An autopsy of the Khaleda verdict

BNP Chairperson and former prime minister Khaleda Zia and five others, who have been convicted in the much-talked-about Zia Orphanage Trust graft case, were tried under Section 409 and 109 of the Penal Code, and 5(2) of the Prevention of Corruption Act 1947. The other five convicts are Tarique Rahman, Khaleda’s elder son; Kazi Salimul Haque, a former BNP lawmaker from Magura;  Sharfuddin Ahmed, a businessman; Mominur Rahman, a cousin of Tarique; and Kamal Uddin Siddique, principal secretary to then prime minister Khaleda Zia. Punishment for a criminal breach of trust by a public servant, banker, merchant or agent is defined in Section 409 of the Penal Code. Anti-Corruption Commission filed the case with Ramna Police Station in July 2008, accusing the six of misappropriating over Tk2.1 crore that had come from a foreign bank as grants for orphans. The trial court, which sentenced Khaleda to five years’ rigorous imprisonment and the rest to 10 years with a fine of Tk2.10 crore each on February 8, said in its full verdict that a person has to be a government employee, a banker, a merchant or an agent to be tried under Section 409. All the accused in the case, excluding Sharfuddin, were public servants, and they were involved in misappropriating the public money, it added. Both Khaleda and Salimul were members of parliament. As per relevant laws, lawmakers are considered government employees, the verdict explains. The court regarded Salimul as public servant also because he was the chairman and director of a bank (Prime Bank Ltd) then.According to Section 110 of the Banking Companies Act 1991, a manager or officer or any other functionary of a banking company shall be deemed to be a public servant under Section 21 of the Penal Code. Though Tarique and Mominur were trustees of the private trust, they will be considered government employees as per the trust’s deed, the judgment says. The lower court also took into account a previous decision of the Appellate Division, according to which a trustee shall be regarded as public servant. Kamal was a public servant because he was the principal secretary to Khaleda during her first stint (1991-1996) as prime minister. About Sharfuddin, the court said he could be tried under Section 409 as he was a businessman, that is, he was a merchant and involved in misappropriation of the funds.

How the money was misappropriated

In a case filed over the criminal breach of trust, the prosecution needs to prove the criminal misappropriation of properties and entrustment. Judge Dr Akhtaruzzaman of Dhaka’s Fifth Special Judge Court, which convicted the six, said both the elements were found in the case. The verdict said Khaleda, also BNP chairman, became the custodian of $1,255,000 (equivalent to Tk4,44,81,216 ), which came from United Saudi Commercial Bank, after she had received a demand draft of the transaction. Through her secretary Kamal, she kept the money as fixed deposit at the Ramna branch of Sonali Bank that eventually rose to Tk4,66,76,298. The former premier committed the offence of criminal misappropriation of public funds or criminal breach of trust as she divided the amount into two (Tk 2,33,33,550 each) and gave it to two private trusts – Zia Memorial Orphanage Trust in Bagerhat and Zia Orphanage Trust – on November 13, 1993. The court said Khaleda should have awarded the money to orphans living in any state-run or government-approved orphanage. The judge said the Zia Orphanage Trust existed only in name. Also there is no infrastructure of the so-called orphanage, the judgment says. The court did not even find any office of the orphanage in Bogra and on Shaheed Mainul Road in Dhaka Cantonment, though the locations were mentioned as address in the trust’s documents. The defence counsel claimed that a piece of 2.79-acre land was purchased. During an investigation, it was found that the land is still being used for growing crops. As Khaleda denied misappropriating the funds by arguing that the account of Zia Orphanage Trust tripled with accrued interest, the court said: “As per Section 409, keeping government money unused in a bank account for an indefinite period is a punishable offence.” Despite being the custodian of prime minister’s fund, Tk2.33 core was illegally transferred to non-government Zia Orphanage Trust’s account. Tarique and Mominur withdrew the money and transferred it to Prime Bank’s Gulshan branch and then the New Eskaton branch. Of the amount, Tk2.10 was transferred to Sharfuddin’s personal bank account through Salimul and one Kazi Gias Uddin. This is how the money was misappropriated, the verdict says. Khaleda did not spend the money as per rules but wanted to benefit financially or lend it to others, which is an act of criminal breach of trust, it adds.