Begum Khaleda Zia Vs. Anti Corruption Commission and others, 4 LNJ (2015) 697

Case No: Writ Petition No. 4982 of 2008

Judge: Md. Nuruzzaman,

Court: High Court Division,,

Advocate: Mr. Zainul Abedin,Mr. Md. Khurshid Alam Khan,Mr. A. J. Mohammad Ali,MS. Anwara Shahjahan,,

Citation: 4 LNJ (2015) 697

Case Year: 2015

Appellant: Begum Khaleda Zia

Respondent: Anti Corruption Commission and others

Subject: Corruption,

Delivery Date: 2015-06-18


HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
 
Md. Nuruzzaman, J
And
Zafar Ahmed, J

Judgment on
18.06.2015
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Begum Khaleda Zia
…Petitioner
Versus
Anti Corruption Commission and others
. . . Respondents
 

Constitution of Bangladesh, 1972
Article 102
Upon meticulous scrutiny of the prosecution case and charge sheet it clearly appears that it is not a case of malafide, rather, certain accusation allegedly against the petitioner in respect of using her official capacity to have the contract materialized for the benefit of others has been brought and this factual aspect cannot be resolved in writ jurisdiction. . . . (43)
 
Constitution of Bangladesh, 1972
Article 145(2)
Language employed in Article 145(2) which clearly suggests that the Article applies to matters  of civil liability, not in the case of criminal liability. We have already held that in the instant case the issue is determination of criminal liability of the petitioner in respect of the alleged offence under sections 409/109 of the Penal Code read with section 5(2) of the Act, 1947 i.e., criminal breach of trust by public servant, criminal misconduct by a public servant and abetment of the offence. . . .(53)

Constitution of Bangladesh, 1972
Article 145
Anti Corruption Act (V of 2004)
Section 17
The Constitution has not given any immunity to the Prime Minister or the Cabinet in respect of any criminal offence. There is neither any constitutional nor any statutory or legal bar on the ACC to conduct an enquiry in respect of allegation of commission of offence mentioned in the schedule to the ACC Act, 2004. Therefore, ACC is legally empowered under section 17 of Act, 2004 to conduct any enquiry, the subject matter of which may fall under Article 145 of the Constitution, so long as it attracts criminal liability and ACC acts within the ambit of law. . . .(55)
 
Prevention of Corruption Act (II of 1947)
Section 2
Criminal Law Amendment Act (XL of 1958)
Section 5
A State Minister, no doubt, is a public servant within the meaning of Act, 1947 read with Act, 1958. . . .(60)
 
Prevention of Corruption Act (II of 1947)
Section 5(1)
Criminal Law Amendment Act (XL of 1958)
Section 5
In the instant case the allegation against the petitioner that she otherwise abused her office or abetted others to use the office for any illegal gain within the meaning of criminal misconduct as defined in section 5(1) of the Act, 1947 or her alleged involvement as an abettor under section 109 of the Penal Code cannot be determined in a separate criminal proceeding and the same must be adjudicated in the instant proceeding by the Special Judge appointed under section 5 of the Act, 1958. Abetment under section 109 of the Penal Code is such an offence which can be inferred from the conduct of the accused and attending circumstances of the case. It may be proved either by oral, or documentary or circumstantial evidence. So, the issue as to whether the Prime Minister is the public servant is irrelevant in the instant case inasmuch as section 109 of the Penal Code (abetment of the offence) is present in the case and other public servants are also accused in the case. . . .(62)
 
Sheikh Hasina Wazed alias Sheikh Hasina Vs. State and another, 63 DLR 40; Begum Khaleda Zia Vs. State, 55 DLR 596; Sk. Mujibur Rahman Vs. The State, 15 DLR 549; Sheikh Hasina Wazed alias Sheikh Hasina Vs. State and another, 63 DLR 162; Government of the People’s Republic of Bangladesh and others Vs. Iqbal Hasan Mahmood alias Iqbal Hasan Mahmood Tuku, 60 DLR (AD) 147; Anti-Corruption Commission and another Vs. Md. Enayetur Rahman and others,  16 MLR (AD) 297; SM Zafarullah 20 BLC 311 (supra); Anti-Corruption Commission Vs. Mehedi Hasan and another, 67 DLR (AD) 137; Nesar Ahmed Vs. Bangladesh and another, 49 DLR (AD) 111; Habibur Rahman Molla, 61 DLR; Dr. Mohiuddin Khan Alamgir, 62 DLR (AD) 290 at para 29; Anti-Corruption Commission Vs. Md. Bayazid and others, 65 DLR (AD) 97; Jahangir Hossain Howlader, 58 DLR 106; MA Hai Vs. TCB, 40 DLR (AD) 206; Secretary, Ministry of Establishment and others Vs. Amzad Hossain and others, 18 BLC (AD)16 and Hossain Mohammed Ershad, former President and others Vs. State, 45 DLR (AD) 48 ref.
 
Mr. Khandker Mahbub Hossain, Advocate with
Mr. A.J. Mohammad Ali with
Mr. Zainul Abedin with
Mr. A.M. Mahbub Uddin with
Mr. Md. Bodruddoza with
Mr. Raghib Rouf Chowdhury and
Mr. Md. Zakir Hossain Bhuiyan
. . . For the petitioner 

Mr. Md. Khurshid Alam Khan, Advocate
. . . For the Respondent No. 01.

MS. Anwara Shahjahan, D.A.G with
Ms. Yesmin Begum Bithi, A.A.G and
Mr. Abdur Rokib (Montu), A.A.G
. . . For the Respondent No. 6

Writ Petition No. 4982 of 2008
 
JUDGMENT
Md. Nuruzzaman, J.
 
In this application under Article 102 of the Constitution Rule was issued on 09.07.2008 calling upon the respondents to show cause as to why the proceeding of Special Case No. 16 of 2008 arising out of Tejgaon Police Station Case No. 20 dated 09.12.2007 corresponding to A.C.C. General Registered Case No. 161/07, now pending in the Court of Special Judge, Court No. 9, Dhaka should not be declared unlawful, without jurisdiction and quashed and/or such other or further order or orders to be passed as to this Court may seem fit and proper.
 
At the time of issuance of the Rule this Court passed an interim order staying all further proceedings of the said Special Case for a period of 2(two) months which was extended for a further period of 3(three) months on 28.8.2008 and then till disposal of the Rule on 24.11.2008.
 
