Cornel Taher Case

IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)
WRIT PETITION NO. 7236 OF 2010
With
With
AND
IN THE MATTER OF :
An application under Article 102 of the
Constitution of the People’s Republic of
Bangladesh;
AND
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
=2=
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 12 , 13 17 , 18 , 19th, 20th,
th th th th
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

=3=
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

=4=
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.

=5=
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-
=6=
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.

=7=
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.
=8=
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

=9=
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

=10=
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.

=11=
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,
=12=
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

=13=
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
=14=
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

=15=
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

=16=
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.

=17=
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.

=18=
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.

=19=
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.

=20=
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.

=21=
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

=22=
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.
=23=
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
=24=
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

=25=
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.
=26=
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.

=27=
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

=28=
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.

=29=
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.

=30=
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

=31=
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

=32=
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

=33=
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
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|

=34=
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¡)
‡dvb-7116188 d¨v·-7114470
eivei,
Dc-cywjk Kwgkbv‡ii Kvh©vjq

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
=35=
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© cÎvwì 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;

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|

=36=
(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 †mbvmì †RGwR
wefvM-†K G msµvš— Z_¨vw` †cÖi‡Yi Rb¨ Aby‡iva Kiv nq| †mbvmì
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| ‡mbvmì †_‡K cÖvß D³ c‡Îi d‡UvKwc m`q AeMwZ I cÖ‡qvRbxq
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|
=37=
Abywjwc m`q ÁvZv‡_© I Kvh©v‡_© (†R¨ôZvi wfwË‡Z bq)t
1| mwPe, ¯îvó« 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
cÖavbgš¿xi Kvh©vjq
mk¯¿ evwnbx wefvM
cÖkvmb I eë¯’vcbv cwi`ßi
XvKv †mbvwbevm
‡Uwj‡dvbt 8713297 mvgwiK
4388
B-†gBjt admin
[email protected]
18 AMÖnvqY 1417
40009/1/GGÛGj-1/1310 02 b‡f¤¦i 2010|
=38=
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) ‡mbvmì, †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‡ì AeMwZ I cieZx© Kvh©µ†gi Rb¨ †cÖiY Kiv n‡jv|
(‡gvt Avwmd BKevj)

‡gRi
c‡¶ fvicÖvß wcGmI
weZiYt
ewnM©gbt
Kvh©µgt
=39=
mwPe
¯îvó« 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.

cÖwZi¶v gš¿Yvjq
MYfeb Kg‡c−·
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 wfwË‡Z †cÖi‡Yi Rb¨
†mbvmì †RGwR wefvM-†K Aby‡iva Kiv n‡q‡Q Ges Gi Abywjwc Áv‡Z‡_© I

=40=
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) ‡mbvmì †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¨ ¯îvó« gš¿Yvjq Aby‡iva Ki‡j †mbvmì †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 †mbvmì †_‡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|

=41=

cÖwZi¶v gš¿Yvjq
MYfeb Kg‡c−·
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„ZëiY Kiv n‡qwQj| D³
duvwmi wei“‡× ms¶y× n‡q wZwb mwPe AvBb, wePvi I msm` welqK
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
‡mbvmì †R G wR wefvM
XvKv †mbvwbevm
XvKv|
=42=
AÎ mv_ nvB‡KvU© wefv‡Mi KvMRcÎ †cÖiY Kiv n‡jv| D³ ixU gvgjvi
AvwR©i Aby‡”QÌqvix Reve 2 cª¯’ cÖ¯Z

— c~e©K Ri“wi wfwË‡Z G gš¿Yvj‡q
†cÖiYc~e©K gvgjvi cÖ‡qvRbxq Kvh©µg MªnY Kivi Rb¨ Aby‡iva Kiv n‡jv|

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 wcwUkb 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 `v‡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 wfwË‡Z gš¿Yvj‡q †cÖi‡Yi eë¯’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
=43=
‡mbvmì
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=44=
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=45=
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=46=
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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

=47=
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.

=48=
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

=49=
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.

=50=
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

=51=
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,

=52=
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.

=53=
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

=54=
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.”

=55=
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

=56=
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

=57=
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

=58=
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.

=59=
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.
=60=
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

=61=
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”

=62=
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

=63=
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

=64=
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

=65=
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.

=66=
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

=67=
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

=68=
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)

=69=
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

=70=
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

=71=
supra, for which I am extremely gratified and obliged to
this Court.
5. That in this connection, I affirmed an Affidavit on
January 31, 2011 before the Notary Public, Connecticut,
USA stating the entire facts relating to the so called trial
of Colonel Taher and his execution by a Special Martial
Law Tribunal; and the said Affidavit having been duly
authenticated by the Consulate General of Bangladesh
was transmitted to Mr. M. K. Rahman, Additional
Attorney General for Bangladesh for submitting the same
before this Hon’ble Court, accordingly the same was
submitted before this Hon’ble Court on 14/03/2011
(electronic transcript of the Affidavit was earlier
submitted to this Hon’ble Court on 03/02/2011).
6. That responding to the request of this Hon’ble Court for
which I have been waiting for more than 30 years and
considering the same as a great honor of my life, I arrived
in Dhaka on 12/03/2011 and made written and verbal
statement before this Hon’ble Court regarding the so
called trial of Colonel Abu Taher by a Special Martial Law
Tribunal and his execution.

=72=
7. That the written statement that I handed over to the
Hon’ble Court is required to be brought on record to
arrive at a correct decision in the matter, accordingly the
nine page statement signed by me is annexed hereto and
marked as Annexure “1”.
Text of the Statement in Annexure 1 are recorded below
word to word;
A STATEMENT BEFORE THE SUPREME COURT
OF BANGLADESH
By Lawrence Lifschultz
Ref: Writ Petition 7236 of 2010
Regarding the Trial & Execution of Abu Taher in July 1976
My name is Lawrence Lifschultz. I am a writer by
profession. In July 1976 I was South Asia Correspondent of the
Far Eastern Economic Review (Hong Kong) and a contributor
to the BBC and The Guardian (London). In January this Court
requested that I appear before in order to give evidence on
what knowledge I may possess pertaining to the case of
Colonel Abu Taher.
On 3 February 2011, M.K. Rahman, the Additional
Attorney General of Bangladesh, read out my Affidavit to this
Court. I was unable to travel to Bangladesh in January because

=73=
a family member had recently been in a serious accident and I
was simply unable to leave.
Today it is one of the great honors of my life to be
present before you in this Court. As the Court drew its
deliberations to a close, you again graciously made a second
request that I travel to Dhaka and appear before you. By then
circumstances had changed and I was able to make the journey.
We are all here because of one of the most essential
elements of civilized society. It is called “memory”. We have
come to remember what happened in this city nearly thirty-five
years ago. Some of us remember it well. Others were just
children then. But, we are here because many of us refused to
forget. It became our duty to remember.
For thirty-five years it has been my hope that one day I
would stand in a courtroom aware that a verdict would soon be
rendered in Taher’s case, and that the verdict would declare,
whether or not, Abu Taher’s trial and execution in 1976 had
been illegal, but also a fundamental violation of both his
constitutional and human rights.
I did not know until a few months ago that it would be
your Courtroom, nor did I know your names would be Justice
Shamsuddin and Justice Hossain. We do not pre-judge your

=74=
verdict. But, like others, I have hoped for a day like this one,
these many decades. Only last week, Taher’s daughter Joya told
me, “I have been waiting my whole life for this particular
moment.” She was five years old when her father died. So you
see, after a lifetime of waiting, many have come before you in
search of Justice for Abu Taher.
A year after Abu Taher was executed a meeting was
organized at Conway Hall in London by a group of relatives
and some of Taher’s former colleagues. Only a year after he
had died people gathered to remember him. As you know, such
a meeting in Dhaka would have been impossible in 1977. many
who might have attended were in prison. I was asked to speak
at the Conway Hall meeting. As a journalist, I was not certain I
should accept the invitation. Would my independence and
objectivity be questioned? At the time I explained to those in
attendance why in the end I accepted the invitation to speak.
Certain of the remarks I made then I believe still have meaning
today.
As I stood at a podium in Conway Hall, I said:
“As a writer and journalist, I make a distinction, which
some may find hard to see, between objectivity and neutrality.
There can be no compromise or qualification on objectivity, as

=75=
there can be no compromise with the pursuit of accuracy, but I
also recognize there is no ‘neutrality’ on certain questions. That
is why I have accepted the Taher Memorial Committee’s
invitation to speak. When it comes to a question of secret trials
and secret executions, I am not neutral. I condemn them
whether they have been carried under the orders of Franco,
Stalin or General Ziaur Rahman.”
“A year ago, by a coincidence of timing, I happened to
arrive in Bangladesh as just such as case was about to begin, full
of its own dimensions of death, betrayal and tragic
injustice…….. I am an American by nationality, and in
American we too have had in our history famous incidents of
exceptional judicial debasement, where the institutions of law
have been used to commit crimes ‘for reasons of state’. In
America the names and memory of the executions of the
Rosenbergs, Joe Hill and Sacco & Vanzetti stand out most
starkly.”
“Today I am reminded most clearly of Nicola Sacco and
Bartolomeo Vanzetti, two poor Italian immigrants who came to
American for a better life and instead found a frame-up. They
were killed because we in America also have our Salauddin
Ahmeds and our A.M.S. Safdars. In the time of Sacco and

=76=
Vanzetti they were called Attorney General Palmer and J. Edgar
Hoover.”
“Today I mention Sacco and Vanzetti because last month
[June 1977]-50 years after their execution-Governor Michael
Dukakis of the State of Massachusetts declared that in the
official view of the state, Sacco and Vanzetti were innocent
men and were wrongly executed. Governor Dukakis declared
that each year, on the anniversary of their execution, the people
of the State of Massachusetts where these two men were
executed would observe ‘Sacco and Vanzetti Memorial Day’. I
doubt whether it will take the people of Bangladesh so long to
set right what happened on the gallows of Dhaka Central Jail a
year ago.”
Who could have known it would have taken this long?
Fifty years have not passed as in the Sacco and Vanzetti case.
However, nearly thirty-five years have elapsed since Taher’s
death. The time has come to face the issues squarely. Can we
even call what Taher and his colleagues faced a “trial”/ there
existed a “special Military Tribunal No. 1” which convened in
Dhaka Central Jail. I was there. I stood outside the prison. I
watched men, like Colonel Yusuf Haider, the so-called
Tribunal’s chairman, walk through the prison gates.

=77=
Although they tried to hide themselves and cover their
faces, I took their photographs. Soon they took my camera, my
film and arrested me, under what charge I was never told. But,
today no records can be found of this “ghost” Tribunal. Even,
back then, they were trying to cover their tracks and keep
hidden what they had done. Perhaps, only George Orwell,
could explain to us where the records and transcripts have
gone.
These men who committed this crime against Taher, were
not like us, who gather here today. They did not want anyone in
the future to come together to remember what they had done
and who they were. They preferred that their crime stay hidden.
As this Court has discovered, there are no documents. There
are no transcripts. There are no “official records”. At the outset
they sought to cover up what they were doing.
What these “men of power” did not reckon on was the
persistence and determination of a handful of people that this
history would not be lost but would be remembered. We are
here to remember, and the Supreme Court of Bangladesh has
now become an integral part of a ‘process of remembrance’.
This Court has arduously reconstructed a picture of what
took place by requesting witnesses to voluntarily appear and

=78=
also ordering reluctant witnesses to give testimony. The Court
has also ordered a search for any and all surviving documents.
You are to be commended for your diligence and seriousness
of purpose.
As I indicated in my Affidavit, I do not believe what
happened can even be formally called a “trial’. It was not even a
“show trial” because the military government did not want to
“show it”. Generally Zia’s regime feared the repercussions of
an open court of law and the public reaction that would have
ensued had a trial been held by a lawfully constituted court with
a free press being able to report.
In my January 31st Affidavit I have described in some
detail how I met General Mhd. Manzur, Chief of General staff,
at his office in the Cantonment a month before the Special
Tribunal. I had known Manzur for several years. I also
explained how Manzur had opposed Taher’s so-called trial, and
according to what he told me in June 1976, he was doing
everything he could to see that it would not take place.
Clearly, Manzur was outnumbered and outflanked. It
would only be a matter of time before they would come for
him. However, as I discussed in the Affidavit, Manzur sent an
emissary to see me in England after Taher had been executed.

=79=
He wanted me to know that he knew positively that General
Zia had personally taken the decision to executed Taher well
before Colonel Yusuf Haider and his team “opened for
business”, albeit sordid business, behind the walls of Dhaka
Central Jail.
At the end of January, Moudud Ahmed, who I once knew
as a young human rights lawyer, made certain claims in the
press, citing my work repeatedly but in almost every instance
inaccurately. Mr. Ahmed has travelled far from the principles I
once associated him with when he was young. This is not an
uncommon phenomenon on the road to power. But, he did
make one claim, which if true, has importance for this Court’s
deliberations.
Moudud Ahmed claimed that Ziaur Rahman had
convened a gathering of 46 “repatriated” officers to discuss the
sentence that should be passed on Taher. It is well known that
not a single officer who had participated in the Liberation War
was willing to serve on special Military Tribunal No. 1. But,
General Zia’s special convocation of repatriates appears to have
ended with a unanimous decision. They wanted Taher to hang.
Moudud claims his source for this story was General Zia
himself. In this respect, Moudud’s version of events tallies with

=80=
what General Manzur claimed to me regarding General Zia
having personally taken the decision on what the verdict would
be. One man, Ziaur Rahman, decided, on his own, to take
another’s life. He then asked a group of about fifty military
officers to endorse his decision.
What can we say about this? By what stretch of the
imagination can we call this a “lawful procedure”? by what
authority or law did this klatch of military men render unto
themselves the role of judge and jury? Military dictatorships
write their own rules and that is precisely what happened in this
instance.
In my view, perhaps the most accurate way to describe
the events that took place behind the gates of Dhaka Central
Jail in July 1976, would be to recognize that what really
occurred was simply a form of “lynching” organized by the
Chief Martial Law Administrator, General Ziaur Rahman.
There was no trial. A façade was created and dressed up to look
like a trial. Yet, even the façade quickly crumbled. If it was a
trial, why was it not taking place in a Court? It took place in a
prison. What sort of trial occurs in a prison? The answer is a
trial that is not a trial.

