Present:

Mr. Justice M. Enayetur Rahim

And

Mr. Justice Md. Mostafizur Rahman Criminal Appeal No.1676 of 2018

Begum Khaleda Zia

--- Appellant  -Vs-

The State and another

 ---- Respondents

With

Criminal Appeal No.2215 of 2018

Quzi Salimul Haque @ Qazi Kamal

---- Appellant -Vs-

The State and another

---- Respondents With

Criminal Appeal No.2292 of 2018 Sharfuddin Ahmed

---- Appellant

 -Vs-

The State and another

--- Respondents With

Criminal Revision No.741 of 2018 Durnity Daman Commission

--- Petitioner   -Vs-

Begum Khaleda Zia alias Khaleda Zia and another

---- Opposite parties

Mr. Rafiqul Haq, Advocate with

Mr. Khandker Mahbub Hossain, Advocate, Mr. Moudud Ahmed, Advocate,

Mr. Muhammad Jamiruddin Sircar, Advocate, Mr. Hasan Arif, Advocate,

Mr. Abdur Razzaque Khan, Advocate,

Mr. A.J. Mohammad Ali, Advocate,

Mr. Zainul Abedin, Advocate,

Mr. Aminul Haq, Advocate,

Mr. Mir Md. Nasir Uddin, Advocate,

Mr. A.M. Mahbub Uddin, Advocate,

Mr. Nitai Roy Chowdhury, Advocate,

Mr. Md. Badruddoza, Advocate,

Mr. Md. Ruhul Quddus, Advocate,

Mr. A.H.M. Mushfiqur Rahman, Advocate, Mr. Muhammad Nawshad Zamir, Advocate, Mr. Md. Aminul Islam, Advocate,

Mr. Raghib Rouf Chowdhury, Advocate,

Mr. Kayser Kamal, Advocate,

Mr. Md. Jamila Akhter Elahi, Advocate, Mr. Md. Zakir Hossain Bhuiyan, Advocate, Mr. A.H.M. Kamruzzaman, Advocate,

Ms. Syeda Asifa Ashrafi Papia, Advocate, Ms. Shamima Sultana, Advocate,

Mr. Md. Sagir Hossain Leon, Advocate, Mr. Mir Md. Helal Uddin, Advocate,

Mr. M. Mahbubur Rahman Khan, Advocate, Mr. Md. Jahirul Islam Sumon, Advocate,  Mr. M. Masud Rana, Advocate,

Ms. Jamila Mamtaz, Advocate,

Mr. Md. Anisur Rahman Raihan, Advocate and

Mr. H.M. Shanjid Siddique, Advocate.

--- For the Appellant

(In Criminal Appeal No.1676 of 2018)

Mr. Shah Monjurul Hoque, Advocate, and Mr. Palash Chandra Roy, Advocate

---- For the Convict-Appellant

(In Criminal Appeal No.2215 of 2018)

Mr. Ahsanullah, Advocate

---- For the Appellant

(In Criminal Appeal No.2292 of 2018)

Mr. Mahbubey Alam, Attorney General with

Mr. Farhad Ahmed, DAG,

Mr. Md. Basir Ahmed, DAG,

Mr. Biswajit Debnath, DAG,

Ms. Nusrat Jahan, DAG,

Mr. Md. Nurul Islam Matubber, AAG, and Mr. Md. Yousuf Mahmud Morshed, AAG

--- For the Respondent No.1-State

(In Criminal Appeal No.1676 of 2018, Criminal Appeal No.2215 of 2018

and Criminal Appeal No.2292 of 2018)

Mr. Md. Khurshid Alam Khan, Advocate, with Mr. Mosharraf Hossain Kazal, Advocate, Mr. Md. Abdur Salam, Advocate and

Ms. Fowjia Akhter, Advocate

--- For Respondent No.2-Anti-Corruption Commission. (In Criminal Appeal No.1676 of 2018, Criminal Appeal No.2215 of 2018 and Criminal Appeal No.2292 of 2018)

And

--- For the Petitioner

(In Criminal Revision No.741 of 2018)

Mr. Abdur Razzaque Khan, Advocate with

Mr. A.J. Mohammad Ali, Advocate,

Mr. Muhammad Nawshad Zamir, Advocate, Mr. Kayser Kamal, Advocate and

Mr. A.H.M. Kamruzzaman, Advocate.

---- For the Opposite Party No.1 (In Criminal Revision No.741 of 2018) Heard on 12.07.2018, 15.07.2018, 16.07.2018, 17.07.2018, 18.07.2018, 22.07.2018, 23.07.2018, 24.07.2018,

25.07.2018, 29.07.2018, 30.07.2018, 08.08.2018, 09.08.2018, 13.08.2018,

04.10.2018, 08.10.2018, 14.10.2018,  15.10.2018, 16.10.2018, 29.10.2018 &

Judgment on 30.10.2018

M. Enayetur Rahim, J:

These 3(three) Appeals and the Rule have arisen out of the same judgment and order dated 08.02.2018 passed by the learned Special Judge, Court no.5, Dhaka in Special Case no.17 of 2017 and those have been heard together and are being disposed of by this single judgment.

The present convict appellants along with three others, who are absconding, were put on trial before the Metropolitan Senior Special Judge, Dhaka in Special Case no. 177 of 2009 arising out of Ramna Police Station Case No.08(7)2008 corresponding to ACC G.R. no.102 of 2008. Eventually, the case was transferred to the Special Judge, Court no.3, Dhaka and then again to the Special Judge, Court no.5, Dhaka wherein it was registered as Special Case no.17 of 2017.

Convict Begum Khaleda Zia (hereinafter referred to as Begum Zia) was charged under section 409 of the Penal Code and section 5(2) of the Prevention of Corruption Act, 1947 and other convicts were charged under sections 409/109 of the Penal code and section 5(2) of the Prevention of Corruption Act, 1947 along with section 109 of the Penal Code. The charges were read over to the present appellants and they pleaded not guilty and claimed to be tried.

Prosecution version as unfolded during trial and which formed the foundation of the prosecution case essentially as follows:

While Begum Zia performed the functions as the Prime Minister of the country from 1991 to 1996 a current account being no.5416 was opened with the Sonali Bank, Ramna Corporate Branch, Dhaka in the name of “cÖavbgš¿xi GwZg Znwej (hereinafter referred to as  PM’s Orphanage Fund)”. As per instruction of Prime Minister Begum Zia her secretary convict Kamaluddin Siddique (hereinafter referred to as Kamal Siddique) opened the said account on 02.06.1991. On 09.06.1991 she received US $12,55,000 equivalent to Bangladeshi TK.4,44,81,216/- as donation vide Demand Draft (hereinafter referred to as DD) no.153367970 issued from United Saudi Commercial Bank and same was deposited in the said account but those were not distributed among the orphans till 05.09.1993. Begum Zia formed Zia Orphanage Trust (hereinafter referred to as the Trust) along with her two sons namely convict Tareque Rahman and Arafat Rahman and sister’s son of her husband, convict Mominur Rahman. Accordingly, a deed of Trust was executed and registered on 05.09.1993 showing address of the said Trust at 6, Shaheed Moinul Road, Dhaka Cantonment, Dhaka. On 13.11.1993, a cheque for Tk.2,33,33,500/- was issued from the said account of PM’s Orphanage Fund in favour of the said Trust and the said cheque was deposited in the account of the Trust being STD account no.7 with the Sonali Bank, Gulshan New North Circle Branch. On 04.02.1993 a sum of Tk.4,00,000/- was withdrawn from the said account and 2.79 acres of land was purchased at a consideration of Tk. 2,77,000/- in the name of the Trust and rest of the money was kept in the said STD account. On 12.04.2006, the said money stood Tk.3,37,09,757.32/- with interest. Thereafter, a sum of Tk.3,30,000/- was withdrawn from the account by issuing 6(six) cheques on 12.04.2006, 15.06.2006 and 04.07.2006 and those cheques were deposited in a FDR account with the Prime Bank, Gulshan Branch. On 12.04.2006 Tk.50,00,000/- was encashed and made FDR in the name of convict Kazi Salimul Haque alias Kazi Kamal (hereinafter referred to as Salimul Haque). On 16.07.2006 said FDR was encashed and a new FDR was opened for a sum of Tk.50,68,450/- in the name of the Trust. Two other FDRs being FDR no.4103-3117 dated 09.07.2006 for Tk.80,00,000/- and FDR no.4103-26669 dated 27.06.2006 for Tk.1,00,000/- were opened in the name of the

Inorder to prove the charges the prosecution in all examined 32 witnesses, out of whom PW-1 (as informant) and PW-31 (as investigating

officer) is the same person, who were duly cross- examined by the defence. The prosecution also adduced documentary and material evidences which were duly marked as exhibits and material exhibits respectively.

On behalf of Begum Zia no defence witness was examined. However, 3(three) and 1(one) defence witnesses were examined on behalf of Sharfuddin and Salimul Haque respectively.

Defence Case:

The defence case of Begum Zia reveals from the trend of cross-examination of the prosecution witnesses as well as the written statement submitted by her at the time of examination under section 342 of the Code of Criminal Procedure, in short, is that she had no knowledge about the PM’s Orphanage Fund and also had no involvement with the opening of the Bank account being no.5416 in the name of PM’s Orphanage Fund as well as withdrawal of money from the said account. Late Mustafizur Rahman, the then Foreign Minister brought the said money from the Amir of Kuwait as donation for charity and he (Mustafizur Rahman) knew about the said fund. She is innocent and this case has been initiated against her for political victimisation.

The defence case of Salimul Haque in short was that he kept the alleged money of the Trust in his account on good faith and eventually he returned the money to Tareque Rahman.

The defence case of Sharfuddin, in short, was that the alleged misappropriated money was transferred to his account for purchasing land in favour of the Trust. And by receiving the said money they did not commit any offence as alleged. Eventually, Sharfuddin returned the entire money to the account of the Trust pursuant to the court’s decree.

After closing the evidence the present appellants, who were present in the dock, were duly examined under section 342 of the Code of Criminal Procedure and all the appellants having claimed their innocence submitted separate written statements.

On conclusion of the trial the learned Special Judge found the present appellants guilty along with three other absconding accused under sections 409/109 of the Penal Code and section 5(2) of the Prevention of the Corruption Act, 1947 read with section 109 of the Penal Code, but sentenced the convicts only under sections 409/109 of the Penal Code. Begum Zia was sentenced to suffer rigorous imprisonment for a period of 5(five) years and the other convicts were sentenced to suffer rigorous imprisonment for a period of 10(ten) years. All the convicts were also fined to pay Tk.2,10,71,645.80/- in equal share.

Being aggrieved by and dissatisfied with the judgment and order of conviction and sentence Begum Zia, Salimul Haque and Sharfuddin have filed Criminal Appeal no.1676 of 2018, Criminal Appeal mo.2215 of 2018 and Criminal Appeal No.2292 of 2018 respectively before this Court.

Being aggrieved by the inadequate sentence awarded to Begum Zia the Anti-Corruption Commission (hereinafter referred to as the Commission) by preferring a revisional application has obtained the present Rule.