Upon an application for correction filed by the petitioner, this Court on 17.07.2008 passed the following order:
 
“This is an application for correction.
It is stated that words “without legal sanction” were not typed inadvertently in the petition and the words “done” was typed in place of the words “initiated and is being continued” and as such the words “without legal sanction” should be inserted after the word “Dhaka” at page No. 69 of 4th line from bottom of the prayer “A” and the words “initiated and is being continued” should be replaced after the word “have been” in place of the word “done at page No. 69 of 3rd line from bottom in prayer “A” of this writ petition and without jurisdiction should be added at end of the prayer A.
Perused the application and heard the learned advocate. On the ground stated therein the application is allowed.
Let this application be formed part of the main petition and kept with the record to be considered at the time of hearing.”
 
The proceeding of Special Case mentioned in the Rule issuing order is under sections 409/109 of the Penal Code, 1860 read with section 5(2) of the Prevention of Corruption Act, 1947.
 
The petitioner is the former Prime Minister of the Government of Bangladesh. She was elected thrice as the Prime Minister. She was also the Leader of the Opposition of the Parliament. She is the Chairperson of Bangladesh Nationalist Party (B.N.P.).
 
Following an inquiry, Anti-Corruption Commission (in short ‘ACC’) vide memo No. দুদক/৭৬-২০০৭ (অনুঃ-১)/১১৯৪০ dated 09.12.2007 under the signature of Deputy Director of the ACC accorded sanction to lodge an F.I.R. against the petitioner and others under section 5(2) of the Prevention of Corruption Act, 1947 (in short ‘Act, 1947’) and section 109 of the Penal Code. Thereafter, on 07.12.2007 an Assistant Director of the ACC lodged an F.I.R. with Tejgaon Police Station against the petitioner and 4 (four) others and accordingly Tejgaon Police Station Case No. 20 dated 09.12.2007 under section 5(2) of the Act, 1947 read with section 109 of the Penal Code started against the F.I.R. named accused persons.
 
The prosecution case, in brief, is that in 1997 NIKO Resources Bangladesh Ltd. (in short ‘NIKO’) participated in the 2nd round bidding for oil and gas exploration in Bangladesh and was declared ineligible by the Technical and Financial Evaluation Committee. Being unsuccessful in the tender, NIKO then submitted a proposal before the then Prime Minister Sheikh Hasina for extraction of gas from the small size gas fields of Bangladesh and that proposal was also rejected. On 28.06.1998 NIKO again submitted a proposal before the Secretary of the Ministry of the Energy and Mineral Resources showing Chatak, Fenchugonj, Biani Bazar and Kamta Gas fields as non-producing and marginal and proposed to develop and extract gas from these gas fields. Thereafter, Framework of Underst-anding (FOU) was signed on 23.08.1999 between BAPEX and NIKO to conduct a joint study for the development and production of hydrocarbon from the non-producing marginal gas fields of Chatak, Feni and Kamta. Subsequently, on 14.06.2001 the then Prime Minister, Sheikh Hasina approved a ‘Procedure for Development of Marginal and Abandoned Gas Fields’ in which Chatak, Feni and Kamta gas fields were identified as marginal and abandoned with instructions to finalize a Joint Venture Agreement (JVA) for extraction of gas by NIKO from those fields and place the JVA before the Government for approval.
 
After the change of Government, NIKO, on 17.11.2001, made a representation to the then State Minister for Energy and Mineral Resources to finalize the said Joint Venture Agreement (JVA). To follow up the matter on 29.07.2002 a meeting was held between Petrobangla and BAPEX which was presided over by the Secretary, Ministry of Energy and Mineral Resources. In the said meeting it was decided that Chatak gas field means Chatak (west) and it does not include Chatak (east). The JVA agreement as proposed by NIKO shall apply to Chatak (west). As per decision of the said meeting BAPEX informed NIKO that Chatak (east) gas field will not be included in the Joint Venture Agreement (JVA). On 10.08.2002 NIKO made representation to the concerned State Minister for inclusion of Chatak (east) gas field in the Joint Venture Agreement. Along with the representation NIKO enclosed a legal opinion given by its legal advisor, namely Moudud Ahmed and Associates, a Law Firm owned by the then Minister for Law, Justice and Parliamentary Affairs Barrister Moudud Ahmed. In the legal opinion it was opined that chatak gas field means and includes the area specified in Exhibit-A of the Framework of Understanding (FOU) approved in 1997 in which the Chatak eastern territory is included. Then, the State Minister of Energy and Mineral Resources gave instruction to conclude the Joint Venture Agreement (JVA) as per Framework of Understanding (FOU). Since BAPEX and Petrobangla did not finalize the JVA by including Chatak (east) in there, NIKO again vide two letters dated 25.11.2002 and 03.03.2003 respectively requested to include Chatak (east) in the JVA. Opinion was sought from the Ministry of Law, Justice and Parliamentary Affairs as to whether Chatak (east) would be included as part of Chatak Marginal/ Abandoned Gas fields. Barrister Moudud Ahmed, the then Minister of Law, Justice and Parliamentary Affairs gave opinion on 17.03.2003 which is similar to that of the earlier opinion dated 10.08.2002 given by his Law Firm. Thereafter, a summary was prepared for the purpose of finalizing the JVA and also for resolving the dispute between BAPEX and NIKO in respect of defining Chatak Gas field. Vide memo dated 18.03.2003 the said summary was presented before the petitioner for approval who was the Minister-in-charge of Energy and Mineral Resources Ministry. The petitioner approved the summary in the following terms:
 
  1. আইন, বিচার ও সংসদ বিষয়ক ম¿»ণালয়ের প্রাপ্ত মতামতের আলোকে ছাতক গ্যাস ফিল্ড Frame Work of Understanding (FOU) Hl Exhibit-A তে বর্ণিত মতে বিবেচনা করা যেতে পারেz এবং
  2. বাপেক্স ও নাইকো রিসোর্সেস লিঃ এর মধ্যে যৌথ সহযোগিতা চুক্তি স্বাক্ষরের জন্য প্রাক্তন প্রধানমন্ত্রী কর্তৃক ১৪/৬/২০০১ তারিখে অনুমোদিত প্রাক এবং পরিত্যক্ত গ্যাস ফিল্ড উন্নয়ন সংজ্ঞা পদ্ধতি (Procedure For Development of Marginal/ Abandoned Gas Fields) এর মাঝে বর্ণিত সমুদয় শর্ত এবং অপরাপর প্রাসঙ্গিক বিধি-বিধান অনুসরণে যৌথ সহযোগিতা চুক্তি (Joint Venture Agreement) এর খসড়া চুড়ান্তকরণের জন্য পেট্রোবাংলা-কে নির্দেশ প্রদান করা যেতে পারে”
 
Thereafter, the draft Joint Venture Agreement (JVA) was finalized and on 07.09.2002 a summary along with the draft Joint Venture Agreement (JVA) was sent to the Prime Minister (the petitioner) for approval, but the same was sent back without any comment/ approval. Mr. A.K.M. Mosharaf Hossain the then State Minister of Energy and Mineral Resources wrote a note on the file being no. 397 stating that a discussion with Prime Minister was held on 15.09.2003 in which she mentioned that on 18.03.2003 she had already approved the summary proposal of the Ministry and as such re-approval of the Prime Minister is not required.
 
