IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

  (SPECIAL ORIGINAL JURISDICTION) WRIT PETITION NO. 7236 OF 2010

With

WRIT PETITION NO. 826 OF 2011

With

WRIT PETITION NO. 1048 OF 2011

AND

WRIT PETITION NO. 1059 OF 2011

IN THE MATTER OF :

An application under Article 102 of the

Constitution of the People’s Republic of Bangladesh;

A N D

IN THE MATTER OF

M. Anwar Hossain and others.

.  . Petitioners in W.P.No.7236 of 2010.

with

Hasanul Huq Inu

.    . . Petitioner in W.P.No.826 of 2011

with

Major Ziauddin and others

... Petitioner in W.P.1048 of 2011 And

Md. Abdul Mazid

... Petitioner in W.P.1059 of 2011. Mr. Rokanuddin Mahmud

....For the petitioners in W.P. 826/2011. Dr. Shahdeen Malik, with

Mr. Md. Tawhidul Islam, Advocates

... For the Petitioner in W.P.7236/10. Major Ziauddin and others((In person)

... In W.P.1048 of 2011 And

Md. Abdul Mazid (In person)

... In W.P. 1059 of 2011 -Versus-

Government of Bangladesh and others

Respondents in all the Writ Petitions.

Mr. Mahbubey Alam, Attorney General with

Mr. ABM Altaf Hossain, DAG

Mr. Motaher Hossain Saju, DAG

Mr. Mohammad Salim, DAG and

Mr. Md. Shahidul Islam Khan, AAG

Mr. Amit Talukdar, AAG

Mr. Shoeb Khan, AAG

Ms. Purabi Saha, A.A.G.

... For the Respondents 1 and 2. Mr. M.K. Rahman, Addl. Attorney General with Mr. A S M Nazmul Haque, AAG

Mr. Delwar Hussain Samaddar, AAG

... For the Respondent Nos. 3 and 4. Dr. Kamal Hossain,

Mr. M. Amir-ul Islam,

Dr. M. Zahir,

Mr. M.I. Farooqui,

Mr. Akhter Imam,

Mr. A.F.M. Mesbahuddin,

Mr. Yusuf Hossain Humayun,

Mr. Abdul Matin Khasru and

Mr. Z.I. Khan Panna, Advocates

... Amicus-Curaie Heard on: The 12th, 13th 17th , 18th , 19th, 20th, 23rd January, 3rd February, 15th, 16th, 20th March, 2011 and Judgment on: The 22nd March, 2011.

Present:

Mr. Justice A.H.M. Shamsuddin Choudhury

And

Mr. Justice Sheikh Md. Zakir Hossain

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

As many as four Writ Petitions, registered as Writ Petitions no. 7236 of 2010, 826 of 2011, 1048 of 2011 and 1059 of 2011 respectively had been filed challenging the validity of the  (i)  Proclamation dated 20th August, 1975, whereby the whole of Bangladesh was placed under Martial Law, (ii) the

Martial Law Regulation No. XVI of 1976, published in the Bangladesh Gazette Extraordinary dated 14th June, 1976 and (iii) the judgment and order dated 17th July, 1976 passed by the Special Martial Law Tribunal in Special Martial Law Case No. 1 of 1976, convicting all the petitioners in all the four petitions and the deceased husbands of Petitioner Nos. 2 and 3, in WP 7236/10 under section 121A of the Penal Code.

All the Petitioners were sentenced to suffer imprisonment for varying terms while Lt. Col. (retd.) M. A. Taher, Bir Uttam, husband of the Petitioner No. 2 in WP 7236/10, was sentenced to death, which was executed on 21st July, 1976. Flight Sergeant Abu Yusuf Khan, Bir Bikram, husband of the Petitioner No. 3, in WP 7236/10, was sentenced to suffer imprisonment for life.

Since the basic theme and the relief craved in all these petitions are identical, they are taken up for adjudication as a lump.

Professor M. Anwar Hossain, an eminent personality in our academic horizon, endowed with exquisite academic achievements gained from various educational institutes of universal acclamation, who attained wide spectrum notoriety, not merely by dint of his intellectual pursuit but also because of his active participation in our Glorious War of Liberation, filed

the first cited petition before us along with two other Petitioners, one of whom is his sister in law, invoking Article 102 of the Constitution.

Salient parts of the averments that emerge from the first aforementioned petition, i.e. the Writ Petition no. 7236 of 2010, run as follows;

On 20th August 1975 the whole of Bangladesh was purportedly placed under so-called “Martial Law”, following a purported proclamation to that effect on the same day. One Khandakar Mushtaque Ahmed purportedly took over “all and full powers of the government of the People Republic of Bangladesh.”

A succession of actions by the then so-called government followed the said proclamation, which included the arrest of the husband of the Petitioner no. 2 on 23rd November 1975 and the arrest of the Petitioner no. 1 himself on 15th November 1976. They were apprehended following the lodgance of a so- called first information report (FIR) with the Mohammadpur Police Station on 4th June 1976. Section 121 A of the Penal Code was cited in the said FIR along with some other provisions of the said Code.

The FIR led to the purported commencement of a case that was recorded as Special Martial Law Tribunal Case no. 1 of 1976. Both the Petitioners were purportedly found guilty following a so-called trial and the spouse of the Petitioner no. 2, a Valiant Freedom Fighter, named Lt. Colonel (Rtd), M.A. Taher, who was decorated with the Gallantry Award, Bir Uttam, the highest award for a surviving Freedom Fighter, for his spectacular contribution in the Liberation War,  was purportedly sentenced to death, while, Flight Sergeant Abu Yusuf Khan, who was also honoured with another Gallantry   Award, namely Bir Bikram, the spouse of the Petitioner No. 3, was purportedly sentenced to life imprisonment, while the Petitioner No. 1 was purportedly sentenced to a term of ten years imprisonment and to pay a fine or to suffer an additional term of 2 years in default of payment. The purported verdicts were delivered on 17th July 1976.

The so-called special tribunal was set up under the purported martial law regulation no XVI of 1976, section 3(4) which equipped the so-called tribunal with power to try any offence, whether committed before or after the commencement of the regulation. Crimes under Chapter VI and VII of the Penal Code were also brought within the so-

called tribunal’s jurisdiction by section 3(4)(a) of the regulation. The so-called regulation empowered the tribunal to sit in camera at the so-called chair’s discretion.

The so-called regulation placed a total clog on appeal, stipulating, “No appeal shall lie to any authority from any decision or judgment of the tribunal”.

Section 4(10) thereto stipulated that when the tribunal would sit in camera, the chair would require persons attending or otherwise participating in the trial to subscribe to an oath of secrecy against disclosure of anything in connection with the trial.

The so-called special tribunal was composed of one Army Colonel, named Yusuf Haider (who chaired it), one Air Force Wing Commander an Acting Commander of the Navy and two Magistrates.

A handout dated 18th June 1976, issued by the chair of the so-called tribunal, required some 11 persons  to surrender before the tribunal on or before 21st June 1976 in connection with the case in which Lt. Col. M.A. Taher, Bir Uttam, Flight Sergeant Abu Yusuf Khan, Bir Bikram and the Petitioner No. 1 were purportedly impleaded as accused.

The so-called trial of the so-called Special Martial Law Tribunal Case no. 1 of 1976 proceeded in total secrecy inside Dhaka Central Jail.

Although the Petitioner No. 1, and the spouse of the Petitioners no. 2 and 3 were allowed to be represented and defended by Advocates, the Petitioners No. 2 and 3 were never allowed to attend. Because of the so-called oath of secrecy, participants in the trial could never divulge any information on the so-called trial to the Petitioners no. 2 and 3.

The Petitioner no. 2 was never allowed, despite incessant requests, to meet her husband. Her written request to that effect was never responded to. It is only from the news paper reporting that she came to know of the purported conviction and the sentence that was passed on her husband.

On learning of the purported passage of death sentence on her husband, the Petitioner No. 2 preferred an application to the so-called president, to the so-called chief martial law administrator and to Major General Ziaur Rahman, the so- called deputy chief martial law administrator, seeking an abeyance on the confirmation of the sentence and to put the same on halt.

She was, however, told in reply, that the president has not been able to accede to her prayer.

The purported death sentence on Lt. Col. M. A. Taher, Bir Uttam, was executed on 21st July 1976, whereafter his corps was removed from Dhaka Central Jail in a pick up and then was flown by a helicopter to his village named Kazla, under Purbadhala Police Station in Noakhali.

The Petitioner No. 1 and the spouse of the Petitioner no. 3 were released from the prison in June 1980, yet they were not supplied with any official document as to their release at any point of time, not even today. No document or certified copy on the trial, the charge, deposition, proceeding, judgment or any other matter quo the trial was ever given to the Petitioner No. 1, although he tried heaven and earth to procure the same.

Through a purported Act of Parliament, purportedly passed on 06th April 1979, the so-called 5th Amendment Act, all so-called proclamations, proclamation order, martial law regulations, martial law orders and other laws (henceforth collectively cited as martial law instruments) as well as all amendments, modifications, substitutions made thereof, including amendments to the Constitution, brought about by such proclamations and regulations and all actions and

proceedings taken or purportedly taken under those proclamations during the period between 15th August 1975 and 9th April 1979, were ratified and confirmed.

That purported amendment, had, however, been declared void and non-est by this Division in the case of Bangladesh Italian Marble Works Ltd-V-Government of Bangladesh, best known as the 5th Amendment Case, reported in the Special Issue of Bangladesh Law Times 2006.

A leave petition filed with a view to challenge the said Judgment of this Division, was turned down by the Appellate Division, though certain minor modifications were infused into this Division’s Judgment.