Submissions on behalf of the Convict Begum Zia:

Mr. Abdur Razzak Khan and Mr. A.J. Mohammad Ali, learned Advocates for convict-appellant Begum Zia, with the assistance of a good number of learned lawyers have submited as under:

i)              The Prime Minister will not come within the ambit of  ‘Public Servant’ as defined in section 21 of the Penal Code as well as in section 2(b) of the Criminal Law Amendment Act,1958 and as such the trial of Begum Zia before the Special Court constituted under the Criminal Law Amendment Act, 1958 is illegal and without jurisdiction and section 409 of the Penal Code or section 5(2) of the Prevention of Corruption Act,1947 will not attract to Begum Zia;

ii)         the prosecution has failed to bring an iota of evidence that the PM’s Orphanage Fund was a public fund and the said fund was entrusted with Begum Zia as a Prime Minister or she had dominion or control over the same and thus, conviction under sections 409/109 of the Penal Code or 5(2) of the Prevention of Corruption Act,1947 is prima facie illegal and bad in law;

iii)    the prosecution with a malafide intention did not ascertain the source of money of the alleged PM’s Orphanage Fund and if the investigation was done properly then it would have been proved that the money was sent by the Amir of Kuwait for the Trust and in this regard the learned Special Judge most illegally and arbitrarily discarded the notarized certificate issued by the Embassy of Kuwait in Dhaka filed before the court for judicial notice under section 57(6) of the Evidence Act wherein it was mentioned that the alleged money was given to the Trust by the Amir of Kuwait;

iv)         admittedly in the opening form of PM’s Orphanage Fund, A/C no.5416, and in the withdrawal cheques the signatures of Prime Minister Begum Zia were not available and thus, she had no involvement with the process of opening of the said account as well as disbursement of the money from the same and as such question of dominion or control over the alleged money and misappropriation of the same does not arise at all;

v)              material exhibit-III and III(A) i.e. the alleged additional ‘nothi’ (records) regarding the PM’s Orphanage Fund are concocted and fabricated one and some overwritings and manipulation are apperent on the face of it, despite the learned Special Judge most erroneously relied on those documents in finding the guilt of Begum Zia;

vi)         admittedly it transpires from material exhibit-III and III(A) that there is no signature or any initial of any officer of PM’s office to show who prepared the said documents or dealt with the ‘nothi’ and thus, those have got no evidentiary value;

vii)    Begum Zia had no involvement or connection with the Trust, which was a private trust and if any misappropriation of the Trust fund was committed by the trustees and others for which Begum Zia can not be liable and remady lies under the Trust Act,1984;

viii)  PW-9, PW-10, PW-11, PW-14, PW-20

and PW-21 were managed and tainted witnesses and the learned Special Judge relying on their evidence in finding the guilt of Begum Zia committed serious illegality and arrived at a wrong decision;

ix)  the inquiry and investigation being incomplete regarding the source of fund has led to a wrongful presumptions on the part of the court below regarding the nature of the fund; the fund was sourced for establishing philanthropic organizations in the name of former President late Ziaur Rahman is a crucial element of this case and as such investigation and inquiry on this point is a necessity to ascertain this

point as the depositions of the PW-26 and PW-31 falls short of a complete story; failing which the appellant will not get justice.

Submissions on behalf of Convict Salimul

Haque:

Mr. Shah Monjurul Haque, learned Advocate, for convict Salimul Haque has submitted as under:

i)              The element of dishonest intention under section 409 being of paramount importance to decide the guilt, required careful consideration both objectively and subjectively. The convict-appellant after receiving 5(five) cheques with no name of the account holder on those and then being authorized to open FDRs and thereafter returning all of them to Tareque Rahman had no reason to believe that the convict-appellant did the same with dishonest intention;

ii)         the learned Special Judge failed to consider that it was not possible for Salimul Haque to know that the alleged cheques belonging to the Trust or of Tareque Rahman or the money in those cheques were misappropriated money taking place some 13 years back and without knowing that the convict appellant could not aid the misappropriation of the money standing in those cheques;

iii)    Salimul Haque did not receive five cheques or was not entrusted with those cheques in his capacity as a member of Parliament or Chairman or Director of the Prime Bank Ltd., rather he received those cheques from Tareque Rahman only as an acquaintance following an oral request and then handedover those cheques to the manager of the Prime Bank Ltd, Gulshan Branch with an honest intention in the presence of the Managing Director of the Bank; nevertheless, the learned Special Judge without considering the later capacity in which those five cheques were actually received by the convict- appellant, erroneously came to a finding that the convict-appellant, by receiving those five cheques in the former capacity, was entrusted with those cheques as a public servant and thus section 409 of the Penal Code and section 5(2) of the Prevention of Corruption Act,1947 came into play in

his respect and thus, came to an erroneous decision in finding guilty to Salimul Haque;

iv)         the money of PM’s Orphanage Fund was transferred to the Trust in the year 1993 and at the said particular time of alleged transfer of fund, Salimul Haque did not have any involvement at all and as such question of abetment as defined in section 109 of the Penal Code does not arise at all and thus, the learned Special Judge improperly and illegally convicted the appellant by failing to appreciate that the convict-appellant had no connection with any of the subsequent transactions after he had returned all the FDRs to Tareque Rahman in July, 2006;

v)              the learned Special Judge failed to consider that DW-1, Sharfuddin himself stated that he opened FDR being no.41022619/73193 dated 16.11.2006 in the name of Salimul Haque and his son, Sayed Ahmed and thus, the finding of the learned Special Judge that Salimul Haque himself by using his influence as Chairman of the Prime Bank Ltd. got the aforesaid FDR opened in his name and Sayed Ahmed is erroneous and perverse and thus, Salimul Haque deserves acquittal.

Submissions on behalf of Convict Sahrfuddin Ahmed:

Mr. Ahsan Ullah, learned Advocate, appearing for the convict Sharfuddin has submitted as under:

i)              the prosecution has no specific case, who committed the offence of ‘criminal breach of trust’, when the offence was committed, who abetted in commission of such offence and who, when and how instigated in commission of the offence and the prosecution failed to prove the ingredients of sections 409/109 of the Penal Code against Sharfuddin beyond reasonable doubt;

ii)         the convict-appellant is not a merchant or agent and he not being a merchant or agent can be tried for commission of offence under section 409 of the Penal Code;

iii)    the learned Special Judge did not at all consider the evidence adduced on behalf of Sharfuddin, in particular the judgment and decree passed in Money Suit no.01 of 2012 by the learned Joint District Judge, 3rd Court, Dhaka and the bank statement of the Trust being maintained with the Uttara Bank, Gulshan Branch and erroneously held that there is no account of the Trust in the Uttara Bank and the money taken as advance for purchasing land in the name of the Trust has been returned by the appellant to the Trust in pursuent to the judgment and decree passed in Money Suit no.01 of 2012;

iv)         Sharfuddin at best can be charged under section 411 of the Penal Code for receiving or retaining the alleged misappropriated money.

Submissions on behalf of Respondent no.1-the

State:

Mr. Mahbubey Alam, learned Attorney General, having supported the impugned judgment and order of conviction has submitted as under:

i)              In finding guilty to the convict persons the learned Special Judge in assesing and evaluating the evidence on record, both oral and documentary, did not commit any error or illegality;

ii)         in order to sustain a conviction under section 409 of the Penal Code the

prosecution is required to prove that (a) the accused, a public servant was entrusted with property of which he was duty bound to account for, and (b) the accused had misappropriated the property and in this particular case the prosection has proved by adducing unimpeachable evidence that Begum Zia being the Prime Minister at the relevant time entrusted with the PM’s Orphanage Fund and she had dominion and control over the same and she dishonestly used and disposed of that property in violation of the direction in which trust had to be discharged i.e. she did not distribute the funds among the orphans, rather forming a paper Trust in her husband’s name through two sons and one nephew transferred a portion of money from the said fund which ultimately transferred to the account of other convicts and thus offence of ‘Criminal breach of trust’ has been committed by Begum Zia and all the convicts consciously aided each other in commission of such offence;

iii)    where the entrustment is proved against an accused it is for him/her to discharge the burden that the entrustment has been carried out as accepted and the obligation has been discharged and in this particular case entrustment of Begum Zia with the property has been proved but she failed to discharge her burden that she carried out or discharged her obligation and thus, the learned Special Judge rightly and lawfully found guilty to Begum Zia and other accused who played active role in different stages in committing the offence of misappropriation;

iv)         the actual manner of misappropriation is not required to be proved by the prosecution; once entrustment is proved, it was for the accused to explain how the property entrusted to him/her was dealt with and in this particular case Begum Zia has failed to discharge her obligations.

Learned Attorney General to substantiate his submissions referred to the cases of Mustafikhar Vs. State of Maharashtra, reported in (2007),1 SCC, page-23, State Vs. H.P.V Karnavir, reported in Cr. LJ, 2006, page 2917 and Mir Nagvi Askari Vs. Central Bureau of Investigation, reported in (2009)15 SCC, page 643.

Submissions on behalf of Respondent No.2, Anti-Corruption Commission:

Mr. Md. Khorshed Alam Khan, learned Advocate, appearing for the Respondent no.2- Commission, refuting the submissions made by the learned Advocates for the respective appellants has submitted as under:

i)            the issue- ‘whether Begum Zia being the Prime Minister of the country at the relevant time was a ‘public servant’ has already been decided earlier by the High Court Division in Criminal Miscellaneous Case no.21979 of 2009 [Reported in 64 DLR(HC), page-1], which has also been affirmed by the Appellate Division in Criminal Petition for Leave To Appeal no.134 of 2012. In the said case it has been held that as a public servant, the appellant (Begum Zia) was entrusted with the orphanage fund and if she is found to have helped others

to use any amount given from the fund in violation of prescribed mode in which trust is to be discharged, offence under sections 409/109 of the Penal Code may also come up for consideration;

ii)       PM’s Orphanage Fund being account no.5416 was opened with the Sonali Bank, Corporate Branch, Ramna, Dhaka by Kamal Siddique, secretary of the Prime Minister, as per the instruction of Prime Minister Begum Zia sometimes ahead of deposit of money through a DD sent from United Saudi Commercial Bank and thus, there is no scope to accept the submission of the learned advocates for appellant Begum Zia that the said account and fund was a Private fund, not a public fund;

iii)  PW-9,10,11 and 14 in their respective depositions categorically and consistently stated about the existence of PM’s Orphanage Fund and material exhibit III and III(A) supported their testimonies;

iv)       investigating agency had tried it’s best to find out the source or sender of the alleged DD but due to non- operation of United Saudi Commercial Bank since 1995, which merged with the SAMBA FINANCIAL GROUP, the source could not be traced out and for this reason

only the prosecution case can not be brushed aside, when other strong and corroborative evidences are available in the record;

v)            prosecution has been able to prove that Begum Zia as the Prime Minister was entrusted with the PM’s Orphanage Fund and she had dominion and control over the same and she dishonestly disposed of a portion of the fund transferring the same to the so called Zia Orphanage Trust by forming it with her two sons and nephew and the said trustees ultimately transferred the money to Salimul Haque and Sharfuddin who had no connection with the said Trust and thereby money was misappropriated;

vi)       offence of ‘criminal breach of trust’ as well as ‘Criminal misconduct’ have been well proved against Begum Zia and the offence of ‘abetment’ has also been well proved against the other convicts.

Mr. Khurshed Alam Khan in support of the Rule has submitted that the learned Special Judge has committed serious error in awarding lesser sentence to Begum Zia who is the principal offender than the abators considering social and police status of her. He has submitted that social and political status of an accused cannot be an extenuating factor for awarding lesser punishment. Begum Zia deserves highest purnishment as provided in law as she committed the offence in exercise of the highest office of the state taking recourse of fraudulent acts.

Before considering the submissions of the learned Advocates for the respective parties it is necessary to peruse and discuss the evidence adduced by the respective parties.

Evidence adduced by the prosecution-

Harunur Rashid being the informant at first examined as PW-1, who in his deposition reiterated the prosecution story and proved the first information report and his signatures thereon, exhibit-1, 1/1, 1/2 and 1/3 respectively. He also proved the sanction letter, issued by the Commission for lodging the first information report, exhibit-2.