On 16.10.2003 the Joint Venture Agreement (JVA) was signed between BAPEX and NIKO permitting NIKO to extract 1744 BCF gas from Chatak and Feni gas field which is worth Taka 10,000 (ten thousand) crore.
 
The case was investigated by an officer of the ACC, who, after completion of the investigation, submitted charge sheet no. 156 dated 05.05.2008 against the petitioner and 10 (ten) others  under sections 409/ 109 of the Penal Code and section 5(2) of the Prevention of Corruption Act, 1947. In the charge sheet it has been stated that the ACC vide memo No. সি/১৫৯-২০০৯(তদ¿¹-২) ৬৮০৫ dated 30.04.2008 accorded sanction to submit the charge sheet.
 
After submission of the charge sheet the case records were transmitted to the Court of Metropolitan Senior Special Judge, Dhaka who vide order dated 07.05.2008 took cognizance of the offence against the petitioner and 10 others under section 409 of the Penal Code, section 5(2) of the Prevention of Corruption Act, 1947 read with section 109 of the Penal Code. Charge has not been framed yet in the case.
 
The respondent no. 1 ACC contested the Rule by filing an affidavit-in-opposition. The respondent no. 1 did not controvert facts stated in the writ petition. The case of the respondent no. 1 is that it lodged the F.I.R. and submitted charge sheet against the petitioner and others after compliance of provisions of law. Both in the F.I.R. and the charge sheet there are specific allegations against the petitioner which can only be decided on evidence, both oral and/or documentary as well as circumstantial. The instant writ petition is not maintainable in its present form and manner, and as such, the Rule is liable to be discharged.
 
The petitioner filed an affidavit-in-reply annexing copies of the F.I.R. and charge sheet of Special Case No. 05 of 2008 rebutting the statements made in the affidavit-in-opposition.
 
Mr. A.J. Mohammad Ali, along with Mr. Bodruddoza and Mr. Raghib Rouf Chowdhury, the learned Advocates appearing for the petitioner places before us the writ petition, the F.I.R., charge sheet and other materials on record. We have extensively heard the submissions advanced by the learned Advocates of both sides. During the course of hearing the learned Advocates of both sides relied upon number of decisions in support of their arguments.
 
Prior to entering upon assessment of the arguments of the parties and the merit of the case, it is pertinent to mention that the case in hand has some distinctive features as well as a chequered history. The case is commonly known as ‘NIKO Graft’ case. Facts of the case stretch back to the era of the erstwhile Prime Minister Sheikh Hasina who held the office from 23.06.1996 to 15.07.2001 and the successive Prime Minister Begum Khaleda Zia (the petitioner) who held the office from 10.10.2001 to 29.10.2006. 
 
In the charge sheet of the instant case it has been stated that the then Prime Minister Sheikh Hasina and others were involved in the alleged offence at the preliminary stage (প্রাপ্ত তথ্যের আলোকে  শেখ হাসিনা... অত্র অপরাধের প্রাথমিক পর্যায়ে সংশ্লিষ্ট ছিলেন বলে তথ্য প্রমান পাওয়া যায়) and since a separate case being Tejgaon Police Station Case No. 19 dated 09.12.2007 has been lodged, they including the former Prime Minister Sheikh Hasina are not recommended to be included in the charge sheet to be sent up for trial.
Against the above backdrop, Mr. A.J. Mohammad Ali, the learned Advocate for the petitioner, places before us the case of Sheikh Hasina Wazed alias Sheikh Hasina vs. State and another 63 DLR 40 which relates to the offence committed, as alleged by the ACC, at the preliminary stage of the NIKO saga and arises out of Tejgaon Police Station Case No. 19 dated 09.12.2007. The learned Advocate submits that in the case of Sheikh Hasina, the High Court Division quashed the proceedings of the case against her upon consideration of both facts and laws. He submits that facts of the case of Sheikh Hasina and those of the instant case, so far as they relate to the petitioner, are same and as such the fate of the petitioner should be the same as that of Sheikh Hasina. The learned Advocate employs the Bengali saying “একই যাত্রায় পৃথক ফল হওয়া উচিৎ না”. Mr. Ali submits that since the petitioner stands on the same footing as that of the erstwhile Prime Minister Sheikh Hasina, the proceeding against whom has been quashed, it is not legally possible to prosecute the successive Prime Minister Khaleda Zia i.e., the present petitioner.
 
Mr. A.J. Mohammad Ali next submits that the allegation against the petitioner is that she approved the summary on 18.03.2003 and instructed Petrobangla  to finalize the draft Joint Venture Agreement as per ‘Procedure for Development of Marginal Abandoned Gas Fields’ which was approved by the then Prime Minister Sheikh Hasina on 14.06.2001. Joint Venture Agreement was signed on 16.10.2003 and thus, the Swiss Challenge Tender Procedure was avoided which would have ensured transparency and competition in awarding contract to foreign company to extract gas in Bangladesh. Under the Joint Venture Agreement (JVA) NIKO was given an exclusive authority to extract gas from the gas fields and the entire process of awarding the contract to NIKO through JVA not only lacks transparency and competition but also is illegal which has caused huge financial loss to the country and rendered illegal benefit to NIKO and others. Mr. Ali draws our attention to the charge sheet, the relevant portion of which runs thus:

“Policy এর পরিবর্তে বিতর্কিত Procedure প্রবর্তন  দুর্নীতির বিষয়ে দেখা যায় যে, এ দেশে তেল ও গ্যাস অনুসন্ধান ও উৎপাদনের লক্ষ্যে সরকারের সাথে সরাসরি কোন বিদেশী কোম্পানীর Joint Venture Agreement (ওটঅ) করার কোন নীতিমালা বা দিক নির্দেশনা ছিল না এমনকি কোন মডেল ওটঅ কখনো প্রণয়ন করা হয়নি
 
Mr. Ali submits that since admittedly there was no law/ rule/ guideline/ policy for entering into Joint Venture Agreement, there cannot be any violation of law or illegality in approving JVA by the petitioner. Mr. Ali refers to Article 55(2) and Article 145(2) of the Constitution and submits that the executive power of the Republic is exercised by or on the authority of the Prime Minister and where a contract is made or executed in exercise of the executive authority of the Republic, neither the President nor any other person making or executing the contract in exercise of that authority is personally liable in respect thereof. Mr. Ali further adds that unless it can be shown that the petitioner committed criminal misconduct as defined in section 5(1) of the Prevention of Corruption Act, 1947, section 17 of the Anti-Corruption Commission Act, 2004 does not authorize the ACC to scrutinize the acts of the Prime Minister or the Cabinet in taking an executive decision in the performance of their functions of the Republic, and as such, the same cannot be called in question by ACC.
 