It is the Petitioners’ emphatic assertion that since the Supreme Court has declared the so-called 5th Amendment to the Constitution illegal and void ab-initio, and has, thereby, wiped out the purported ratification, confirmation and validation of the so-called martial law instruments, the impugned purported trial and all the proceeding leading to  the impugned  judgment and  order  dated 17th July 1976 in  the so-called  special  martial  law  tribunal were but  devoid of  legal sanction and as such, of no effect in law as being repugnant to the Constitution. They also assert that the whole

notion of camera trial, oath of secrecy, embargo on appeal are palpably abhorrent not only to our Constitutional Scheme, but also to minimum tenet of Justice.

By a supplementary affidavit the Petitioner No. 1 stated that one Mr. Lawrence Lifschultz, who was the South Asian correspondent of the Far Eastern Economic Review, is possessed of invaluable and, otherwise unobtainable and untraceable information on the whole episode by having been in Bangladesh to cover the so-called trial for his named Journal, although he was, subsequently expelled from Bangladesh by the government headed by General Ziaur Rahman. It has also been revealed through the said supplementary affidavit that Mr. Lifschultz had unveiled plentitude of precious and, hitherto, undisclosed, information on the trial, he gathered through his investigative journalistic pursuit, which was first published in 1977 in the Special Edition of an India based Journal, named “Economic and Political weekly” (Bombay) under the caption “Taher’s Last Testament”. It has further been stated that on 28th January 2011, two treatises authored by him on the so- called trial were published in Daily Prothom Alo and that they contained elaborate factual analyses of the said trial as well as the author’s personal account on Col. Taher.

The Petitioners went on to narrate that Col. Taher, Bir Uttam, inspired his entire family to actively participate in the Triumphant Liberation War. He himself fled Pakistan to join the War being propelled by his own conscience to fulfill his long cherished dream, rather than being forced to do so by subordinates.

As a Sector Commander he led many historic battles to capture a strong Pakistani outpost, named Kamalpur, which was known as the “Gateway to Dhaka,” and it was his strategy which was followed by the Freedom Fighters of Sector 11 along with the allied forces of India to mark their maiden entry into Dhaka on 16th December 1971. Although Col. Taher himself could not be present to witness the historic event due to the injury he sustained during the war, Flight Sergeant Abu Yusuf Khan, Bir Bikram, the spouse of the petitioner No. 3, represented Col. Taher on the occasion. Indeed, it was Ft. Sergeant Khan, who, along with the Indian Army went to the Eastern Command Head Quarters of the occupying Pakistani Army at Dhaka Cantonment on 16th December in the morning to negotiate the terms of surrender with the Pakistan Army and, as a member of the Victorious Liberation Army, it was him who plucked the flag from the staff car of Lt. General Niazi,

the defeated chief of the Eastern Command of the Pakistani Army.

All of the eight siblings, six male and two female, of Col. Taher directly participated in the War of Liberation, of whom four received Gallantry Awards.

The career of the Petitioner No. 1 as a Lecturer at the Department of Biochemistry in Dhaka University, came to an abrupt impasse with the arrest of his two brothers, Col. Taher and Ft. Sergeant Yusuf Khan, which event plunged his family into turmoil. The whole family found themselves at a paradoxical jeopardy, they fell prey to the vengeance of General Ziaur Rahman. The Petitioner No. 1 had to go to the ground. On arrest, he was interned in a clandestine torture cell known as “Safe Hole”, located inside Dhaka Cantonment, and was kept there until 15th June 1976, the day on which he was handed over to the Dhaka Central Jail authority. The period in the said torture cell was kept concealed.

The so-called accused persons, 33 in number, included revered Sector Commanders and front line organizers of the Liberation War. It was a conglomerate of Politicians, Military Personnel, Writers, Journalists, Teachers, Economists and People engaged in intellectual cultivation, who volunteered to

stake their lives to secure the emancipation of their mother land after the Pakistan Army unleashed  genocide on the Bengali People.

The person who chaired the so-called special tribunal, Col. Yusuf Haider, was one of those who collaborated with Pakistani Army of occupation. Mr. ATM Afzal, subsequently prized with elevation to the High Court Bench, acted as the

special public prosecutor.

Although the martial law regulation, by which the purported tribunal was formed, was itself promulgated on 14th June 1976, it is that very day on which the tribunal personnel visited Dhaka Central Jail and, indeed it was on 12th June that the office of the Deputy Inspector General of Prison was vacated to accommodate the tribunal.

In his book, titled, “Democracy  and the Challenge of

Development: A study of Political and Military Interventions in Bangladesh”,  Barrister Moudud Ahmed, a close associate of General Ziaur Rahman, wrote; “Why did Zia allow Taher to  be  hanged,  the  person who  freed   him  from captivity?......... In the difficult situation after independence, Zia had to strike a  balance  with  repatriated  officers to  strengthen his own position in the army. The officers who had not taken part in the  liberation  war,  had found a new ally in Zia after the killing of Mujib and removal of Mushtaque. They needed each other to survive both as a class

and a force in the Civil-Military structure of the country. When it came to sentencing of Taher, the repatriated officers wanted him hanged. Out of the forty six senior army officers, summoned by Zia to discuss the issue, all were in favour of this ultimate and final form of punishment” (page 29-30). In the foot note, Barrister Moudud mentioned, “This was disclosed to him by Zia himself”.

In a recent Article under the caption, “Trial in Military Court. The documents of the hanging order of Colonel Abu Taher”, Dr. AMM Showkat Ali, who was placed as the Deputy Commissioner of Dhaka in 1976, published in the Daily Prothom Alo on 19th September 2010, wrote, “At that time there was martial law in the country. It was alleged that a summary trial was held by a martial law tribunal formed by the then army chief. It is apparent that extrajudicial murder was committed in the name of trial because if a death sentence is pronounced by a court which is formed outside the jurisdiction of the Constitution, it will be termed extrajudicial murder by international standards”.

It is obvious that the death sentence handed down on Col. Taher was not even based on the decision of the mock tribunal created by Zia, it was, indeed, the follow up of a

decision that was taken at the meeting of the formation commanders held at the Army Head Quarters at the Cantonment, where most of the officers present had not participated in the Liberation War. It is hence, evident that General Ziaur Rahman and his collaborators conspired to kill Lt. Colonel Taher in disguise of a mock trial: only one in the meeting opposed the idea.

Major (Rtd) Ziaudn, another triumphant Freedom Fighter, widely exalted for his rectitudeous contribution in the War of Liberation, also filed an application, along with Corporal (Rtd) Shamsul Haque and Habildar Abdul Hai Mazumdar, engaging Article 102 of the Constitution which was registered as Writ Petition No. 1048 of 2011, which also generated a Rule Similar to the one Writ Petition no. 7236/ 2010 engendered. Their averments, on primoradial counts and facts, are identical to those laid down by the petitioners in the earlier Writ Petition and hence we are figuring below only those averments which are unique to these Petitioners, in summarised version;

Major (dismissed) Ziauddin, the Petitioner no. 1 was a Major in the Bangladesh Army who was dismissed from the service in consequence of his conviction in the above

mentioned special tribunal case no. 1 of 1976, though he was never given any order or document regarding his dismissal. He actively participated in the liberation war in 1971 and primarily fought in Sunderban sub-sector under Sector-9 of Bangladesh Muktibahini. He was impleaded as an accused person in the special martial law tribunal case no. 1 of 1976. He was commissioned by Pakistan Military Academy on 6th September 1970. He was in the active service with the rank of a Major at the time of his arrest on or around 4th January, 1976.

The Petitioner no. 2 was a Corporal in the Bangladesh Air Force, who joined the then Pakistan Army in 1966 and was posted in the Radar Station in 1971. He escaped from the captivity in Pakistan and joined the Liberation War on 23rd August, 1971. After the Liberation of Bangladesh he joined the Bangladesh Air Force on 5th January, 1972 and was in the service until his arrest on the 23rd November, 1975;

The Petitioner no. 3 was a red-blooded Freedom Fighter, who actively participated and fought in the liberation war. He joined the then Pakistan army in 1965. He actively participated in the revolt in the Jessore Cantonment on 27th March, 1971. He remained posted as a Havildar in the 22 Bengal Regiment until his arrest in the last week of November, 1975.

All three of them were implicated as co-accused in the Special Martial Law Tribunal Case no. 1 of 1976. They were kept confined in a small room in the Central Jail, Dhaka all along, in strict secrecy and in a surreptitious manner.

They were never aware of the charges brought against them or the alleged offences they were arrested for. At no point of time were they supplied with any FIR, any complaint or any kind of paper whatsoever relating to the alleged arrest, custody or trial.

They were not allowed to talk to any lawyer or Advocate. Even their closest relatives did not have any access to them.

The so-called trial continued for about 17 days, during which they did not know what were the charges that they were implicated with, because they were neither supplied any paper nor were the charges read over to them. They did not have the slightest idea as to the evidence that were to be adduced against them.

All the accused, including the petitioner no. 1, were used to be brought in the so-called court room in the Central Jail, handcuffed and barefooted and were all put inside a barbed cage as if they were roman slaves.

Neither them nor the lawyers appearing for different accused, were ever allowed to cross examine the prosecution witnesses; they were escorted by guards to the court and were hurriedly taken away after their hasty deposition. The accused were not at all aware of the contents of the deposition.

The accused persons were hardly given a chance to say anything in their defense or to repudiate the accusation brought against them or to contradict the deposition of the witnesses or to produce any defense witness.

The so-called judgment and order was read out on 17th July, 1976. The Petitioners were sentenced to suffer rigorous imprisonment of varying terms and to pay fines.

After the pronouncement of the judgment and order, the judges of the tribunal swiftly went away and the accused were taken off to their cells.

In May, 1796 the Petitioner No. 2 was taken blindfolded to an unknown place and was inhumanly tortured with electric shocks amongst other, and was intimidated to become a prosecution witness against the other accused. He came to learn that his wife was told that he would face the same consequence as Col. Taher would.

He was made an accused in the said Case as he refused to turn into an approver.

The petitioner no. 3 was arrested around the last week of November, 1975 from 22 Bengal Regiment, was taken to an unknown place blindfolded, was kept in captivity therein for almost 8 (eight) days and was subjected to merciless physical torment.