=81=
Joya Taher has characterized what happened to her father
as an “assassination”. The Special Military Tribunal No. 1 was
the mechanism by which the assassination was accomplished.
Perhaps, Joya Taher’s view is closest to the mark.
Syed Badrul Ahsan, has called the Taher case “murder
pure and simple”. In an article published in July 2006, Ahsan
writes, “When he [Lifschultz] speaks of Colonel Abu Taher and
the macabre manner of his murder (it was murder pure and
simple), in July 1976, he revives within our souls all the pains
we have either carefully pushed under the rug all these years or
have not been allowed to feel through the long march of
untruth in this country.” (Syed Badrul Ahsan, “Colonel Taher,
Lifschultz & Our Collective Guilt”. The Daily Star, 26 2006.)
Ahsan was only partly right. When he called the Taher
case “murder pure and simple”, he left out the element of
premeditation or perhaps he assumed it. Moudud Ahmed,
whateven else he has done, has made clear that General Zia
went about his murderous work in a premeditated fashion, and
pre-meditation under the law, has great significance.
It means you understood what you were doing and you
planned your crime accordingly. In criminal law premeditated

=82=
murder is murder in the fires degree. (Why Mohdud Ahmed
was an associate of this man and a minister in his government
is a question for another day.
In his 2006 article Ahsan also referred to the “long march
of untruth” in Bangladesh. He was certainly correct about the
‘state of affairs’ five years age. However, new phase appears to
have opened. The Supreme Court has declared the 5th and 7th
amendments to be at variance with the Constitution thereby
invalidating the attempt of two successive martial law regimes
to retrospectively immunize their past actions from any form of
accountability. This Court in my opinion is boldly taking on
issues that are at the very heart of a new and challenging period.
This Court is an integral part of the culture of this society
and it is potentially an instrument of charge. In the United
States the Warren Court broken down the doors of racial
segregation and became a critical force in changing American
society. Bangladesh in 1971 sought to break from the disastrous
traditions of Pakistan’s history of martial law regimes and
dictatorship. If the inviolability of the Constitution and the
“rule of law” are to mean anything, the civilian courts must
become paramount, indeed hegemonic.

=83=
It must become impossible for a small group of military
officers to even again establish themselves as “judge and jury”
and thus supersede the civilian judicial authorities. This is the
heart of the matter. The question is not only whether “the rule
of law” will be paramount, but also whether the judiciary can
acquire the strength to secure its paramount position? The
Supreme Court clearly shows its intent on doing so. Of course,
there is no guarantees.
The “mindset”, so characteristic of the Pakistan Army
and other military dictatorships, must be broken if democracy
and democratic freedoms are not once again to be endangered
in this court. The courts can play a critical role in strengthening
the institutions of democratic rule. By overturning the 5th and
7th amendments a significant step has been taken in making
unambiguously clear to the armed forces that if they ever cross
the line again and embrace armed dictatorship, they will face
grave consequences for breaching the Constitution and the
“rule of law”.
The challenge before the Supreme Court in the Taher
cases is to determine whether the procedures that were
followed by “Special Military Tribunal No. 1” can be

=84=
considered in any way to have been legal or constitutional. If
they were not, they should be appropriately characterized.
For Taher’s family this is the essential matter. Will the
“verdict” of a Tribunal that had no legal standing under the
Constitution and whose own records have “disappeared”’ be
allowed to stand, or will the secret proceedings of July 1976 at
Dhaka Central Jail be overturned and declared to have been
unconstitutional and illegal? To Taher’s wife and three children
this is what matters. Everything else is detail.
“Now I am eagerly waiting for the verdict,” Taher’s
daughter, Joya, wrote me ten days ago. The verdict “will not
bring back my Dad,” she said, but it will bring an end the “kind
of assassination” which took her father from her and her two
brothers at such an early age. To have their father exonerated,
and admired for the remarkable man he was, will bring some
peace to their hearts. If you accomplish this Justice Shamsuddin
and Justice Hossain, you will have accomplished a very great
and good deed.
It was almost exactly thirty-five years ago this month that
I finished writing “Abu Taher’s Last Testament”. It was the
spring of 1977. I was young then. I was only twenty-six. Less

=85=
than a year had passed since Taher’s trial and my deportation
from Bangladesh. I was living in Cambridge, England at that
time. I remember when I typed the last page. I reread the text
and put a copy in an envelope.
I was living in a small house on Clare Street. I remember
waling around the corner to a tiny post office where I knew the
staff. I bought the requisite number of stamps and two Air Mail
stickers. The envelope was addressed to Krishna Raj, Editor of
the Economic & Political Weekly in Bombay. I wondered if he
would publish it. I slipped the envelope into the mailbox.
It was published as a Special Issued of EPW in August
1977 and would soon become part of a book on Bangladesh.
The book would be banned in Bangladesh for over a decade.
Of course, my first desire would have been to publish the
manuscript in Bangladesh. Yet, for obvious reasons that was
not possible.
Two crucial events compelled me to writ “Taher’s Last
Testament”. I had been trying to decide how to write an
account of all that had taken place. Then two things happened.
A copy of Taher’s secret testimony before the Special Military
Tribunal arrived on my doorstep. Someone had called me from

=86=
London saying they were mailing me an important document
that had been brought from Dhaka. When I received it, I read
remarkable courage and integrity.
What happened next settled the matter. I received a
translation of letter that Lutfa, Taher’s wife, had written to her
brother at Oxford. It was one of the most beautiful letter I’ve
ever read.
I would like to conclude my testimony to this Court by
reading an excerpt from Lutfa’s letter. She is here today.
“my dear bora bhaijan,
I cannot think of what to write you today. I cannot realize
that Taher is no longer with me. I cannot imagine how I will
live after the paratner of my life has left. It seems the children
are in great trouble. Such tiny children do not understand
anything. Nitu says, ‘Father, why did you die? You would have
been alive, if you were still here.’
The children do not understand what they have lost.
Every day they go to the grave with flowers. They place the
flowers and pray, ‘Let me become like father.’ Jishu says that
father is sleeping on the moon………

=87=
I am very fortunate………. When he was alive, he gave
me the greatest honour amongst Bengali women. In his death
he gave me the respect of the world. All my desires he has
fulfilled in such a short time. When the dear friends and
comrades of Taher convey their condolences to me, then I
think: Taher is still alive amongst them, and will live in them.
They are like my own folk. I am proud. He has defeated death.
Death could not triumph over him…………..
Although it is total darkness all around me and I cannot
find my moorings, and am lost, yet I know this distress is not
permanent, there will be an end. When I see that the ideals of
Taher have become the ideals of all, then I will find peace. It is
my sorrow that when that day comes, Taher will not be there.
Affectionately,
Lutfa
Having found him in the Court room we asked Mr.
Lifschultz, to advance some elaboration and clarification on his
affidavits. Some abstracts from what he stated, are put below in
black and white.

=88=
In July 1976 I was South Asia Correspondent of the Far
Eastern Economic Review (Hong Kong) and a contributor to
the BBC and The Daily Guardian (London).
However, nearly thirty-five years have elapsed since
Taher’s death. The time has come to face the issues squarely.
Can we even call what Taher and his colleagues faced, a “trial”?
There existed a “special military tribunal no.1” which convened
in Dhaka Central Jail. I was there. I stood outside the prison. I
watched men, like Colonel Yusuf Haider, the so-called
tribunal’s chairman, walk through the prison gates.
Although they tried to hide themselves and cover their
faces, I took their photographs. Soon they took my camera, my
film and arrested me, under what charge I was never told.
Moudud Ahmed claimed that Ziaur Rahman had
convened a gathering of 46 ‘repatriated” officers to discuss the
sentence that should be passed on Taher. It is well known that
not a single officer who had participated in the Liberation War
was willing to serve on special military tribunal no. 1. But,
General Zia’s special convocation of repatriates appears to have
ended with a unanimous decision. They wanted Taher to hang.
Moudud claims his source for this story was General Zia
himself. In this respect, Moudud’s version of events tallies with

=89=
what General Manzur claimed to me regarding General Zia
having personally taken the decision on what the verdict would
be. One man, Ziaur Rahman, decided, on his own, to take
another’s life. He then asked a group of about fifty military
officers to endorse his decision.
In my view, perhaps the most accurate way to describe
the events that took place behind the gates of Dhaka Central
Jail in July 1976, would be to recognize that what really
occurred was simply a form of “:lynching”, organized by the
chief martial law administrator, General Ziaur Rahman. There
was no trial. A facade was created and dressed up to look like a
trial. Yet, even the facade quickly crumbled. If it was a trial,
why was it not taking place in a Court? It took place in a prison.
What sort of trial occurs in a prison? The answer is a trial that is
not a trial.
Md. Maqbul Husain, former subdivisional officer and
subdivisional magistrate, Dhaka Sadar (South) who retired as an
Additional Secretary, Government of Bangladesh, also filed an
affidavit, texts of which are reproduced below verbatim;
“I Md. Maqbul Husain, son of Asmat Ali (since
deceased), former Subdivisional officer and Subdivisional
Magistrate, Dhaka Sadar (South) and retired Additional

=90=
Secretary, Government of Bangladesh, now residing at House
No. 25, Road No. 2, Block No. F, Mohammadpur Pisciculture
Co-Operative Housing Society, Adabar, Dhaka: Bangladesh:
aged about 70 (seventy) years, by profession-retired
Government Servant, by faith- a Muslim, by Nationality-
Bangladeshi, do hereby solemnly affirm and say as follows:
That the instant writ petition was filed challenging the
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.
That during hearing of the Rule Nisi, a writ Bench of this
Hon’ble Court comprising their Lordships Mr. Justice A. H. M.
Shamsuddin Chowdhury and Mr. Justice Sheik Md. Zakir
Hossain directed the deponent to appear before this Court on

=91=
19.01.2011 to make statement providing with necessary
information as to the so called trial and conviction of Colonel
Abu Taher by a Special Martial Law Tribunal in 1976.
That accordingly I appeared before this Hon’ble Court on
19.01.2011 and made verbal statements in connection with the
tragic crime committed in Dhaka during June and July, 1976
which ended with the hanging of Colonel Abu Taher, BU,
through a so called trial by a Special Martial Law Tribunal.
That the verbal statement that I have made is required to
be brought on record to arrive at a correct decision in the
matter and hence this Affidavit.
That from February, 1976 to March, 1977, I served as the
Subdivisional officer and Subdivisional Magistrate, Dhaka Sadar
(South). During June and July, 1976, Colonel Abu Taher. BU
was tried by a Special Martial Law Tribunal sitting in camera in
Dhaka Central Jail. The case records including the FIR and
other connected papers were never placed before me but in law
those were required to be placed before me for taking
cognizance and necessary orders as Subdivisional Magistrate.
Mr. Mohammad Abdul Ali, Magistrate First Class, Dhaka Sadar
(South) was posted as one of the five members of the Special
Martial Law Tribunal which tried Colonel Abu Taher and

=92=
others and before his posting it was never discussed with me
and such posting was beyond my knowledge. The whole
country was under Martial Law and the trial was conducted
wholly in camera by the Special Martial Law Tribunal.”
Dr. A. M. M. Shawkat Ali, the person who was placed as
the Deputy Commissioner and District Magistrate, Dhaka, at
the germane time and retired as a Secretary to the Government
of Bangladesh and also acted subsequently as an Advisor to the
Caretaker Government during 2007-2008, filed an affidavit, in
following terms;
“I Dr. A. M. M. Shawkat Ali, son of M. Hossain Ali (since
deceased), former Deputy Commissioner and District
Magistrate, Dhaka, and retired Secretary, Government of
Bangladesh and former Advisor to Caretaker Government
during 2008, now residing at House No. 44, Road No. 23,
Block-B, Banani, Dhaka-1213 Bangladesh; aged about 68 (sixty
eight) years, by occupation-retired Government Servant, by
faith a Muslim, by Nationality- Bangladeshi, do hereby solemnly
affirm and say as follows;

=93=
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.
Shamsuddin Chowdhury and Mr. Justice Sheik Md. Zakir
18.01.2011 to make statement providing with necessary
Abu Taher by a Special Martial Law Tribunal in 1976.
18.01.2000 and made verbal statements in connection with the
said trial held in Dhaka during June and July, 1976 which ended
with the hanging of Colonel Abu Taher, BU, through a so
called trial by a Special Martial Law Tribunal sitting in camera in
Dhaka Central Jail.