In cross-examination PW-1 stated that in connection with the present case he conducted inquiry and the Commission gave sanction on 27.04.2008 for such inquiry. Prior to his inquiry PW-32 conducted an inquiry and on 11.06.2008 PW- 32 submitted a report. He was appointed as the inquiry officer after submission of the said report and he submitted his report on 25.06.2008. He had no knowledge whether report submitted by

PW-32 was accepted or rejected. During inquiry he recorded the statements of PW-19 and PW-21. At the time of lodging the first information report on 03.07.2006 Begum Zia was in jail hazat in connection with another case. Previous inquiry officer, PW-32 recorded the statement of Begum Zia during his inquiry. The previous inquiry officer also recorded the statement of Tareque Rahman and Arafat Rahman. During investigation he recorded the statements of Begum Zia and Tareque Rahman but he did not submit the same before the court. He submitted the charge sheet on 05.08.2009 i.e. after the Government led by Bangladesh Awami League came into power. He did not record any statement of the Ambassador of Kuwait in Bangladesh or the Ambassador of Bangladesh in Kuwait at the relevant time. US $12,55,000 came from United Saudi Commercial Bank in Riyadh vide DD no.153369970 dated 09.06.2011. He did not seize the said DD from Sonali Bank Limited, Ramna Branch but he verified the same. In order to know the identity of the ‘drawer’ of the said DD Bangladesh Embassy in Riyadh was contacted by the Commission through Ministry of Foreign Affairs but they could not ascertain the identity of the ‘drawer’. In the said DD the name of the payee was mentioned as Prime Minister’s Orphanage Fund, Current A/C no.5416, Sonali Bank, Ramna Branch, Dhaka and the amount was mentioned as One Million Two Hundred Fifty Five Thousands. In the account opening form of A/C no.5416 Begum Zia had no signature but as per her instructions the concerned officer Kamal Siddique signed on the same. The said account was opened on 02.06.1991 and at the relevant time there was no rule (Nitimala) to operate the said orphanage fund. The Prime Minister’s office runs as per the organogram. At the relevant time additional secretary Kamal Siddique was in-charge of the secretary of Prime Minister’s office and he has been implicated in the case as  prima facie materials have been found against him in commission of the offence. He could not seize any file or cheque having signature of Begum Zia with regard to the disbursement from the PM’s Orphanage Fund. When the money was brought through DD at that time the Trust was not established. He had no knowledge whether the then Foreign Minister Mustafizur Rahman collected and brought the said money and he established Zia Memorial Trust at Bagerhat spending Tk.2,33,33,500/- from the said fund. He also conducted inquiry about the fund of the said Trust. During his inquiry he did not interrogate the cabinet secretary, secretary, additional secretary, joint secretary, director general of

Amir of Kuwait, and that the alleged US dollar was came from Riyadh, Suadi Arab was false. PW-1 did not make any inquiry in Bangladesh Bank regarding transfer of the said US $12,55,000 to the Sonali Bank, Ramna Corporate Branch. Tareque Rahman was interrogated by previous inquiry officer at the jail gate with the permission of the court. During inquiry he did not interrogate Tareque Rahman and perused the records of previous inquiry officer. The Trust was a private Trust and according to Article-14 of the Trust deed, a Board of Trustee was formed and Tareque Rahman, Arafat Rahman and Mominur Rahman were the member of Trustee Board and according to Arcitle- 3(III) of deed of Trust, FDR was included with the investment fund. The Trust deed provided the power for opening FDR in the name of the Trust. During investigation, he saw the deed of Trust, Balam books, thumb impressions and various documents relating to the Trust. At the time of formation of the Trust and registration of the Trust deed Begum Zia and her two sons Tareque Rahman and Arafat Rahman were living together at 6, Shaheed Moinul Road, Dhaka Cantonment, Dhaka and at the relevant time that house was being used as the official residence of Prime Minister Begum Zia. PW-1 denied the defence suggestions that the Trust office was not at 6, Shaheed

Moinul Road though he knew the said information, and no illegality was done in transfering the money from the Sonali Bank to the Prime Bank by the trustees, and that no bank officer did raised any question as to the said transfer, and that the Trustee board member Tarek Rahman, Mominur Rahman transferred in total Tk. 3,30,00,000/- on 12.04.2006, 15,06.2006 and 04.07.2006 to the Prime Bank, Gulshan Branch for opening FDR with bonafide intention, and that according to Trust deed, the amount of the Trust was transferred legally from one bank to another bank, and that opening of FDRs in the name of Salimul Haque, Sayed Ahmed @ Sayed Ahmed, Giasuddin Ahmed and Sharfuddin and encashment of the FDRs were legal, and that according to the Trust law and trust deed their activities were legal, and that in order to get maximum benefit the said Trust funds had transferred to the different accounts, and that no misappropriation of money was occurred, and that the activities of the Trust were done by following the decisions of Trust deed, and that after the death of former President Ziaur Rahman the Amir of Kuwait sent funds for the Trust, and that the Trust being a private Trust the Government has no power to control the Trust, and that the case was filed against the accused persons with malafide motive.

PW-2 S.M. Gaffarul Alam deposed that on 03.07.2008 while he was on duty as a Sub- Inspection of Police in Ramna Police Station he received a First Information Report (hereinafter referred to as FIR) from the informant, PW-1 and pursuant to the instruction of the officer-in- charge he filled up the FIR form and registered the case being Ramna Police Station Case no.8 dated 03.07.2008 under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947 against the accused persons named in the FIR. He proved the FIR form, exhibit-1(Ka) and his two signatures thereon, exhibit-1(Ka)/1 and 1(Ka)/2.

In cross-examination PW-2 stated that he had no personal knowledge about the contents of the FIR. After receiving the FIR he and the officer- in-charge read the same and lodged the case. The informant himself came to the police station with the FIR which was computer composed. There was no forwarding letter of the Commission regarding the lodgment of the FIR. In 2008 there was no elected Government but the Care Taker Government was in power. He could not remember whether Begum Zia was in coustody at the time of lodging the FIR. He further stated that according to the FIR, the time of occurrence was between 28.11.1993 and 28.03.2007 but the time of occurrence was not

mentioned in FIR form. In the FIR nothing was mentioned regarding the delay of lodging the same. In the FIR the place of occurrence was mentioned at Prime Bank Ltd. Eskaton Branch, Dhaka. The place of occurrence was 1.5 kilometer far away from the Ramna Police Station. Before lodging the FIR he examined the same.

PW-3 Safiuddin Mia deposed that on 15.07.2008 at about 11.20 while he was working in the Sonali Bank Ltd. of the New North Circle Branch, Gulshan as an officer PW-31 came to their branch and seized the following documents relating to the Trust:

i) account opening form of STD account no.7 dated 09.10.1993;

ii)                     photostat copy of the deed of the Trust and receipts altogether 17 pages;

iii)                signature card of the STD account no.7 and an attested photo of Tareque Rahman, deposit slip for Tk.2,33,33,500.00/- of the said account, Cheque no.8431103 dated 10.11.1993 of the Sonali Bank, Ramna Branch, Dhaka altogether 2 pages;

iv)                     cheque no.4882407 dated 12.04.2006 of the STD account no.07 where Tk.50,00,000.00/- was written as cash transfer, cheque no.4882402 dated 15.06.2006 for the amount of Tk.1,00,00,000.00/-, cheque no.4882406 dated 15.07.2006 for Tk 1,00,00,000/-, in the name of the Trust as cash transfer, cheque no.4882404 dated 04.07.2006 for Tk.50,00,000.00/- in the name of the Trust, cheque no.4882403 dated 05.07.2006 for Tk.30,00,000.00/- in the name of the Trust and 5 cheques and 4 money withdrawal notices;

v) manual bank details between 1993 and 30.12.2002 of the Trust STD account no.7 and prepared computer statement between 01.01.2003 and 30.12.2007 wherein at serial no.4 the details of 5 cheques were given.

PW-3 proved the seizure list, exhibit-3 and his signature thereon, exhibit-3/1. He also proved the above seized documents produced before the court as material exhibit-I series.

In cross-examination PW-3 stated that according to the account opening form, the Trust account was opened on 09.10.1993. According to the Trust resolution Tareque Rahman, Arafat Rahman and Mominur Rahman were maintaining the account of the Trust and the account could able to operate by Tareque Rahman and another one. The ‘Deed of Trust’ was submitted to the Bank while the account was opened. At the time of opening the account Tk.2,33,33,500/- was not deposited, but same was deposited in the said account on 15.11.1993 through clearing cheque of the Sonali Bank, Ramna Branch. The said money was deposited in the Trust account and money was withdrawn from the said account. The transaction of the Trust was done lawfully and it was a private Trust. On 12.04.2006 the account holder presented cheque no.4882407 for withdrawing the amount of Tk.50,00,000/-. The account holder also on 15.06.2006 presented cheque no.4882402 for Tk.1,00,00,000/- in the name of the Trust and the said cheques amount were transferred from the Sonali Bank to the Prime Bank and the said cheques did not handover to anyone. Cheque no.4882406 dated 15.06.2006 for Tk.1,00,00,000/- was transferred by cash with the permission of the account holder. Tk.1,00,00,000/- was withdrawn vide cheque no.4882406 from the Trust account and the said money was used for issuing a DD in the name of the Sonali Bank Ltd., local Office, Dhaka. Documentary evidence of DD number, the name of beneficiary of the DD, Bank account details, the amount of money, the name of the applicant of DD or the receipent of the DD or any other documents were not available before him. Cheque no.4882403 dated 05.07.2006 and cheque

PW-4 Md. Abul Khair deposed that on 15.07.2008 while he was working in the Sonali Bank Ltd. New North Circle Branch, Gulshan-2, Dhaka as an officer PW-31 came to their branch and requested to the bank manager for presenting the case related documents. The bank manager presented the required documents. PW-31 seized the required documents and prepared a seizure list, exhibit-3, in presence of him. He proved his signature thereon, exhibit-3/2.

In cross-examination PW-4 stated that he had no personal knowledge or idea about the seized documents. As a banker he understood which documents were seized and statement of accounts of the Trust were seized among other documents. On 15.11.1993 an amount of Tk.2,33,33,500/- was deposited in the Trust STD current account no.7. On 04.12.1993 Tk. 4,00,000/- was withdrawn through cheque no.4882401, on 27.12.1993 Tk. 1,07,060/- was deposited with interest and the excise duty Taka 200.00 and on 31.12.1993 the remaining balance was at Tk.2,30,40,360/-. Between 1993 and 29.12.2005 the principal and interest were deposited in the said account and on 29.12.2005 the balance stood at Tk.3,37,03,757.32/-. After withdrawal of money, on 06.07.2006 the remaining balance was at Tk.7,09,757.32/-. Between 13.04.2006 and 06.07.2006 money was withdrawn and transferred through various cheques following the bank rules and regulation. On 30.12.2007 the said account’s balance was at Tk.11,59,437.18/-. He could not remember the interest rate of Sonali Bank FDR between 13.04.2006 and 06.07.2006. He had no idea whether money was transferred for the best profit between 13.04.2006 and 06.07.06 through 05 cheques. He denied the defence suggestion that he hide many true informations.

PW-5 Md. Harun-Ur-Rashid deposed that on 15.07.2008 while he was working in Sonali Bank Ltd. New North Circle Branch, Gulshan, Dhaka as the manager PW-31 came to their branch. PW-31 submitted a demand letter for seizing required documents. On the basis of PW-31’s demand letter he presented the demanded documents in presence of the two bank officials namely Abul Khair (PW- 4) and Shafiuddin Mia (PW-3). PW-31 seized the required documents and prepared a seizure list, exhibit-3 and took his signature on the same, exhibit-3/3.

In cross-examination PW-5 stated that he was not working in the said branch at the time of opening STD account no.7 and he joined there as the manager at the end of 2007 and on 15.07.2008 PW-31 came to him. He saw the said documents at the time of presentation but he did not see the said documents before. The written demand letter was not with him. He denied the defence suggestions that no written demand letter was provided to him and for that he could not able to submit the said demand letter. Before presentation of the said documents to PW-31 on 15.07.2008 those were kept in his custody. After his joining in the New North Branch before or after the date 15.07.2008 nobody complained to him about the STD account no.7. He saw the opening form of the said account and he had no idea whether any irregularities were happened at the time of opening of the account. The deed of the Trust was enclosed at the time of opening the account. The STD account no.7 was operated by following the resolutions of the Trust. He could not remember the STD account’s interest rate in the year of 1993 and between April 2006 and June 2006. He denied the defence suggestions that between 1993 and 2006 the STD account’s interest rate was 5% which he knew and he intentionally hide the said information. On 15.07.2008 he was a senior principal officer and also the manager of the branch. The seized cheques were transferred and cleared by following the preveailing bank rules. He had no knowledge whether interest rate was 12.25% in the Prime Bank. He denied the defence suggestions that in 2006 the interest rate of the Sonali Bank was low and the Trust funds were transferred to the Prime Bank which he knew and he suppresed the said information intentionally and deposed falsely. He further stated that he signed on the seizure list. The names of the account holder were mentioned in the seized cheques. STD 7 was written in the seized cheques but no identification mark was thereon.