He was asked to become a prosecution witness against Col. Taher and to depose that Co. Taher was a revolutionary who injected politics into the Army. He was severally excruciated and sent to Central Jail and was made an accused in the case because of his declination to depose for the prosecution.

The Petitioners were arrested along with other co-accused purportedly for crimes alleged in FIR no. 8, dated 4.6.1976 of Mohammedpur Police Station.

The above noted FIR purportedly animated the Special Martial Law Tribunal Case no. 1 of 1976 and the accused were tried and found guilty by the aforementioned tribunal along with others on 17.07.1976. Lt. Colonel (retd.) M. A. Taher, Bir Uttam, was sentenced to death.

The Petitioner No. 1 ranked 4th among Bengali officers, when he was commissioned in 1970. Of those 3 (three) Bengli officers, who ranked above him, one ultimately retired as a Lieutenant General and Chief of Army and 2 others as Majors General, who served the Army for about 25-30 years. The Petitioner No. 1 would have been in service for more or less at least until 1995 and, given his initial ranking and participation in the Great War of Liberation, he would and have retired at least as a Brigadier General, if not above, and as such he would have served the country for another 20 years with corresponding increase in salary, allowances, rank and status.

The Petitioner No. 1 achieved highest gradation number and stood 1st among 190 cadets showing the best rate of achievement and as such he would have had a bright and rewarding career in Bangladesh Army for at least another two decades with due financial and other benefits along with the prestige of the rank of a General, of which he was deprived due to the illegal conviction by a kangaroo court.

The Petitioner No. 2 and 3 were similarly deprived of their expected length of service respectively in the Air Force and the Army and were deprived of their legitimate service benefits due to the impugned conviction and sentence.

Provisions of the Army Act. 1952 or of any law relating to any disciplined forces was not applicable in the impugned trial, judgment and order as the tribunal included 2 (two) civilian Magistrates, who did not belong to any disciplined force and as such the proceeding, judgment and order of the impugned case is not protected by Article 45 of the Constitution and therefore being repugnant to the Constitution, is liable to be declared unconstitutional and void by this Hon’ble Court.

Refusal of the authorities to provide documents or papers, including certified copies of the proceedings, judgment and order to the Petitioners is violative of the elementary form of rule of law, constitutionalism as embodied in Articles 31 and 32 of the Constitution and as such the impugned proceeding is liable to be declared to be antipathetic to the Constitution.

Petitioners must not suffer the ignominy of having been convicted for crimes through an illegal and unlawful proceedings and as such they deserve to be cleared off.

Another set of petitioners filed another application, invoking 102 of the Constitution, which got registered as Writ Petition No. 826 of 2011, which also procreated a similar Rule. Again, averments scripted by the said Petitioners are, in most

respect, identical to those scribed by the Petitioners in the other Writ Petitions cited above. Those averments, which are specific to these Petitioners alone, are, summarised below;

The Petitioner No. 1 is the President of Jatio Shamajtantrik Dal (Jashad), a Member of Parliament and the Chairman of the Standing Committee on the Ministry of Post and Tele-Communications Affairs. He was a leader of erstwhile East Pakistan Students’ League and Shadhin Bangla Chatra Sangram Parisad. He had indomitably contributed to our liberation war as the Chief Instructor of Bangladesh Liberation Force (BLF) Training Camp, which was set up at Tandua within the province of Tripura, India. Because of his proven patriotism, excellent organizational and leadership ability, sincerity and commitment, the Petitioner No. 1 was made the General Secretary of Jatio Krishak League, Central Committee in 1972. The Architect of Independent Bangladesh, Bangbandhu Sheikh Mujibur Rahman approved the said committee. In personal life he is an Engineer and obtained graduation in Chemical Engineering from Bangladesh University of Engineering and Technology (BUET) in early 1970.

The Petitioner No. 2 is the Vice-President of Jatio Shamajtantrik Dal (Jasad), Central Committee who also participated in the Historic War of Liberation as the Deputy Chief of Bangladesh Liberation Front, Jessore Sub-sector and has been actively participating in all kinds of social and political movements since 1969. He is also the former Upazila Chairman of Jessore Sadar Upazila and former General Secretary of the then East Pakistan Students’ League, Jessore District Committee. By profession he is an Advocate, practicing from Jessore District Bar.

During 1975-76 both the petitioners were active in politics with a progressive-democratic political  programme launched by Jatio Shamajtantrik Dal. They were never involved in any activities prejudicial to the interest or sovereignty of Bangladesh, for the liberation of which Country, they fought.

The police arrested the Petitioner No. 1 on 23.11.1975 and, without producing him before a competent court, sent him to Dhaka Central Jail, wherein, within a week, he was served with an order of detention under Special Powers Act 1974. While under detention, on 15.6.1976, he was taken to a room at the Dhaka Central Jail gate. On query, he came to know that a special martial law tribunal has been set up in that room which

will sit in camera and try the Petitioners for an alleged offence in connection with Mohammadpur Police Station case no. 08 dated 4.6.1976 under section 121A of the Penal code read with regulation 1/13 of MLR 1976. The Petitioners wanted to know the allegation laid against them and also asked for the copies of the FIR, charge sheet and other relevant papers, but their requests were turned down.

The above noted criminal case was registered as Special Martial Law Tribunal Case no. 1 of 1976, wherein the Petitioners, along with thirty three others, including Lt. Colonel (retired) Abu Taher, Bir Uttam, were tried by a special martial law tribunal. The said tribunal, by its so-called and illegal judgment and order, dated 17.7.1976, purportedly convicted seventeen accused persons, inclusive of the Petitioners and sentenced them to different terms of imprisonment and, acquitted sixteen. Out of them, Lt. Colonel (retired) Abu Taher, Bir Uttam, was sentenced to death. Petitioner No. 1 was sentenced to suffer rigorous imprisonment for 10 (ten) years with a fine while the Petitioner No. 2 was sentenced to suffer 5 (five) years and to pay fine.

 The so-called proceeding of Special Martial Law Tribunal Case no. 1 of 1976 went ahead in total soltitude within the

bounds of Dhaka Central Jail and the accused were not allowed to be represented or defended by Advocates. Because of the oath of secrecy, the participants in the trial could not divulge any information to the Petitioners and their relatives about the purported proceedings.

Relatives of the Petitioners were never allowed to meet them.  During  the  confinement  of  the  Petitioner  No.  1,  his mother died, but this lachrymose news was not communicated to him nor was he allowed to attend his mother’s Namaj-e- Zanaja. He came to know it from unofficial sources a couple months afterwards.

The news of the conviction was published in the Bangladesh Observer on 18.07.1976.

According to the news item published in the Bangladesh Observer on 18.7.1976, seventeen accused persons, including Lt. Col. (retired) Abu Taher, Bir Uttam and the Petitioners were found guilty of offence under section 121A of the Penal Code. A Hero of our Liberation War, Lt. Col. (retired) Abu Taher, Bir Uttam, was sentenced to death and within four days he was executed on 21.7.1976 within the four walls of Dhaka Central Jail.

The so called trial was conducted in camera, the petitioners were never given any paper or certified copy or any other documents relating to the charge, deposition of witnesses, proceeding, judgment and/or order relating to the case.

The Petitioner No. 1 was released from Dhaka Central Jail on 13.6.1980 while the Petitioner No. 2 was released on 19.10.1979, but they were not given any official document of release or any other documents pertaining to their conviction or sentence or release at any point in time.

The Petitioners never committed any offence under 121A of the Penal Code at any point of time in any manner, and the question of commission of any such offence by them did not arise as they fought for this Country not only by participating in the War of Liberation, but also by organizing the people of the then East Pakistan and motivating them politically to take preparation for the War and finally secured the emancipation of the Bengali Nation. Their patriotism, ideological conviction and commitment for the countrymen were beyond qualm. But the black ship among the freedom fighters, Lt. Gen. Ziaur Rahman, with a motive to set the Country against the spirit of the War of Liberation, tried them illegally, arbitrarily, vindictively and without any constitutional mandate or any other law in force.

He did it to usurp the power directly and to cling on to power illegally, and to serve the interest of the anti-liberation forces, and to make sure that no political opposition or resistance could thwart his misdeeds.

Inspite of being Freedom Fighters, Member of Parliament, people’s representative, respected politicians, and above all, conscious citizens of the country, the Petitioners are carrying the stigma of their illegal conviction which labeled them as being ‘offenders against the Country’, for last 35 years, and hence they need to be cleared of the slur.

The Petitioners were not allowed to consult or engage lawyers of their own choice. Relatives of the Petitioners’ were not allowed to consult or see them.

The Petitioners further stated that after the killing of Bangabandhu, they and their party protested the illegal usurpation of power by the military authorities and the killing of Banabondhu. Lt. Colonel Abu Taher BU wanted to from and organize a new army for the independent Bangladesh, wiping out the pattern, the colonial rulers established and left behind as their legacy. On the other hand Major General Ziaur Rahman, who was the Chief of Army Staff, and at the helm of state powers, became envious to Colonel Taher and looked at

Taher and other leaders, as his political adversaries as they protested the killing of Bangabondhu and usurpation of power by martial law proclamation. Zia did, hence, hatch an intrigue against them and thus implicated them in a concocted and framed case to fulfill his diobolic design. Major General Ziaur Rahman forged an alliance with anti liberation forces and allowed them to pursue communal politics in the country. He did not only rehabilitate Rajakers and Al Bodors, but also made one of the top leaders of anti liberation forces, named Shah Azizur Rahman, as the prime minister of the country. The Petitioners also asserted that Major General Ziaur Rahman resorted to all these illegalities to insulate his power against any challenge. He did not spare freedom fighters as they appeared to him as stumbling block to his authoritarian power. The Petitioners came to learn that their illegal trial and punishment were discussed at the meetings of the formation commanders led by Major General Ziaur Rahaman at the relevant time. Breaking all ethos of fundamental rights, the so called martial law tribunal concluded the so called camera trial and convicted and sentenced the Petitioners and others who fought for the liberation of this country.