=94=
That the verbal statements which I have made are
required to be brought on record to facilitate the disposal of the
instant writ petition.
That from 1976 to 1978, I served as the Deputy
Commissioner and District Magistrate, Dhaka, During June and
July, 1976, Colonel Abu Taher. BU and others were tried by a
Special Martial Law Tribunal sitting in camera in Dhaka Central
Jail. While serving as Deputy Commissioner and District
Magistrate, Dhaka, the Government in the Ministry of Law and
Parliamentary Affairs, Justice Brach, by Notification No. 430-
JI/2T-2/76 dated 14.06.1976 constituted a 5(five) member
Special Martial Law Tribunal in exercise of powers conferred
by paragraph no. 3 of the Special Martial Law Tribunal
Regulation, 1976 (Regulation No. XVI of 1976) with
Mohammad Abdul Ali, Magistrate First Class, Dhaka Sadar
(South) as one of its Members. Before his appointment as a
Member of the Tribunal, I as the District Magistrate, Dhaka
was never consulted nor informed by the relevant authority
although procedures and convention demand that.
That Tribunal sat in Dhaka Central Jail in camera and
proceeded with the trial of Colonel Abu Taher, BU and others.
Since the country was under Martial Law and the Special
=95=
Martial Law Tribunal concluded the trial of Special Martial Law
Tribunal Case No. 1 of 1976 in a hurry in camera. I came to
know that the case ended in conviction and in sentence of
death on Colonel Abu Taher and for different terms of
sentence on other accused by a pronouncement dated
17/07/1976. The trial was not fair and impartial under the
Martial Law dispensation. Lt. Colonel Abu Taher, BU much
before the trial by the Special Martial Law Tribunal retired from
Army and joined as Director, Dredger Division, Bangladesh
Water Development Board and thus during trial he was no
longer in the service of the Bangladesh Army. Had it been so
that he was involved in any crime, he could be tried under the
Penal Code by ordinary Court. It is further stated that Lt.
Colonel Abu Taher, BU actively participated in the historic war
of Liberation and served as a Sector Commander and took part
in front fighting and lost one of his legs. Before he joined the
Dredger Division of BWDB as its Director in 1974, he met me
in office when I was Member Director of BWDB.”
Mohammad Abdul Ali, former Magistrate first class,
Dhaka Sadar (South), and a retired Joint Secretary, Government
of Bangladesh, also filed his affidavit, contents in which are, as
hereunder,
=96=
“I, Mohammad Abdul Ali, son of Hajee Abul Quasem
(since deceased), former Magistrate, First Class, Dhaka Sadar
(South) and retired Joint Secretary, Government of Bangladesh,
now residing at 50/A Azimpur Government Colony, Dhaka;
Bangladesh; aged about 70 (Seventy) years, by profession-
retired Government Servant, by faith-a Muslim, by Nationality-
Bangladeshi, do hereby solemnly affirm and say as follows:
purportedly under section 121A of the Penal Code and 13
MLR, 1975 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.
Shamsuddin Chowdhury and Mr. Justice Sheikh Md. Zakir

=97=
13/01/2011 to make statement providing with necessary
Abu Taher and others by a Special Martial Law Tribunal in
1976.
13/01/2011 and made verbal statements in connection with the
That the verbal statements which I have made are
required to be brought on record to arrive at a correct decision
in the matter and hence this Affidavit.
That from March, 1975 to 14/10/1976, I served as the
Magistrate First Class, Dhaka Sadar (South). During June and
July, 1976, Colonel Abu Taher. BU and others were tried by a
Special Martial Law Tribunal sitting in camera in Dhaka Central
Jail. While serving as Magistrate First Class, Dhaka Sadar
(South), the Government in the Ministry of Law and
Parliamentary Affairs, Justice Brach, by Notification No. 430-
JIV/IT-2/76 dated 14/06/1976 constituted a 5(five) member
Special Martial Law Tribunal in exercise of powers conferred by

=98=
paragraph no. 3 of the Special Martial Law Tribunal Regulation,
1976 (Regulation No. XVI of 1976) with me as one of its
members. Before my appointment as a member of the
Tribunal,
I was never consulted nor informed.
That Tribunal sat in Dhaka Central Jail in camera and
proceeded with the trial of Colonel Abu Taher, BU and others.
Since the country was under Martial Law and the Special
Martial Law Tribunal concluded the trial of Special Martial Law
Tribunal Case No. 1 of 1976 in a hurry in camera. The trial
concluded awarding sentence of death on Colonel Abu Taher
and different terms of sentence on other accused by a
pronouncement dated 17/07/1976.”
In reply to our question this deponent stated that no
document Relating to the case and no file was given to him
during the trial, that he knew the laws invoking which Col.
Taher was indicted, did not provide for death sentence as on
the date the trial commenced, but the chair of the tribunal did
not ask for his view on the conviction or the sentences, there
was no consultation between the members, procedure followed
in an ordinary criminal trial was not followed and that, as the

=99=
country was under martial law, he was left with no choice but
to affix his signature on the conviction and sentencing orders.
Khandoker Fazlur Rahman, a former Magistrate, Dhaka
District Magistracy and a retired Secretary, Bangladesh National
Parliament, in his affidavit recorded the following statements;
“I, Khandoker Fazlur Rahman, son of Khondoker Lutfur
Rahman (since deceased), former Magistrate, Dhaka District
Magistracy and retired Secretary, Bangladesh National
Parliament, now residing at 89/119 (89/3 old) RK Mission
Road, Gopibagh, Dhaka-1203; Bangladesh; aged about 65
(Sixty five) years, by profession-retired Government Servant, by
faith-a Muslim, by Nationality-Bangladeshi, do hereby solemnly
affirm and say as follows:

=100=
purportedly under section 121A of the Penal Code and Lt. Col.
(retd.) on 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.
Shamsuddin Chowdhury and Mr. Justice Sheikh Md. Zakir
19/01/2011 to provide necessary information as to the so
called trial and conviction of Colonel Abu Taher and others by
a Special Martial Law Tribunal in 1976.
19/01/2000 and made verbal statements in connection with the
That the statement that I have made is required to be
brought on record to arrive at a correct decision in the matter
and hence this Affidavit.
That from November 25, 1975 to January, 1978, I served
as Deputy Magistrate in the Dhaka District Magistracy and by
an order dated 20.07.1976 issued by the Additional District

=101=
Magistrate, Dhaka, I was deputed as Magistrate to remain
present during the execution of Lt. Colonel Abul Taher, Bir-
Uttam, accordingly after midnight of 20.07.1976, that is in the
early hours of 21.07.1976, I went to the Dhaka Central Jail with
a view to complete the legal formalities in connection with the
execution of Lt. Colonel Abu Taher, Bir-Uttam and met him in
front of condemned cell, wherein he was kept confined. He was
very calm and quiet, asked me about my well-being and offered
me a cup of tea, to which I humbly declined. He further
requested me as to whether he can be taken to the gallows
without mask and in reply I very humbly said that the rule does
not permit. At this stage Colonel Taher requested me to
complete the process of execution within the shortest possible
time. After the wordings, he recited a poem wherein it was
stated that unjust would be perished under the rolling stone.
Before he was taken to the gallows, Colonel Taher said that the
Tribunal and the trial by which he was convicted and sentenced
was not legal and fair. His last words on the gallows “long live
my countrymen and Bangladesh”.
That on being asked by the Hon’ble Court, I replied that
the question of this trial would be raised later and for that
matter, I preserved the office order made by ADC (General)

=102=
Dhaka. I also informed the Hon’ble Court that the death
warrant issued by the Special Martial Law Tribunal sent to
Dhaka District Magistracy for taking steps for execution was
referred to the Ministry of Home Affairs, seeking clarification
whether the death warrant of Colonel Taher could be executed
in the civil jail, following which the Ministry of Home Affairs
got the Jail Code amended by Presidential Order to execute the
death warrant issued by Special Martial Law Tribunal in civil
Jail and Accordingly Colonel Taher was executed in Dhaka
Central Jail.”
Major General Nurul Islam, who retired from the
Bangladesh Army as a Major General in April, 1979,
transmitted an affidavit from the United States, where he is
now permanently settled as a citizen, claiming his total
ignorance on the event as he was, as he says, posted at the
Bangladesh Mission in Rangoon at that time.
As none of the respondents filed any affidavit to rebut
any statement, assertions, insistence, allegation, aspersion,
insinuation that found places in the pleadings of all the
petitioners, which are broadly identical, under the rules
pertaining to pleadings, we are ordained to accept those as
admitted and accurate.

=103=
As the hearing dawned a plethora of Advocates of iconic
gradation with adulation beyond our realm, appeared to assist
this court, a couple of them to represent some petitioners while
the others did so pro-bono, with their treasure trove of high
profile juristic excellence.
They included none other than Dr, Kamal Hussain, Mr.
M. Amirul Islam, Dr. M. Zahir, Mr. M. I. Faruqui, Mr.
Rokanuddin Mahamud, Mr. Aktar Imam, Mr. AFM
Mejbahuddin, Mr. Abdul Matin Khashru, Mr. Yusuf Hussain
Humayun and Mr. Z. I. Khan Panna, Dr. Shahdeen Malik and
ofcourse Mr. Mahbubey Alam the Attorney General, Mr. M.K.
Rahman the Additional Attorney General and a brigade of law
officers.
The petitioner in Writ Petition no. 826 of 2011 were
represented by Mr. Rokanuddin Mahmud while Dr. Shahdeen
Malik appearing with Mr. Tawhidul Islam, represunted the
Petitioners in Writ Petition no. 7236 of 2010. The learned
Attorney General appeared for the state with his fully equipped
contingent, composed of Deputy Attornies General Mr. A.B.M.
Altaf Hussain, Mr. Motaher Hussain Sazu, Mr. Mohammad
Selim, and Assistant Attorneies General Mr. Shahidul Islam
Khan, Mr. Amit Talukdar, Mr. Shoeb Khan and Ms. Purabi
=104=
Shaha. Mr. M K Rahman, the learned Additional Attorney
General, appeared with Mr. A S M Nazmul Haque, AAG Mr.
Delwar Hussain Samaddar, AAG for respondents no 3 and 4.
With a rare exhibition of unanimity, they all agreed that
the so-called trial was but a farce, a pure and simple mockery in
the pretext of the judicial process and hence, at the end, what
was done in the garb of a judicial order, was a cold blooded
murder. “It was not even a show trial,” said Dr. Kamal, “and
the so-called tribunal can not be described even as a kangaroo
court,” louded Mr. M. Amirul Islam. The whole episode, in Mr.
Rukonuddin Mahmud’s visualisation, put a stigma on our
nation. According to Mr. Aktar Imam, who submitted a well
researched comprehensive treatise, proffered with an stentorian
emphasis, that the so-called trial did not reflect even
microscopic trace of what should be the attributes of a criminal
proceeding. Mr. M. I. Farooqui in his philosophically tuned
written submission underscored the impoartance of fair trial
with reference to the historical development of human rights
and projected Col. Taher as a champion of those propitious.
The learned Attorney General termed the trial as a
national disgrace while M/S Khashru, Humayun and Panna
branded it as a deplorable syndrome in our history.

=105=
Mr. MK Rahman and Dr. Malik termed the so-called trial
and its after math as diabolically outrageous, which, in their
view, is reflective of a crude act of vendetta, reminiscent of the
medieval feud.
All the learned Advocates, inclusive of Dr. Kamal
Hussain and Mr. M. Amirul Islam tabled their submission with
dispassionate rhetoric, suggesting that trials even under an
authoritarian regime contain certain norms to give it at least
some kind of judicial facade yet, in the instant case, even those
pretentious elements were missing. “The verdict,” said Dr.
Hussain, “was pre-determined, not by the so-called tribunal,
but by the persons who were at the helm of the state affairs.”
Mr. Islam said it as clear as a see through crystal stone
that the purpose behind the whole gimmick was vindictively
designed with a mind set to annihilate Colonel Taher Bir
Uttam, who shall never disappear from the minds of the people
because of the contribution he left behind to secure the
emancipation of the Bengali People.
Dr. Hossain, Mr. Islam, Dr. Zahir, Mr. Faruqui, Mr.
Rokanuddin Mahmud, Mr. Imam, Mr. Kashru, Mr. Humayun
and Mr. Z. I. Khan Panna, expressed without any equivocation
that nothing can be designated as a judicial or even a quasi

=106=
judicial proceeding where the accused is not feeded with the
information as to the indictment, is not allowed legal
representation, to cross examine witness, have access to what
the prosecution witnesses are to depose, to call defence
witnesses. Absence of right to appeal rendered the scenario
worse even.
Mr. Rokanuddin Mahmud, representing Mr. Hasanul
Haque Inu (W.P. No. 826/2011) and others, relied on the 5th
Amendment judgment and said the subject trial is not covered
by condonation as it was not a routine work that could be
undertaken by a lawful government. He went on saying that it
was not an ordinary martial law court and that the proclamation
of 8th November 1975-is not condoned by this Courts’
Judgment in the 5th Amendment case.
On the question as to our competence to receive
evidence, he illuminated that affidavits are the basis of Article
102 cases- they are not depositions. There is no disputed
question of fact and hence there is nothing to stop us to
procure information from those who are familiar with all that
we need to know for the appropriate disposal of the Rules.
Extracts from his marathon submission are as under;

=107=
Oral statement made by swering deponents were by way
submission in furtherance of what they stated in their affidavits;
they were not deposition in the strict sense, but submissions.
They did not submit on any disputed question, they are
jurisdictional questions. This Bench is not examining any
disputed question of fact, but jurisdictional, collateral facts. The
deponents only advanced clarification on their affidavit
statement when the courts asked for. This Court has all the
power to ask questions to deponents or lawyers for
clarification.
He stated “an act of execution is a murder if killing is not
authorised by law: execution through lawful trial is only
exception- that is why it is a murder.”
“The Magistrate can not escape sanction.”
Mr. Mahmud went on to say;
“The Father of the Nation, Bangabandhu Sheikh Mujibur
Rahman was brutally killed along with his other family
members on the ill-fated morning of 15th August, 1975, and
Khandaker Moshtaque Ahmed along with his other
accomplices, after most illegally usurping state power
proclaimed so-called martial law over the country on 20th
August, 1975, during which period, various martial law orders,