PW-6 Md. Iqbal deposed that on 15.07.2008 at about 3.30 pm while he was working in the Prime Bank Ltd., New Eskaton Branch as a first assistant vice president PW-31 came to the room of the branch manager and in presence of him he seized some documents as presented by the manager and he also signed on the seizure list. The seized documents were as follows:

i) official letter regarding encashment of Taka 1(one) crore of Salimul Haque’s FDR no.58462/41032276 dated 15.06.2006 of the Prime Bank, Gulshan Branch;

ii)         encashment office copy regarding the Trust FDR no.50001/41032669 dated 27.06.2006 of the Prime Bank, Gulshan Branch;

iii)    original copy (1 page) of the FDR no.41032267 dated 15.06.2006, advice no.1007 dated 07.02.2007 by which Tk.1,06,38,686/- was transferred from the Prime Bank, Gulshan Branch to Prime Bank, Eskaton Branch;

iv)         original advice copy (1 page) of the FDR no.41032669 dated 27.06.2006 for Tk.1,00,00,000/- of the Trust, advice no.1091 dated 16.11.2006 by which Tk.1,03,19,365.00/- was transferred including interest from the Prime Bank, Gulshan Branch to Prime Bank, Eskaton Branch;

v)              FDR no.41025535 dated 02.07.2007 of the Prime Bank Ltd. Eskaton Branch for Tk.1,06,38,686/- in the name of Giasuddin Ahmed along with opening form of the FDR (3 pages) and FDR KYC form;

vi)         FDR no.41122619 dated 16.11.2006 of the Prime Bank, New Eskaton Branch in the name of Kazi Salimul Haque (Q.S. Haq) and Sayed Ahmed for Tk.1,03,19,365/- along with FDR opening form, the original copy of the FDR and KYC form (3 pages);

vii)    FDR no.41025535 dated 07.02.2007 and FDR no.41122619 dated 16.11.2006; FDR no.41025535 was encashed and another FDR account no.41025511 for Tk.1,04,032,957.80/- was opened on 07.02.2007 in the name of Giasuddin Ahmed (original FDR 1 page); FDR no.41025535 and FDR no.41025511 were encashed on the request of Giasuddin Ahmed by 6 payment orders bearing numbers:659348-659353, the total amount of Tk.2,10,71,643.80/- was deposited in the account no.11013134 of Sharfuddin; the order was written in the opposite pages of the above payment orders;

viii)  account opening form of

Sharfuddin’s account no.11013134 dated 15.03.2009 with the Prime Bank New Eskaton Branch along with one copy photo, KYC form-1 and a copy (2 pages) of the account statement of Sharfuddin between 15.03.2007 and 30.06.2007 where the last balance was at Tk.19.155.80/-.

PW-6 proved the seizure list dated 15.07.200, Exhibit-4 and his signature thereon, exhibit-4/1. The said seized documents were given to the bank manager Md. Afzal Hossain (PW-8) for keeping the documents to his own custody and he also signed on the ‘jimmanama’ dated 15.07.2008, exhibit-5. He identified his signature thereon, exhibit-5/1.

In cross-examination PW-6 stated that in the seizure list it was not mentioned that the documents were seized in order to follow the Court’s order. The accounts transactions were done following the banks rules and regulations. The seized documents were submitted in the court. In the seizure list at serial no.5, KYC Form, the customer name was mentioned as Giasuddin Ahmed, S/O Late Mr. Sahabuddin Ahmed and Late Mrs. Balatunnassa, Address: 712, Tongi Diversion Road Boro Mogbazar. At serial no.8 the name of Sharfuddin Ahmed, S/o Late Mr. Sahabuddin Ahmed and late Mrs. Balatunnessa, Address: 712, Tongi Diversion Road Bora Moghbazar, Ramna, Dhaka was mentioned and at serial no.6, KYC form, the customer name was mentioned as Sayeed Ahmed, S/o: Mr. Sarfuddin Ahmed and Mrs. Shamina Ahmed, Address: 712, Tongi Diversion Road, Boro Mogbazar, Shantinagor, Ramna, Dhaka. The said three persons maintained accounts with their

bank. In June 2006 the Prime Bank’s FDR amount interest rate was 12.25%. FDR interest rate used to mention at the time of issuing FDR. He had no knowledge whether the seized documents were transferred from the Trust STD account no.7, Sonali Bank, Gulshan New North Circle Branch. PW- 6 denied the defence suggestions that the Trust funds were transferred from the Sonali Bank, Gulshan New North Branch which he knew and he hide the said facts and made false diposition.

PW-7 Md. Masud Bin Karim deposed that on 15.07.2008 at about 3.30 pm while he was working in the Prime Bank Ltd., New Eskaton as a principal officer, the branch manager Md. Afzal Hossain (PW-8) called him in his chamber. He went to the chamber of branch manager and he was given a seizure list for reading and he read the same and he saw the seized documents and signed on the same. He proved the seizure list, exhibit-4 and his signature thereon, exhibit-4/2. The seized alamats were given to the bank manager (PW-8) for keeping in his own custody and a ‘jimmanama’ was prepared wherein he also signed. He proved the said ‘jimmanama’, exhibit-5, and his signature thereon, exhibit-5/2.

The present appellants declined to cross- examine PW-7.

PW-8 Md. Afzal Hossain deposed that on 15.07.2008 at about 3.00 pm while he was working in the Prime Bank Ltd. New Easkaton Branch as a vice president and manager PW-31 came to his office. PW-8 presented case related documents as required by PW-31 who prepared a seizure list in presence of the bank officer Md. Iqbal (PW-6) and Md. Masud Bin Karim (PW-7). PW-31 seized the said documents, details of which were mentioned in the seizure list. He received a copy of seizure list and signed on it. PW-8 proved the seizure list and his signature thereon, exhibit-4 and exhibit- 4/3. The said seized alamats were given ‘jimma’ to him and he signed on the ‘jimmanama’. He proved the ‘jimmanama’, exhibit-5 and his signature thereon, exhibit-5/3. His custody documents had already been produced before the Court. PW-8 also proved the seized documents produced before the court as material exhibit-II series. On 28.07.2008 PW-8 made statement before the investigating officer and on the same day he made statement under section 164 of Code of Criminal Procedure before the concerned Magistrate. He proved the said statement and his 4(four) signatures thereon as exhibit-6 and 6/1-4.

In cross-examination PW-8 stated that he saw the original copies of the FDRs. He could not say whether the amount was transferred from the Sonali Bank, New North Circle Branch STD account no.7 vide cheque no.4882404 dated 15.06.2006 to FDR account no.58462 dated 15.06.2006. If any cash cheque is marked with transfer seal then the cheque will be a negotiable instrument. The cash cheque with transfer seal cannot be encashed like as a normal cheque and the same can only be transferred to a specific account. He denied the defence suggestions that he knew that the cheque no.4882406 of the STD account no.7 of the Sonali Bank, New North Circle Branch, was transferred to FDR account no.58462 in the name of Salimul Haque on 15.06.2006 and he intentionally hide the relevant informations. On 15.06.2006 the interest rate of the FDR no.58462 was 12.25% and accused Tareque Rahman’s signature was not available in any documents which were seized in his presence. The letter of FDR encashment and encasement were done following the bank’s rules and regulations. PW-31 came to his office with a demand letter of the Commission. There was no court’s order for giving the bank’s documents but the documents were given due to the emergency situation. The FDR was encashed and transferred to Salimul Haque’s account and the Trust account and Salimul Haque did not receive any money personally and the money was transferred with interest. The documents of Sharfuddin and his brother Giasuddin

PW-9 Md. Majed Ali deposed that on 16.07.2007 while he was working in the Prime Minister’s Office in donation section as an accountant PW-31 came to their office. PW-31 demanded the required documents and he presented

all the required documents in presence of the administrative officer Md. Alfashani (PW-10) and

Md. Mokhleshur Rahman (PW-11). PW-31 seized the

said documents and prepared a seizure list in presence of him, PW-10 and PW-11. The seized documents were as follows:

i)  The record of the PM’s Orphanage funds being no.02.39.19.01.13.14.93-cÖgKv/mwPe/GwZgZnwej/24/93, wherein the following informations and documents were available:

a) in page no.1 informations regarding various funds of Prime Minister;

b) in page no.2 informations regarding the amount of Tk.4,59,98,048.00/- deposited in FDR account no.984112 with the Sonali Bank in the name of Prime Minister’s fund;

c) in page no.3 informations regarding credit voucher dated 17.06.1991 for Tk.4,44,81,216/- of Foreign Exchange Department of Sonali Bank, Dhaka;

d) in page no.4 photostat copy of DD no.153367970 dated 09.06.1991 for US $12,55,000.00 issued by the United Saudi Commercial Bank deposited in PM’s Orphanage Fund being account no.5416 with the Sonali Bank, Ramna Branch;

e) in page no.5 detail informations regarding PM’s Orphanage Funds;

f) in page no.6 details of account no.5416 of the PM’s ORPHAN FUND;

g) in page no.7 the account informations between 03.01.1993 and 03.10.1993;

h) in page no.8 bank statement dated 27.01.1993 of the PM’s Orphanage Fund being account no.5416 with the Sonali Bank, Ramna Branch;

i) in page no.9 informations regarding deposit of US $12,55,000.00 equivalent to TK.4,44,81,216.00/- in the said account and deposit slip regarding DD no.01774014-153367970 of United Saudi Commercial Bank dated 09.06.1991;

j) in page no.10 the donation informations about Bogura orphanage and Bagherhat

orphanage;

k) in page no.11 the deposit slip dated 14 November 1993 of Tk.4,66,76,289.00/- in account no.5416 with the Sonali Bank, Ramna Branch;

l) in page no.12 informations regarding the PM’s Orphanage Fund account no.5416 with the Sonali Bank; and

m) in page no.13 and 14 Photostat copy of the Credit voucher and DD of the United Saudi Commercial Bank dated 09.06.1991.

At serial no.4(2) of the said seizure list, the statements of PM’s Orphanage Fund account no.5416 was there. In page no.1 the detail informations of credit/debit regarding the PM’s Orphanage Fund being account no.5416 with the Sonali Bank was mentioned. In page nos.2-4 the deposit slips of the PM’s Orphanage Fund being account no.5416 of Sonali Bank were available. In page no.5 withdrawal of two cheques amount informations being cheque nos.8431102 and 8431103 by which Tk.2,33,33,500/- and Tk.2.33.33.500/- were withdrawn on 15.11.1993 were written.

Serial no.4(3) of the seizure list was an unauthenticated 200 pages register regarding the PM’s Orphanage current account no.5416 wherein page nos.1-9 were written. In page no.9, it was written that the cheque nos.8431102 and 8431103 dated 13.11.1993 for each Tk.2,33,33,500/- donated for establishing Bagura orphanage and Bagherhat orphanage.

Serial no.4(4) of the seizure list was an unauthenticated register for the PM’s Orphanage fund FDR account no.984112.

PW-9 proved the said seizure list and his signature thereon as exhibit no.7 and exhibit- 7/1. He also proved the seized alamats presented before the Court as material exhibits III series.

PW-9 further deposed that PW-31 on 22.07.2008 also came to their office and requested to show required documents and he presented to him the Prime Minister’s relief and welfare related records and at that time the administrative officer Md. Al Fasani (PW-10) and Md. Mokhleshur Rahman (PW-11) were also present there. PW-31 seized the documents and prepared a seizure list wherein he put his signature. He proved the said seizure list, exhibit-8 and his signature thereon 8/1. The seized alamats dated 22.07.2008 were mentioned in the column 4 of the seizure list-

i)              serial no.4(1) a original record of the Prime Minister’s Relief and Welfare Fund for the assessment year 1993-94 including 195 pages along with 7 note sheets;

ii)         serial no.4(2) a original record of the Prime Minister’s Optional Fund for assessment year 1993-94 where Prime Minister signed the documents including 165 pages along with 5 note sheets;

iii)    serial no.4(3) 5 pages photostat copy wherein Nitimala (policy) had been prescribed including the said 2(two) funds.