Mr. Ali argues that in the instant case the prosecution materials do not reveal any criminal intention on part of the petitioner which is sine qua non for an offence under section 5(1) of the Act, 1947. To substantiate the contention Mr. Ali refers to the case of Begum Khaleda Zia vs. State 55 DLR 596 and submits that this case has been referred to and relied upon in the case of Sheikh Hasina 63 DLR 40. Mr. Ali contends that there is no allegation whatsoever against the petitioner that she committed any criminal misconduct.
 
Mr. A.J. Mohammad Ali further argues that section 5(1) of the Act, 1947 applies to public servant and according to the Constitutional provisions and analogy drawn from the ratio laid down in the case of Sk. Mujibur Rahman vs. The State 15 DLR 549 (relevant part at paragraph 31) the Prime Minister is not a public servant, and, as such, the petitioner, who is the former Prime Minister, cannot be prosecuted under section 5(2) of the Act, 1947.
 
Mr. Ali next submits that in the instant case the F.I.R. was lodged without any proper sanction and the sanction accorded before submission of the charge sheet is absolutely a mechanical sanction and being contrary to the law, the very initiation of the instant proceeding is barred by law. In support of the argument on point of sanction Mr. Ali relies upon the case of Sheikh Hasina 63 DLR 40 (supra, which is the NIKO case) and the case of Sheikh Hasina Wazed alias Sheikh Hasina vs. State and another 63 DLR 162 (commonly known as ‘Barge Mounted Power Plants case’).
 
Mr. Ali lastly submits that ACC has filed the case against the petitioner with a malafide intention and with an ulterior motive to harass and humiliate her.
 
Mr. Md. Khurshid  Alam Khan, the learned Advocate appearing for the respondent no. 1 ACC, on the contrary, rebutting the submissions of Mr. Ali submits that the petitioner has been implicated in the instant case not as Prime Minister, but as Minister-in-Charge of the concerned Ministry and there are allegations of committing criminal misconduct against the petitioner and others.
 
Mr. Khan submits that so far as sanction under section 32 of the Anti-Corruption Commission Act, 2004 is concerned, it is now settled through judicial pronouncement both by the High Court Division and the Appellate Division that no sanction is required to file a complaint either with the ACC or with the police. Only one sanction is required under the section before taking cognizance of the offence by the Special Judge. The sanction is accorded in prescribed ‘Form-3’ and it need not be a speaking one. The learned Advocate refers to the cases of Habibur Rahman Molla vs. State 61 DLR 1; Habibur Rahman Mollah vs. State and another 62 DLR (AD) 233; Anti-Corruption Commission vs. Dr. Mohiuddin Khan Alamgir and others 62 DLR (AD) 290; SM Zafarullah vs. Durniti Daman Commission and others 20 BLC 311. The learned Advocate argues that in the instant case sanction accorded by the ACC is proper and legal.
 
The learned Advocate for ACC next submits that it is also now settled principle of law that there is no scope for quashing a criminal proceeding under the writ jurisdiction unless the vires of law involved in the case is challenged. The learned Advocate refers to the cases of Government of the People’s Republic of Bangladesh and others vs. Iqbal Hasan Mahmood alias Iqbal Hasan Mahmood Tuku 60 DLR (AD) 147; Anti-Corruption Commission and another vs. Md. Enayetur Rahman and others  16 MLR (AD) 297; SM Zafarullah 20 BLC 311 (supra); Anti-Corruption Commission vs. Mehedi Hasan and another 67 DLR (AD) 137. The learned Advocate argues that in the instant case, the vires of law has not been challenged and therefore, the writ petition, in which the petitioner seeks to quash the criminal proceeding, is not maintainable, and as such, the Rule is liable to be discharged.
 
The learned Advocate lastly submits that facts of the instant case and those of the case of Sheikh Hasina 63 DLR 40 (‘NIKO’ case, supra) are not same, rather different. In the instant case there are allegations against some of the accused persons that they accepted bribe to ensure that the Joint Venture Agreement (JVA) is to be finalized and executed. The petitioner’s involvement as Minister-in-Charge in the said illegal monetary transaction can only be determined during the trial after taking evidences. Mr. Khan further argues that there are other specific allegations against the petitioner which prima facie attract the definition of criminal misconduct and also come within the ambit of abettor under section 109 of the Penal Code.
 
So far as maintainability of writ petition is concerned, Mr. A.J. Mohammad Ali, the learned Advocate for the petitioner, places before us the case of Nesar Ahmed vs. Bangladesh and another 49 DLR (AD) 111 and submits that in the facts, circumstances and the unique as well as distinctive features of the instant case, which he has already outlined, writ petition is maintainable.
 
It appears from the arguments of the learned Advocates of both sides that the case involves both question of law and facts. First, we shall deal with the question of law and then, the question of facts.
 
The certified copy of the sanction given by the ACC vide memo no. ¢p/159-2009 (ac¿¹-2)/6805 dated 30.04.2008 to submit the charge sheet has been annexed in the supplementary affidavit (Annexure-E1). The relevant portion of the said sanction runs thus:
 
“বিষয়ঃ চার্জশীট দাখিলের অনুমোদন জ্ঞাপন
সূত্রঃ তেজগাঁও থানা মামলা নং-২০, তারিখঃ ০৯-১২-০৭ খ্রিঃ
ধারাঃ ১৯৪৭ সনের দূর্নীতি প্রতিরোধ আইনের ৫(২) ধারা এবং দন্ডবিধির ১০৯ ধারা
তদকারী কর্মকর্তা কর্তৃক দাখিলকৃত সাক্ষ্য স্মারক ও অন্যান্য রেকর্ড পত্র পর্যালোচনা করিয়া দূর্নীতি দমন কমিশন পরিতুষ্ট হইয়া দূর্নীতি দমন কমিশন আইন, ২০০৪ এর ৩২ ধারা এবং দূর্নীতি দমন কমিশন বিধিমালা, ২০০৭ এর বিধি ১৫-এর উপ-বিধি-১ প্রদত্ত ক্ষমতা বলে নিম্নোক্ত ব্যক্তিদের বির্রদ্ধে নিম্নোক্ত ধারায় চার্জশীট দাখিলের অনুমোদন জ্ঞাপন করা হইলঃ
 
It appears that in the instant case the sanction has been given in the prescribed ‘Form-3’ under rule 15(7) of the Anti-Corruption Commission Rules, 2007 (in short ACC Rules, 2007). In the case of Habibur Rahman Molla 61 DLR 1 the High Court Division held that sanction under section 32 of the ACC Act, 2004 is to be given in Form No. 3 under rule 15(7) of the ACC Rules, 2007 which has been prescribed by the legislature. ‘Form-3’ is a part of the statute and accordingly, when a specified form is prescribed in the statute for a particular purpose, the sanctioning authority has no scope to assign any reason of its satisfaction beyond the said format given in the form. The judgment was affirmed by the Appellate Division which has been reported in 62 DLR (AD) 233.
 