=108=
regulations, notifications including the Martial Law Regulations,
1975 and the Special Martial Law Tribunal Regulation, (which
gave birth to the tribunal concerned) were passed. Although
they purportedly legalised by the Constitution (Fifth
Amendment) Act, 1979, the Hon’ble High Court Division, in
the landmark Judgment delivered in Writ Petition No. 6016 of
2000 (popularly known as Fifth Amendment Case) declared
that the Act was in toto unconstitutional, illegal and void ab
initio and without any lawful effect and all the proclamations,
regulations, orders and notifications were equally
unconstitutional and void and as such and all acts purportedly
done under those proclamations, regulations, orders were also
illegal and void subject to some condonations and from that
point of view the so-called tribunal was totally bereft of validity
and authority, as a corollary all the purported convictions were
non-est.”
In his view Lt. Colonel Taher was in any event, totally
deprived of a fair trial in as much as no proper defense was
allowed in the secluded trial inside the jail without any or little
access to lawyers. “This is one of the inalienable fundamental
right of all the citizens of the country to defend himself
through lawyers of his choice”, said Mr. Mahmud. He

=109=
reminded us that in one of his Judgment [ The State vs. Purna
Chandra, DLR (1970), 289-92], a Bench presided over by
Justice AM Sayeem, set aside a capital punishment, saying “the
Code of Criminal Prodecure confers a right on every accused
person brought before a criminal court to be defended by a
lawyer. That right extends to access to the lawyer for private
consulation and also affording the latter an adequate
opportunity of preparing the case for the defense. A last
moment appointment of an advocate for defending a prisoner
accused of a capital offence not only results in a breach of the
provision of the 6th paragraph of Chapter XII of the Legal
Remembrance’s Manual (1960), and frustrates the object
behind the elaborate provision of that Chapter.......The denial of
this right must have reduced the trial into a farcical one.”
Mr. Mahmud raised a question as to how the same Justice
A. M. Sayem, as the then president and the chief martial law
administrator overlooked his own judgment and rulling and did
not accept the mercy petition of Col. Taher and sent him to the
gallows.
He asserted that it is also well established that under the
constitutional jurisdiction of the Hon’ble High Court Division,
every sentence of death must be placed before this Hon’ble

=110=
Court for confirmation, and this is a constitutional safeguard to
which every citizen of this counrty is entitled, as an imutable
right, yet the Special Martial Law Regulation did not provide
for any such sefty valve. “The conviction,” he said, “was wholly
unconstitutional and void.”
According to him the right to prefer appeal against any
conviction is a part and parcel of the notion of fair trial; and the
fact that the Regulation No. 4(8) of the MLR XVI of 1976 took
away that right of an accused, by itself made trial and
conviction passed by that tribunal wholly unacceptable,
unconstitutional and void.
As he looks at it, a criminal trial must be held in public
as ordained by Article 35(3) of the Constitution and the idea of
a criminal trial in camera is absolutely unknown and repugnant
to the Constitution and to the basic notion of fair trial. “It is an
unfortunate part of our history that an unflinching Freedom
Fighter like Col. Taher had to face a so-called trial in the dark
chamber of the jail”, voiced Mr. Mahmud.
He went on saying;
“It was malafide on the part of the martial law rulers at
that time. It is anybody’s guess when it is seen how hastily Col.
Taher was executed within 4(four) days of the conviction,

=111=
which by itself depicts that the authorities of the day were bent
to annihilate him at all cost.”
“It is so melancholic and anguishing to think that a
person who had wagered his life for this country and, lost one
of his legs in the War of Liberation, had to face such disgrace
and injustice in this land for which he sacrificed so much,”
verbalised Mr. Mahmud.
In his view the perpertrators, who are usurpers of the
Constitution and the state power, utterly and overtly
disregarded, disrespected and distorted all notions of justice
while convicting and executing a man like Col. Taher.
“Human civilization has witnessed very few of such a
travesty of the truth and justice: the martial law rulers, to gratify
their own grotesque ambition, killed an intrerpid Freedom
Fighter and righteous man in the pretext of so-called justice.”
Dr. Shahdeen Malik, the Learned filing lawyer for Prof
Anwar Hussain and others (W.P.No. 7236/2010), asked us to
take particular note of the statement, the person who was a
member of the so-called tribunal, made to the effect that no
paper was placed before him when he was sitting in the
tribunal and the procedure which are mandatory for criminal
trials, were not followed. “It was an absolutely weird situation,

=112=
which can only be branded as a cruel joke, which eventually led
to an extra judicial homicide,” Dr. Malik uttered. He also
echoed the theme that after the decisions in 5th and 7th
Amendment cases, the purported verdict of the so-called
tribunal is bound to fall apart in any event.
Submissions advanced by the learned Advocates, who
made themselves available ex-gratia, some in writing, are
recorded below, a bit elaborately in the interest of precision.
Dr. Kamal Hossain
“It was as if army was preparing for a war-
Turmoil put everything topsy turvy in the vicinity.
“On what legal basis?” asked Dr. Hossain.
“It was nothing else than a kangaroo court, where the
verdict was pre-determined by those in de-facto authority. They
super imposed it on the so-called tribunal.”
Quoting General “Manzoor, Dr. Hossain stated that
Taher was in solitary confinement. “If death sentence was
determined prior to the trial, it was illegal”, insisted Dr.
Hussain. Journalists were threatened and deported. According
to him, justice now seems to be trailing through the right track
after 3 decades.
=113=
He went on saying, “Justice reigns some where in the
universe-crime should never go unpunished: pannacle of power
never lasts long, it did not glorify Hitler or Lewis 14th. Many
were tried-people can not commit crime in the name of the
state.”
Dr. Hossain, through the written part of his profferment
asserted that in 1976 when living in Oxford, he was contacted
by Mr. Syed Ishitaq Ahmed, who had just relinquished the
office of the Attroney General of Bangladesh, and arrived in
London. He informed Dr. Hossaion that as the Attorney
General he had been sent the file relating to the case of late
Col. Taher, containing the judgment by which the latter had
been convicted and sentenced to death, containing the
proceedings of the purported trial held in Dhaka Central Jail,
and he had formed his view that the judgment bore no relation
to those proceeding and Mr. Ahmed therefore, expressed his
inability to give his opinion regarding the validity of the
judgment and instead, tendered his resignation.
Dr. Hossain emphasised the omnipatence of fair
Investigation, equality, right against torture, and the
requirement ordained by Article-35 of the Constitution. He
expressed in black and white that right to legal assistance, duty

=114=
to keep record right, to be tried by competent, independent,
qualified judges- right to a public hearing, right to examine
witnesses, right to appeal are all inseperable adjuncts of a fair
trial.
He continued to state that right of free trial is part of Due
Process and that to prepare the defence case, access to papers,
to lawyers, right to cross examination, are minimum
desideratum warranted by any civilised standard.
In Dr. Hossain’s view none can defend this so-called trial.
He expressed a dream of vision of the future.
Dr. M. Zahir submitted that Section 121A of the Penal
Code did not provide for death sentence. MLR 30 was declared
illegal-5th Amendment has been declared invalid.
“This case,” said Dr. Zahir, “does not come under
condonation, it is not an executive act and it was an action that
was derogatory to the rights of the citizens.”
“That can not be termed a trial at all”, expressed Dr.
Zahir, “where the accused is not told of the offence he stands
in the dock for.” He stated that absence of records sheds a
thick cloud over the whole scenario. “All is not well in
Denmark,” uttered Dr. Zahir. On reception of evidence, he

=115=
insisted that the Writ Court originates from the Court of Star
Chamber and hence it has jurisdiction to take evidence.
“Zia was bent to kill Taher,” emphasised Dr. Zahir.
Mr. M. Amirul Islam submittted that the decision in the
5th and the 7th Amendment cases are irreversible milestones.
Inalienable rights under Article 30 of the Constitution can not
be snatched away.
He echoed what Justice G. Jackson, Prosecuter in
Nuremberg Trial had to say on fair trial.
He said Article 32 is also inalienable. It is much more
than a basic feature; it is part of our civilisation.
The offence was alleged to have had taken place in July
76, but there was no death penalty for the alleged offence. It
carried custodial sentence of 10 years R.I. only.
This punishment was the invention of the martial law.
This is the case of a killing under the pretence of a trial-a
kind of an extra judicial killing. “Even Bhutto was a judicial
killing. Justice Nasim Hasan is reported to have said Bhutto was
a judicial killing.”
Right to life is a person’s most covetted constitutional
possession.
Retrospective effect was totally outside the arena of law.

=116=
“Taher didn’t commit any crime,” submitted Mr. Islam.
Mr. Islam was in concert with others in expressing that
the nation must be relieved from the smirch it has been trailing,
by pronouncing that Taher was actually killed in the pretext of a
trial- “It is a national affront”, voiced Mr. Islam, “that a
Freedom Fighter of his standing had to see the end of his life
under the gallows.”
Mr. M. I. Farooqui, who placed his submission partly in
black and white and partly verbalised, stated that Col. Taher
was virtually killed- it was clearly a cold blooded murder
through a show trial-Taher was a democrat, a socialist. The
people who ascended to power after Bangabondhu’s killing, felt
Taher would stand on their way-Constitution is a social
contract-wisdom of Rennaisance. They felt Taher was an
obstacle on their way to change the Constitution. He was vocal
for the basic structure of the Constitution.
It is obvious that the trial was without jurisdiction-
He submitted that there is no bar in taking evidence. In
India evidence were taken after Railway accidents- PIL Cases-A
man was killed with the allegation of sedition- Fundamental
Character of the Constitution can’t be changed even by the
Parliament.
=117=
He reminded us of Reoussau’s Social Contract.
Mr. M. I. Farooqui’s written submissions, founded on
metaphysical consideration, are reprinted below verbatim;
“Known trial in Antiquity resulting in the dreadful
sentence of death by drinking a cup of hemlock poison against
Socrates, the greatest thinker of ancient Greece,who gave the
priceless gifts of “Dialectics” to humanity-his pleading for
taking ‘reason’ as the supreme judge of every thing. He pleaded
for expression of one’s thought. He is said to be the Father of
Human Rights.
In Antiquity when the use of might alone was considered
as the right policy the kings and ruling chiefs, waged incessant
wars against their neighbouring rivals and adversaries and by
sheer force of arms defeated and brought in chains men,
women, young and old without number. The gallant and brave
soliders fighting on the opposite side so long, overnight,
became helpless captives and were put down with brute froce.
In ancient slave-owning Greek States, thousands of sick, old
useless or rebellious slaves were killed and offered as sacrifices
on the occasion of national rulers, was unquestionable; none
could even whisper a word in anguish or protest. The very first
attempt to speak aloud against this outrage, by Socrates, who

=118=
urged the people and the rulers to test everything said or done
“on the touchstone of reason” was sought to be silenced with a
savage sentecne of death. Socrates emerged as Father of
Human Rights. The martyrdom of Socrates gave rise to a rich
crop of fighters for human rights, liberators and
revolutionaries. Tahir is one of them.
In the middle of fifteenth century, particularly in the wake
of scientific inventions, geographical discoveries, introduction
of printing press, improved use of gunpowder, besides the new
awakening after Reformation and Renaissance, in Europe, man
came to be regarded as centre of universe with main focus
concentrated on human dingity and happiness.
Many prominent thinkers had to pay with their lives,
exiles and imprisonemnt for spreading the gospel of human
dignity, rights and liberty, after mock trials to give the savage
verdicts a semblance of legality. However with undying
dedication to the cause of humanity new liberators stepped in
declaring that “Loss of liberty is worse than death.” Tahir is
one of them.
Dissenting voice of progressive patriots, journalists and
freedom fighters was gagged by inhuman bans and restrictions

=119=
during the dark colonial rules. Local customs and traditions
were shot to eternity.
People started sending memoranda and deputations to
the rulers to ameliorate their pathetic plight. Peaceful
demonstrations were, however, brutally dispersed with a hail of
bullets and baton blows. Heroes like Mahama Gandhi and
Martin Luther King were sentenced to imprisonment even
though they firmly believed in non-violence, in trials before
colonial judges. Those like Surja Sen, Madan Lal, Bhagat Singh,
Udhan Singh, who believed in violent overthrow of the colonial
regimes, were led to the gallows on the basis of false evidence
of police informers and tutored witnesses. These patriots,
though gone physically, became a source of inspiration for
countless of people at national and international level.
During colonial period, the courts handed down
barbarous sentences of death, exile and long imprisonment
with hard labour, by resort to notorious ‘conspiracy’ cases in
India and other subjugated countries.
Conspiracy trial, in fact, solely has ever been aimed at
hastening the prominent defendants to the gallows or prisons
to languish there for years. The only fault on their part having
been their “loud voice for freedom to change the socio-