The petitioners must not suffer the ignominy of having been convicted for crimes through an illegal and unlawful proceeding and as such they deserve to be cleared.

Yet another petition, registered as Writ Petition No. 1059 of 2011, was filed by Mr. Abdul Mazid, which has also been adjudicated upon, in conjugation with the three other petitions discussed above.

Again, in substantial respect, his averments are no different from those of others, and as such, we are recording hereunder, in summary form, those statement which are unique to him only.

The Petitioner was a Vibrant Freedom Fighter who joined the Bangladesh Air Force in February, 1972 and remained posted in Chittagong until June, 1976.

He was a co-accused in the Special Martial Law Tribunal Case no. 1 of 1976 which proceeded in a small room within the venue of the Central Jail, Dhaka, all along in strict seclusion behind dark curtains.

He was arrested in June, 1976 and flown to Dhaka by a special plane and then was taken to SB Office and thereafter to Dhaka Court, after confining him in a car for the whole day. He was then taken to Dhaka Central Jail.

He was never made aware of the charges or of the alleged offences, he was arrested and kept in custody for, as no FIR, complaint or other kind of paper relating to the alleged arrest, custody or trial, was ever supplied to him.

During the whole period of custody he was never allowed to talk to any lawyer or Advocate. Even his closest relatives were not allowed any access to him.

The so-called trial continued for about 17 days, during which time he did not exactly know the charges that were brought against him because he was neither supplied any paper nor were the charges read over to him. He did not have slightest idea of the evidences that were to be adduced against him.

All the accused, including the Petitioner, was used to be brought in the so-called court room handcuffed and barefooted and was put inside a barbed cage as if they were roman slaves.

The accused was never allowed to engage any lawyer or Advocate or even to talk to the lawyers who voluntarily appeared for others.

Neither the accused nor the lawyers appearing for different accused persons, were ever allowed to cross examine the prosecution witnesses who were guarded while they were

being produced and were hurriedly taken away after their hasty deposition; the accused were not at all aware of the contents of their deposition.

He was hardly given a chance to say anything in his defense or to repudiate the accusation brought against him or to contradict the deposition of the witnesses or to produce any defense witness.

The Petitioner was arrested along with other co-accused, purportedly for crimes alleged in the so-called FIR. The Petitioners were purportedly accused of committing crimes, among others, under Section 121A of the Penal Code.

The FIR purportedly culminated in Special Martial Law Tribunal Case no. 1 of 1976 and the accused were purportedly tried and found guilty by the afore-said tribunal. The impugned judgment and order was handed down on 17.7.1976.

As the Rule we issued in respect to all the petitions cited above ripened and steps were on the move for adjudication, we were intimated by the authorities that no paper in relation to the indictment, proceeding trial or conviction pertaining to the case in question could be located despite extensive search undertaken at all probable locations, apparently because the government of the day had destroyed them to make them

untraceable. Mr. A.B.M. Altaf Hussain, the Learned Deputy Attorney General, informed us that even the first information report could not be traced. All they could detect was a list of persons that were hanged to death in Dhaka Central Jail in 1976 as depicted in the record of the said Jail. Lt. Col. Taher is figured at the top of the list, whose death sentence is shown to have had been executed on 21st July 1976.

A document dated 28.10.2010 affixed with the signature of one Col. Syed Iftekharuddin, Additional Inspector General of Prison, forwarded for our consumption, divulges that a special martial law tribunal Dhaka, created pursuant to 13 MLR of 1975, handed down death sentence to Lt. Colonel (Rtd) Abu Taher, Prisoner no 3621/A, in Mahammadpur P.S. Case no 8(6) 76, Special ML Case no 01/76, under section 121A of the Penal Code, on 17.07.1976 and that in execution of the said sentence, Lt. Col. Abu Taher was hanged at 4.30 am on 21.07.1976 in Dhaka Central Jail.

That document further states that apart from a list of the executed persons, no other information has been retained in Dhaka Central Jail.

Another document, authored by Mahammad Monir Hussaion, Deputy Police Commissioner, Dhaka Metropolitan

Police, dated 16th January 2011, destined to the Officer-in- Charge, Mahammadpur Police Station, reveals that no copy of the FIR could be pinned down at the GR Section of the Magistracy in Dhaka. A copy of the letter the GRO addressed to the said Deputy Commissioner of Police, dated 16.01.2011, was attached to the Deputy Commissioner’s letter: text of both

of which are reproduced below, verbatim;

MYcÖRvZš¿x evsjv‡`k miKvi

evsjv‡`k cywjk

Dc-cywjk Kwgkbv‡ii Kvh©vjq

Aciva Z_¨ I cÖwmwKDkb wefvM

XvKv †g‡U«vcwjUb cywjk, XvKv|           wmGgGg †KvU©, bZyb feb, 2q Zjv, XvKv-1100|

m¥viK bs-   ZvwiL      /01/2011wLªt| cÖwZ,

Awdmvi Bb PvR©

‡gvnv¤§`cyi _vbv

XvKv †g‡U«vcwjUb cywjk, XvKv|          welqt gvgjvi GRvnvi Kwc mievin KiY cÖm‡½|

myÎt gnvgvb¨ nvB‡Kv‡U©i ixU wcwUkb bs-7236/10 I †gvnv¤§`cyi _vbvi gvgjv bs-8 ZvwiL-04/06/76 Bs|

Dchy©³ wel‡qi Av‡jv‡K Avcbvi AeMwZi Rb¨ Rvbv‡bv hvB‡Z‡Q †h, m~‡Î ewY©Z gvgjvi GRvnvi Kwc AÎ g¨vwR‡ó«mxi wRAvi kvLvq †LuvR K‡i cvIqv hvq bvB| GZ`wel‡q mswk−ó wRAviI †gvt Rvnv½xi Avjg Gi GKwU cÖwZ‡e`b cieZx© Kvh©µg MÖn‡Yi Rb¨ GZ`ms‡½ †cÖiY Kiv nBj|

mshy³t 01(GK) cvZv|

(‡gvt gwbi †nv‡mb)

wewc-7399010055

Dc-cywjk Kwgkbvi (PjwZ `vwqZ¡) Aciva Z_¨ I cÖwmwKDkb wefvM

XvKv †g‡U«vcwjUb cywjk, XvKv| ‡dvb-7116188 d¨v·-7114470

eivei,

Dc-cywjk Kwgkbv‡ii Kvh©vjq

Aciva Z_¨ I cÖwmwKDkb wefvM

XvKv †g‡U«vcwjUb cywjk, XvKv|          welqt gvgjvi GRvnvi Kwc mievin KiY cÖm‡½|

myÎt †gvnv¤§`cyi _vbv gvgjv bs-8 ZvwiL-04/06/76 wLªt|

webxZ wb‡e`b GB †h, Avwg 1976 mv‡ji wRAvi †iwRóvi ch©v‡jvPbv Kwiqv †`wL‡Z cvB ‡h, myÎ ewY©Z gvgjvi GRvnvi weÁ Av`vjZ/wRAvi kvLvq M„nxZ nq bvB| wRAvi kvLvq ewY©Z gvgjvi mswk−ó wRAvi †iwRóv‡i FIR

Not Received, See ML GR-81/76 wjLv Av‡Q| Z‡e FIR Not Received K_vwU GKwU Uvb w`qv KvUv Av‡Q| Avwg wRAvi kvLvq eû †LuvRvLyuwR KwiqvI ewY©Z gvgjvi GRvnvi ev †Kvb †iKW© cÎvw`i mÜvb Kwi‡Z cvwi bvB| GB wel‡q †Kn Avgv‡K †Kvb Z_¨ cÖ`vb Kwi‡Z cv‡i bvB| d‡j

my‡Î ewY©Z gvgjvi GRvnvi Kwc cÖ`vb Kiv m¤¢e nB‡Z‡Q bv|

Bnv Avcbvi m`q AeMwZi Rb¨ †cÖiY Kwijvg|

wRAviI

wmGgGg Av`vjZ, XvKv| The respondents forwarded to our office another

document, authored by one Jahura Begum, a Senior Assistant Secretary at the Ministry of Defence, Government of the People’s Republic of Bangladesh, dated 6.12.2010, the contents

of which, reproduced undistorted, reads as follows;

MYcÖRvZš¿x evsjv‡`k miKvi

cÖwZi¶v gš¿Yvjq

MYfeb Kg‡c−·

‡k‡ievsjv bMi, XvKv|

bs cÖg/ixU-193/2010/wW-21/186  ZvwiLt 22 AMÖnvqY 1417/ 6 wW‡m¤¦i 2010|

welqt gnvgvb¨ mycÖxg †Kv‡U©i nvB‡KvU© wefv‡Mi `v‡qiK…Z ixU wcwUkb gvgjv bs 7236 cÖms‡M|

m~Ît (K) 4009/1/GGÛGj-1/1310, ZvwiLt 02 wW‡m¤¦i 2010|

(L) ¯^vt gt (AvBb-1)/ixU-279/2010/6078, ZvwiLt 14 b‡f¤¦i

2010|

Dchy©³ welq I m~‡Îv³ c‡Îi Av‡jv‡K Rvbv‡bv hv‡”Q ‡h, †jt K‡Y©j

Gg, G, Zv‡ni exi DËg-†K g„Zy¨`Û cÖ`vbKvix mvgwiK U«vBey¨bv‡ji iv‡qi Av‡`k/WKz‡g›Um AbymÜvbc~e©K GZ`msµvš— djvdj †mbvm`i †RGwR wefvM-†K G msµvš— Z_¨vw` †cÖi‡Yi Rb¨ Aby‡iva Kiv nq| †mbvm`i Rvwb‡q‡Qb ‡jt K‡Y©j Gg,G, Zv‡ni exi DËg-†K w` †¯úkvj gvk©vj j U«vBey¨bvj †i¸‡jkb 1976 e‡j MwVZ †¯úkvj gvk©vj j U«vBey¨bv‡j wePv‡ii gva¨‡g g„Zy`Û cÖ`vb Kiv n‡qwQj| wZwb wePv‡ii A‡bK c~‡e©B 6 A‡±vei 1972 Zvwi‡L Gj,wc, Avi, G MgY K‡ib Ges 6 RyjvB 1973 Zvwi‡L †mbvevwnbx †_‡K Aemi MÖnb K‡ib| †h Kvi‡Y †jt K‡Y©j Gg, G, Zv‡ni exi DËg-Gi wePvi †¯úkvj gvk©vj j U«vBey¨bv‡ji gva¨‡g m¤úbœ Kiv nq| †KvU©gvk©vj-Gi gva¨‡g nqwb| †m‡nZy D³ wePvi m¤úwK©Z †Kvb bw_cÎ A_ev

iv‡qi Av‡`k †mbvm`‡i gIRy` †bB|

2| ‡mbvm`i †_‡K cÖvß D³ c‡Îi d‡UvKwc m`q AeMwZ I c‡ ÖqvRbxq Kvh©µg MÖn‡Yi Rb¨ GZ`ms‡M wb‡`©kµ‡g †cÖiY Kiv n‡jv| mshy³t eY©bv †gvZv‡eK-GK cvZv|

