court considered against the terms of Martial Law Regulation No. VII
of 1977 when the Court considered that the appellant got into possession, of the properly on
the footing of a contract of sale on October, 1971 long before the provision of M. L. R. VII or
Presidential Order affecting his right came into existence. He was still in possession and so his
possession came under M L R VII of 1977 and whether be can defend under President's Order
No. 16 of 1972 his position in the writ Jurisdiction and the case since required to be properly
determined by the High Court Division", it was remitted back to it. In that case this Court
observed as under:
The further observation that requires to be made is that abatement of the proceeding will
follow in such cases except while the taking-over or Testing is without Jurisdiction or coram non
judice or it is mala fide and in such circumstances such action or order is not protected wader
the regulation." (P 222)
In the case of Kh Ehteshamuddin Ahmed @ Iqbal vs. Bangladesh, 33 DLR (AD) 154 the Court
observed:
"The moment any Martial Law Court is found to have acted without Jurisdiction, more precisely
has taken cognizance of an offence not triable by such Courts under the Martial Law Regulation,
or the Martial Law Court is not properly constituted, the Superior Courts power to declare she
proceedings wholly illegal and without any lawful authority in exercise of its power under Article
102 of the Constitution cannot be denied. The power of the Superior Courts can be extended to
examine Jurisdiction of Martial Law Court when it is found that it is coram non judice. I find
myself in agreement with the view expressed by the Supreme Court of Pakistan in the case
ofState vs. Zia-Ur Rahman, PLD 1973 (SC) 49 and Federation of Pakistan vs. Sayed Ahmed PLD
1974 (SC) 151 on this question".
Ruhul Islam, J. quoted with approval the observation of Hamoodur Rahman, CJ., that
"notwithstanding the ouster provision the act, orders, or proceedings, which are taken or made
without Jurisdiction, mala fide or coram non judice have not been saved from the scrutiny of the
Courts by the ouster clause."
The learned Judge further noticed:
Since it has been conceded by the learned Attorney General that when a proceedings or an
Action taken under the Martial Law Regulation is challenged on the ground of want of
Jurisdiction or mala fide, the Superior Court in exercise of its writ Jurisdiction is competent to
make the necessary declaration. I do not consider it necessary to discuss this question at
length."
In that case also the purported exercise of power occurring in Article 18 of the Constitution by
5th Amendment Act, 1979 was considered and the declaration of the Pakistan Supreme Court
in Zia-ur Rahman's case was approved that:
"notwithstanding such clause the Jurisdiction of the Superior Court cannot be ousted if the
proceeding taken was without Jurisdiction or coram non judice or mala fide.

The Court observed:

"In this context the learned Attorney-General, however, conceded that the principle as laid
down in the above mentioned cases by the Supreme Court of Pakistan may be applied to cases
coming within the rule set out in aforesaid decisions."
14. This principle has been consistently followed by this Court in a number of decisions.
Mention may be made of Criminal Appeal No. 4 of 1980. Referring to the decision of K.h.
Ehteshamuddin Ahmed @ Iqbals case it was observed:
"The arguments advanced by Mr. Asrarul Hossain do not come within the restricted scope of
examination of the proceedings by the Supreme Court in exercise of the Writ jurisdiction under
Article 102 of the Constitution as propounded in the said case."
In that case the proceeding of Special Martial Law Court was challenged after the withdrawal of
Martial Law Regulation and no challenge was given on mala fide or coram non judice.
15. In Civil Petition No. 42 of 1980 in the case of Ismail Howlader Vs. Government of
Bangladesh (unreported) the accused were convicted under sections 302/149 by Special Martial
Law Court but the Martial Law Court sentenced them to suffer five (5) years rigorous
imprisonment which was not a legal sentence and the Government on review confirmed the
conviction but altered the sentence to transportation for life, No challenge was given on the
ground of mala fide or coram non judice. The Court observed that:
The Order of the Martial Law Court cannot be challenged, it may be remembered that except
on the ground ofmala fide or want of jurisdiction Mr. Hossain has failed to show either of these
two principle requisites for interference with an order of Martial Law Courts."
In Criminal Appeal No. 24 of 1980 in the case of Government of Bangladesh vs. Syed A. M.
Mahbubur Rashid(unreported) (arising out of writ petition No. 805 of 1979) the question was
whether the Government applied its mind while reviewing the conviction. This Court observed:
"On perusal of the order of review we find it difficult to accept the view of the High Court
Division that the Government did not apply its mind to the case."
As for the nature of jurisdiction of the Court it was observed:
"Mr. Moksudur Rahman does not dispute the power of the Supreme Court to interfere with a
decision of the Martial Law authorities or Martial Law Courts in case of total absence of
jurisdiction or in the case of mala fide exercise of power as has been held by this Division in
some recent cases. In the case, however, no ground of total absence of jurisdiction or mala fide
exercise of power was taken nor is there anything on the Court's record to this effect. In view of
this position the order of review is found to be perfectly lawful and the High Court Division's
interference was uncalled for.
16. Be it noted that this decision was considered by the learned Judges in their Judgment under
challenge. In that case the High Court Division came to the conclusion that in the absence of
any proper judgment the purported order of review was illegal and directed the Government to
review the proceedings of the case according to Law. Government appealed against the
decision and this Court said:

On perusal of the order of review we find it difficult to accept the view of the High Court
Division that the Government did not apply its mind to the accused.
And as for the procedure this Court simply mentionedSince no particular mode of disposing of review matter has been prescribed the government
disposed in the manner deemed proper.
It is unfortunate that the learned Judges read something in the judgment of this Court which
was not there when they said:
In that case also the Appellate Division negatived the view of the High Court which was to the
effect that in the matter of review the Government was exercising the function of the Judicial
authority and evidently review in question must be Judicial review.
There it no foundation for such observation and nothing has been said in the Judgment of this
Court as to the question whether it was a judicial review or not. Apparently, this misconception
has laid the learned Judges to say that:
Whatever may be our view with regard to the question of the review the decision of the
Appellate Division stand in our way in coming to any finding with regard to the question
whether the review that is referred to in Regulation (iv) is a judicial review or not."
So far as the case is considered the learned Judges observed:
The Government should exercise its Judicial mind that should be apparent on the review order
passed by the Government and that is absent in the present case."
Mr. M. H. Khandker has forcefully contended that in the case of Kh. Ehteshamuddin Ahmed @
Iqbal the review as done elaborately in 29 (twenty nine) pages which was noticed in the
judgment to this Court. Whereas in the present ease notwithstanding voluminous evidence it
was done in a cryptic manner in a two-paged order.
17. So far as this point is concerned we shall deal with it presently but the pro-position that has
been laid down consistently is that the mala fide or coram non judice proceedings are not
immune from the scrutiny of the Supreme Court notwithstanding any ouster clause in the
Martial Law Proclamation. In Jamil Huq vs. Bangladesh (1982) 34 DLR (AD) 125 (Criminal Petition
Nos. 65-76 of 1981) this view was re-enforced by my Lord the Chief Justice:
The order or action of the excepted authority mentioned in sub-clause (5) of Article 102 is
immune from challenge in Writ Jurisdiction subject to the Rule laid down in Khondker
Ehteshamuddin Ahmed @ Iqbal. In that the order is coram non judice or mala fide.
Having laid down this proportion it is difficult for us to appreciate the view of the learned
Judges when they expressed:
These facts, however colorful and mala fide they might be, the relief cannot be given because
of the decision of this Court which "stands in the way."
The judicial mind having swung in the facts and circumstances of the case to the extent that the
proceeding was taken mala fide and in colourable exercise of power the inevitable inferential
consequence was to record the quashment of the conviction what is mala fide? The learned
Chief Justice observed in the Criminal Petition No. 65 of 1981