=120=
economic strata”, which was magnified into allegaions of crime
of ‘sedition’ or ‘violent’ overthrow of the regimes, Tahir is one
of them.
His trial is unique. He was subjected to conspiracy trial in
independent Bangladesh, which he, along with the nation,
fought for and won. He wanted to uphold the social contract.
The trial was made clear when Martial Law decrees (between 15
August 1975 and 9 April 1979) amended, among others, the
Constitution’s Preamble and Article 8, when principles of
nationalism, socialism, and secularism were jettisoned.
Thaher’s political philosophy and Constitution:
Tahir’s political philosophy, we find enshrined in the very
Constitution of “high ideas of nationalism, socialism,
democracy and secularism, which inspired our heroic people to
dedicate themselves to, and our brave martyrs to sacrifice their
lives in, the national struggle” as the fundamental priciples” of
Constitutionalism. These high ideas were given go by. And by
5th Amendment the ratification was sought to be effected. This
amendment was however declared void on 29 August, 2005. It
was upheld with some variations by the Appellate Division on
February 01, 2010. See 2010 BLD (Special issue) on judgments

=121=
on 5th Amendment. This case has opened the scope for the
judiciary to put’ the farcical trial’ on trial.
Thaher speaks from the scaffold:
“... I have given my blood for the creation of this country.
And now I shall give my life. Let this illuminate and infuse new
strength into the souls of our people. What greater reward
could there be for me? No one can kill me. I live in the midst
of the masses. My pulse beats in their pulse. If I am to be killed;
the entire people must also be killed. What force can do that?
None....” See Tahir;s letter dated 18th July 1976 from Dhaka
Central Jail] He was convicted on 17th July 1976, and executed
on 21st July 1976.
Nation should remember Thahir:
Tahir in fact fought for the supremacy of the
Constitution of the Republic- the social contract of the nation,
of which he, with entire nation, was a party to, to lead a
national life in accordance with the dictates of the Constitution.
But the conspiracy was hatched to eliminate him by a fake trial
to gag his strong voice. This was in active amendment of the
Constitution. It was the cold blooded murder in the name of
sham trial that ended with shrouds of secrecy around in central

=122=
jail with the defense lawyers put under the embargo of oath of
secrecy.
I would suggest we should put up his statue as statue of
“CONSTITUTION UP-HOLDER” that may inspire the
nation to fight for the supremacy of the Constitution.”
Some extract from the written submission by Amicus
Curiae Mr. Akhter Imam, goes as hereunder;
1. Lord Denning said, “To every subject in this land, no
matter how powerful, I would use Thomas Fuller’s words over
300 years ago: ‘Be you ever so high, the law is above you.”
(Gouriet v Unioin of post Office Workers and Others
[1977]1 CA All ER)
The supreme and fundamental law of the land is the
Constitution and all laws formed or formulated under and
within the vires of Constitution are recognised by it and
nothing else.
The law should be applied without fear or favour, malice or
ill will, or prejudice, bias or fear from others, particularly the
high and mighty. This, inter alia means, there must be an
independent and impartial judiciary which is the cornerstone of
any credible justice delivery system in a civilised country.
2. Status of Martial Law Regulation No. XVI of 1976

=123=
Martial Law Regulation No. XVI and all its contents including
s. 3(1) which set up the Special Martial Law Tribunal (SMLT),
has been declared illegal, void and non-est in the eye of law. In
the 5th Amendment case the Apex Court held:
“(270) Since the Constitution is the Supreme Law of the land,
the Martial Law Proclamations, Regulations and Orders
promulgated/made by the usurpers, being illegal, void and non-
est in the eye of law, could not be ratified or confirmed by the
Second Parliament by the Fifth Amendment, as it itself had no
such power to enact such laws as made by the above
Proclamations, Martial Law Regulation or orders.
(271) Moreover the Fifth Amendment ratifying and validating
the Martial Law Proclamations, Regulations and Orders not
only violated the Supremacy of the Constitution but also the
rule of law and by preventing judicial review of the legislative
and administrative actions, also violated two other basic
features of the Constitution, namely, independence of the
judiciary and its power of judicial review.” In Siddique Ahmed
v Bangladesh and others ( W. P. No. 696 of 2010), otherwise
known as the 7th Amendment case, the High Court Division
echoed the Apex Court’s Decision and held that,

=124=
(67) “These Constitutional provisions have been mirrored
above for the sole purpose of vindicating the assertion that (1)
martial law or any similar usurpation of power has no threshold
under our constitution (2) our Constitutional Scheme, from the
top to the toe, owes its existence to the will of the people (3) it
is the Parliament, elected through popular vote, which is the
centrifugal body for all democratic activities (4) the Head of the
Executive Government, along with his colleagues survive so
long as they command the support of the majority members of
parliament (5) members of Parliament, who alone enjoy
prerogative to legislate, with the only exception of parochial
and short lived legislative power of the President, and who do
effectively and virtually form the electoral college for the
formation of the executive Government, are all elected directly
by the people, (6) a set of fundamental rights, which
correspond to the Universal Declaration of Human Rights,
1948, and other U N Covenants on human rights, remain
stoutly erected as the Constitutional Arch Stone to insulate
every individual’s fundamental rights (7) there is a Supreme
Court, comprising two hierarchical Divisions, to act as the
invincible vanguard, to shield the sacrosanctity of the
Constitution by performing the sacred duty of being it’s

=125=
Guardian and to protect and enforce the fundamental rights,
firmly and inflexibly secured by the Constitution and, most
importantly, to act as the inviolable bastion to keep the
Constitution immune from extra-Constitutional infringement
and also to ensure that no law, contravening any provision of
the Sacred Instrument, is passed.”
3. Court Martial/Special Martial Law Court or Tribunal
The proceedings corresponding to Special Martial Law Tribunal
Case NO. 1/76 do not fall within the ambit of Court Martial as
envisaged under the Army Act 1952, the Air Force act 1953
and the Navy Ordinance 1961. These legislations provide for
trial by Court Martial of persons “subject to the Act” and
contain specific procedural safeguards (such as power to
appoint counsel and right to object to being tried by any officer
sitting on the court) in respect of the rights of the accused.
In contrast, the Special Military Tribunal was set up purportedly
under a special law. It allowed for civilian members to sit on the
Tribunal (two members of the tribunal were magistrates of the
first class). Section 4 of the Martial Law Regulation (MLR) No.
XVI of 1976 gave the tribunal the jurisdiction to try virtually
any offence. The regulation is completely silent on the rights of
the accused (the regulation does not even provide for the cross-
=126=
examination of witnesses). Shockingly, section 8 of MLR No.
XVI provides that “ No appeal shall lie to any authority
whatever from any decision or judgment of the Tribunal”.
4. Protection of Law & Process of Law-
4.a) See Mohmudul Islam p. 2.94-2.155
From Suspect to Trial, Andrew Sanders in The Oxford
Handbook of Criminology, 2nd Edition, edited by Mike
Maguire, Rod Morgan and Robert Reiner:
“The principles underlying different criminal justice
systems vary according to history, culture, and ideology. The
adversary principle is an important characteristic of the English
system and of other common law systems such as those of
Australia, Canada, and the United States. This principle is often
characterised as embodying the search for ‘proof’ rather than
‘truth’. The search for ‘truth’ is usually said to be embodied in
‘civil law’ systems (such as the French), which are ‘inquisitorial’.
It would be nice if ‘proof and ‘truth’ were synonymous and
sought with equal vigour, as one of Britain’s leading Chief
Constables has advocated, but examination of the due process’
and ‘crime control’ models developed by Packer (1968) will
show that this is unrealistic

=127=
‘Due process’ values prioritise civil liberties in order to secure
the maximal acquittal of the innocent, risking acquittal of some
guilty people. ‘Crime control’ values prioritize the conviction of
the guilty, risking the conviction of some (fewer) innocents and
infringement of the liberties of some citizens to achieve the
system’s goals. Due-process-based systems rightly control the
actions and effects of crime-control agencies, while crime-
control-based systems, with their concern for convictions, do
not. A pure crime-control system would prioritize the search
for truth by adversarial law enforcement agencies at literally all
costs. Police officers who ‘knew’ that someone is guilty would
either have this knowldged accepted as proof by a court or
would be allowed to seek proof of it by any means. Put in this
way, of course, the need for controls in a crime-control system
becomes clear. Objective proof is needed and law enforcement
methods must be limited by humanitarian or libertarian
standards even at the cost of knowledge. However, a pure due-
process system would prioritize proof and controls at literally
all costs. Guilty verdicts would be allowed only on proof
beyond literally all doubt, and law enforcement officials would
need objective evidence before interfering with any civil
liberties, however slight. And so we see the criminal justice

=128=
system dilemma. Absolute proof, and completely innocuous
methods of securing it, cannot be insisted upon. But to insist
on uncontrolled discretion in the way the truth is sought is
equally unacceptable. No system can correspond exactly with
either model (as no system is entirely adversarial or entirely
inquisitorial), but in most systems the values of one or the other
model appear to predominate”.
“Due process” includes the following rights of an accused:
-Presumption of Innocence
-Right to be heard
-Right to have access to Counsel
-Right to be informed of the grounds of arrest
-Right to speedy and impartial and public trial
Protection against self-incrimination
-Right to cross-examine prosecution witnesses
Under art. 32 any law depriving a person, citizen or non-citizen,
of personal liberty must not be arbitrary and must be
reasonable and fair. Art. 33 provides for specific procedural
safeguards against arbitrary arrest and detention and together
with arts. 32 and 35 make a total code in respect of arrest,
detention and trial.

=129=
Implicit in arts. 31 and 32 is the right of access to justice as a
man cannot be said to have been dealt with in accordance with
law unless he has a reasonable opportunity to approach the
court in vindication of his right or grievance (Liquat Hossain v
Pakistan PLD 1999 SC 504, 652; see also Mahmudul Islam p.
2.111A)
Mahmudul Islam p. 2.149; Fair Trial- The gist of art.
35(3) is fair trial which requires public trial by an independent
and impartial court or tribunal. In addition, in a democratic
society, there are specific safeguards in the form of rules of
evidence which operate to protect an accused against unlawful
deprivation of life and liberty.
It appears that none of the above procedural safeguards
was existent in Special Martial Law Tribunal (SMLT) Case No.
1/76. Consider the following extract from “The trial of Colonel
Abu Taher”, Daily Star, 24 July 2006, Lawrence Lifshultz:
“Just over thirty years ago I stood outside Dhaka Central
Jail. I had arrived early for a day that would become a “day to
remember.” It was June 28, 1976.
A week earlier, Special Military Tribunal No. 1 had begun
its work in secret. It convened for a single day and then
immediately recessed for a week to permit defence lawyers

=130=
seven days to prepare for a case which the prosecution had
been working on for six months. The trial of Colonel Abu
Taher and more than twenty others had begun. The accused,
despite repeated requests throughout the period of their
detention, had been denied access to legal counsel and
communication with relatives.”
In addition, all the defence counsels were sworn to an
oath of secrecy. In fact, s. 4(10) of MLR No. XVI provided that
the Chairman of the Special Martial Law Tribunal would
require any person attending or otherwise participating in the
trial to make an oath of secrecy and the violation of such oath
was made punishable by imprisonment for a term of up to
3(three) years. The fact that trial was held within the confines
of Dhaka Central Jail is in itself evidence that the proceedings
were not just.
It should also be mentioned that no documents
pertaining to the trial, conviction or sentence of the convicted
has ever been made available by the authorities. The only
reasonable inference is that all such documents have probably
been destroyed to hide the evidence of illegalities committed
therein.
=131=
M.C. Kane, an American lawyer in research on ‘Military
Commissions and the Guantanamo Detainees’ titled
“Safeguards Missing” observed as follows:
One of the most controversial sections involves the use
of secret evidence. No one can legitimately argue, however, that
vital confidential information, such as the details of military
operations or the identities of undercover operatives, should be
disclosed in public. Whether that information should be
allowed to convict is another matter altogether. Nonetheless,
statutes and judicial proceedings in the US have regularly
recognised the necessity for secrecy in certain limited
conditions.
Typically, when military commissions were used, no
civilian courts were functioning adequately to conduct such
proceedings.
Both US and international law have undergone radical
transformations since military commissions were last used. At
the time of the German trial, much of the Bill of Rights, with
its substantial safeguards, had not been applied in domestic law
outside the federal judicial scheme. Such additional rights
should then arguably be extended to the military commissions,
much as they were to state judicial proceedings. Internationally,

=132=
the US has since become party to the International Covenant
for Civil and Political Rights and many other treaties and
conventions, which require a fair trial and protection from
arbitrary arrest and detention.”
Another commentator has noted:
“One of the most fundamental principles of human rights
as stated above, ‘is the protection of individual liberty,
especially from the undue exercise of state power.’ This
principle is also applicable at the international level and the
concern for personal liberty is reflected in the Statutes of the
ICTY (International Criminal Tribunal for The Former
Yugoslavia) and ICTR (International Criminal Tribunal for
Rwanda) and their rules of procedure and evidence. These
instruments limit the extent to which persons may be deprived
of their liberty befor they are brought to trial and set out rules
aimed at preventing the innocent from being convicted and
imprisoned by protecting the integrity of the trial itself.”
Stuart Beresford, Redressing the Wrongs of the
International Justice System: Compensation for Persons
Erroneously Detained, Prosecuted, or Convicted by the Ad
Hoc Tribunals, 96 AM. J. INT’L. L. 628, 631 (2002).