Section 32 of the ACC Act, 2004 was amended by Ordinance No. VII of 2007, which came into effect on 18th April, 2007 wherein it has been enacted in the section 32 of the said Act that one sanction is required to proceed with the case at the time of filing of the police report before the Court of Special Judge.
 
In the instant case the F.I.R. was lodged on 09.12.2007. So, the amended section 32 applies to the present case. In respect of the amended section 32 it was held in the case of Dr. Mohiuddin Khan Alamgir 62 DLR (AD) 290 at para 29 that:
 
“Under the above amended section, after completion of the investigation, the investigating officer, under sub-section (2) of section 32, on obtaining the sanction from the Commission, would submit the police report before the Court along with a copy of the letter of sanction. The Court, under sub-section (1), would take cognizance, only when there is such sanction from the Commission. Both the sub-section (1) and sub-section (2) of the section 32 envisages only one sanction, not two. Sub-section (1) does not spell out or even envisage filing of any fresh sanction when the sanction to prosecute has already been filed along with the charge sheet of the investigating officer. It only envisages that without such sanction from the Commission (কমিশনের অনুমোদন ব্যতিরেকে) as spelt out in sub-section (2), no Court shall take cognizance of the offence (কোন আদালত এই আইনের অধীন কোন অপরাধ বিচারার্থ আমলে গ্রহণ করিবে না) under sub-section (1) of section 32.”
 
Same view was expressed in the case of Anti-Corruption Commission vs. Md. Bayazid and others 65 DLR (AD) 97.
 
On point of sanction the learned Advocate for the petitioner relies upon the cases of Sheikh Hasina 63 DLR 40 (NIKO case) and Sheikh Hasina 63 DLR 162 (Barge Mounted Power Plants case) wherein it was held by the High Court Division that sanction given before submission of charge sheet being mechanical and contrary to law and decisions of this Court, the cognizance taken by the Court on such charge sheet is illegal and the proceeding itself is barred by law. The learned Advocate submits that no appeal was preferred against the judgments passed in those cases and therefore, the judgments stand as good law on point of sanction and the issue as to sanction should be decided in line with these two reported cases.
 
The above argument of the learned Advocate for the petitioner on point of sanction in light of the reported cases of 63 DLR 40 and 63 DLR 162 is devoid of any substance. In those cases the petitioner namely Sheikh Hasina invoked the inherent jurisdiction of this Court under section 561A of the Code of Criminal Procedure. The judgments were given on 11.03.2010 (NIKO case) and 13.04.2010 (Barge Mounted case) respectively. The case of Habibur Rahman Molla was decided by the High Court Division on 20.11.2008 and was reported in 61 DLR (2009). Against the said judgment, the petitioner Habibur Rahman Molla preferred appeal and the Appellate Division granted leave to appeal. The Appellate Division affirmed the judgment of the High Court Division vide judgment dated 04.04.2010. Mr. Md. Khurshid Alam Khan was the lawyer for ACC in all the cases i.e., the cases of Sheikh Hasina (both NIKO and Barge Mounted case), and the case of Habibur Rahman Molla (both at the High Court Division and the Appellate Division). Mr. Khan submits that although the Appellate Division decided the case of Habibur Rahman Molla on 04.04.2010, but the full text of the judgment was not available, and as such, he could not refer it in the case of Sheikh Hasina (Barge Mounted case) which was decided on 13.04.2010. He further submits that since the Appellate Division granted leave to appeal against the judgment passed by the High Court Division in the case of Habibur Rahman Molla, the same was not also referred to in Sheikh Hasina’s cases. The case of Dr. Mohiuddin Khan Alamgir reported in 62 DLR (AD) 290 was decided subsequently on 04.07.2010.
 
Upon a close scrutiny of the reported cases on question of sanction, it appears to us that during the period when the cases of Sheikh Hasina (both NIKO and Barge Mounted cases) were decided, the High Court Division, except in the case of Habibur Rahman Molla, took the view that two sanctions are required under section 32 of the ACC Act, 2004, and that the sanction before submitting the charge sheet has to be a speaking one based on reason, not mere mechanical. This was the prevailing view and Sheikh Hasina’s cases were decided accordingly. We have already noted that subsequently, law on point of sanction has been settled by the Appellate Division in series of cases to the effect that under the amended section 32 of the ACC Act, 2004 one sanction is required before submitting the charge sheet and it will be given in ‘Form-3’ of the schedule to the ACC Rules, 2007. It need not be a speaking one. In facts and circumstances of the instant case we find no reason to deviate from the settled principle on the issue of sanction. Moreover, under Article 111 of the Constitution the law declared by the Appellate Division is binding on the High Court Division. In view of this position of law we hold that the sanction given in the instant case does not suffer from any legal infirmity and has been given in accordance with law.
 
Now, we turn to the issue as to maintainability of the writ petition. The decisions of the Appellate Division cited by Mr. Md. Khurshid Alam Khan on point of maintainability show that by now, it has become trite law that except in cases where vires of law involved in the case is challenged, or filing an application under section 561A of the Code of Criminal Procedure is not an adequate alternative remedy as contemplated under Article 102(2) of the Constitution, or when it becomes impossible to avail of the alternative statutory remedy, or when the question of law and interpretation of statute is involved in the case, there is no scope for the High Court Division in exercise of its special original jurisdiction under Article 102 of the Constitution to quash a criminal proceeding.
 
In Iqbal Hasan Mahmood 60 DLR (AD) 147 (supra), a case under sections 165 and 166 of the Income Tax Ordinance, 1984, the Appellate Division referred to the cases of Jahangir Hossain Howlader 58 DLR 106; MA Hai vs. TCB 40 DLR (AD) 206 and Nesar Ahmed vs. Bangladesh 49 DLR (AD) 111 and vide judgment dated 20.05.2008 held that since the writ petition has raised question of law and interpretation of statute and further, the accused-petitioner had no other efficacious alternative remedy under the Income Tax Ordinance to challenge the criminal case now pending against him, the writ petition is maintainable.
 