In cross-examination PW-9 stated that in 1986 he was appointed in the Prime Minister’s Office as a cashier and he worked in the said post till 1991. Between 1991 and 2007 Barek Bhuiyan (PW-21) worked in the account section as an accountant. Before 16.07.2007 PW-31 went to the Prime Minister’s Office but he could not remember the date. PW-9 did not overwrite the record being no.02.39.19.01.13.14 .93 and he could not able to say who did it. The last line of the said record was cÖgKv/mwPe/GwZg Znwej/24/93 and the digit ‘24’ was overwritten. The said file was issued by the Prime Minister’s Office. The record opening index was in the secretarial office and the record number was given thereon. He did not know whether there was any discussion between secretary, additional secretary and director regarding the said overwriting. Altogether 20 officers had been working in the Prime Minister’s Office. In the Prime Minister’s Office there were peon books or movement register. There is no

endorsement copy on material exhibit-III who received the file. There were no detail descriptions in the exhibit III series record who attached the documents. When he dealt with the said material exhibit series file he did not put any signature thereon and he could not able to say who done the accounting of the said file and attached a copy of United Saudi Commercial Bank’s DD to the material exhibit-III. He did not know how the documents of the Sonali Bank were attached to the record. PW-9 did not give any page number in the material exhibit-III series. In Prime Minister’s Office he did not see any orphanage fund file accept the material exhibit- III.  Audit was completed regarding Prime Minister’s Orphanage Fund but he did not present the file during audit. He did not know whether the material exhibit III record was false and fabricated one and who wrote the account details. He did not attach Sonali Bank related documents along with other documents to the material exhibit III(A) file. The record number of material exhibit III(A) was not in their office. He did not write in the material exhibit III(A) file and his signature was not on there and there was no proof whether he had dealth with the said records and there was no note or signature of his any senior officer. PW-9 had no knowledge who

attached the documents to the material exhibit III(A) and he did not attach any document thereto. In their office no investigation was done regarding the documents of material exhibit III(A) file. In the pages 1-9 of material exhibit III(B) register statement was not written by him and it was written by the previous accountant Mostafa Kamal (PW-19) and Barek Bhuiyan (PW-21) and they maintained the said register. No official/employee signed on the material exhibit III(B). In page nos.1401-1404 of the material exhibit III(C) the statements were not written by him and no one signed from the Prime Minister’s Office. The record number 02.39.19.1.04.05.93-94 was regarding the relief and welfare fund but not about the orphanage fund and the said record was signed by the secretary and the Prime Minister also signed thereon. PW-9 denied the defence suggestions that the orphanage fund related case against Begum Zia was false and fabricated. PW-9 could not able to say whether any person went to the Prime Minister’s Office to find out the records. Between 1991 and 2007 internal and external audit were completed but no objection was raised and he did not also raise any objection.

PW-10 Md. Al-Fashani deposed that on 16.07.2007 while he was working in the office of Chief Advisor of Care Taker Government as an administrative officer PW-31 came to their office. On the basis of Majed Ali’s (PW-9) presentation PW-31 seized some records and documents relating to the case and he prepared a seizure list in presence of him and PW-11. He proved the said seizure list, exhibit-7 and his signature thereon, exhibit-7/2. On 22.07.2008 PW- 31 again came to their office and according to his demand PW-9 presented some documents and records. The said documents and records were also seized in presence of him and PW-11 and a seizure list was prepared by PW-31. He proved the said seizure list, exhibit-8 and his signature thereon, exhibit-8/2.

In cross-examination PW-10 stated that in October 1995 he was appointed in the account’s section of Prime Minister’s Office as an office assistant and in July 2008 he was promoted to the post of administrative officer. Between 1991 and 2007 he worked as an office assistant. In 1991 Abdul Barek Bhuiyan worked as an accountant. It was not mentioned from which section record being no.02.039.19.1.13.14.93 came and when or who received the said record; he did not receive the same. He did not overwrite on the register book or he had no knowledge who did it. He did not know whether PW-31 went to the Prime Minister’s Office before 16.07.2008 and he was not interrogated prior to the said date. In Prime Minister’s Office there were records of relief and welfare fund and optional fund. He did not deal with any file regarding the orphanage fund. He denied the denfece suggestions that Prime Minister’s Office sent letter to the Commission informing that there was no file regarding orphanage fund. The seized records were presented by PW-9 and he signed on the seizure list. He also denied the defence suggestion that PW-9 prepared the said records and registers in his own way.

PW-11 Md. Mokhlesur Rahman deposed that on 16.07.2007 PW-31 came to the office of the Chief Advisor while he was working in the said office as an administrative officer. On the demand of PW-31 accountant Majad Ali (PW-9) presented Prime Minister’s Orphanage Fund related documents and records. PW-31 prepared a seizure list, exhibit-7 in presence of him and Al-Fashani (PW-10) and took their signatures. He proved his signature on the said seizure list, exhibit-7/3. On 22.07.2008 PW-31 again came to their office and seized Prime Minister’s Relief and Welfare related documents in presence of PW-9 and PW-10 and prepared a seizure list, exhibit-8 and took their signatures. He also proved his signature thereon, exhibit-8/3.

In cross-examination PW-11 stated that in 1997 he was appointed in administrative section of the Prime Minister’s Office as an office assistant and he did not work in the accounts department. PW-9 Majed Ali presented the seized records and registers. He denied the defence suggestions that the seized records and registers, exhibit-7 and 8 were created in order to follow the Commission’s desire.

PW-12 Monjur Hossain deposed that on 22.07.2008 at about 10.00 am PW-31 came to the Sonali Bank, Ramna Corporate Branch while he was working as an assistant general manager in the said branch and PW-31 requested for presenting the documents of opening form, signature card etc. relating to PM’s Orphanage Fund being account No.5416/14 and accordingly he presented the related documents of the said account by following the order of DGM. PW-31 seized the said documents and a seizure list was prepared in presence of him and witnesses Rezaul Karim, SPO and Mohiuddin Ahmed, PO (PW-13). The seized documents were mentioned at serial no.4 of the seizure list. Serial no.4(1) and 4(2) of the seizure list were the opening form of account no.5416/14 in the name of the PM’s Orphanage Fund and the signature card where Kamal Siddique, additional secretary (acting), Prime Minister’s Office put his signatures on 02.06.1991. PW-12 proved the seizure list and his signature thereon, exhibit-9 and exhibit-9/1. The seized alamats were given to PW-31 and he received a copy of the seizure list.

In cross-examination PW-12 stated that he was working in the Ramna Corporate Branch when the documents were seized. He did not work with any officers who prepared account opening form and signature card of orphanage fund account. He had no personal knowledge who filled up or signed on the said account opening form and signature card. Before 22.07.2008 the Commission sent requisition to their bank. PW-12 in his cross- examination further stated that he had no knowledge whether money was sent in the said account by the Amir of Kuwait. He denied the defence suggestions that account no.5416/14 was the account of Zia orphanage fund, and that forged documents were created in the name of PM’s Orphanage Fund.

PW-13 Mohiuddin Ahmed deposed that on 22.07.2007 at about 10.00 am while he was working in the Sonali Bank Ltd. Ramna Corporate Branch as a principle officer PW-31 came to the room of DGM of their branch and in order to comply the

instruction of DGM, the opening form of the PM’s Orphanage Fund, signature card etc. were presented in presence of him, senior principal officer Rezaul Karim and AGM Monjur Hossain (PW- 12). PW-31 seized the said documents and prepared a seizure list, exhibit-9 and took his signature thereon. He proved his signature, exhibit-9/2.

In his cross-examination PW-13 stated that in November 2006 he was appointed in Ramna Corporate Branch of the Sonali Bank Ltd. as a principle officer. He had no personal knowledge regarding the seized documents. He did not provide any documents of remittance regarding the account no. 5416/14. Deputy General Manager presented the said documents. The name of Begum Zia was not mentioned in the seized documents. The balance remittance and the deposited amount of account no.5416/14 were not mentioned in the seized documents. PW-13 denied the defence suggestions that the said account was in the name of Zia Orphanage Trust, not in the name of Prime Minister’s Orphanage Fund, and that on behalf of the government of the state of Kuwait, the Amir of Kuwait made a donation to the Zia Orphanage Trust, and that the bank authority withheld the remittance documents in order to follow the illegal order of the Commission, and that the seized documents were fabricated one.

PW-14 Sayed Jaghlul Pasha deposed that between 2nd half of the year 1992 and 1st half of the year 1994 he worked in the Prime Minister’s Office as the private secretary of the Prime Minister’s secretary. At the relevant time Kamal Siddique had been working as the secretary of the Prime Minister. The Prime Minister’s funds were controlled by Kamal Siddique. At the time of opening the PM’s Orphanage Fund he was not in the said office. He came to know regarding PM’s Orphanage Fund when he was updating the other Prime Minister’s funds records in the year 1993. The said orphanage fund was deposited in a FDR account with the permission of the Prime Minister. The secretary of the Prime Minister ordered to withdraw the said FDR amount with the permission of the Prime Minister and allocated the said amount for the Zia Orphanage Trust and the Zia Memorial Trust. Kamal Siddique signed on two cheques, each of Tk.2,33,00,000/- for the said Trusts. Office opened an additional record with the permission of Kamal Siddique for collecting the documents. Kamal Siddique kept the important records of PM’s Orphanage Fund in his own custody. The main record of the PM’s Orphanage Fund was signed and approved by the Prime Minister. The investigation officer showed the records to him. The material exhibit-III series and III(A) series were related to the PM’s Orphanage Fund. He had idea about the original records and additional record of the Prime Minister’s Orphanage Fund. He made statement before the investigating officer and also before the Magistrate under section 164 of the Code of Criminal Procedure. He proved the said statement and his signature thereon as exhibit 10 and 10/3.

In cross-examination PW-14 stated that in August 1992 he was appointed in the Prime Minister’s Office as the personal secretary to Prime Minister’s secretary and worked till 30.06.1994. After that he did not work in Prime Minister’s Office. He made statement before PW-31 in 2008 while he was working in the Privatization Commission as a director. He also made statement before the Magistrate. He did not know whether internal audit was done in the Prime Minister’s Office. During his working period an audit was completed in Prime Minister’s Office. He saw the record of the relief and welfare Fund in the Prime Minister Office between 1993 and 1994. On 27.09.1993 the first note was written in the said record no.02.39.9.1.4.5.93-94, part-1. The said record was signed by him, Prime Minister’s secretary and Prime Minister. The said record was used for keeping the summary of the government and private different applications which were presented before the Prime Minister for the permission. On 19.11.1991 Prime Minister’s secretary presented summary before the Prime Minister regarding welfare fund and the said summary was approved on 28.11.1991. PW-14 denied the defence suggestions that there was separate fund like PM’s Orphanage Fund and the Relief and Welfare fund included the orphanage fund, and that the claim of PM’s Orphanage Fund was false one, and that the statement which he was given regarding PM’s Orphanage Fund were concocted, and that the amount of Tk.4,66,00,000/- in the name of Zia Orphanage Trust and Zia Memorial Trust were allotted and approved by the Prime Minister was false, and that the Commission had shown him the false and fabricated register and documents.

PW-15 Md. Mofizul Islam deposed that in between 2003 and 2007 he worked in the Sonali Bank Gulshan, New North Circle Branch as the branch manager. The account of Zia Orphanage Trust STD-7 was opened in said branch. From STD-7 account Tk.30,00,000/- through cheque no.4882403 dated 05.07.2006, Tk.50,00,000/- through cheque no.4882404 dated 04.07.2006 and Tk.1,00,00,000/- through cheque no.4882402 dated 15.06.2008 were writhdrawn. The said 3 cheques were jointly signed by Tareque Rahman and Mominur Rahman and the said amounts were transferred from the Sonali

Bank Ltd. Gulshan New North Circle Branch to the Prime Bank Ltd. Gulshan Branch through clearing house. (However, money of Cheque no.4882406 dated 15.06.2006 for Tk.1,00,00,000/- and Cheque no.4882407 dated 12.04.2006 for TK.50,000/- was given on the basis of joint signatures of the said two persons) and due to insufficient fund the Sonali Bank, local office provided the said amount through the demand draft. The said cheque’s money Tk.1,00,00,000/- and Tk.50,000/- was encashed from the Prime Bank, local office. They gave the money in one day notice. Cheque no.4882407 dated 12.04.2006 for Tk.50,00,000/-, material exhibit-I(G) and the signature of PW-15 was thereon, exhibit-I(G)/1; Cheque no.482402 dated 15.06.2006 for Tk.1,00,00,000/-, material exhibit-I(H) signed by principal officer Sohrab Hossain, exhibit-I(H)/1. Cheque no.4882403 dated 05.07.2006 for Tk.30,00,000/-, material exhibit- I(N), cheque no.4882406 dated 15.06.2006 for Tk.1,00,00,000/-, material exhibit-I(J) and cheque no.4882404 dated 4.7.2006 for Tk.50,00,000/-, material exhibit-I(L) were also signed by the principle officer Sohrab Hossain, exhibits-I(H)/1, I(N)/1, I(J)/1 and I(L)/1. PW-15 permitted Sohrab Hossain through note of withdrawal for signing the said cheques. The said amounts were paid by following the Bank’s rules and regulations.