=133=
4.b) Special Martial Law Tribunal (SMLT) Case No. 1/76 held
in camera and conducted in an aura of utmost secrecy by
SMLT whose constitution, jurisdiction, authority, function and
procedure wihtout any right of appeal are and have been held
to be ultra vires the Constitution and outside all civilised norms
of criminal justice delivery system.
4.c) The unholy and unnatural haste in rejecting the mercy
petition and executing Lt. Col. (ret) M. A. Taher was ex-facie
mala fide and for a collateral purpose and beyond/outside, and,
repugnant to all civilised cannons of Justice and Articles 31, 32
and 35 of the Constitution.
5. Condonations as to past and closed transactions
In the 5th Amendment case, questions arose as to whether to
prevent chaos and confusion and to avoid anomaly and to
preserve continuity, the actions and the legislative measures
taken during Martial law period needs to be condoned/cured
by the doctrine of necessity.
The doctrine of necessity originated from the following
maxims:
-Id Quod Alias Non Est Licitum, Nexessitas Licitum Facit (that
which otherwise is not lawful, necessity makes lawful);

=134=
-Salus populi Suprema lex(safety of the people is the supreme
law); and
-Salud republicae est suprema lex (safety of the State is the
supreme law)
BIMW Ltd. Vs Bangladesh and Others 2006 (Special Issue)
BLT HCD [Part XXXV at pg. 214-216] (hereinafger referred to
as the 5th Amendment case, HCD)
“This doctrine of State Necessity is no magic word. It does not
make an illegal act a legal one. But the Court in exceptional
circumstances, in order to avert the resultant evil of illegal
legislations, may condone such illegality in the greater inerest of
the community in general but on condition that those acts
could have been legally done at least by the proper authority.”
In the case of Asma Jilani v Government of Punjab PLD
1972 SC 139, Hamoodur Rahman, C.J. held at page 207;
“I too am of the opinion that recourse has to be taken to
the doctrine of necessity where the ignoring of it would result
in disastrous consequence to the body politic and upset the
social order itself but, I respectfully beg to disagree with the
view that this is a doctrine for validating the illegal acts of
usurpers. In my humble opinion this doctrine can be involved
in aid only after the court has come to the conclusion that the
=135=
acts of the usurpers were illegal and illegitimate. It is only then
the question arises as to how many of these acts, legislative or
otherwise, should be condoned or maintained, notwithstanding
their illegality in the wider public interest. I would call this a
principle of condonation and not legitimization. Applying this
test, I would condone (1) all transactions which are past and
closed for no useful purpose can be served by reopening them
(2) all acts and legislative measures which are in accordance
with or could have been made under the abrogated constitution
or the previous legal order (3) all acts which tend to advance or
promote the good of the people (4) all acts required to be done
for the ordinary orderly running of the State and all such
measures as would establish or lead to establishment of in our
case the objectives mentioned in the Objectives Resolution of
1954. I would not however condone any act intended to
entrench the usurper more firmly in his power or to directly
help him to run the country contrary to the legitimate
objectives. I would not condone anything which seriously
impairs the rights of the citizens except in so far as they may be
designed to advance the social welfare and national solidarity.”
The proceedings that have been impugned in the present
writ petition undoubtedly were carried out as a means for

=136=
entrenching the then usurpers more firmly in power. The
proceedings were merely a mechanism for a military ruler to
remove certain progressive, pro-people, pro-democratic
elements that were willing to challenge the authority of the said
ruler.
In the 7th Amendment case, the High Court Division in
relation to the issue of condonation observed;
“So where does the petitioner stand in the backdrop of
our unequivocal findings as figured above, particularly in the
light of the synthesis that martial law courts were bereft of
authority as much as the martial law itself was? This would, a
fortiori, entail that convictions passed by such purported courts
are of no effect in the eye of law. In view of the fact that such a
finding can create in-surmountable administrative problems,
and can, to some extent, import confusion, wilderness and
anarchy, this Division, in the Fifth Amendment case, granted
condonation to a number of circumstances and events, which
was endorsed by the Appellate Division with some
modification.”
=137=
In the 5th Amendment case (AD) the Appellate Division at
para 353, modified the condonations made by the High Court
Division and condoned, inter alia, the following:
(a) All executive acts, things and deeds done and actions
taken during the period from 15th August 1975 to 9th
April, 1979 which are past and closed;
(b) The actions not derogatory to the rights of the citizens;
(c) All acts during that period which tend to advance or
promote the welfare of the people; and
(d) All routine works done during the above period which
even the lawful government could have done.
The High Court Division applied the above test in the 7th
Amendment case and held that:
“The above index of condonation being binding upon us,
there is no need to repeat them, save saying that so far as the
instant case is concerned the index shall apply mutatis
mutandis.
Having thus auto incorporated the above list in this
judgment, our view is that the said list does not apply to the
petitioner. As his sentence is still executory, he cannot be
compartmentalised within the ‘past and closed criteria’.
Additionally, the petitioner’s case involved questions of his

=138=
“citizen’s rights” protected by clause (b) in the Appellate
Division’s catalogue printed above.
The petitioner’s entitlement to have access to fair justice in
accordance with the provision contemplated by the
Constitution, i.e. through the Courts created by statutes in
accordance with Constitutional commandments, not through
Kangaroo courts, set up by extra-Constitutional means, is
indeed his Constitutional right as secured by Articles 27, 32, 33,
35.”
Similarly, in the instant writ petition, the Petitioner’s case
involves questions of their and Lt. Colonel (retd.) M.A. Taher’s
citizens right and as such, the sham proceedings carried out
against them cannot be condoned.
In this regard, Justice A. B. M. Khairul Haque’s mentioned
of the case of Ex parte Milligan in the 5th Amendment Case,
HCD also merits consideration.
BIMW Ltd. Vs Bangladesh and others 2006 (Special Issue)
BLT (HCD) at page 67:
“The famous case of Ex parte Milligan 71 US (4Wall) 2,
L.Ed. 281 (1866), glorified the rights of people even during war.
Milligan, a civilian resident of Indiana, was a Southern
sympathizer. On an allegation of treason against Northern

=139=
America, he was arrested on October 5, 1864 and on the orders
of General Hovery, he was tried by a military commission and
sentenced to be hanged on May 19, 1865.
On a writ of habeas corpus, the following questions were
before the Supreme Court of the United States:
I) Whether the Court had jurisdiction in view of
legislation suspending the writ of habeas corpus;
II) Whether Milligan should be discharged.
This was a time when civil war was raging for more than
three years and the very existence and foundation of the
Republic was severely threatened. Even in that trying and
precarious situation the Hon’ble Judges of the Supreme Court
did not relent from upholding the fundamental principles of the
Constitution in obedience to their oath and held that Congress
was without Constitutional authority to suspend the privilege of
habeas corpus and to allow exercise of Martial law in the State
of Indiana where there was no rebellion at the relevant time.”
In the 7th Amendment case however, the HCD was not
inclined, under their writ jurisdiction, to interfere with the
Petitioner’s conviction and sentence and held:
“Our above observation notwithstanding, we are still not
inclined to interfere with the conviction, with the reckoning

=140=
that this is not the proper forum because of the following
reasons:
Firstly, although the conviction was handed by a void
forum, a military court, original cognisance was nevertheless,
taken by a properly constituted Court Viz, a Court of Session,
and hence the notion of justice will be frustrated if through a
writ of certiorari the conviction is completely set aside, because
in that event he will go scot free without facing a fresh trial de-
novo. Secondly, other complicated issues are also blended with
this case, such as whether a second FIR is recognised by the Cr
PC and what consequences would flow if it is not recognised,
which issues are not apposite for a writ Bench . . . . .”
It is submitted that instant petition is distinguishable from
the 7th amendment case in that it is apparent from the facts
available before this Court that there was no case to be made
out against the accused in Special Martial Law Tribunal (SMLT)
Case No. 1/76. Numerous accounts have since confirmed that
the military regime had decided on the punishment long before
the trial had even begun. Martial Law Regulation (MLR) No.
XVI of 1976 was proclaimed for the sole purpose of convening
a tribunal so that pre-determined punishments could be
imposed on potential opposition. It should also be mentioned

=141=
that the “Taher trial” was the first and the last time such a
tribunal ever convened under Regulation XVI of 1976. It is also
submitted that the impugned sentences have already been
executed. In fact, Col. Taher was executed purportedly for a
crime which carried a maximum sentence of imprisonment up
to 10 years.
8. Finally, a delay of 35 years does not render valid or
constitutional what are otherwise invalid and unconstitutional
in that those acts were not challenged in view of the so-called
cloak of constitutionality surrounding the 5th and 7th
Amendments in particular in view of the ratifications thereof by
the then Parliament. Just because no one has challenged before
and no previous case can be found where it has been done
before, it cannot be said that the amendments have been
accepted and are now immune from legal challenge.
Oacker v Packer (1953) 2 All ER 127 at page-129H, per
Denning L.J. “What is the argument on the other side? Only
this, that no case has been found in which it has been done
before. That argument does not appeal to me in the least. If we
never do anything which has not been done before, we shall
never get anywhere. The law will stand still while the rest of the
world goes on, and that will be bad for both.”

=142=
The Appellate Division was in agreement with Denning
L. J. in the Fifth Amendment Case;
“Accordingly, we are also of the view that it is far, far
better thing that we do now, what should be done in the
interest of justice, even if it was not done earlier” (at p. 132).”
Mr. A F M Mesbahuddin echoed the view that in the
backdrop of this courts unequivocal pronouncement in the 5th
and the 7th Amendment cases, all the Rules are but destined to
end in success and that the unlawful convictions handed down
by the illegally constituted tribunal is not saved by condonation.
He had no qualm on the assertion that the whole episode was
gestated by General Ziaur Rahman to vindicate his personal
ambition. He insisted that the history will not forgive General
Zia for this heinous act.
Mr. Yusuf Hussain Humayun outlined the illegality of the
tribunal and the rogue nature of the trial process insisting that
the whole episode was embryogenesisd for the sole purpose
of impelling General Ziaur Rahman’s diabolic lurch, a bit
indexterously though. Mr. Humayun urged that this court does
set up an example to vilify and thwart potential adventurists.
He expects a judgment that shall survive through eternity and

=143=
aspires that General Zia should face the same consequence as
Oliver Cromwel did.
Mr. Matin Khashru submitted that the authority of the
Tribunal was void ab-initio. It was an usurpation of power in
the name of martial law. “Duty of the state is to uphold the
lives and liberties of the citizens,” said Mr. Khashru. He added
that usurpation of power is treason and the perpetators should
be brougnt to the book with the ultimate sanction of the penal
laws.
He cited Mexican constitution and submitted that Rule of
law is a fundamental feature of our constitution too, which can
not be changed even by the Parliament.
“It was Jungle law, masterminded by Ziaur Rahman”, said
Mr. Khashru.
He insisted that this court has every jurisdiction to
consider evidence and that by reversing the purported verdict
of the so-called tribunal, we should show the world that we are
a civilised nation.
“It is more than a cold blooded murder”, submitted Mr.
Khashru, adding that it was a betrayal.

=144=
He concluded submitting that this Court should come up
with a judgment that must act as a deterrent against any
adventurist like Zia.
Mr. Z. I. Khan Panna commenced submission by
adducing some books to show that during the period from 75-
81, innumerable killings took place and Gen Zia was the prime
culprit.
In his view absence of papers prove that an attempt was
made to conceal facts. “Blayat Sing’s trial was also in public”,
said Mr. Panna.
He said “Zia is the only traitor after Mirzafor”
“We have no information about Zia’s role in the war of
liberation” uttered Mr. Panna.
He expressed that an Inquiry Commission be set up to

examine how many and who were killed by Zia and what was
his role in Bangabandhu killing. That Committee should
include journalists, advocates, civil society people, people from
other professions, retired Supreme Court Judges, etc and
should be independent.
According to him conviction handed down by the so-
called tribunal has no leg to stand on after this Court’s
judgments in the 5th and 7th Amendment cases. He asked us to
accept Mr. Lifschultz’s statement as gospel.

=145=
Mr. Mahbubey Alam, the learned Attorney General,
representing the state tabled comprehensive submission with
formidable stimulus, leaving no stone untouched.
On the 5th and 7th Amendment judgments’ impact on the
special tribunal, the learned Attorney General was quite
spontaneous and fervent in uttering that it goes without saying
and, can be asserted even without any pre-meditation, that the
ratio in the decisions of the two above cited judgments throw
the validity of the so-called special tribunal into total
abnegation. He iterated that the validity of the so-called
tribunal, conviction and the sentence passed by it are not
embraced by the principle of condonation as projected by the
Appellate Division in the 5th Amendment case.
On the propriety of the trial the learned AG emphasised
that even a mockery has a limit and even that limit was not
adhered to by the then so-called authorities in respect to Taher
case. He insisted that all that we have heard from well endowed
people can lead us to one synthesis only, which is that the
whole melodrama was directed by General Ziaur Rahman who
was bent to appease anti liberation forces and to perpetuate his
authoritarian power. The learned AG wished to have us to
accept that we do not have to travel too far to be swayed to the

=146=
equation that Zia decided the fate of Col. Taher Bir Uttam, well
before even the tribunal was set up, as this fact is obvious from
Barrister Moudud Ahmed’s writing, which stands corroborated
by what Mr. Lifschultz narrated in his sworn statement, citing
General Manzur. He asked us to attribute due weight to Mr.
Lifschultz’s statement, who was an objective, yet a
conscientious observer.
Mr. Alam submitted that very few examples of such a
bizarre trial can be found in the whole world. He insisted that it
was a dastardly murder at the behest of General Zia and his anti
liberation cohots. He echoed the view that the authorities of
those days deliberately destroyed all the documents to cover up
the truth, and submitted that this is an appropriate case where
we have quite cogently and lawfully resolved to take evidence
from those acquainted with pertinent facts, which are not in
dispute any way. He lent support to the view that surviving
accomplices in Ther murder should be brought to justice.
He shared with others the emotion in expressing that it
was a national tragedy that an intransigent Freedom Fighter like
Taher was murdered following such a recreant yet, dreadful
intrigue.
=147=
Mr. M. K. Rahman, representing the respondents no. 3
and 4, found no alternative but to lend his unhesitant and
overwhelming support to the contention the exalted Advocates
propounded. He placed utmost emphasis on what Mr.
Lifschultz observed, who, in Mr. Rahman’s vision, is a
disinterested person-“the only interest he had, was to see that
the rule of law reigned supreme, which, unfortunately faced a
frantic hacking by the so-called tribunal and those who
animated it.” Mr. Rahman echoed that even a microgenic dew
of judicial norm can not be discovered from the purported trial.
He shared Mr. Lifschultz’s view that it can only be termed as a
pre-ruminated murder. He expressed that Mr. Lifschultz’s
presence showered a “3d” dimension to the instant proceeding.
Mr. Rahman, in orchestra with all other learned Advocates,
proffered that in any event, the trial and the verdict as a whole
is bound to be declared illegal as that must be the only outcome
if the ratio of the decisions in the 5th and the 7th Amendment
cases are followed without distortion. He concluded saying that
the nation should be spared of the burden of slur it has been
carrying for three decades, by crucifying the purported verdict
of the misbegotten tribunal.

