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Khaleda files appeal with High Court Cites 44 grounds

Staff Correspondent
BNP Chairperson Khaleda Zia filed an appeal with the High Court yesterday challenging the special court’s verdict that sentenced her to five years' imprisonment in the Zia Orphanage Trust corruption case.
In the appeal, Khaleda prayed to the HC so that it asks for the records of the case from the trial court, grants her bail until the plea is disposed of, and acquits her of the corruption charges.
She also appealed to the HC to scrap the lower court's verdict, stay her conviction andTk 2.1 crore fine, and suspend the five-year prison sentence against her.
The bench of Justice M Enayetur Rahim and Justice Shahidul Karim set tomorrow for holding a hearing on accepting the appeal.
Claiming herself innocent, Khaleda mentioned 44 grounds in the 1,222-page appeal on which the HC may consider her prayers, Sagir Hossain Leon, a lawyer for the BNP chief, told The Daily Star.
Khaleda in the appeal said "The lower court fraudulently and deliberately misquoted me in the verdict".
In its judgment, the trial court had said Khaleda in her defence statement confessed that she had abused her power. “So, there is no bar to punishing her under Section 409 of the Penal Code and 5(2) of Corruption Prevention Act-1947."
The appeal said, “The conviction and sentencing of the appellant (Khaleda) are based on grotesque distortion of her statement and such the same is liable to be set aside.
"... protesters are being killed by mindless shooting if they protest the unjust. Students and teachers are being killed. Are not these abuses of powers? Did 1 abuse powers?"
She said "under the facts and circumstances of the case the impugned judgement and order of conviction and sentence against her being untenable and unsustainable in law is required to be set aside.
"— the trial court erred in law in omitting to consider that the impugned remittance by way of donation was a private transaction from United Saudi Commercial Bank and the prosecution failed to trace out the name of the sender/donor according to
evidence of PW |prosecu-tion witness] 26 to prove a case of entrustment and criminal breach of trust within the meaning of Section 409 of the Penal Code...
"... the defence elicited evidence in cross examination of witness being PW 31 and 32 that the remittance was from the Amir of Kuwait for Zia Orphanage Trust and in this respect a notarized certificate issued by the Embassy of Kuwait of Dhaka filed in court for judicial notice under Section 57(6) of the Evidence Act and the learned trial court on surmise and conjecture disbelieved certificate as forged and fabricated."
In the appeal, Khaleda also said the trial court "erred in law and facts in omitting to consider that the instant case has been cooked up by fabrication of records".
Khaleda also said the trial court "erred in law in omitting to consider that she had been three times prime minister of Bangladesh and chairperson of Bangladesh Nationalist Party |BNP| and the instant case has been cooked up for victimization due to political rivalry.
“The instant case had been initiated during the regime of the caretaker upheaval of army back rule of the day in 2008 and vigorously pursuit by the government in power after general election by overturning the first enquiry report of PW 32 who found no case against her.”
Khaleda further said in the appeal that "the holder of the office of the prime minister being the head of the executive branch of the republic holding a constitutional office, and not removable from the office otherwise than in accordance with the modes prescribed by the constitution, does not come under the defini-
tion and purview of “Public Servant" in Section 21 of the Penal Code 1860 or “public officer" as defined in Article 152 of the constitution of Bangladesh, Section 409 or under Section 409/109 of the Penal Code being applicable to criminal breach of trust by a public servant, conviction and sentence of the appellant not being a public servant is erroneous, absurd and unfounded; hence liable to be set aside”.
The trial court "illegally and improperly without any evidence on record took into consideration a few letters allegedly written by accused Dr Kamal Siddique [Kamal Uddin Siddique, former principal secretary to the PM] kept in case diary and relied on the same and such letters were not proved and brought or recorded as evidence and the appellant (Khaleda] was not confronted with such documents during her examination under Section 342 of the Code of Criminal Procedure...
"Such an illegal step has vitiated the trial resulting in miscarriage of justice, she said in the appeal.
Khaleda said the trial court "erred in law in convicting and sentencing her under Section 409/109 of the Penal Code in absence of any evidence of entrustment of any impugned fund received as foreign donation as donated by the donor/person/authority or handling of the fund by her and for absence of evidence or criminal breach of trust constituting an offence under Section 409/109 of the Penal Code, although she was not charged under Section 409/109 of the Penal Code and there was no evidence of either the offence of Section 409 of the Penal Code or any evidence of abetment and this has resulted in prejudice in defence and miscarriage of
justice".
The BNP chairperson said in the appeal that she was neither the settler nor a trustee or a beneficiary of "Zia Orphanage Trust" and thus she had absolutely no involvement in either the opening of the account, operation thereof, creation of the trust, or application of the trust fund.
"As such the conviction and sentence for misappropriation of the trust fund is totally unfounded and perverse as will be evident from the deposition of the Prosecution Witness 1 -Harun-or-Rashid, also the informant and investigation officer of the case.
"The prosecution witnesses have admitted that the original file on the subject matter was not available at the office of the prime minister and shadow file was created."
"The informant and investigation officer being the same person it is clearly manifested that the investigation was not conducted properly and was vitiated by malice in law and ulterior motive as the investigation officer was very much interested in the outcome of the case.
"The trial based on such biased investigation report, the finding of conviction and the sentence passed therein against the appellant (Khaleda) are therefore liable to be set aside and the appellant may kindly be acquitted," he added.
She said "the trial court has ignored to consider the fabrication and falsification or record by various tampered documents by witnesses warranted consideration for holding of an inquiry under Section 476 of the Code of Criminal Procedure, but illegally and improperly omitted to do so and this had resulted in miscarriage of justice."
"The Anti CorruptionCommission initially appointed an inquiry officer being PW 32 who conducted the inquiry and submitted a report on June 11,2008 and admitted in his evidence that he found no involvement of accused appellant (Khaleda] in respect of subject matter of the case", she stated in the appeal.
Khaleda also said "the trial court erred in law and facts and arrived at erroneous finding and decision in convicting her on misreading and non-reading of evidence and omitted to take into consideration the admitted position that impugned foreign donation was not state to state remittance with any advice to the office if the Prime Minister where there never existed at any time before or after Prime Minister's Orphanage Funds".
The BNP chief filed the appeal with the HC a day after the Special Judge's Court-5 of Dhaka, which found Khaleda guilty in the corruption case on February 8, released the full verdict on Monday.
On February 8, Judge Md Akhtaruzzaman of the special court also sentenced Khaleda's eldest son and BNP Senior Vice Chairman Tarique Rahman and four others to 10 years' rigorous imprisonment, and fined Tk 2.10 crore each.
The other convicts are Kazi Salimul Haque, ex-BNP lawmaker from Magura; Sharfuddin Ahmed, a busi-nessman; Mominur Rahman, a cousin of Tarique; and Kamal Uddin Siddique, former principal secretary to the PM.
The ACC filed the case with Ramna Police Station in July 2008, accusing Khaleda and five others of misappropriating over Tk 2.1 crore that had come from the foreign bank as grants for orphans.