In cross-examination PW-15 stated that the 3 cheques, material exhibit-I(H), I(N), I(C) were issued in the name of Zia orphanage fund. In two cheques, material exhibit-I(G) and I(J), there were transferred seal and the said cheques were cash cheque and said cheques were transformed as negotiable instrument due to transfer seal. The cash cheque with transfer seal could not be encashed it would only used to transfer the bank amount to the specific bank.

PW-16 Md. Golam Faruk deposed that on 05.08.2008 while he was working at Gabtoli, Bogura sub-registry office as sub-registrar PW-31 came to his office and presented a request letter and accordingly he presented all the records as per his request. PW-31 seized the said documents and prepared a seizure list, exhibit-11. The discreptions of seized records were mentioned at serial no.5 of the seizure list, Balam Book nos.122, 116, 115, 121 and 117, material exhibit no.IV series wherein details of 18 deeds infavour of the Trust had been narrated. Register book being no.4 of the Gabtoli Sub-registry office, material exhibit-V, wherein page nos.34-38 thumb impressions and signatures were taken from the vendors of the respective deeds.

PW-16 proved the said seizure list exhibit- 11 and his signature thereon as exhibit-11/1. The seized records were given to his custody and he received a copy of ‘jimmanama’ from PW-31. PW-16 also proved the said ‘jimmanama’, exhibit-12 and his signature thereon, exhibit-12/1.

In cross-examination PW-16 stated that he submitted the finger print book before the court and provided the certified copies of said deeds. The said deeds were in the name of the Trust.

PW-17 Md. Mehmud Hossain deposed that between 2003 and February 2007 he worked in the Prime Bank Ltd. Gulshan Branch as the branch manager. On 28.07.2008 PW-31 called him for interrogation and he went to the head office of the Commission. PW-31 interrogated him and he made his statement before him. Between 13.04.2006 and 05.07.2006, 5 cheques of STD-7 account with Sonali Bank, New North Circle, Gulshan Branch were given to their branch for opening an FDR, which were jointly signed by Tareque Rahman and another. He received the said 5 cheques in presence of M. Sahjanan Bhuiya, managing director of the Prime Bank Ltd. through Salimul Haque. Salimul Haque who was the director and chairman of the Prime Bank. Among the said 5 cheques, 1 cheque was for Tk.50,00,000/-, 2 cheques were for Tk.2,00,00,000/-, each Tk.1,00,00,000/-, 1 cheque was for Tk.50,00,000/- and 1 cheque was for Tk.30,00,000/- in total amounting to Tk.3,30,00,000/-. By receiving direction from Salimul Haque the cheque amounting to Tk.50,00,000/- was given on 13.04.2006 for encashment and the cheque amounting to Tk.1,00,00,000/- was given on 15.06.2006 for encasement and another 3 cheques were given to the Trust. The said 2 cheques were given to the branch officer Masud Parvez for withdrawal. On 13.04.2006 and on 15.06.2006 two FDRs for Tk.50,000/- and Tk.1,00,000/- respectively were issued in the name of Salimul Haque. Thereafter another 3 cheques in respect of Tk.1,00,00,000/-, Tk.50,00,000/- and Tk.30,00,000/- were collected through clearing house for opening FDRs on 15.06.2006, 04.07.2006 and 05.07.2006 respectively and Salimul Haque ordered for opening FDR account and on 27.06.2006 FDR no.41032669 for Tk.1,00,00,000/- and on 09.07.2006 FDR no.41033117 for Tk.80,00,000/- were issued in the name of the Trust. The said FDRs were transferred to Salimul Haque. FDR no.41029462 for the amount of Tk.50,68,450/- (including interest) was used for opening another new FDR being no.41033338 on 16.07.2006 in the name of the Trust in compliance of the order of Salimul Haque. PW-17 requested to the bank

In cross-examination PW-17 stated that there were 2 cash cheques and 3 account payee cheques of the STD account no.7, Sonali Bank and the said cheques were cleared from the said STD account no.7, Cheque no.4882407 dated 12.04.2006 for Tk.50,00,000/- and cheque no.4882406 dated 15.06.2006 for Tk.1,00,00,000/- were presented in their bank but there were no endorsement seal of their bank. The said three cheques were collected by Prime Bank, Gulshan Branch, Dhaka. The beneficiary of the five cheques never complained that they did not receive the money and the said five FDRs were transferred to the Prime Bank, Eskaton Branch with the permission of the beneficiary and the branch manager. He was interrogated by the investigating officer and he made his statement before the Magistrate. Cheque no.4882407 dated 12.04.2006 was issued from the STD account no.7 with the Sonali Bank, Gulshan New North Circle Branch and there was a transfer seal on cheque no.44888822406 dated 15.06.2006. According to the material exhibit-II series, the FDR interest was 12.25%. FDR no.41029262 for Tk.50,000/- dated 13.04.2006 and FDR no.41032276 for Tk.1,00,00,000/- were in the name of Salimul Haque.

PW-18 Md. Abdul Jalil deposed that on 05.08.2008 while he was working in Gabtoli, Bogura as a Mohorar in the Sub-registry office PW-31 came to their office and seized 18 deeds

and prepared a seizure list and took his signature. He proved the seizure list, exhibit- 11, and his signature thereon, exhibit-11/2. The seized deeds were given in the custody of the sub-registrar Md. Golam Faruk (PW-6) and he signed on the ‘jimmanama’ as a witness. He also proved the ‘jimmanama’, exhibit-12 and his signature thereon, exhibit-12/2.

In cross-examination PW-18 stated that he was not present when the deeds were registered and he had no knowledge about the registration of the same.

PW-19 Md. Mostofa Kamal Mozumder deposed that in 2008 while he was working as the upazila nirbahi officer (UNO) in Fatikchhari, Chittagong, PW-31 sent him a notice to appear before the Commission. Thereafter he came to the Head office of the Commission on 17.06.2008. During interrogation he informed to PW-31 that on 23 May 1990 he joined as an accountant in the President’s Secretariat and he worked in the President’s Secretariat till May 1992. He was declared as a surplus staff in the President’s Secretariat and thereafter he worked in the Prime Minister’s Office as an accountant from June 1992 to 31 January 1993. During his working period in the Prime Minister’s Office he worked as an accountant in the Prime Minister’s relief and

rehabilitation fund, voluntary fund, reserve fund and orphanage fund and he was controlled and advised by the private secretary (PW-14) of the Prime Minister’s secreatary Kamal Siddique. PW-14 the private secretary of the Prime Minister’s secretary preserved all the Prime Minister’s various important fund records, cheque books, counter foil of cheques, counter foil of FDRs and he performed his work by taking advice from PW- 14. PW-14 supplied him the orphanage fund related documents and bank statement for entry in the cash register. PW-19 after completing entry informed about the said entry to PW-14. PW-19’s own hand writing was in the orphanage fund cash register and some portion was written by another accountant who joined after him. His hand writings were in the register’s page nos.1,2,3,9. In page no.9 of the register it was written in the column of debit as Zia Memorial Trust donation for establishing orphanage fund, House no.41, Raod No.37, Gulshan, Dhaka Cheque No.4831102, dated 13.11.1993, the amount of Tk.2,33,33,500/-. Record no.02.39.19.01.13.14.93 was the additional record of the PM’s Orphanage Fund and in the said record he wrote about the bank statement and informations of other documents. In page no.9 at serial no.3 informations were written as Zia Orphanage Trust,

6 Shaheed Moinul Road, Dhaka, Cheque no.8431103 dated 13.11.1993, the amount of Tk.2,33,33,500/-, purpose for establishing Orphanage fund. It was also written in deposit receipt no.984112 for Tk.4,66,76,298/- of the PM’s Orphanage fund. He handed over the said register to the next accountant Abdul Bareq Bhuiyan (PW-21) when he left the Prime Minister’s Office.

In cross-examination PW-19 stated that the Commission did not demand the audit report and he did not provide any report to the Commission. He kept the account details and the PM’s Orphanage Fund. PW-14 also kept the said account details. Thereafter Abdul Barek Bhuiyan (PW-21) kept the account details of the said orphanage fund. In material exhibit-III series and III(A) series there were no note sheet and he did not see any note sheet there. He was aware about the Prime Minister’s Relief and Welfare Fund. He did internal and external audit regularly while he was working in the Prime Minister’s office. His hand writings were available in material exhibits III(B) and III(C). PW-14 called him from his new service place after 9/10 months of leaving his job from Prime Minister’s office for updating the records. He denied the defence suggestions that there was no PM’s Orphanage Fund register and files in the Prime Minister’s office, and that there was no existence of the PM’s Orphanage Fund and additional record. He did not know whether the Amir of Kuwait sent directly foreign remittance to the Sonali Bank in the name of Zia Orphanage Trust. But he knew a remittance came to the PM’s Orphanage Fund.

PW-20 Tohidur Rahman Khan deposed that in May 2008 while he was working as a director in the Chief Advisor Office PW-31 sent him a letter requesting to supply the records of the PM’s Orphanage Fund and he replied to the said letter in June 2008. Thereafter on 14.08.2008 PW-31 came to their office and he made his statement before him. The Commission asked for the original records of the PM’s Orphanage Fund but the Chief advisor office could not able to supply the required informations because the original record could not traced out. Between 1991 and 1996 another additional record was made in compliance of the order of the private secretary of the Prime Minister’s secretary and he informed PW-31 regarding the said additional record. In 1991 the account no.5416 was opened with the Sonali Bank, Ramna Corporate Branch regarding PM’s Orphanage Fund. The register of the PM’s Orphanage Fund and additional records were handed over to PW-31. PW- 20 proved material exhibit-III series.

In cross-examination PW-20 stated that on 14.08.2008 he made statement before PW-31. In May 2008 before recording the said statement PW-32 came to him who asked for some files of the Prime Minister’s office for his perusal. But they could not provide the said required files to PW-32 as the original record was not found at that time. During his working period he could not traced out the said original record. In January, 2009 he was transferred from the Prime Minister’s Office. He had no involvement with the additional record but same was ultimately traced out.

PW-21 Abdul Barek Bhuiyan deposed that in 2003 he retired from the Prime Minister’s Office as an accountant. Between 1993 and 1994 he dealt with the relief fund, optional fund, secret fund and orphanage fund of the Prime Minister’s Office. Mostafa Kamal Mojumder (PW-19) had worked as an accountant prior to him and at the time of his transfer he (PW-19) handed over additional records and 2 registers to him (PW-21). PW-21’s hand writings were available on the additional records and registers. He having seen the material exhibit-III series further deposed that the cover pages of material exhibit-III and material exhibit-III(A) were written by him. Material exhibit-III(B) and III(C) registers were written by Mostafa Kamal Mojumder (PW-19). In 1994 he was transferred from the said office and he handed over the additional records and registers to Majed Ali (PW-9).

In cross-examination PW-21 stated that he was appointed in the Prime Minister’s Office as an accountant and retired in the year 2003. Before his appointment Mostafa Kamal Majumder (PW-19) worked in that post. After his retirement Majed Ali (PW-9) was appointed in his post. During his working period he never saw the original records of orphanage fund.

PW-22 Md. Sohrab Uddin deposed that in 2006 he worked in the Sonali Bank Ltd. New North Circle Branch as a principle office and he was responsible for ‘transfer the clearing cheque pass’ section. On 15.06.2006 he passed cheque no.4882402 for Tk.1,00,00,000/- of STD account no.7 of the Trust and his signature was thereon, material exhibit-I(H)/2. The said cheque was presented from the Prime Bank Ltd. Gulshan Branch through clearing house. On 15.06.2006 cheque no.4882406 for Tk.1,00,00,000/- of STD account no.7 was presented before the bank as cash cheque and due to insufficient fund Sonali bank issued a demand draft invavour of the local office and the said DD was encashed and the said cheque was passed by him and his signature was thereon, exhibit-I(J)/2. On 04.07.2006 he passed cheque no.2882404 for Tk.50,00,000/- of STD account no.7 and the said cheque was signed by him, material exhibit-I(L)/2. Cheque no.4882403 dated 05.07.2006 for Tk.30,00,000/- was presented from the Prime Bank Ltd. Gulshan Branch and he passed the said cheque and his signature was thereon, material exhibit-I(N)/2, the above cheques were jointly signed by Tareque Rahman and Mominur Rahman.