=148=
At one stage of the proceeding before us, Mr. Maudud
Ahmed, who had authored the book referred to above, titled,
“Democracy and challenge of Development: A Study of
Political and Military Intervention in Bangladesh,” appeared in
the court room in connexion with a different case, he was
engaged in. We took that opportunity to ask him whether he
was actually the author of the book, and whether it is truly him
who wrote the passages, Mr. Lifschultz referred to and
produced before us.
With the highest degree of candour, Mr. Moudud Ahmed
intimated that he had indeed authored that book and the
quoted passages, stating further that he had a verbal discussion
with General Ziaur Rahman, on Taher’s fate and he has
reproduced in his book exactly what General Zia told him.
In order to adjudicate upon this Rule we are, we reckon,
to address the following questions: (i) whether the proclamation
dated 20th August, 1975 subjugating the whole country with
martial law, enjoyed legal validity or not, (ii) whether the
judgment and order dated 17th July 1976 was with lawful
authority or not (iii) whether, if the answer to (ii) above be in
the negative, this case falls within the index of condonation set
apart by the Appellate Division in the 5th Amendment case, (iv)

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irrespective of the question of the constitutionality of the so-
called martial law instruments, whether the so-called trial and
the verdict in any event went hand in gloves with the minimum
standard required for a fair trail, (v) whether Col. Taher’s
execution can aptly be described as a cold blooded murder as
suggested by many of those who appeared before us, inclusive
of Mr. Lifschultz and some learned Advcoates (vi) whether the
Petitioners are entitled to the reliefs they crave.
At the very inception we wish to put on record that we
are about to express our detailed judicial views on an event that
has, for a couple of decades, remained puzzled in the maze of
obscurity. It is generally known, and we take judicial notice of
it, that Lt. Colonel Abu Taher, an acclaimed Freedom Fighter
with unquestionable reverence, who was an invincible and
resilient Sector Commander and was, after liberation,
decorated with the highest Gallantry Award for living Fighters,
Bir Uttam, was hanged within the precincts of Dhaka Central
Jail on 21st July, 1976. What however, have remained in
obfuscation are the inquisitives as to why he was hanged, what
were the charges against him and his co-accused, what
evidences were adduced, whether the trial was in concord with
accepted and recognised judicial norms, etc.

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We do not see much of a hurdle in resolving the first
issue in the Petitioners’ favour.
There was a time, not beyond the cavity of memory,
when the reigning judicial attitude was retreat prone, superior
courts were ready to endorse martial law proclamation and all
that followed. That attitude, in our introspection, prevailed due
to judicial timidity. Such a judicial recoiling was based on
agreeability to concede defeat rather than on any legal dogma,
though Kelsen’s theory of “state necessity” was frequently
invoked, we beleive, to justify decisions which were in truth,
reflection of appeasement.
That taboo has, however, gracefully been dismantled by
this Court through the decision in the celebrated case of
Bangladesh Italian Marble Works Ltd –v-Bangladesh, the so
called 5th Amendment Case, whereby this Division
unequivocally declared ultra vires the purported 5th
Amendment Act, by which the Parliament embarked upon an
abortive attempt to validate all the proclamations, and martial
law instruments framed by those who usurped state power
through the barrels of guns.
Proclamation of martial law in its entirety, along with
everything that flocked with it, had been declared unlawful and
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of no effect. All that emassed with the martial law
proclamations, save certain specifically catalogued aspect, which
had been spared through the doctrine of condonation, had
been ravaged along with the illusory application of the so-called
Kelsen doctrin of “state necessity”, which found favour of
Munim J, of Pakistan Supreme Court in the case of State-v-
Dosso (1959 11 DLR SC 1), a case that reflects highest
watermark of judicial retreat.
The Appellate Division endorsed this Division’s ratio
with some modification.
Some extract of this Division’s volumous judgment in the
5th Amendment case needs re-printing for the purpose of
clarity. They run as follows;
“Under the circumstances, we declare the Constitution
(Fifth Amendment) Act, 1979, ultra virus the constitution for
the following reasons:
Firstly, Section 2 of the Constitution (Fifth Amendment)
Act, 1979, enacted Paragraph 18, for its insertion in the Fourth
Schedule to the Constitution in order to ratify, confirm and
validate the Proclamations MLRs and MLOs etc. during the
period from August 15, 1975 to April 9, 1979. Since those

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Proclamation MLRs, MLOs etc. were illegal and void, there
were nothing for the Parliament to ratify, confirm and validate.
Secondly, on lifting the veil of enactment, we find that the
real purport and reason, ‘the pith and substance’ for the
amendment was for ratification confirmation and validation
which do not come within the ambit of ‘amendment’ in Article
142 of the Constitution.
Thirdly, the Proclamations etc., being illegal and
constitute offence, its ratification confirmation and validation
by the Parliament were against common reason.
Fourthly, the constitution was made subordinate and
subservient to the Proclamations etc.
Fifthly, those Proclamations etc. destroyed its basic
features.
Sixthly, lack of long title which is a mandatory condition
for amendment, made the amendment void.
Seventhly, the Fifth Amendment was made for a
collateral purpose which constituted a fraud upon the People of
Bangladesh and its Constitution.
In short, The Constitution (Fifth Amendment) Act, 1979,
protected the Proclamations, MLR, MLOs etc. and the actions
taken thereon from being challenged in Court but after its

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declaration as void, all those Martial Law provisions and actions
become justiciable before the court.
We have already found earlier that the Constitution (Fifth
Amendment) Act, 1979, ratified, confirmed and validated all
those Proclamations, MLRs and MLOs and the actions taken
on the basis ot those Proclamations etc. but since all those
Proclamations etc. were illegal, its ratification, confirmation and
validation, by the Fifth Amendment was illegal and void. Since
the very purpose and object of the enactment of the Fifth
Amendment was illegal and void ab initio, so also the Fifth
Amendment itself, as it was enacted for a collateral purpose.
Besides, since the Martial Law Proclamations etc. were void and
non-est, there were nothing for the Second Parliament to ratify
or confirm or validate by the subsequent Fifth Amendment.”
“We have already held that all the Martial Law
Proclamations including the one issued on November 29, 1976,
were not issued under any legal authority and since we refuse to
acknowledge Martial Law as legally enforceable provision and a
source of law and the office of the Chief Martial Law
Administrator as a lawful office, both are non-existent in
Jurispruduce and we emphatically hold that there is no such
concept as Martial Law Jurisprudence or Martial Law culture.

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As such, in any view of the matter, handing over of the office
of Martial Law Administrator to Major General Ziaur Rahman
B.U., psc. was without any lawful authority.
Under such circumstances, we are unable to accept his
argument as to the existence of the so called Martial Law
Jurisprudence or Martial Law culture, in order to give validity to
those.
As such, the legality of the Proclamation dated November
29, 1976, is next to nothing. It cannot confer any office or
power on any body, because such way of transferring authority
which was not in existence either under the Constitution or
under any law prevalent at the time, cannot be done. We have
already found and held that neither Martial Law nor the office
of Martial Law Administrator had or has any existence in our
law and Jurisprudence. As such, the handing over of the office
of the martial Law Administrator in favour of Major General
Ziaur Rahman B.U., psc., was illegal and void. Under the
circumstances, the Proclamations, MLRs and MLOs issued
during the period from November 29, 1976 to April 9, 1979,
were all illegal, void and non est in the eye of law.
The same goes for all the Martial Law Regulations and
Martial Law Orders, issued from the period of November 6,

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1975 to November 29, 1976. We, however, condone the
illegalities in respect of the actions taken on all the MLRs and
MOLs, as past and closed transactions during the said period.
Besides, we also condone various Ordinances passed during the
above period.”
“It appears that Justice Abusadat Mohammad Sayem by
his Order No. 1/1/77-CD(CS)01 dated April 21, 1977,
nominated Major General Ziaur Rahman, B.U Psc. to be the
President of Bangladesh. This order was published in the
Bangladesh Gazette Extraordinary on Arial 21, 1977.
This kind of nomination in the Office of President is
unheard of. Even nomination to the office of President (or
Chairman) of a mere local union council is not permissible but
it was made possible in the highest office of the Republic of
Bangladesh. It was done in violation of the Constitution of
Bangladesh, and as such, it was illegal, void ab initio and non-
est in the eye of law.
Lieutenant General Oliver Cromwell even after waging
war for more than eleven years, could only become a Lord
Protector in 1653 but Khandaker Moshtaq Ahmed, Justice
Sayem and Major General Ziaur Rahman BU, could attain the
highest office in Bangladesh apparently without much efforts.

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It may be noted that on April 21, 1977, Major General
Ziaur Rahman, B.U., as the Chief of Army Staff, was in the
service of the Republic, as such, was oath bound to bear true
allegiance to the Constitution but he assumed office of the
President of Bangladesh, in utter violation of the said very
Constitution.
Under such circumstances, since he assumed the office of
President in violation of Constitution and since the Martial Law
Proclamations and MLRs and MLOs were made in violation of
the Constitution and the Army Act or any other law prevalent
at the relevant period of time, those Proclamations etc. were all
illegal void and non-est in the eye of law.”
“We have held earlier in general that there was no legal
existence of Martial Law and consequently of no Martial Law
Authorities, as such, all Proclamations etc. were illegal, void ab
initio and non est in the eye of law. This we have held strictly in
accordance with the dictates of the Constitution, the supreme
law to which all Institutions including the Judiciary owe its
existence. We are bound to declare what have to be declared, in
vindication of our oath taken in accordance with the
Constitution, otherwise, we ourselves would be violating the
Constitution and the oath taken to protect the Constitution and

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thereby betraying the Nation. We had no other alternative,
rather, we are obliged to act strictly in accordance with the
provisions of the Constitution.”
“The learned Advocates for the respondents raised the
possibility of chaos or confusion that may arise if we declare
the said Proclamations, MLRs and MLOs and the acts taken
thereunder as illegal, void ab initio and non est. We are not
unmindful of such an apprehension although unlikely but we
have no iota of doubts about the illegalities of those
Proclamations etc. What is wrong and illegal shall remain so for
ever. There cannot be any acquiescence in case of an illegality.
It remains illegal for all time to come. A Court of of Law
cannot extend benefit to the perpetrators of the illegalities by
declaring it legitimate. It remains illegitimate till eternity. The
seizure of power by Khandaker Moshtaque Ahmed and his
band of renegades, definitely constituted offences and shall
remain so forever. No law can legitimize their actions and
transactions. The Martial Law Authorities in imposing Martial
Law behaved like an alien force conquering Bangladesh all over
again, thereby transforming themselves as usurpers, plain and
simple.
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Be that as it may, although it is very true that illegalities
would not make such continuance as a legal one but in order to
protect the country from irreparable evils flowing from
convulions of apprehended chaos and confusion and in
bringing the country back to the road map devised by its
Constitution, recourse to the doctrine of necessity in the
paramount interest of the nation becomes imperative. In such a
situation, while holding the Proclamations etc. as illegal and
void ab initio, we provisionally condone the Ordinances, and
provisions of the various Proclamations, MLRs and MLOs save
and except those which are specifically denied above, on the
age old principles, such as, Id quod Alias Non Est LIcitum,
Necessitas Licitum Facit (That which otherwise in not lawful,
necessity makes lawful), Salus populi suprema lex (safety of the
people is the supreme law) and salus republicae est suprema lex
(safety of the State is the supreme law).
In this connection it may again be reminded that those
Proclamations etc, were not made by the Parliament but by the
usurpers and dictators. To them, we would use Thomas Fuller’s
warning sounded over 300 years ago: ‘Be you ever so high, the
law is above you.’ (Quoted from the Judgment of Lord

=159=
Denning M. R., in Gouriet V. Union of Post Office Workers
(1977) 1 QB 729 at page-762).
Fiat justitia, ruat caelum.”
“Summary”
7. “A proclamation can be issued to declare an
existing law under the Constitution, but not for promulgating a
new law or offence or for any other purpose.
8. There is no such law in Bangladesh as Martial Law
and there is also no such authority as Martial Law Authority as
such and if any person declares Martial Law, he will be liable
for high treason against the Republic. Obedience to superior
orders is itself no defence.
9. The taking over of the powers of the Government
of the People’s Republic of Bangladesh with effect from the
morning of 15th August, 1975, by Khandaker Mushtaque
Ahmed, an usurper, placing Bangladesh under Martial Law and
his assumption of the office of the President of Bangladesh,
were in clear violation of the Constitution, as such, illegal,
without lawful authority and without jurisdiction.
10. The nomination of Mr. Justice Abusadat
Mohammad Sayem, as the President of Bangladesh, on
November, 6, 1975, and his taking over of the Office of

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President of Bangladesh and his assumption of powers of the
Chief Martial Law Administrator and his appointment of the
Deputy Chief Martial Law Administrators by the Proclamation
issued on November 8, 1975, were all in violation of the
Constitution.
11. The handing over of the Office of Martial Law
Administrator to Major General Ziaur Rahman B.U., by the
aforesaid Justice Abusadat Mohammad Sayem, by the Third
Proclamation issued on November 29, 1976, enabling the said
Major General Ziaur Rahman, to exercise all the powers of the
Chief Martial Law Administrator, was beyond the ambit of the
Constitution.
12. The nomination of Major General Ziaur Rahman,
B.U., to become the President of Bangladesh by Justice
Abusadat Mohammad Sayem, the assumption of office of the
President of Bangladesh by Major General Ziaur Rahman, B.U.,
were without lawful authority and without jurisdiction.
13. The Referendum Order, 1977 (Martial Law Order
No. 1 of 1977), published in Bangladesh Gazette On 1st May,
1977, is unknown to the Constitution, being made only to
ascertain the confidence of the people of Bangladesh in one
person, namely, Major General Ziaur Rahman, B.U.