In Md. Enayetur Rahman 16 MLR (AD) 297, a case under sections 409/420 of the Penal Code and section 5(2) of the Prevention of Corruption Act, 1947 read with section 156 of the Customs Act, the Appellate Division vide judgment dated 28.02.2011 held:
 
“The exercise of extraordinary jurisdiction by the High Court Division to examine the legality of a criminal proceedings initiated under the general laws is deprecated.… The High Court Division’s power under writ jurisdiction to quash criminal proceedings should be exercised sparingly in rarest cases. On perusal of the impugned judgment we noticed that the High Court Division in fact exercised its power under section 561A of the Code of Criminal Procedure in the garb of a writ jurisdiction…. This Court on repeated occasions argued that Article 102(2) of the Constitution is not meant to circumvent the statutory procedures. The High Court Division will not allow a litigant to invoke the extra ordinary jurisdiction to be converted into Courts of appeal or revision. It is only where statutory remedies are entirely ill suited to meet the demands of extra-ordinary situations, that is to say, where vires of a statute is in question or where the determination is malafide or where any action is taken by the executives in contravention of the principles of natural justice or where the fundamental right of a citizen has been affected by an act, or where the statute is intra vires but the action taken is without jurisdiction and the vindication of public justice require that recourse may be had to Article 102(2) of the Constitution.”
 
In Mehedi Hasan and another 67 DLR (AD) 137, cases under sections 409/109 of the Penal Code and section 5(2) of the Prevention of Corruption Act, 1947, the issue as to maintainability of writ petition again cropped up. The Appellate Division vide judgment dated 11.02.2015 held:
 
“…there is no scope for quashing a criminal proceeding under the writ jurisdiction unless the vires of the law involved is challenged. Having gone through the Rule issuing order, we find that the vires of the law involved in the present case has not been challenged. Therefore, there is no scope for aggrandizement of jurisdiction of the High Court Division in quashing a criminal proceeding. Consequently, the High Court Division was not justified in quashing 15 criminal cases (Special Case Nos. 12-26 of 2007) in exercise of its power under Article 102 of the Constitution.”
 
The case of Nesar Ahmed 49 DLR (AD) 111 (referred to in Iqbal Hasan Mahmood’s case (supra)) has been relied upon by Mr. A.J. Mohammad Ali, the learned Advocate for the petitioner, in support of his contention submits that the instant writ petition is maintainable.
 
In this case the appellant Nesar Ahmed and another were convicted under section 19(f) of the Arms Act read with section 26 of the Special Powers Act. The appellant had no reasonable opportunity to avail of the statutory remedy by way of filing an appeal under section 30 of the Special Powers Act. Challenging the judgment and order of conviction and sentence, he filed an application under section 561A of the Code of Criminal Procedure in the High Court Division and this Court observed that the application was not maintainable and the same was taken back. Then the appellant filed a writ petition which was rejected in limine. The appellant preferred leave to appeal before the Appellate Division and leave was granted. Ultimately, the appeal was allowed and impugned judgment and order of conviction and sentence was set aside on the ground that the Special Tribunal had no jurisdiction to try the case.
 
In this case it was held:
 
“It is free from any doubt that when an equally efficacious alternative statutory remedy is provided for in section 30 of the Special Powers Act enabling the accused to prefer an appeal to the High Court Division the question of invoking the jurisdiction of the High Court Division under Article 102 of the Constitution normally does not arise.”
 
It has further been held in this case that,
 
“Upon satisfying itself that the accused person had no reasonable opportunity to avail of the statutory remedy, the High Court Division however, in exercise of jurisdiction under Article 102 of the Constitution, will not sit on appeal over the judgment of the Special Tribunal and will not convert itself into a Court of Appeal under section 30 of the Special Powers Act. It will confine itself to the jurisdictional issues that are usually associated with judgments of inferior Tribunals and quasi-judicial bodies.”
 
Upon re-visit of the Rule issuing order dated 09.07.2008 passed in the instant case and order dated 17.07.2008 which have been set out at the beginning of this judgment, it appears that the vires of the law has not been challenged in the writ petition. There is no assertion in the writ petition that the statutory relief under section 561A of the Code of Criminal Procedure was ever sought to agitate the grievances. Surprisingly, there is no statement in the writ petition to the effect that the petitioner is constrained to file the writ petition because of either the absence of or inadequacy of equally efficacious alternative statutory remedy.
 
However, in the affidavit –in-reply dated 31.05.2015 filed by the petitioner it has been stated at paragraph No. 6 that:
 
“The petitioner had to file the instant writ petition under an exceptional circumstance finding no other alternative equally efficacious remedy. Moreover, after lapse of eight years of issuance of the Rule, the instant writ petition should not be thrown out by this Hon’ble Court merely on technical grounds for ends of justice. Furthermore, the instant writ petition raises substantial questions of law which call for authoritative pronouncement form the High Court Division of the Hon’ble Supreme Court in relation to interplay between governmental functions and criminal prosecution under prevention of Corruption Act, especially in cases where there is not even a whiff, let alone an allegation, of quid pro quo and the case is based upon the process of governmental decisions.”  
 
However, to address the above point as stated in Para 6 of the reply, the Rule issuing order is quoted below for ready reference:
 
“Let a Rule issue calling upon the Opposite party to show cause as to why the proceeding of Special Case No. 16 of 2008 arising out of Tejgaon Police Station Case No. 20 dated 09.12.2007 corresponding to A.C.C. General Registered Case No. 161 of 07, now pending in the Court of Special Judge, Court No. 9, Dhaka should not be declared unlawful, without jurisdiction and quashed and/or such other or further order or orders passed as to this Court may seem fit and proper.”
 
The point raised in the reply is not reflected in the Rule, rather, it appears from a plain reading of the Rule that the petitioner has prayed for quashing the criminal proceeding. While adjudicating the matter in exercise of writ jurisdiction,   we have to strictly follow the terms of the Rule issuing order according to the principle enunciated by the apex Court in the case of Secretary, Ministry of Establishment and others –Vs- Amzad Hossain and others reported in 18 BLC (AD)16 which is as follows:
 
“The prayer to the effect “and/or such other or further order or orders as your Lordships may deem fit and proper” do not authorize a writ Court to give relief beyond the Rule issuing order, such prayer authorizes the writ Court to give any incidental relief or reliefs which may follow from the main relief according the Rule issuing order.”
 