(‡Rvniv †eMg) wmwbqi mnKvix mwPe ‡dvbt 9112396

mwjwmUi DBs

AvBb, wePvi I msm` welqK gš¿Yvjq GUbx© †Rbv‡ij I mwjwmUi Kvh©vjq feb, evsjv‡`k mycÖxg‡KvU© feb, XvKv|

Abywjwc m`q ÁvZv‡_© I Kvh©v‡_© (†R¨ôZvi wfwˇZ bq)t

1| mwPe, ¯^ivó« gš¿Yvjq (`„t Avt †gvnv¤§` Avey mvC` †gvj−v, mnKvix

mwPe), evsjv‡`k mwPevjq, XvKv|

2| mwPe, AvBb, wePvi I msm` welqK gš¿Yvjq, evsjv‡`k mwPevjq,

XvKv|

3| ‡iwRó«vi, evsjv‡`k mycÖxg †KvU©, nvB‡KvU© wefvM, XvKv|

4|  Rbve AvjZvd †nv‡mb, †WcywU GUbx© †Rbv‡ij, GUbx© †Rbv‡ij I

mwjwmUi Kvh©vjq feb evsjv‡`k mycÖxg †KvU© cÖv½Y, XvKv|

Another document, dated 2nd November 2010, which emanated from one Major Asif Iqbal, placed at the Armed Forces Division of the Prime Minister’s Office, also revealed that no document pertaining to the so-called trial could be discovered.

Everything stated in all of the documents referred to above, are scripted herein under in original form;

Ri“ix

MYcÖRvZš¿x evsjv‡`k miKvi cÖavbgš¿xi Kvh©vjq

mk¯¿ evwnbx wefvM cÖkvmb I e¨e¯’vcbv cwi`ßi XvKv †mbvwbevm ‡Uwj‡dvbt 8713297 mvgwiK 4388

B-†gBjt admin dte@afd.gov.bd

18 AMÖnvqY 1417 40009/1/GGÛGj-1/1310  02 b‡f¤¦i 2010|

gnvgvb¨ mycÖxg †Kv‡U©i nvB‡KvU© wefv‡Mi `v‡qiK…Z ixU wcwUkb bs 7236/2010 cÖÖms‡M|

eivZ

m~Ît (K) ¯^vivó« gš¿Yvjq, AvBb kvLv-1 cÎ bs ¯^vt gt (AvBb-1)/ixU- 79/2010/6078, ZvwiLt 14 b‡f¤¦i 2010 (mKj‡K bq)|

(L) ‡mbvm`i, †RGwR wefvM, XvKv †mbvwbevm cÎ bs 5525/2 (wW-

68)†RGwR ZvwiL 25 b‡f¤¦i 2010 (mKj‡K bq)|

1| †jt K‡Y©j (Aet) †gvnv¤§` Avey Zv‡ni exi DËgÕ†K ÔÔ w` †¯úkvj gvk©vj j U«vBey¨bvj †i¸‡jkb, 1976ÕÕ e‡j MwVZ †¯úkvj gvk©vj j U«vBey¨bv‡j wePv‡ii gva¨‡g g„Zy`Û cÖ`vb Kiv n‡qwQj| D‡j−L¨, D³ wePv‡ii A‡bK c~‡e©B A_v©r 06 A‡±vei 1972 Zvwi‡L wZwb Gj,wc, Avi, G MgY K‡ib Ges 6 RyjvB 1973 Zvwi‡L †mbvevwnbx n‡Z Aemi MÖnb K‡ib| †h Kvi‡Y †jt K‡Y©j (Aet) †gvnv¤§` Avey Zv‡ni, exi DËg-Gi wePvi †¯úkvj gvk©vj j U«vBey¨bv‡ji gva¨‡g m¤úbœ Kiv nq, †KvU©gvk©vj-Gi gva¨‡g Kiv nqwb| †m‡nZy D³ wePvi m¤úwK©Z †Kvb bw_cÎ A_ev iv‡qi Av‡`k †mbvm`‡i gIRy` †bB|

2| Avcbv‡`i AeMwZ I cieZx© Kvh©µ†gi Rb¨ †cÖiY Kiv n‡jv|

(‡gvt Avwmd BKevj) ‡gRi

c‡¶ fvicÖvß wcGmI

weZiYt ewnM©gbt Kvh©µgt

mwPe

¯^ivó« gš¿Yvjq 

evsjv‡`k mwPevjq, XvKv

(`„wó AvK©lYt †gvnv¤§` Avey mvC` †gvj−v

 mnKvix mwPe

mwPe

cÖwZi¶v gš¿Yvjq

MYfeb Kg‡c−·

‡k‡ievsjv bMi, XvKv

There are several other letters which formed part of the

documents transmitted to our Registrar, text of all of which are recorded below.

MYcÖRvZš¿x evsjv‡`k miKvi

cÖwZi¶v gš¿Yvjq

MYfeb Kg‡c−·

‡k‡ievsjv bMi, XvKv|

bs cÖg/ixU-193/2010/wW-21/186  ZvwiLt 18 AMÖnvqY 1417/ 2 wW‡m¤¦i 2010|

welqt ixU wcwUkb gvgjv bs 7236/2010 Gi `dvIqvix Reve †cÖiY|

Dchy©³ wel‡q wb‡`©kµ‡g Rvbv‡bv hv‡”Q †h, ixU wcwUkb gvgjv bs 7236/2010-Gi wel‡q wbæwjwLZ Kvh©µg MÖnb Kiv n‡q‡Q:

(K)          gvgjvwU miKvi c‡¶ cÖwZØw›`¡Zv Kivi Rb¨ GKRb Dchy³ weÁ

AvBbRxex wb‡qvM`v‡bi Rb¨ mwjwmUi, mwjwmUi DBs (ixU)-†K Aby‡iva Kiv n‡q‡Q (Kwc mshy³)|

(L)           D³ gvgjvi `dvIqix Reve Ri“wi wfwˇZ †cÖi‡Yi Rb¨

†mbvm`i †RGwR wefvM-†K Aby‡iva Kiv n‡q‡Q Ges Gi Abywjwc Áv‡Z‡_© I

Kvh©v‡_© mwPe, ¯^vivó« gš¿Yvjq; mwPe, AvBb, wePvi I msm` welqK gš¿Yvjq,

Ges mwjwmUi, mwjwmUi DBs (ixU) eivei †cÖiY Kiv n‡q‡Q (Kwc mshy³)

(M)           ‡mbvm`i †RGwR wefvM †_‡K cÖvß D³ ixU wcwUkb gvgjvi

AvwR©i `dvIqvix Reve I †jt K‡Y©j Gg,G, Zv‡ni exi DËg (g„Z)-Gi PvKzwiKvjxb cÖ‡qvRbxq bw_c‡Îi d‡UvKwc mwjwmUi, mwjwmUi DBs (ixU)

eivei †cÖiY Kiv n‡q‡Q (Kwc mshy³)

(N)  †jt K‡Y©j Gg,G, Zv‡ni exi DËg-†K g„Zy¨`Û cÖ`vbKvix mvgwiK

U«vBey¨bvj iv‡qi Av‡`k/WKz‡g›Um AbymÜvbc~e©K GZ`msµvš— djvdj AewnZ

Kivi Rb¨ ¯^ivó« gš¿Yvjq Aby‡iva Ki‡j †mbvm`i †RGwR wefvM-†K G msµvš— Z_¨vw` †cÖi‡Yi Rb¨ wb‡`©kbv cÖ`vb Kiv nq (Kwc mshy³)|

2| D‡j−L¨ †h, mvgwiK U«vBey¨bv‡ji iv‡qi wel‡q mk¯¿ evwnbx wefvM mswk−ó weavq GZ`msµvš— mKj KvMRcÎ †mbvm`i †_‡K msMÖn K‡i mwjwmUi DBs-

G ‡cÖiY Kiv n‡q‡Q|

(‡Rvniv †eMg) wmwbqi mnKvix mwPe ‡dvbt 9112396

Rbve AvjZvd †nv‡mb

†WcywU GUbx© †Rbv‡ij

GUbx© †Rbv‡ij I mwjwmUi Kvh©vjq feb, evsjv‡`k mycÖxg †KvU© cÖv½Y, XvKv| Abywjwc:

‡iwRó«vi

evsjv‡`k mycÖxg †KvU©, XvKv|

MYcÖRvZš¿x evsjv‡`k miKvi

cÖwZi¶v gš¿Yvjq

MYfeb Kg‡c−·

‡k‡ievsjv bMi, XvKv|

bs cÖg/ixU-193/2010/wW-21/138  ZvwiLt 29- 9-2010|

welqt ixU wcwUkb gvgjv bs 7236/10 weÁ AvBbRxwe wb‡qvM|

Dchy©³ wel‡q wb‡`©kµ‡g Rvbv‡bv hv‡”Q †h, Gg, Av‡bvqvi †nv‡mb, wcZv g„Z Rbve gwnDwÏb Avn‡g` cÖ‡dmi wWcvU©‡g›U Ae ev‡qv‡Kwgó«x Ges gwjKzjvi ev‡qvjwR XvKv wek¦we`¨vjq KZ„K ixU wcwUkb gvgjv bs 7236/10 Avbvqb Kiv n‡q‡Q| wZwb Av‡e`‡b D‡j−L K‡i‡Qb †h, 1976 mv‡i †jt K‡Y©j Avey Zv‡ni‡K †K›`ªxq KvivMv‡i duvwmi gva¨‡g g„Z¨eiY Kiv n‡qwQj| D³ duvwmi wei“‡× ms¶y× n‡q wZwb mwPe AvBb, wePvi I msm` lqK gš¿Yvjq‡K 1bs, mwPe cÖwZi¶v gš¿Yvjq‡K 4bs mn †gvU 7 Rb‡K cÖwZc¶

K‡i mywcÖg‡Kv‡U©i nvB‡KvU© wefv‡M GKwU ixU wcwUkb gvgjv `v‡qi K‡i‡Qb| 2| D³ gvgjvwU miKvi c‡¶ cÖwZØwÜZv Kivi Rb¨ GKRb Dchy³ weÁ AvBbRxwe wb‡qvM `v‡bi Rb¨ Aby‡iva Kiv n‡jv|

(‡Rvniv †eMg) wmwbqi mnKvix mwPe ‡dvbt 9112396

mwjwmUi

mwjwmUi DBs (ixU)

AvBb, wePvi I msm` welqK gš¿Yvjq, GUbx© †Rbv‡ij I mwjwmUi Gi Kvh©vjq, XvKv|

Abywjwct

‡mbvm`i †R G wR wefvM XvKv †mbvwbevm

XvKv|

AÎ mv_ nvB‡KvU© wefv‡Mi KvMRcÎ †cÖiY Kiv n‡jv| D³ ixU gvgjvi AvwR©i Aby‡”Q`Iqvix Reve 2 cª¯’ cÖ¯ Z— c~e©K Ri“wi wfwˇZ G gš¿Yvj‡q †cÖiYc~e©K gvgjvi cÖ‡qvRbxq Kvh©µg MªnY Kivi Rb¨ Aby‡iva Kiv n‡jv|

MYcÖRvZš¿x evsjv‡`k miKvi

cÖwZi¶v gš¿Yvjq

MYfeb Kg‡c−·, XvKv|

bs cÖg/ixU-193/10/wW-21/147 ZvwiLt 13.10. 2010 Bs|

welqt gnvgvb¨ mycÖxg †Kv‡U©i nvB‡KvU© wefv‡M `v‡qiK…Z ixU cwUkb bs 7236/2010 I gnvgvb¨ nvB‡KvU© KZ„©K cÖ`Ë Av‡`‡ki Av‡jv‡K Kvh©µg MÖnY|

m~Ît (K)m¥viK b¤¦i-¯^:g: (AvBb-1)ixU-279/2010/5500,03 10/2010

(L) m¥viK b¤¦i-¯^: g: (AvBb-1) ixU-

279/2010/5501,03/10/2010

(M) cÖg/ixU-193/2010/wW-21/138, Zvs 29/01/2010

Dc‡iv³ welq I m~‡Îv³ m¥vi‡Ki d‡UvKwU I mswk−ó KvMRcÎ GZ`ms‡M †cÖiY Kiv n‡jv |gnvgvb¨ mycÖxg †Kv‡U©i nvB‡KvU© wefv‡M ` ‡qiK…Z ixU wcwUkb bs 7236/2010 I gnvgvb¨ nvB‡KvU© KZ„©K cÖ`Ë Av‡`‡ki Av‡jv‡K Kvh©µg MÖn‡Yi wbwg‡Ë ixU wcwUkb bs 7236/2010 Gi `dvIqvix Reve Ri“wi wfwˇZ gš¿Yvj‡q †cÖi‡Yi e¨e¯’v MÖn‡bi Rb¨ cyibvq wb‡`©kµ‡g Aby‡iva Kiv n‡jv|

mshy³t eY©bv †gvZv‡eK|

(‡Rvniv †eMg) wmwbqi mnKvix mwPe ‡dvbt 9112396

‡mbvm`i 

†R G wR wefvM

XvKv †mbvwbevm

Abywjwc m`q ÁvZv‡_© I Kvh©v‡_© t

1| mwPe, ¯^ivó« gš¿Yvjq evsjv‡`k mwPevjq XvKv|

2| mwPe, AvBb wePvi I msm` welqK gš¿Yvjq evsjv‡`k mwPevjq XvKv| 3| mwjwmUi, mwjwmUi DBs (ixU), AvBb wePvi I msm` welqK gš¿Yvjq, XvKv|

AwZe Ri“ix GKB Zvwi‡Li GKB b¤¦i c‡Îi cÖwZ¯’vcK

MYcÖRvZš¿x evsjv‡`k miKvi cÖwZi¶v gš¿Yvjq

MYfeb Kg‡c−·

‡k‡i evsjvbMi, XvKv|

bs cÖg/ixU-193/wW-21/179 ZvwiLt 01.12. 2010 Bs|

welqt gnvgvb¨ mycÖxg †Kv‡U©i nvB‡KvU© wefv‡M `v‡qiK…Z ixU cwUkb bs 7236/cÖms‡M|

Dchy©³ wel‡h ¯^vivó« gš¿Yvjq m¥viK bs ¯^tgt (AvBb-1)/ixU- 279/2010/6078 ZvwiLt 14-10-2010 Bs Gi Qvqvwjwc msjMœxmn GZ`ms‡M †cÖiY Kiv n‡jv|

2| ewY©Z Ae¯’vq, ¯^ivó« gš¿Yvj‡qi Dc‡iv³ c‡Îi Pvwn`v Abyhvqx †jt K‡Y©j Zv‡ni exi DËg‡K g„Zy¨`Û cÖ`vbKvix mvgwiK U«vBey¨bv‡ji iv‡qi Av‡`k/WKz‡g›Um AbymÜvb c~e©K

GZ`msµvš— djvdj G gš¿Yvjq‡K Ri“wi wfwˇZ AewnZ Kivi Rb¨ wb‡`©kµ‡g Aby‡iva Kiv n‡jv|

(‡Rvniv †eMg) wmwbqi mnKvix mwPe ‡dvbt 9112396

‡mbvm`i 

†R G wR wefvM

XvKv †mbvwbevm Abywjwc t-

¯^ivó« gš¿Yvjq

AvBb kvLv-1

evsjv‡`k mwPevjq, XvKv|

mxwgZ

‡mbvm`i 

†R G wR wefvM

XvKv †mbvwbevm Zvivjvcbxt 8750011 ewa©Z 2938

17 KvwZ©K 1417 5525/2/(wW-68)/†RGwR   01 b‡f¤¦i 2010|

ixU wcwUkb bs- 7236/2010 Gi `dvIqvix Reve †cÖiY cÖÖms‡M|

eivZt

K| cÖwZi¶v gš¿Yvj‡qi cÎ bs cÖg/ixU-193/2010/wW-21/138 ZvwiLt 29 †m‡Þ¤¦i 2010 (mKj‡K b‡n)|

1| eivZ c‡Îi cÖwZ m`q `„wó AvKl©Y c~e©K XvKv wek¦we`¨vj‡qi cÖ‡dmi Rbve Gg Av‡bvqvi †nv‡mb KZ„©K `v‡hiK„Z wel‡qv³ wiU wcwUk‡bi 4bs cÖwZev`xi c‡¶ Bs‡iwRx‡Z `yB cÖ¯’ ceve I †jt K‡Y©j Gg G Zv‡ni, exi DËg (g„Z) Gi PvKzixKvjxb mg‡qi cÖ‡qvRbxq d‡UvKwc Avcbv‡`i cieZx© Kvh©µ‡gi Rb¨ GZ`ms‡M †cÖiY Kiv n‡jv|

2| Bnv Avcbv‡`i AeMwZ I cieZx© Kvh©µ†gi Rb¨ †cÖiY Kiv n‡jv|

(‡gvt gy¯ v— wKb I‡q`y`) ‡gRi

c‡¶ fvicÖvß ‡R G wR mshy³t

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In the backdrop of the dismaying messages on the traceability of trial records as depicted above, we reckoned that people who were, at the time under scrutiny, placed as the relevant government functionaries, should be directed to disclose, through affidavits, whatever information they are possessed of.

Before that, however, we asked ourselves about the permissibility of taking evidence in a judicial review matter and, on perusal of some authorities and instruments came up with the following finding;

“A proceeding of the kind we are adjudicating upon is a civil proceeding and hence, although provisions of the Code of

Civil Procedure should generally apply, a proceeding, whereby judicial review of administration or legislative action is craved, is a proceeding of extra-ordinary nature. Unlike other civil proceedings the fate of the petition in a judicial review case is determined by reference to indisputable facts as are narrated in the affidavit, where evidence on facts, as a matter of general norm, can not be taken. The proceeding is of summary nature and factual questions are to remain beyond controversy. This view, however, does not reflect a rule of thumb, and there are cases, very sparing though, where the Courts can, if the interest of justice so warrant, take evidence, and can ask a deponent to proceed with verbal elaboration and that is consistent with the High Court Rules which provide; “all questions arising for determination of such petition shall be decided upon affidavits. But the Court may direct that such questions, as it may consider necessary, be decided on such other evidence and in such manner as it may deem fit and in that case it may follow such procedure and make such Orders as may appear to it to be Just” (Rule 11).

Hence it is envisaged by the Rules that the Court may, in the interest of Justice, take oral evidence at its discretion.