"It is true that the word mala fide cannot and ought not to be defined as much will depend on
the facts and circumstances of each case but then it is not so vague as to rob it of all meanings.
Malafide must be alleged and facts constituting mala fide are to be stated and when called
upon by the Court the party alleging mala fide must establish it by an affidavit or otherwise. In
order to strike down an order pasted by an accepted authority within the purview of Sub-Article
(5), the facts constituted mala fide must have co-relation with Jurisdiction and be analogous to
an order made coram non judice.
Same voice was expressed when Kaikaus, J, spoke for the Court:
"A mala fide act is by its nature an act without jurisdiction, No Magistrate when it grants power
to take action or pass an order contemplates a mala fide exercise of power. A mala fide order in
a fraud on the statute. It may be explained that mala fide order means one which is based nor
for the purpose contemplated by the enactment granting the power to pass the order; but for
some other collateral or ulterior purpose."
(A. Rouf vs. Abdul Hamid Khan (1965) 17 DLR (SC) 55, PLD 1965 (SC) 671 Now what are the facts
of this case and how mala fids were alleged? These facts have already been detailed but to
recapitulate them in short compass they, date-wise, are follows:
21-11-76:

Press statement of President Sayem postponing of General Election for

an indefinite period.

26-11-76:

Khondker Moshtaque Ahmed issued the press statement in protest.

29-11-76:

Third Proclamation issued. The Chief of Army Staff became Chief Martial
Law Administrator Moshtaque arrested on the same day.

28-12-76:

The word President was inserted by Amendment, original paragraph (4)

was substituted providing review Chief Martial Law Administrator is to
review the Special Martial Law Courts proceeding.

29-12-76:

First information Report in both the cases filed.

18-1-77:

Special Martial Law Court No. VIII was appointed by the Chief Martial
Law Administrator with a Col. as Chairman and a Lt. Col. and one
Magistrate as member.

19-1-77:

Charge-sheet in the first case.

7-2-77:

Trial of case No. 1 begins.

17-2-77:

Charge sheet in second case.

24-2-77:

Judgment in case No 1.

31-3-77:

Judgment in case No 2.

21-4-77:

Chief Martial Law Administrator become the President.

9-5-77:

Order of President and Chief Martial Law Administrator.

That hence forward review of proceedings disposed by Special Martial Law Court shall
be done by the Ministry of Law and Parliamentary Affairs and the review notice shall

be submitted to him by the Ministry directly.

6-6-77:

The power of review was reverted to the Government.

6-10-77:

Review order by the Government.

5-11-77:

Order of review noted in the Martial Law Courts order sheet.

The sequence of events are in so close proximity that the same undoubtedly stares at the face.
18. President Sayems declaration postponing election; Kh. Moshtaque Ahmed's prompt press
statement criticising postponement of Election; President Sayems handing over the power of
Chief Martial Law Administrator to the Chief of Army Staff and Deputy Chief Martial Law
Administrator and arrest of Khondker Moshtaque Ahmed on the same day drives one to the
conclusion that: All steps were being taken in a calculated manner to ensure elimination of
your petitioner from the field of political activities and the subsequent inclusion of the word
President on 28.12.76 and filing of two F.I.Rs, on the following day and the establishment of the
Court on 15-1-77 with the two Army Officers out of 3 (three): and taking the power of review in
the hand of Chief Martial Law Administrator who appointed the Chairman from the Army of his
own choice the machinery was thus organized according to choice of the then Martial Law
Administrator gives the impression that the apprehension of the appellant that the
proceedings have been initiated mala fide cannot be brushed aside. The learned Judges of the
High Court Division thus have veered round this view.
19. As to the setting up of Martial Law Courts, it may be said that it was a Martial Law Court
cannot be denied but the constitution of Martial Law Courts as was given originally had the
trappings of the Court as understood in the judicial parlance. In the original regulation the
Chairman was to be Sessions Judge or Additional Sessions Judge and of the two other members
one was to be member from the cadre of Assistant Sessions Judge or District or Additional
District Magistrate. It is true no appeal was given from any unanimous judgment but if the
decision of Special Martial Law Court was not unanimous an appeal lay to the Appellate
Tribunal which is to be headed by a person who is or has been Judge of the Supreme Court or
any High Court that functioned at any time in the territory of Bangladesh. But if the decision of
the Martial Law Court was unanimous then a review lies to the Government or Sessions Judge.
Thus it is clear that the judicial norms were kept and the forum for appeal and review was
maintained for seeking redress. This forum was however, changed and the review was
restructured on 28.12.76 the day before the F.I.R was lodged. The appellant has by affidavit
clearly set out the particulars to build up his arguments on mala fide and these particulars are
difficult to be assailed by the respondent.
20. Lord Hewart C.J. in Rex Vs. Sussex Justices (1924) 1 KB 256 observed:
A long line of cases Shows that it is not merely of some importance but is of fundamental
importance that Justice should not only be done but should manifestly and undoubtedly be
seen to be done."
The learned Chief Justice further observed:
Nothing is to be done which creates even a suspicion that there has been an improper
interference with the course of justice.

