Begum Khaleda Zia vs State (2019) 71 DLR

Present:

 Mr. Justice M. Enayetur Rahim And

 Mr. Justice Md. Mostafizur Rahman

Fact:

The Anti-Corruption Commission had filed the graft case with Ramna Police Station in July 2008, accusing Khaleda and five others of misappropriating over Tk 2.1 crore that had come from a foreign bank as grants for orphans.

According to the case documents, during her stint as PM between 1991 and 1996, Khaleda opened a bank account by the name “Prime Minister's Orphanage Trust”. Later, the Zia Orphanage Trust was set up by her two sons and a nephew in 1993.

A total of Tk 2,33,33,500 was given to the Zia Orphanage Trust from the “Prime Minister's Orphanage Trust” in November 1993, to establish an orphanage in Bogra. The money was deposited in a bank account of the Zia trust on November 15 of that year, and Tk 4 lakh was withdrawn from there. Of the amount, Tk 2.77 lakh was spent on buying 2.79 acres of land in Bogra's Gabtoli against the name of Zia Orphanage Trust.

In 13 years between 1993 and April 2006, there was no activity of the trust, and the amount deposited in the trust account grew to Tk 3.37 crore with accrued interest. Later, the money was transferred to the bank accounts of three other accused -- Salimul, Mominur, and Sharfuddin -- through different transactions, reads the first information report.

The accused misappropriated the money by transferring the amount from a public fund to a private one, it said. Upon the conclusion of the trial proceedings in the case, the special court in the capital's Bakshibazar on January 25 set February 8 for delivering the judgment.

 

Issues:

1. Whether the trust constituted in this way actually exist?

2. Whom and how did the head of state of Kuwait give the money, to private funds or to public funds, and was the 1991 fund an orphanage fund?

 

Decision:

As a result, the Appeals fail and are dismissed. The Rule is made absolute.

1. section 409 of the Penal Code prescribed punishment with imprisonment for life or with imprisonment for a term which may extend to ten years with a fine. In the instant case, since the learned Special Judge awarded a sentence to the other convicts for 10 years of rigorous imprisonment with a fine, we are of the view that it would be legal, proper and just to award the same sentence to Begum Zia.

                                                                                  

2. The learned court stated that Begum Zia had entrustment and dominion over the PM’s Orphanage Fund, a public fund, and a huge amount of money from the said fund was disposed of, used, and misappropriated dishonestly by Begum Zia with the active aid of other convicts. In the instant case, Begum Zia is the principal offender and other convicts actively aided and facilitated to commit such offence.

  

3. Begum Zia being the principal offender is guilty of committing an offense under section 409 of the Penal Code as well as section 5(2) of the Prevention of Corruption Act,1947. Begum Zia is to be sentenced only under section 409 of the Penal Code because of the provision of section 26 of the General Clauses Act.

 

Justification:              

1. It was the obligation of the principal accused Begum Zia to secure due and proper use of the fund obtained, for the welfare of orphans. But in the exercise of the highest office of the government, she allowed her sons, relatives, and party men to misdeal the fund with fraudulent intentions by creating a fake Trust. She being at the helm of power at the relevant time rather abused the chair of the premier of a country. It was a ruthless blow to the sanctity of state types of machinery as well. It derogated the image of the country to the global community. Abusing the highest chair of the government, Begum Zia was not expected to remain mute for years together in securing due and proper use of the fund over which she had entrustment. Deliberate and culpable inaction on her part appeared as the key part of the criminal design which was intended to deprive the orphans. All these cumulatively aggravated the nature and pattern of the offense for which she has been found guilty.

 

2. There are several elements to the criminal bridge of trust, namely, a. interest with property or with any dominion over property.  b. Dishonestly misappropriation c. Unlawful convert to his own use.  d.  Willfully permits another person to do so.

3.  Begum Zia as the Prime Minister was the principal person who was supposed to ensure prompt and due use of the said fund. But she does not do it.

4. Any use of trust wealth/property other than any purpose for which trust is to be discharged would and should amount to a ‘Criminal breach of trust’.

5. Finally, in November 1993 two years later two Trusts were created one was Zia Orphanage Trust and another was Zia Memorial Trust. Fifty percent of the fund was then transferred to Zia Orphanage Trust and the rest fifty percent fund was allowed to be used by Zia Memorial Trust for the purpose of which it was meant.

6. Conscious failure and deliberate inaction of Begum Zia made space in enjoying the fund dishonestly and fraudulently for a long 13 years.

7. Corruption begins with the destruction of all rights.  Which, undermines human rights, hinders development, and undermines justice, liberty, equality, and fraternity which are the core values ​​of our constitution.  Therefore, being commanded in the highest seat of the state, such a crime can never be accepted and there is no scope for reducing the punishment.

8. According to the law Minister, "The verdict proves no one is above the law."

 

Relevant Case Laws:

1. ATM Nazimullah Chowdhury VS. The State 65 DLR 500

2. Kazi Ahmed Bazlul Karim Vs. The State 11 BLC 60

Written by---
Abdul Alim Arif
Department of Land Management and Law
Jagannath University, Dhaka