More so, Mr. Ali argues that the case against the petitioner is nothing but malafide. However, upon meticulous scrutiny of the prosecution case and charge sheet it clearly appears that it is not a case of malafide, rather, certain accusation allegedly against the petitioner in respect of using her official capacity to have the contract materialized for the benefit of others has been brought and this factual aspect cannot be resolved in writ jurisdiction. In view of the facts and circumstances of the instant case and case laws discussed above on point of maintainability being binding upon this Division according to the Article 111 of the Constitution, the irresistible conclusion is that the instant writ petition is not maintainable.
 
Mr. A. J. Mohammad Ali, the learned Advocate for the petitioner, in a passionate manner urges before us to consider his submission that since facts of the case of Sheikh Hasina 63 DLR 40 (NIKO case) and those of the present case, so far as it relates to the petitioner, are same; the petitioner stands on the same footing as that of the erstwhile Prime Minister Sheikh Hasina; and since the criminal proceeding against Sheikh Hasina has been quashed, the fate of the present petitioner should be the same as that of Sheikh Hasina. The learned Advocate submits that against the backdrop of this unique and distinctive feature of the case and other issues regarding interpretation of some provisions of the Constitution raised in the affidavit-in-reply, it would be improper, inequitable and a denial of justice if the door is shut upon the face of the petitioner on ground of maintainability issue without considering the merit of the case as well as the other legal issues.
 
It appears that the petitioner before us as Minister-in-Charge of Ministry of Energy and Mineral Resources on 18.03.2003 approved a summary by which Chatak gas field was considered to be treated as was defined in Exhibit-A of the Framework of Understanding (FOU) which was signed on 23.08.1999 between BAPEX and NIKO during the era of the erstwhile Prime Minister Sheikh Hasina. Vide the said summary, the petitioner also gave approval to finalize the draft Joint Venture Agreement (JVA) as per terms and conditions laid down in the ‘Procedure for Development of Marginal Abandoned Gas Fields’ which was approved on 16.04.2001 by the former Prime Minister Sheikh Hasina and also by following the relevant rules. JVA was signed on 16.10.2003. It further appears from the charge sheet that there was no policy or guideline to conclude the JVA with foreign company in respect of exploration and extraction of gas and oil in Bangladesh. Even no model JVA was framed yet. Had this been the only and the entire prosecution case, we would have concluded that the petitioner had followed the footsteps of the erstwhile Prime Minister Sheikh Hasina and thus, facts of both the cases are same.
 
However, facts narrated above are neither the only nor the entire part of the prosecution case.
In the charge sheet, it has been stated that the F.I.R. accused no. 5 Kashem Sharif, who was the then Vice President (South Asia) of NIKO Resources Ltd., engaged Selim Bhuiyan, the then Chairman of Dhaka Club to maintain liaison with A.K.M. Mosarraf Hossain the then State Minister of Energy and Mineral Resources Ministry and Gias Uddin Al Mamun who was the friend of the petitioner’s influential son Tarique Rahman. For this purpose Selim Bhuiyan was given Taka 3 (three) crore. On 15.01.2008 Selim Bhuiyan made a judicial confession before the Dhaka Metropolitan Magistrate which was recorded under section 164 of the Code of Criminal Procedure. In the said confession he stated that he had contact with Gias Uddin Al Mamun and both of them met the State Minister A.K.M. Mosarraf Hossain and solicited his assistance to get NIKO the work. The State Minister assured him that he would try his best. Selim Bhuiyan and Gias Uddin Al Mamun used to maintain regular contact with the State Minister and follow up the matter. As a result of lengthy negotiations the Joint Venture Agreement (JVA) was signed between BAPEX and NIKO at the end of 2003. Kashem Sharif deposited Taka 3 (three) crore in the Standard Chartered Bank account of Selim Bhuiyan. Out of that money Selim Bhuiyan gave Gias Uddin Al Mamun Taka 1 (one) crore 80 (eight) lac and Taka 60 (sixty) lac to the State Minister. The confession of Selim Bhuiyan has not been produced before us.
 
It has been stated in the F.I.R. that on 15.08.2005 a 3-member inquiry committee headed by a Director General of the Office of the Prime Minister was formed to enquire into the matters relating to the basis of declaration of Chatak gas field as abandoned and the process of approval of the JVA between BAPEX and NIKO and other related matters. In the said enquiry report various irregularities and commission of corruption in the process leading to approval given to sign the JVA were highlighted. A summary was sent to the petitioner, who was the Prime Minister at that time, for according approval to take legal action as per the report of the inquiry committee and to send the report to the ACC, but the Prime Minister (the petitioner) sent back the file with instruction not to send the report and relevant files to the ACC.
 
So far as the erstwhile Prime Minister Sheikh Hasina is concerned, there is no such allegation that the process of approving the ‘procedure’ by her involves any unlawful financial or other transaction. The only allegation against her is that she approved the ‘procedure’ which, the High Court Division in her case held, does not attract any criminal liability. In the instant case it appears from the confession of the co-accused that bribe was given to the then State Minister of Ministry of Energy and Mineral Resources A.K.M. Mosarraf Hossain, Selim Bhuiyan and Gias Uddin Al Mamun to ensure that the ‘JVA’ is to be finalized and signed which clearly comes within the ambit of definition of criminal misconduct given in section 5(1) of the Act, 1947. The involvement of the petitioner as an abettor in the alleged offence as Minister-in-Charge of Energy and Mineral Resources is a question of fact which cannot be determined at this stage. We also note that the petitioner as Prime Minister refused to give approval to take legal action as per inquiry report prepared by a committee headed by a Director General of the office of the Prime Minister in respect of corruption indulged in the process leading to signing the JVA and to send the report to the ACC.
 
So, it is not the question of approving the ‘procedure’ as approved by the erstwhile Prime Minister Sheikh Hasina or the draft JVA by the petitioner as Minister-in-Charge, rather the issue is determination of criminal liability of the accused persons of the instant case in the alleged offence of giving and receiving bribe which is absent in the case of Sheikh Hasina. These factual aspects clearly show that the cases of Sheikh Hasina and Begum Khaleda Zia (the petitioner) are not the same.
 
The case of Sheikh Hasina (in which the proceeding of Special Case No. 5 of 2008 arising out of Tejgaon Police Station Case No. 19 dated 09.12.2007 corresponding to ACC G.R. Case No. 160 of 2007 was challenged) was decided upon an application under section 561A of the Code of Criminal Procedure, whereas the petitioner seeks to quash the criminal proceeding Special Case No. 16 of 2008 arising out of Tejgaon Police Station Case No. 20 dated 09.12.2007 corresponding to A.C.C. General Registered Case No. 161/07 by making an application under Article 102 of the Constitution, which we have already held, is not maintainable.
 