In cross-examination PW-22 stated that while he was working in the Sonali Bank, Gulshan New North Circle Branch he did clearing and transfer related activities by following the bank’s rules and regulations. The 3 cheques, material exhibited-I(H), I(N), I(L), were clearing cheque and said 3 cheques were in the name of the Trust. The cheque material exhibit-I(G)was passed by the manager and his signature was also thereon. The cheque material exhibit-I(J) was a cash cheque and his signature was on the said cheque. PW-22 denied the defence suggestions that FDR nos.41032276 and 41029462 were in the name of Salimul Haque which came from the Prime Bank, and that the said 5(five) cheques, material exhibit- I(G), I(H), I(J), I(L), I(N), were transferred from the Sonali Bank to the Prime Bank for the best interest which he knew. He did not know wheather the Prime Bank’s FDR interest rate was

12.25% between April,2006 and June, 2006. The said 05 cheques were cleared and transferred by following the bank’s rules and regulation.

PW-23 Shah Rezwan Hayat deposed that in 2008 he was working as the upazilla nirbahi officer, Gabtoli, Bogura and on 21.07.2008 the Commission sent a letter vide memo no.11983 by mentioning some Dagh numbers of Gabtoli and Darail Mouja and requested for submitting a report regarding the possession and position of the said land since 1993. He proved the said memo dated 21.07.2008, exhibit-14. After receiving the said letter he ordered to upazila land assistant officer Jahangir Alam (PW-27) and surveyer Momin (PW-28) for inquiry into the said matter and to submit a report. After receiving their report he sent a letter being memo no.1281 to the Commission on 31.07.2008 attaching the photostat copy of the report. In the said report it was mentioned that between 1993 and 1994 the said lands were vacant and thereafter one Shobhan took possession of the same and former Parliament Member Helauzzaman Talukder and former Mayor of Pourashava Morshed Liton used to look after the said land. The record of right remained in the name of the previous owners. There was no structure on the said land. PW-23 proved the said 3 pages report, exhibit-15 and his signature thereon, exhibit- 15/1.

PW-24 Md. Amjad Hossain deposed that he worked in the Prime Bank Ltd. Gulshan Branch as an assistant vice president from October 2003 to November 2007 and during his working period Prime Bank Ltd. Eskaton Branch sent him a letter requesting for lien of 2 FDRs being FDR no.41032276 for Tk.1,00,00,000/-, material exhibit-VI, and FDR No.41032669 for Tk.1,00,00,000/-, material exhibit-VII. After receiving the said letter he discussed the matter with his branch manager Mehbub Hossain and requested for his direction. Mehbub Hossain after consulting with the manager of Prime Bank Ltd. Eskaton Branch, instructed him to do for lien of the said 2 FDRs. After receiving the instruction he signed jointly with the general banking incharge Molla Farid Ahmed in the said 2 FDRs and confirmed the its lien and informed the matter to Prime Bank, Eskaton Branch. On the request of Prime Bank Ltd. Eskaton Branch the said 2 FDRs were encashed and transferred.

In cross-examination PW-24 stated that the said FDRs were liened by following the rules and regulations and the said lien FDRs were to be encashed at any time. No loan was taken from the said two FDRs. He made a written statement to PW- 31, exhibit-16. In his cross-examination he also stated that he did not present the FDRs lien letter but he saw the said letter which was with the record. The material exhibit-II(A), letter regarding encashment of FDR cancelling lien, was a Photostat copy and his signature was not thereon and there was no written order. The material exhibit-VI was FDR no.41032276 for Tk.1 crore. On 15.06.2006 the said FDR was deposited in the name of Salimul Haque and the interest rate was 12.25%. The material exhibit-VII was FDR no.41032669 dated 27.06.2006 for Tk.1 crore was deposited in the name of the Trust and the interest rate was 12.25%. There were no written instructions from Tareque Rahman to their Bank regarding lien, cancellation of lien and advice. Material exhibit-VIII was a Photostat copy and it was not authenticated by any bank officer. PW-24 denied the defence suggestion that he hide the original copy of the material exhibit-VIII and provided a Photostat copy to the Commission. In his statement made before PW-31 he did not

mention that the said FDRs transactions were done following Tareque Rahman’s order. The bank account operation was reflected in the lajer book of the said branch. Account opening form, signature card and documents of transactions were kept with the account file. During his working period PW-31 never came to Prime Bank Ltd. Gulshan Branch. The said bank could provide the bank statement upon the court’s order. External and internal audit were done in their all branchs in every year.

PW-25 Molla Farid Ahmed deposed that he worked in the Prime Bank Ltd., Gulshan Branch from the year 1999 to the 1st part of the year 2008. On 01.11.2006 a letter being memo no. cÖvBg/GbBwe/wmAvi/2006 issued by the Prime Bank, Eskaton Branch was sent to his branch requesting to do lien of 2 FDRs. After receiving the said letter they discussed with the branch head and on the basis of his order FDR no.41032276 dated 15.06.2006 for Tk.1,00,00,000/- and FDR no.41032669 dated 27.06.2006 for Tk.1,00,00,000/- were marked lien and the matter was informed to the Eskaton Branch. He signed thereon, material exhibit nos-VI/2 and VII/3. Thereafter, lien of the said 2 FDRs was cancelled and money was transferred to the Prime Bank Ltd. Eskaton Branch through advice. He proved the encashed advice no.1007 for FDR No.41032276, material exhibit-IX, and his signature thereon, material exhibit-IX/1. He made written statement before PW-31, exhibit- 17 and he proved his signature thereon, exhibit- 17/1 (with objection).

In cross-examination PW-25 stated that the said two lien FDRs were signed by the manager and he did not submit any advice regarding the said two FDRs before the Court. The material exhibit- IX was a Photostat copy. There is no signature of Tareque Rahman on the material exhibit-VI, VIII and IX.

PW-26 Khondokar Abdus Sattar deposed that in the year 2009 while he was working in the Foreign Ministry of Bangladesh as the director general PW-31 on 16.06.2008 sent a letter being memo no.9191 to the secretary of the Ministry of Foreign Affiars. In the said letter it was mentioned that in 1991 a DD issued by the United Saudia Commercial Bank for US $12,55,000 was deposited in the PM’s Orphanage Fund being account no.5416 maintained with the Sonali Bank Ltd. Ramna Corporate Branch and it was asked to provide information about the source of the said DD. He sent the said letter along with the Commission’s letter to the Bangladesh Embassy in Saudi Arab and requested for necessary inquiry and to send a report. The said letter was signed by him and he also sent another copy of the said letter to the Commission and the said copy was signed by him, exhibit-19. He identified his signature on the said letter, exhibit-19/1. After receiving their letter the senior minister and deputy chief of commission of the Bangladesh Embassy in Saudi Arab sent a letter vide memo no.weBAvi(ivR: wewea)/1/5/98-08 dated 02.07.2008. In that letter it was mentioned that after receiving the letter they inquired into the matter and came to know that United Saudi Commercial Bank was no longer in operation and in 1995 the said bank was merged with the SAMBA FINANCIAL GROUP. So, it was uncertain to collect information as sought for and requested them for providing the Photostat copy of the DD and advised to make inquiry about the said documents in the concerned branch of the bank. The said letter of Bangladesh Embassy in Saudi Arab was marked as exhibit-20. After receiving the said letter he forwarded the same to the Commission. The Commission sent them another letter being memo no.11267 dated 14.07.2008 and requested to know the information about the sender and purpose of sending funds,

exhibit-21. After receiving the said letter they sent a letter being memo no.GgGdG/WweøDG/‡KGmG/701/08 to the Bangladesh Embassy in Saudi Arab on 15.07.2008, exhibit-22. Thereafter the Commission sent them a reminder letter being memo no.14024 dated 13.08.2008, exhibit-23 and requested to provide required information. On the basis of the said letter, he sent a letter vide memo no. GgGdG/WweøDG/‡KGmG/701/08 dated 13.08.2008, exhibit-24

to the Bangladesh Embassy in Saudi Arab. After receiving the said letter the Bangladesh Embassy in Saudi Arab sent an e-mail letter, exhibit-25, informing that they had communicated with SAMBA FINANCIAL GROUP intending to know the name of the sender who remitted the money and the purpose for remit. The Deputy Chief of Mission personally went to the Head Office of SAMBA FINANCIAL GROUP and discussed with its Relationship Manager Mr. Tala Al-Otaibi regarding this issue and Mr. Tala informed that the matter was now under inquiry and he assured to supply the necessary information as early as possible. The said e-mail being memo no. GgGdG/WweøDG/‡KGmG/701/08 dated 18 August 2008 was marked as exhibit-26. Thereafter, on 6 September 2008 Bangladesh Embassy, Riyadh sent a letter being memo no. weBAvi(ivR: wewea)-01/05/98-08 dated 06.09.2008, exhibit-27 to him and informed that Mr. Tala through e-mail informed that it would take more time to provide the information regarding the DD as the same was an old one and Mr. Tala gave assurance that they would notify them if they get any information. After receiving the said letter Bangladesh Embassy in Riyad informed the said fact to the Commission vide letter dated 9 September, 2008, exhibit-28 and assistant secretary Mohammad Sakib Sadakat signed thereon which PW-26 knew and identified, exhibit- 28/1.

In cross-examination PW-26 stated that PW-31 did not mention in the letter dated 16.06.2008, exhibit-18, whether the Amir of Kuwait sent US $12,55,000 for the Trust. He had no knowledge whether the Amir of Kuwait sent US $12,55,000 for the Trust. The alleged DD was deposited in the Sonali Bank, Ramna Corporate Branch which was mentioned in exhibit-18. The Foreign Ministry did not send any letter to the United Saudi Commercial Bank or Saudia Central Bank. In exhibit-18 it was mentioned that the money was for PM’s Orphanage Fund and the said money was misappropriated. The Foreign Ministry collected information from the Bangladesh Embassy in Riyad. An officer of Bangladesh Embassy sent a letter to him for information as emergency basis. In exhibit-25 it was mentioned that they had been trying to collect informations in their own way. PW-26 denied the defence suggestions that the Bangladesh Embassy in Kuwait informed Foreign Ministry that the Amir of Kuwait sent the alleged amount for the Trust. He had no personal knowledge whether the said DD was sent by the Amir of Kuwait.

PW-27 Md. Zahangir Alam deposed that on 29.07.2008 he was working in the Lathigonj Union land Office, Gabtoli Bogura as sub-assistant officer of land. On that day as per the order of upazila nirbahi officer (PW-23) he along with upazila surveyer Abdul Momin Mondal (PW-28) went to village Darial under Police Station Gabtoli, Bogra for inspection of the land, detail account of which was described in exhibit-15. During their inspection local people also present there. From the local people they came to know that the said land was vacant between 1993 and 1994. In 1995 Md. Abdus Sattar took ‘pattan’ of the land from the former Parliament Member Helaluzzaman lalu at a consideration of Tk.5000/- for a period of 1(one) year. Between 1996 and 2002 Md. Abdus Satter also got pattan from the pouroshabha chairman Md. Morshed Milton at a consideration of Tk.1,00,000/- for a period of 7 years. Between 2003 and 2008 Abdus Sobhan (Bulu) got ‘pattan’ from Morshed Milton at a consideration of Tk.1,05,000/- for a period of 5 years and the said land was in possession of Abdus Sobhan Bulu. The said persons informed to them that they paid the lease money to Helaluzaman Talukdar and Morshed Milton. Record of right was in the name of the previous owners. There was no structure on the land and those were using for agriculture purpose. They also came to know from the ‘pattan’ receivers that the income and expenditure from

In cross-examination PW-27 stated that before going to the above land he did not serve any notice to union parisahd chairman, member, land owners and the neighbours. He asked the local people and collected informations but did not mention any name in the report. They came to know that the Trust was the owner of the land and they did not find any structure thereon. He did not ask anything to Helaluzzaman Talukder and Murshed Milton. PW-27 denied the defense suggestions that they prepared the report without going to the place in question and sent it to the Commission.