The Indian Supreme Court in ITO-V-M/S Seth Brothers (AIR 1970 SC 292) ordained that it is within the competence of the High Court to take or call for appropriate evidence at any stage of the proceeding when such a course appears to the Court to be essential for a just decision of the case and the exercise of such power is certainly called for where the Court feels that such a move is necessary for the protection of the Court against any farud and deception attempted to be practiced upon it.

In Smt. Guwant Kaur and others-V-Municipal Committee, Bhathnda and others (1969(3) SCC 769), the Indian Supreme Court expressed, “The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioners’ right to relief questions of fact may fall to be determined. In a petition under Article 226, the High Court has jurisdiction to try issues both of facts and law. Exercise of the Jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound Judicial principles. When the petition raises questions of fact of complex nature, which may, for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a

writ petition, the High Court may decline to try a petition. Rejection of a petition in  limine will normally be justified, where the Hgih Court is of the view that the petition is frivolous as because of the nature of the claim made, dispute sought to be agitated or that the petition against the party against whom relief is claimed, is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the Writ Jurisdiction, or for analogous reasons.”

In Century Spg. And Mfg.Co Ltd-V- Ulhas-nagar Municipal Council (1970 I SCC 582), the Supreme Court of India observed “merely because a question of fact is raised, the High Court will not be justified in requiring the party to seek relief by the somewhat lengthy, dilatory and expensive process by a civil suit against a public body. The questions of facts raised by the petition are elementary”

In ABL International Ltd and Another–V-Export Credit Guarantee Corporation of India Ltd and Others (2004 3 SCC 553), the Indian Apex Court came up with a clear finding that in an appropriate case the Writ Court has the Jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same involves some disputed questions of fact.

In mofsin Sharif-V- Bangladesh 27 DLR 186, it was held that the Court may allow one party to cross examine the other with a view to ascertain the veracity of the deponents sworn statement In APSRT Corp.-v-Satya Narayan (AIR 1965 SC 1303), the top Court of India expressed the view that to ascertain the truth from conflicting stories figured in two countervailing affidavits, cross examination of the deponents may be desirable.

The factual matrix that the petitions before us invite are to be decided on the anvil of the above cited authorities, because it can be said with all certitude that this is one of the most apposite cases where we ought to exercise our discretion to take evidence given that no document pertaining to crucial fact on the trial under review could be  located, and the petitions can, by no means, be termed, vexatious.

Mostafa Kamal J stated “Writ Petitions are generally disposed of on affidavits and on facts admitted or accepted by opposing contenders” (Page 143, Bangladesh Constitution: Trends and Issue). What we deduce from the above quoted observation is that facts narrated through affidavit and facts admitted or accepted by adversaries can be taken account of in judicial review proceedings. In the petitions before us

statements made by the deponents are (a) in the form of affidavits and (b) they have either been admitted or at least been accepted as true by all the parties. In other words no dispute had been raised as to their authenticity and as such, no question of determination of the veracity of those statement through examination and cross examination, cropped up.

As Mr. Rokanuddin Mahmud rightly opined oral statement made by some deponents at our instance, were in elaboration of their affidavit statement, not by opening any new window of evidence.

Having so concluded, we admitted affidavit statement, coupled with explanation and elaboration, from Dr Shaukat Ali, who was employed as the Deputy Commissioner Dhaka at the time in question and, who eventually retired as a Secretary to the Government, Mr. Maqbul Hussain, who acted as the Sub- Divisional Officer and Magistrate of Dhaka Sadar (South) and retired as an Additional Secretary, Mohammad Abdul Ali, who was positioned as a first class Magistrate Dhaka Sadar (south) and retired as a Joint Secretary, who was indeed a member of the so-called special tribunal, Khandakar Fazlur Rahman, who, was a Magistrate too in Dhaka at the pointed time and then ended up as the Secretary at the National Parliament, and who,

in his capacity as a Magistrate, witnessed the event of execution of Lt. Col. Taher, Bir Uttam, in Dhaka Central Jail as they came forward to enlighten us with such information as we desperately needed on the event. Major General Nurul Islam transmitted his affidavit only, from the United States attributing frail state of health for his inability to appear. All save the last one, made themselves available before us with affidavits, portraying the facts they are familiar with. We had been given to believe that Mr. Lawrence Lifschultz, who, as an internationally approbated journalist of a prestigious global magazine named Far Eastern Economic Review, may also prove to be a veritable mine of information and, hence, we asked him as well to emerge with his versions, and he complied. They all furnished such mega scopic information, which are

truly indispensable.

Prized information also emanated from all of the Petitioners who, as accused persons in the same purported proceeding had first hand knowledge on the sequence of events under scanning. Averments placed by them have already been figured above.

All these deponents were present in the Court and

provided elaboration and clarification on their sworn statement as and when we asked for.

Mr. Lawrence Lifschultz, whose name and identity have already been scripted above, sprang up as the singularly most important fountain of such tiding.

Following the receipt of the Petitioner No. 1s’ supplementary affidavit, Mr. M.K Rahman, the learned Additional Attorney General, gave us to believe that it may be possible on Mr. Lifschultzs’ part to appear before us in person if that be our desire, to proffer comments and elaboration on his affidavit: he can shortly fly. Having perused the articles, Mr. Lifschultz had authored on the bout, we felt that he may turn up to be a treasure trove of inestimable information and hence, we reckoned that the interest of justice may be impregnated with spectacular wealth if we can take elaboration from Mr. Lifschultz on his sworn statement.

After some uncertainties, Mr. Lifschultz eventually found it possible to make his odyssey to Dhaka, having received our direction, which we channeled through the Secretary at the Ministry of Foreign Affairs, Government of the Peoples Republic of Bangladesh. The Secretary, Mr. Mizarul Qayes and his colleagues as well as Mr. M.K. Rahman, the Additional Attorney General, are owed a lot in acting with a commendable

degree of promptitude, demonstrating their deep sense of commitment.

Before his arrival, however, Mr. Lifschultz filed a couple of affidavits, one of which was sworn in the United States and had been duly authenticated by our Mission in that Country, as he is an American citizen and is ordinarily resident in that part of the world.

Averments Mr. Lifschultz figured in his affidavits are recorded below, verbatim;

1. My name is Lawrence Lifschultz. I am an American citizen and a writer by profession. I am resident of Stony Creek, Connecticut in the United States.
2. On January 21,2011 I was contacted by email by

M. K. Rahman, the Additional Attorney General of Bangladesh and informed that the Supreme Court had made a request that I appear before it by January 26, 2011 in order to share with the Court “necessary information as to the so-called trial and conviction of Colonel Abu Taher by a Special Military Tribunal in 1976.”

3. This is a request I had hoped to receive for more than 30 years. I would consider it one of the great honors of my life to stand in Justice Shamsuddin’s and Justice Hossain’s court room in Dhaka. In my view a tragic crime was committed in Dhaka during June and July 1976. I was one of the few witnesses to what happened in this case. On June 28, 1976 I stood in front of Dhaka Central Jail. It was the day the “so-called trial” of Abu Taher and his Colleagues began in secret hidden, behind the walls of a prison. When I arrived that morning, the security around the prison appeared as if the Army was preparing for a war. Machine gun nests were set up all along the prison walls with their guns pointing outwards. What were these guns defending? Secrecy? Who were they prepared to shoot? Why was a trail taking place in a prison instead of in Court?
4. As one of the only independent witnesses at the prison that day, I believe it is my responsibility to describe what I saw and why I believe these

events transpired as they did. In a letter to Justices Shamsuddin and Hossain I explained it was impossible for me to travel to Dhaka at this moment. My son was recently in a serious accident. He was badly injured. He is in the process of recovery and has passed a critical point in a three month process of recuperation. My presence is required for at least another month. Furthermore, another matter has also made it impossible for me to travel to Dhaka until the end of February. Thus, not wishing to delay the proceedings of the Supreme Court in this matter, I am submitting an affidavit.

5. In 1976 I was South Asia Correspondent of the Far Eastern Economic Review (Hong Kong). I had been based in New Delhi. Two years earlier I lived in Dhaka, where I was the Bangladesh Correspondent of the Review. Thus, I knew many of turmoil and conflict then roiling Bangladesh society.
6. In June of 1976 I arrived in Dhaka from Katmandhu. Abu Taher had been arrested

following the November 7th Uprising. As South Asia Correspondent of the Review, I reported on the tragic events of august 1975 when Sheik Mujib was murdered. I also returned to Dhaka following the insurrection and Sepoy Mutiny of November 7th. This is not the place to review these events. I have written elsewhere in detail about these matters.

7. In my view the critical issue which faces the Supreme Court is whether Abu Taher’s constitutional and human rights were fundamentally violated, by a military regime that had no democratic or constitutional legitimacy. On what legal basis was “Special Military Tribunal No. 1” constituted? Were those facing trial before this Tribunal given adequate time to prepare their defense? Or, in fact were they denied access to legal representation until only a few days before the proceedings began? What standing did this Tribunal have constitutionally or morally to pass a death sentence? Would it be accurate to describe the Tribunal headed by

Colonel Yusuf Haider as simply a kangaroo court which implemented a sentence pre-determined? These are the questions that need to be addressed and answered. Furthermore, those need to be answered within the framework of rights defined and ostensibly guaranteed to all the citizens of Bangladesh by the country’s Constitution.

8. I wish to place before the Court an important point of evidence that I believe may assist in answering these questions. When I arrived in Dhaka in early June 1976, I contacted General Mhd. Manzur. I indicated that I was in Bangladesh. At the time Manzur was Chief of General Staff. I had previously met General Manzur in New Delhi in the summer of 1974 when he was Bangladesh’s military attaché in India. At that time I was curious to speak with him about his experiences in the Liberation War and his escape as a junior officer from Pakistan following the Pakistan army’s violent crackdown in Dhaka on March 25, 1971. 