In the Queen vs. Huggins, I QB 563 convictions was quashed on the ground that one of the
convicting Justices had a professional sympathy for the prosecution, Wills, J. considered:
The question is whether there was a reasonable apprehension of bias. It appears that Martin
belongs to a small class of privileged persons for whose protection these proceedings were
taken under these circumstances. I cannot help thinking that it would not be in the general
interest of justice that the conviction should be allowed to stand. It is impossible to over-rate
the importance of keeping the administration of justice by Magistrates clear from all suspicion
of interference.
21. It was held that it was not necessary to show that the Justice was, in fact, biased. It is enough
if the accused might reasonably have formed the impression that this justice would not give
this case an unbiased hearing. It is to be remembered that mere allegation of bias is not
enough to invalidate the conviction. This was explained in Regina vs. Kamborn Justice, 1953, 1
KB 41. It was held a real likelihood of bias must be shown from the facts and circumstance of
the case. The Court observed that conviction will not be quashed on unsubstantial grounds or
on flimsiest pretext of bias. It will be done only when a real likelihood of bias is demonstrated.
22. The appellant detailed the reasons of his apprehension in paragraphs 7, 8, 9 and 13 of the
petition. The cumulative effect of these particulars lead to irresistible conclusion that the
proceeding was instituted with ulterior purpose and such proceeding is mala fide. The
requirement of the law it that the accused mutt be produced before a Magistrate after his
arrest but the appellant was not produced before any Magistrate. Sec. 167 of the Code of
Criminal Procedure was holding the field and the Regulation 2(a) was promulgated on 28-121976 that is after a month. Section 167 Cr. P. C. required the production of the accused before a
Magistrate whether he has jurisdiction to try the case or not. This was to check any
highhandedness in the executive and as Khandker Moshtaque Ahmed was not produced before
any such Magistrate, the circumstance adds to the dimension of the contention that the arrest
and subsequent proceeding was mala fide.
23. Power has not been given to exercise if illegally or with mala fide intention. Mala fide actions
do not get any protection from a Court of Law. The learned Judges of the High Court Davison
having come up to this point fell short of giving the remedy which inferentially leads to
irresistible conclusion, namely, the quashment of the conviction. Since the conviction is to be
quashed it is needless to go into the second point whether the review was done in accordance
with law. Suffice it to say that the review was not done by the Chief Martial Law Administrator
who was the reviewing authority till 6-6-1977. The only inference that can be drawn by such
belated review by an authority e.g., the Government when the Chief Martial Law Administrator
was the designated authority is that the apprehension of the accused that the proceedings
have been initiated mala fide cannot be repudiated.
In the result, therefore, both the appeals are allowed and the order of the High Court Division
set aside and the Special Martial Law Court and the order of Government on review are set
aside, The orders of conviction passed on the appellant ate hereby quashed.
Ed.
This Case is also Reported in: 34 DLR (AD) (1982) 222.