PW-28 Md. Abdul Momin Mondal surveyer, upazila land office diposed in the line of PW-27. He proved his signature on the report, exhibit- 15(Ka)/2.

In cross-examination PW-28 stated that he did not mention any name of the interrogated persons or how he collected informations. He did not interrogate the leasees Abdus Sattar, Abdus Shobhan Bulu or Morshed Milton or Helaluzzaman. He did not mention the land maps, plot and Khatian numbers in the report. He denied the defence suggestions that they did not visit the said place and did not mention the related information in their report, and that the report exhibit-15(Ka) was a concocted one.

PW-29 Md. Omar Kabir deposed that on 15.07.2008 while he was working as the vice president in the Prime Bank, Gulshan Branch, an officer of the Commission seized some documents and the seized documents were given custody to the branch executive vice president. PW-29 proved the seizure list dated 15.07.2008, exhibit-29 by which the banks documents relating to i)FDR no.41033117 dated 09.07.2006 for Tk.80,00,000/-, ii)FDR no.41033338 dated 16.07.2006 for Tk.50,68,450/-, FDR opening forms, KYC forms FDR statements, iii)FDR receipt no.41032669 dated 27.06.2006 for Tk.1,00,00,000/-, advice voucher and FDR oepening form, iv)FDR no.41032276 dated 15.06.2006 for Tk. 1,00,00,000/- in the name of the Trust, opening form, KYC form, transfer voucher, statements etc. and v) extract of the resolution of the Trust dated 28.03.2006 were seized. He also proved ‘jimmanama’ dated 15.07.2008, exhibit-30. The then executive vice president Md. Mojammal Hossain was given ‘jimma’ of the documents and he also signed on it. PW-28 identified the signature of Mojammal Hossain, exhibit-30/1. The said documents were marked as material exhibit-X series.

In cross-examination PW-29 stated that the said documents were in the custody of the Prime Bank Limited, Gulshan Branch and he received the Court’s summon as a witness and collected documents from the said branch and produced before the court. He further stated that PW-28 did not submit the original FDR no.41033117 and he did not see the said FDR and the same was in the name of the Trust and according to the report the balance of the said FDR was Tk.98,18,096/- till 09.07.2008. He had no knowledge whether the FDR no.41033338 dated 16.09.2006 for Tk.50,68,450/- was opened with interest after encashment of the above FDR and the FDR no.41029462 dated 13.04.2006 and the FDR no.41033338 dated 16.07.2006 were opened for the best interest. He did not know whether the FDR no.41032669 dated 27.06.2006 for Tk.1 crore was attached to the material exhibit-I(H) and material exhibit-VII and the FDR no.41032276 dated 15.06.2006 for Tk.1 crore was attached to the material exhibit-I(J). He had no personal knowledge about the material exhibit-X series. Begum Zia did not sign on the documents which were seized vides seizure list exhibit-29. 11 (eleven) counter foils and 2 payment orders were submitted before the court, material exhibit-B series and material exhibit-A series respectively. All the said payment orders were issued by the Prime Bank in between 11.02.2013 and 28.08.2016.

PW-30 Md. Sirajul Islam deposed that while he was working as a senior officer of the Prime Bank, Gulshan Branch on 15.07.2008 at about 1.00pm PW-31 came to their branch and seized the required documents as produced by manager Mozammel Hossain in presence of him and Syeda Nazma Parvin, senior assistant vice president of the said branch. Details of the seized documents were mentioned at serial nos.4(1)-4(5) of the seizure list. He proved the seizure list dated 15.07.2008, exhibit-29 and his signature, exhibit-29/1 and signature of Sayeda Nazma Parveen, exhibit-29/2. The seized banking documents were given ‘jimma’ to Mojammal Hossain and the ‘jimmanama’ was singed by him and Sayeda Nazma Parvin. He also proved the ‘jimmanama’ dated 15.07.2008, exhibit-30 and his signature exhibit-30/2 and signature of Sayada Nazma Parvin, exhibit-30/3. The seized documents were as under:

i) FDR no.41033117 dated 09.07.2006 for Tk.80,00,000/- of the Prime Bank Ltd. Gulshan Branch along with original

FDR opening form, KYC form, resolution copy dated 28.03.2006 and

2 pages account details of FDR of the Trust;

ii)         FDR no.41033338 dated 16.07.2006

for Tk.50,68,450/-, KYC Form, Resolution copy dated 28.03.2006 the

2 pages FDR account details of the Trust, letter dated 16.07.2006 written by Kazi Salimul Haque for encashment of the FDR and to open a

new FDR;

iii)    letter being memo no.cÖvBg/GbBwe/wmAvi/ 2006/744 dated 16.11.2006 issued by Prime Bank, New Eskaton Branch, FDR opening form, advice voucher copy and details of the FDR no.41032669 dated 27.06.2006 for Tk.1,00,00,000/-;

iv)         account details of the FDR no.41032276 dated 15.06.2006 for Tk.1,00,00,000/- of the Prime Bank Ltd. Gulshan Branch in the name of Salimul Haque;

v)              extract of the Zia Orphanage Trust resolution dated 28.03.2006.

In cross-examination PW-30 stated that he did not prepare the seized documents and he had no signature on those documents.

PW-31 Harunur Rashid as investigating officer deposed that he was entrusted with the investigation on 09.07.2008 by the Commission, exhibit-31. During his investigation on 10.07.2008 he sent a letter being memo no.11178 to the executive vice president, Prime Bank Ltd. Gulshan Branch, Dhaka requesting to provide required documents of the case. PW-31 requested for the following informations:

i)              latest transaction information such as voucher, lajer, cash book etc. of the account no.4103338;

ii)         transferable documents which transferred from the STD account no.7, Sonali Bank, Gulshan New North Branch to the Prime Bank Ltd. Gulshan Branch;

iii)    statement record details of the said account;

iv)         records of Salimul Haque’s FDR account no.41032276 dated 15.06.2006, the Trust FDR account no.41033117 dated 16.07.2006 and FDR account no.41032669 dated 27.07.2006.

On 10.07.2008 PW-31 sent a letter being memo no.11177 to the executive vice president of the Prime Bank Ltd. Easkaton Branch, Dhaka requesting for the case related records, exhibit-33.

PW-31 also sent the following letters to various authorities/Banks and institutions for collecting evidence with regard to subject matter of the investigation:

i)              on 10.07.2008 a letter being memo no.11178, exhibit-34 to the manager of the Sonali Bank Ltd. Gulshan New North Circle Branch, Dhaka;

ii)         on 10.07.2008 a letter being memo no.11176, exhibit-35 to the deputy secretary of the Chief Advisor Office, Old Airport, Tejgaon, Dhaka;

iii)    on 13.07.2008 a request letter being memo no.11239, exhibit-36 to the Sub- registrar, Gulshan, Dhaka;

iv)         on 13.07.2008 a letter being memo no.11238, exhibit-37 to the settlor of the Trust at the address 6, Shaheed Moinul Road, Dhaka cantonment;

v)              on 13.07.2008 a letter being memo no.11237, exhibit-38 to the Sub- Registrar, Gabtoli, Bogura;

vi)         on 14.07.2008 a letter being memo no.11267 to the director (East Asia), Ministry of Foreign affairs, Dhaka, exhibit-21.

On 15.07.2008 PW-31 seized some records for the Sonali Bank Ltd. Gulshan New North Circle Branch, Dhaka vide exhibit-3. He proved his signature thereon, exhibit-3/4. Descriptions of said seizure list documents were at serial nos.4(1) to 4(5) which were marked as material exhibits. On 15.07.2008 at about 1.00 pm PW-31 seized some documents vide exhibit-29 from two witnesses namely Md. Sirajul Islam (PW-30) and Sayeda Nazma Parvin, senior assistant vice president of the Prime Bank Ltd. Gulshan Branch as presented by Md. Mozammal Hossain, executive vice president, Head of Branch. Details of seized documents records were described at serial nos.4(1)-4(5) of the seizure list. PW-31 proved his signature on it, exhibit-29/3. The seized materials were given ‘jimma’ to Mojammal Hossain, exhibit-30. PW-31 proved his signature, exhibit- 30/4. The said documents were produced before the court and marked as material exhibit-X series. On 15.07.2008 PW-31 seized some documents relating to the case in presence of two witnesses as presented by Md. Afzal Hossain, vice president of the Prime Bank Ltd. New Eskaton Branch (PW-8). Details of the seized documents were described at serial nos.4(1)-4(8) of the seizure list, exhibit no.4. He proved his signature thereon, exhibit- 4/4 and another signature on the 1st page of the seizure list, exhibit-4/5. The seized documents were given ‘jimma’ to PW-8 and he received the ‘jimmanama’, exhibit-5 and his signature was on the said ‘jimmanama’, exhibit-5/4. The documents were submitted before the court, material exhibit-II series. On 16.07.2008 PW-31 seized case related records from the office of the Chief Advisor in presence of PW-10 and PW-11 as presented by Md. Majed Ali (PW-9). The descriptions of the seized materials were mentioned at serial no.4(1) of the seizure list, exhibit-7. PW-31 proved his signature on it, exhibit-7/4. PW-31 kept the said seized alamats in his own custody, material exhibit-III series. During investigation PW-31 intrrogated Begum Zia and Tareque Rahman in jail gate with the permission of the Court. On 21.07.2008 a request letter being memo no.11984, exhibit-42 was sent to the manager of Sonali Bank, Ramna Corporate Branch, Dhaka. During investigation on 22.07.2008 PW-31 went to the said branch and he seized the records in connection with the case and prepared a seizure list, exhibit-9 in presence of Md. Rezaul Karim, SPO and Mohiduddin Ahmed (PW-13) as presented by Monjur Hossian (PW-12). He proved his signature thereon, exhibit-9/3. He kept the

seized alamats in his own custody. The seized alamats were produced before the Court and marked as material exhibit-XI series. On 22.07.2008 at about 12.30 hours on presentation of Md. Majed Ali (PW-9) PW-31 seized some records in connection with the case from the office of the Chief Advisor and he prepared a seizure list, exhibit-8 in presence of Md. Alfasani, administrative officer (PW-10) and Md. Mokhlesur Rahman (PW-11). The descriptions of the seized records were mentioned at serial nos.4(1),4(2),4(3) of the seizure list. PW-31 proved his signature, exhibit-8/4. The seized materials were produced before the court and marked as material exhibit-XII series. PW-31 on 24.07.2008 interrogated FIR named accused Sharfuddin and he also recorded statements of the witnesses as per provision of section 161 of the Code of Criminal Procedure. He had also taken steps for recording statements of witnesses before the Magistrate as per provision of section 164 of the Code Criminal Procedure. On 05.08.2008 PW-31 went to Gabtoli Sub-registry office and he seized the records in connection with the case as presented by Md. Golam Faruk, Sub-registrar, Gabtoli, Bogura (PW-16) and prepared a seizure list, exhibit-11 in presence of two witnesses, Md. Mizanur Rahman, office assistant and Md. Jalil, a mohrar of Sub-registry office, Gabtolil. Descriptions of the seized records were mentioned at serial nos.5(1) to 5(2) of the seizure list. He proved his signature on the seizure list, exhibit-11/3. The said seized alamats were given ‘jimma’ to Md. Golam Faruk. On 13.08.2008 PW-31 sent a letter being memo no.14023 dated 13.08.2008 to the manager of Sonali Bank, Ramna Corporate Branch for providing information regarding the PM’s Orphanage Fund current account no.5416 and same was replied by the concerned officer of the Bank, exhibit-48. On 14.08.2008 PW-31 visited the place 6, Saheed Moinul Road, Dhaka Cantonment, Dhaka and recorded some informations, exhibit-49. During investigation PW-31 sent a letter being memo no.14028 dated 13.08.2008, exhibit-23 to the director general of the East Asia of the Ministry of Foreign Affairs, Dhaka to request the Ambassador of Bangladesh in Riyadh for collecting the information with regard to the source of alleged DD. Md. Sakib Sadakat, assistant secretary of the East Asia sent the said letter to the Bangladesh Ambassador in Riyadh on 13.08.2008 and a copy of the letter was given to PW-31, exhibit-24. The exhibit-25 was attached to exhibit-24. PW-31 received the Photostat copy of the letters, exhibit-26, exhibit-27 and exhibit-28. During investigation