It has been argued on behalf of the petitioner by making reference to Articles 55(2) and 145(2) of the Constitution that inasmuch as contract made or executed in exercise of the executive authority of the Republic, neither the President nor any other person making or executing the contract in exercise of that authority is personally liable in respect thereof, ACC has no authority under section 17 of the ACC Act, 2004 to enquire into the acts of the Prime Minister or the Cabinet in taking an executive decision in performance of their functions of the Republic.
 
We do not find any substance in the above argument because of the language employed in Article 145(2) which clearly suggests that the Article applies to matters of civil liability, not in the case of criminal liability. We have already held that in the instant case the issue is determination of criminal liability of the petitioner in respect of the alleged offence under sections 409/109 of the Penal Code read with section 5(2) of the Act, 1947 i.e., criminal breach of trust by public servant, criminal misconduct by a public servant and abetment of the offence that took place in the process of executing the ‘JVA’.
 
More-so, section 17 of ACC Act, 2004 provides inter alia that-
 
“১৭ কমিশনের কার্যাবলি- কমিশন নিম্নবর্ণিত সকল বা যে কোন কার্য সম্পাদন করিতে পারিবে, যথাঃ-
(ক) তফসিলে উল্লিখিত অপরাধসমূহের অনুসন্ধান ও তদন্ত পরিচালনা;
অনুচ্ছেদ (ক) এর অধীন অনুসন্ধান ও তদন্ত পরিচালনার ভিত্তিতে এই আইনের অধীন মামলা দায়ের ও পরিচালনা;”
 
The Constitution has not given any immunity to the Prime Minister or the Cabinet in respect of any criminal offence. There is neither any constitutional nor any statutory or legal bar on the ACC to conduct an enquiry in respect of allegation of commission of offence mentioned in the schedule to the ACC Act, 2004. Therefore, ACC is legally empowered under section 17 of Act, 2004 to conduct any enquiry, the subject matter of which may fall under Article 145 of the Constitution, so long as it attracts criminal liability and ACC acts within the ambit of law.
 
It has also been argued that the Prime Minister is not a public servant and hence, cannot be prosecuted under section 5(2) of the Act, 1947. Upon perusal of section 5 of the Criminal Law Amendment Act, 1958 (in short ‘Act, 1958’) and the schedule to the Act we do not find any relevancy in the argument.
 
Section 5(1) of the Act, 1958 states, “Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, the offences specified in the Schedule shall be triable exclusively by a Special Judge.”
 
The relevant portion of the schedule to the Act, 1958 runs thus:
 
“Schedule
(See section 5)
“(a)      Offences punishable under দুর্নীতি দমন কমিশন আইন, ২০০৪;

Offences punishable under the Prevention of Corruption Act, 1947;

Abetment described in section 109 including other abetments, … of the Penal Code, 1860 related to or connected with the offences mentioned in clause (a) to (c) above.”
The relevant portion of the schedule to the দুর্নীতি দমন কমিশন আইন, ২০০৪ (ACC Act, 2004) states:
“তফসিল
[(ধারা ১৭(ক) দ্রষ্টব্য]
এই আইনের অধীন অপরাধসমূহ;
the Prevention of Corruption Act, 1947 (Act II of 1947) এর অধীন শাস্তিযোগ্য অপরাধসমূহ;
...
the Penal Code, 1860 (Act XLV of 1860) এর sections 161-169, 217, 218, 408, 409 and 477A এর অধীন শাস্তিযোগ্য অপরাধসমূহঃ
অনুচ্ছেদ (ক) হইতে (গ) তে বর্ণিত অপরাধসমূহের সহিত সংশ্লিষ্ট বা সম্পৃক্ত the Penal Code, 1860 (act XLV of 1860) এর section 109 এ বর্ণিত সহায়তাসহ অন্যান্য সহায়তা, ... অপরাধসমূহ”
 
The charge sheet of the present case was submitted against the petitioner and 10 others including the State Minister of Energy and Mineral Resources A.K.M. Mosarraf Hossain, the maker of judicial confession Selim Bhuiyan, Gias Uddin Al Mamun, the then Vice-President (South Asia) of NIKO Kashem Sharif. Cognizance of the offence has been taken by the Special Judge against the petitioner, former State Minister and others some of whom were admittedly public servant during the commission of the alleged offence. According to the ratio laid down at paragraph 31 in the case of Sheikh Mujibur Rahman (supra) a State Minister, no doubt, is a public servant within the meaning of Act, 1947 read with Act, 1958. Under section 5(1) of the Act, 1958, which has been quoted above, offences specified in the schedule to the Act are exclusively triable by the Special Judge.
 
In the case of Hossain Mohammed Ershad, former President and others vs. State 45 DLR (AD) 48 it has been held that:
 
“Though the offence of abetment was not mentioned in Act II of 1947 it was mentioned as an item in the schedule ‘C’ to the Criminal Law Amendment Act, 1958. Under section 5 of the Act that the special Judge, appointed under the Act, has jurisdiction to try that offence. Besides where the prosecution case is that the offences were committed in the course of the same transaction all the accused who were alleged to have committed the offence as principals and abettors in the course of the alleged transaction can be tried under section 239 of the Code of Criminal Procedure.”
 
Against the backdrop of the above provisions of law and facts and circumstances of the case, we are of the view that in the instant case the allegation against the petitioner that she otherwise abused her office or abetted others to use the office for any illegal gain within the meaning of criminal misconduct as defined in section 5(1) of the Act, 1947 or her alleged involvement as an abettor under section 109 of the Penal Code cannot be determined in a separate criminal proceeding and the same must be adjudicated in the instant proceeding by the Special Judge appointed under section 5 of the Act, 1958. Abetment under section 109 of the Penal Code is such an offence which can be inferred from the conduct of the accused and attending circumstances of the case. It may be proved either by oral, or documentary or circumstantial evidence. So, the issue as to whether the Prime Minister is the public servant is irrelevant in the instant case inasmuch as section 109 of the Penal Code (abetment of the offence) is present in the case and other public servants are also accused in the case.
 
Facts and circumstances of the case of Begum Khaleda Zia 55 DLR 596 (supra) are totally different from those of the instant case and hence does not apply to the case in hand.
 
In view of the facts, circumstances and laws discussed above, we do not find any merit in Rule.
 
In the result, the Rule is discharged. The order of stay is re-called and vacated. However, there is no order as to cost.

It appears that pending disposal of the Rule, the petitioner was granted bail on 09.09.2008 which was extended till disposal of Rule vide order dated 24.11.2008. Since the Rule is discharged the petitioner is directed to surrender before the trial court within a period of 2(two) months from the date of receipt of this judgment. The trial court shall consider the bail of the petitioner, if any, as she did not misuse the privilege of bail.
 
Send down the lower Court records and communicate the judgment to the court concern at once.

Ed.