9. Manzur, together with Abu Taher and Mohammed Ziauddin, bravely crossed the border into India administered Kashmir in order to join the Liberation War. Within weeks all three would become sector commanders. Taher, who I had already met in Dhaka, suggested that summer of 1974 I meet Manzur in New Delhi on my way back to the United States. I was in the process of moving to New Delhi to become the Review’s South Asia Correspondent. The day I met Manzur, the two of us spent most of a long afternoon talking about history.
10. Thus, two years later in June 1976, when I called and told him I was in Dhaka he was pleased to hear I was in town. However, I was soon to discover he had a great deal on his mind. He told me that he would send someone to meet me in order to make arrangements for us to get together. He insisted that we meet late at night at his headquarters in the Cantonment. I arrived about nine in the evening. I stayed for nearly three hours.

11. During the evening, General Manzur focused most of all on speaking to me about Taher who by then had been in prison for more than six months. He told me Taher had been kept mostly in solitary confinement. He asked me about my travel plans. I told him I was expected in the United States by the end of June. He urged me not to leave. He feared that Zia would go through with plans to put Taher on trial. Manzur and other officers who participated in the Liberation War were trying to dissuade Zia but in early June Manzur was uncertain he could stop the trial proceeding. He spoke of repatriated forces that had not participated or supported the independence movement as having a growing influence in the Army. He again emphasised to me that I should stay in Dhaka. He said if there was a trial someone should report on it in the international press. I could see he was worried. I changed my travel plans and stayed.
12. I did not see General Manzur again that June. Tension was mounting in Dhaka. I attempted to

interview General Zia. His staff asked me to write out a list of questions. They covered many issues such as the Farraka Barrage which at the time was emerging as a crisis between India and Bangladesh. But, the list also included several questions concerning the November 7th Uprising and Abu Taher’s arrest. I asked Zia, among other matters, to confirm that Taher and forces under his command had saved Zia’s life that evening. If that were the case, why had he arrested Taher and freed those who had, in fact, detained him. I was not granted an interview by Zia. This was not surprising. The General had other plans and they did not include being asked troubling questions.

13. I was arrested and deported in the midst of

Taher’s trial. On the 30th Anniversary of Taher’s execution I spoke at a memorial gathering at Dhaka University in which I described how an effort was made to impose complete and total censorship of the trial. (See “The Trial of Colonel Abu Taher” by Lawrence Lifschultz, The Daily Star, July 24, 1976. See also “The Taher I Knew”

by Lawrence Lifschultz, The Daily Star, July 23, 1976. Both articles are attached as exhibits to this affidavit.)

14. The reason I have brought up my meeting in early June 1976 with General Manzur is because of what happened later. The night I met Manzur at the Cantonment he clearly feared that Zia would go ahead with Taher’s trial but he did not say that he feared this would end with Taher’s execution. I don’t think at that stage such a thing was quite imaginable. However, several months after the trial Manzur sent me a message through an intermediary. I was then living in Cambridge, England. Manzur’s emissary told me that Manzur wanted me to know that he had tried to stop the trial but clearly had been powerless to do so even though he ranked third in the Army’s High Command. His opposition to Taher’s trial had made him a marked man inside the Army among those who wanted Taher dead. Although many of us had suspected it, Manzur’s representative told me that General Manzur also wanted me to know

one thing above all else: Manzur knew with absolute certainty that Zia had personally taken the decision before the “so-called trial” even began that Taher would be hanged. Subsequently, this fact was also confirmed to me by two high ranking military officers who were close to Zia at that time.

15. What are the implications of such a fact within the framework of the judicial review taking place today by the Supreme Court? Can what happened in Dhaka Central Jail in July 1976 even be termed a trial? If the death sentence was determined prior to the Tribunal convening, then was the Tribunal in reality simply a mechanism used by extra-judicial forces to stage an execution. If this is the case, then Special Tribunal No. 1 which sat only once, and was never convened again, should be named for what it truly was. In reality it was an illegal entity established to commit murder and to imprison men and women who were denied their constitutional rights. Hopefully, the Bangladesh Supreme Court will today, in an

atmosphere largely free of the fear, threat and coercion that so pervaded the past, find its way to overturning a verdict of a Tribunal which in every respect was a negation of the principles underlying Bangladesh’s Constitution and the rights guaranteed to its citizens by law.

16. I believe independent of the fact that the verdict was pre-determined before the Tribunal convened there are ample grounds to overturn Taher’s so-called conviction and to vacate the verdict. Taher’s execution ought to be called not only a miscarriage of justice but “a crime committed by the state”. Such a crime ought to be remedied by an institution of the State that has power and capability to look back historically on crimes of the past. This has been done by several societies in modern times including Germany, Argentina, Chile and South Africa, to name only a few. One institution that has that capability is Bangladesh’s Supreme Court.
17. Those on trial were denied access to adequate legal representation. Their fundamental rights

under the Bangladesh constitution were violated. The trial was in secret before an illegal entity which had no foundation in law. The trial was held in a prison, not a Court of Law. The press was shackled so public anger at the injustice being carried out in camera would be contained. Journalists were threatened and deported. Imagine the public response. If Taher’s closing speech before the Tribunal had been published the day after he spoke?

18. Here, being tried in secret, was a Sector Commander of the Liberation War who lost his leg in a battle for his country’s independence and who was awarded the highest military distinction, Bir Uttam, for courage, shown by those who fought and survived the 1971 war. By what fiction could any Court maintain that Taher’s trial was lawful?
19. Five years ago, when I spoke at the Teacher- Student Center at Dhaka University, I made the following observation: “Thirty years have now passed. We are all aware of what happened.

Today marks the 30th anniversary of Taher’s execution. It is time in many view for a public act by the state and judicial authorities to publicly declare that Abu Taher was wrongfully tried and wrongfully executed. The verdict of July 17, 1976 should be vacated and a public acknowledgment should be made that Taher’s civil and legal rights were grossly violated by the government which put him on trial........Appropriate mechanisms to accomplish this task need to be found. Justice requires that the verdict be formally overturned and that there be an official acknowledgement that the entire so-called ‘trial of Abu Taher’ was a violation of proper legal procedure and represented a violation of the fundamental rights of the accused to due process.....My own view is that some future government [or Court] will act in a moral and ethical way on this issue. We must not rest until the verdict in the Taher case has been overturned. It is, my friends, a matter of justice.” (“The Trial of Abu Taher”, Keynote Address by Lawrence Lifschultz, Dhaka

University, The Daily Star, July 24, 1976. See also “Colonel Taher, Lifschultz & Our Collective Guilt” by Syed Badrul Ahsan, The Daily Star, July 26, 1976.)

20.                   Justice Shamsuddin and Justice Hossain, you have before you a great moral and legal challenge. Whatever you decide in this case will have historic significance. The Taher case in my view has important international implications. The petitioners in this case have been on a long journey. It is a journey that for so many men and women is painfully elusive. To find justice at the end of such a long road for an event that had shaken one’s life happens so rarely in human experience. I know each of the petitioners in this case. They deserve our profound respect and respect of the world. There is only one way to provide that respect to them. It is to provide them a sense that finally at the end of a journey of more than three decades, justice has been done. This is your task.
21.                   I submit this Affidavit to the Bangladesh Supreme Court by electronic mail through the

office of M. K. Rahman, the Additional Attorney General, who contacted me on behalf of the Supreme Court. Simultaneously, there follows by courier a notarized and authenticated copy of this affidavit and its attachments which will be forwarded to the Bangladesh Supreme Court by Shabbir Chowdhury, Consul General of Bangladesh in Now York City through the office of the Foreign Secretary in Dhaka. It is with great regret that I cannot be present before the Court in Dhaka to deliver my affidavit in person. It would have been a great honor which I would have treasured for the rest of my life.

The other affidavit by Mr. Lifschultz is also reproduced below, to the letters;

I, Lawrence Lifschultz, son of Sidney Lifschultz, a resident of Stony Creek, Connecticut, USA, 06405, Post Box No. 3056, presently on a visit to Bangladesh, staying at Ambrosia, House No. 17, Road No. 3, Dhanmondi R/A, Dhaka-1205, Bangladesh; aged about 61 (sixty one)

years, by profession a writer by Nationality-American, do hereby solemnly affirm and say as follows:

1. That the instant writ petition was filed challenging the constitutional validity of Martial Law Regulation No. XVI dated 14th June, 1976 providing for trial in camera [section 4(2)], prohibition of any appeal against decision or judgment and sentence of the Special Martial Law Tribunal [section 4(8)], provision of oath of secrecy of all participants in the proceedings of the Special Martial Law Tribunal [section 4(10)] and the pronouncements of guilt, and the sentence of death purportedly under section 121A of the Penal Code upon Lt. Col. (retd.) M. A. Taher Bir Uttam (the husband of the petitioner No. 2) and his execution on 21st July, 1976; and this Hon’ble Court issued Rule Nisi as prayed for.
2. That during hearing of the Rule Nisi this Hon’ble Court by Order dated 20/01/2011 directed the Foreign Secretary, Government of the People’s Republic of Bangladesh and Mr. M.K. Rahman, Additional Attorney General for Bangladesh to approach me with a request to appear before this court at my convenience by 26/01/2011 to intimate this Hon’ble Court with

necessary information as to the so called trial and conviction of Colonel Abu Taher by a Special Martial Law Tribunal in 1976, and it was also desired by this Court to communicate the Order to me through my e- mail address.

3. That accordingly the Foreign Secretary of the Government of the People’s Republic of Bangladesh contacted me through the Consulate General of Bangladesh, New York, about the Order of the Court and Mr. M. K. Rahman, Additional Attorney General for Bangladesh also communicated with me informing about the Order of the court through my e-mail address, and having received the afore-said communications I agreed to come to Dhaka with a view to stand before this Court to make an statement in connection with the tragic crime committed in Dhaka during June and July, 1976 which ended in the hanging of Colonel Abu Taher through a so called trial by a Special Martial Law Tribunal.
4. That this Hon’ble Court, I understand that, on the prayer of Mr. M. K. Rahman, the learned Additional Attorney General extended time for my appearance before this Hon’ble Court to enable me to make a statement as stated