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14. All Proclamations, Martial Law Regulations and
Martial Law Orders made during the period from August 15,
1975 to April 9, 1979, were illegal, void and non est because;
i) Those were made by persons without lawful
authority, as such, without jurisdiction.
ii) The Constitution was made sub-ordinate and
subservient to those Proclamations, Martial Law
Regulations and Martial Law Orders,
iii) Those provisions disgraced the Constitution
which is the embodiment of the will of the
people of Bangladesh, as such, disgraced the
people of Bangladesh also,
iv) From August 15, 1975 to April 7, 1979
Bangladesh was ruled not by the representatives
of the people but by the usurpers and dictators,
as such, during the said period the people and
their country, the Republic of Bangladesh, lost its
sovereign republic character and was under the
subjugation of the dictators.
v) From November 1975 to March, 1979
Bangladesh was without any Parliament and was

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ruled by the dictators, as such, lost its democratic
character for the said period.
vi) The Proclamations etc. destroyed the basic
character of the Constitution, such as, change of
the secular character, negation of Bangalee
Nationalism, negation of Rule of law, ouster of
the jurisdiction of Court, denial of those
constitute seditious offence.
15. Paragraph 3A was illegal, “Firstly because it sought
to validate the Proclamations, MLRs and MLOs which were
illegal”, and “Secondly, Paragraph 3A, made by the
Proclamation Orders, as such, itself was void”.
16. The Parliament may enact any law but subject to the
Constitution. The Constitution (Fifth Amendment) Act, 1979 is
ultra vires, because:
Firstly, Section 2 of the Constitution (Fifth Amendment)
Act, 1979, enacted Paragraph 18, for its insertion in the Fourth
Schedule to the Constitution, in order to ratify, confirm and
validate the Proclamations, MLRs and MLOs etc. during the
period from August 15, 1975 to April 9, 1979. Since those
Proclamations, MLRs, MLOs etc., were illegal and void, there
were nothing for the Parliament to ratify, confirm and validate.

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Secondly, the Proclamations etc. being illegal and
constituting offence, its ratification, confirmation and
validation, by the Parliament were against common right and
reason.
Thirdly, the Constitution was made subordinate and
subservient to the Proclamations etc.
Fourthly, those Proclamations etc. destroyed its basic
features.
Fifthly, ratification, confirmation and validation do not
come within the ambit of ‘amendment’ in Article 142 of the
Constitution.
Sixthly, lack of long title which is a mandatory condition
for amendment, made the amendment void.
Seventhly, the Fifth Amendment was made for a
collateral purpose which constituted a fraud upon the People of
Bangladesh and its Constitution.”
The Appellate Division infused some modification into
this Division’s judgment in the 5th Amendment Case and, added
some observation thereto, in following terms;
“Before we conclude, we would like to quote the
following:
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“The greatest of all the means . .. . . . . for ensuring the
stability of Constitution-but which is now a days generally
neglected is the education of citizens in the sprit of the
Constitution . . . . . . To live by the rule of the Constitution
ought not to be regarded as slavery, but rather as salvation.”
(Artistotle’s Politics (335-332 BC) pp 233-34’’
We would also quote the following passage from the
conclusion in an essay on Noni Palkivala in . . . . . “Democracy,
Human rights and Rule of Law” edited by Venkat Iyer, 2000
regarding the “Period of Deliquency” in India in 1975-1977:
“Despite the traumatic events of 1975-1977, the lessons
of that emergency have now, alas, also been forgotten by
a vast majority of Indian citizenery. It is said that people
do not realize the benefits of freedom until they are lost.
Twenty five years have passed and a new generation of
Indians is not even aware of what happened during those
eventful months.
It is essential that if India is to preserve her democratic
freedom, each generation must be taught, educated and
informed about those dark days. Every Indian needs to
renew and refresh himself at the springs of freedom.”

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We will simply echo those words by replacing the period
and the word India with Bangladesh. We emphasize each of our
generation must be taught, educated and informed about those
dark days: the easiest way of doing this is to recognize our
errors of the past and reflect this sentiments in our judgment.
This will ensure that the sovereignty of “we, the people of
Bangladesh” is preserved forever as a “pole star”.
We are of the view that in the spirit of the Preamble and
also Article 7 of the Constitution the Military Rule, direct or
indirect, is to be shunned once for all. Let it be made clear that
Military Rule was wrongly justified in the past and it ought not
to be justified in future on any ground, principle, doctrine or
theory whatsoever as the same is against the dignity, honour
and glory of the nation that it achieved after great sacrifice; it is
against the dignity and honour of the people of Bangladesh
who are committed to uphold the sovereignty and integrity of
the nation by all means; it is also against the honour of each
and every soldier of the Armed Forces who are oath bound to
bear true faith and allegiance to Bangladesh and uphold the
Constitution which embodies the will of the people, honestly
and faithfully to serve Bangladesh in their respective services
and also see that the Constitution is upheld, it is not kept in

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suspension, abrogated, it is not subverted, it is not mutilated,
and to say the least it is not held in abeyance and it is not
amended by any authority not competent to do so under the
Constitution.
We, therefore, sum up as under:
1. Both the leave petitions are dismissed:
2. The judgment of the High Court Division is approved
subject to the following modifications:-
(a) All the findings and observations in respect of
Article 150 and the Fourth Schedule in the
judgment of the High Court Division are
hereby expunged, and the validation of Article
95 is not approved;
3. In respect of condonation made by the High Court
Division, the following modification is made and
condonations are made as under:
(a) all executive acts, thing and deeds done and
actions taken during the period from 15th
August 1975 to 9th April, 1979 which are past
and closed;
(b) the actions not derogatory to the rights of the
citizens;
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(c) all acts during that period which tend to
advance or promote the welfare of the people;
(d) all routine works done during the above
period which even the lawful government
could have done.
(e) (i) the Proclamation dated 8th November,
1975 so far it relates to omitting Part VIA of
the Constitution;
(ii) the Proclamations (Amendment) Order 1977
(Proclamations Order No. 1 of 1977) relating to
Article 6 of the Constitution.
(iii) the Second Proclamation (Seventh
Amendment) Order, 1976 (Second Proclamation
Order No. IV of 1976) and the Second
Proclamation (Tenth Amendment) Order, 1977
(Second Proclamation Order No. 1 of 1977) so far
it relates to amendment of English text of Article 44
of the Constitution;
(iv) the Second Proclamation (Fifteenth
Amendment) Order, 1978 (Second Proclamation
Order No. IV of 1978) so far it relates to
substituting Bengali text of Article 44;

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(v) The Second Proclamation (Tenth Amendment)
Order, 1977 (Second Proclamation Order No. 1 of
1977) so far it relates to inserting Clauses (2), (3),
(4), (5), (6) and (7) of Article 96 i.e. provisions
relating to Supreme Judicial Council and also clause
(1) of Article 102 of the Constitution, and
(f) all acts and legislative measures which are in
accordance with, or could have been made under
the original Constitution.
While dismissing the leave petitions we are putting
on record our total disapproval of Martial Law and suspension
of the Constitution or any part thereof in any form. The
perpetrators of such illegalities should also be suitably punished
and condemned so that in future no adventurist, no usurper,
would dare to defy the people, their Constitution, their
Government, established by them with their consent. However,
it is the Parliament which can make law in this regard, let us bid
farewell to all kinds of extra constitutional adventure for ever.”
Another case, namely the case of Siddique Ahmed-V-
Bangladesh popularly known as the 7th Amendment case, stated
above, reported in the Special issue of the Law Reporter March
2011, came up before this Court in which the issues revolved

=169=
round the question of constitutionality of a subsequent martial
law as well as upon the legality of the conviction, a so-called
martial court, created by a so-called martial law instrument,
purportedly handed down. This Division’s judgment, which
was affirmed subject to some alterations by the Appellate
Division, was summed in following terms;
1) “Martial Law is totally alien a concept to our
Constitution and hence, what Dicey commented about
it, is squarely applicable to us as well.
2) A fortiori, usurpation of power by General
Mohammad Ershad, flexing his arms, was void ab-
initio, as was the authoritarian rule by Mushtaque-Zia
duo, before Ershad, and shall remain so through
eternity. All martial law instruments were void ab-
initio. As a corollary, action purportedly shedding
validity through the Constitution (Seven Amendment)
Act 1986, constituted a stale, mori-bund attempt,
having no effect through the vision of law, to grant
credibility to the frenzied concept, and the same must
be cremated without delay.
3) The killing of the Father of the Nation, which was
followed by successive military rules, with a few years

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of intermission, was not an spontaneous act-it resulted
from a well intrigued plot, harboured over a long
period of time which was aimed not only to kill the
Father of the Nation and his family, but also to wipe
out the principles on which the Liberation War was
fought.
4) During the autocratic rule of Khandaker Mushtaque
and General Ziaur Rahman, every efforts were
undertaken to erase the memory of the Liberation War
against Pakistan.
5) Two military regimes, the first being with effect from
15th August, 1975, and the second one being between
24th March 1982, and 10th November 1986, put the
country miles backward. Both the martial laws
devastated the democratic fabric as well as the patriotic
aspiration of the country. During Ziaur Rahman’s
martial law, the slogan of the Liberation war, “Joy
Bangla” was hacked to death. Many other Bengali
words such as Bangladesh Betar, Bangladesh Biman
were also erased from our vocabulary. Suhrawardy
Uddyan, which stands as a relic of Bangabandhu’s 7th
March Declaration as well as that of Pakistani troops’

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surrender, was converted into a childrens’ park. Top
Pakistani collaborator Shah Azizur Rahman was given
the second highest political post of the Republic, while
other reprehensible collaborators like Col. Mustafiz (I
O in Agartala conspiracy case), A S M Suleiman, Abdul
Alim etc were installed in Zia’s cabinet. Many
collaborators, who fled the country towards the end of
the Liberation War, were allowed, not only to return to
Bangladesh, but were also greeted with safe haven,
were deployed in important national positions. Self-
Confessed killers of Bangabandu were given immunity
from indictment through a notorious piece of
purported legislation. They were also honoured with
prestigious and tempting diplomatic assignments
abroad. The original Constitution of the Republic of
1972 was mercilessly ravaged by General Ziaur
Rahman who erased from it, one of the basic features,
Secularism and allowed communal politics, proscribed
by Bangabandhu, to stage a come back.
6) During General Ershad’s martial law also democracy
suffered devastating havoc. The Constitution was kept
in abeyance. Doors of communal politics, wide opened

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by General Zia, were kept so during his period.
Substitution of Bengali Nationalism by communally
oriented concept of Bangladeshi Nationalism was also
allowed longevity during Ershad’s martial law period.
7) By the judgment in the Fifth Amendment Case all the
misdeeds perpetrated by Mushtaque-Zia duo have
been eradicated and the Constitution has been restored
to its original position as it was framed in 1972.
8) It is about time that the relics left behind by martial
law perpetrators be completely swept away for good.
9) Steps should be taken by the government to remove
the impeding factors, the Appellate Division cited, in
order to restore original Article 6, i.e., Bangalee
Nationalism.
10) Those who advised Ershad, including his law minister
and Attorney General during his martial law period to
keep the Constitution suspended, should also be tried.
For the reasons assigned above, the Rule is made absolute
in part. The Constitution (Seventh Amendment) Act 1986 is
hereby declared to be thoroughly illegal, without lawful
authority, void ab-initio and the same is, hence invalidated

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forthwith through this judgment, subject however, to the
condonation catalogued above, where they would apply.
Paragraph 19 of Fourth Schedule to the Constitution, is
hereby declared extinct wherefor the same must be effaced
from the Constitution without delay.
The Respondents are further directed, having regard to
the Appellate Division’s modifying Order in the Fifth
Amendment case, to take steps to clear the impediments, cited
by the Appellate Division, with a view to eventual restoration
of original Article 6.
The Respondents No. 1 is directed to reflect this
judgment by re-printing the Constitution.
No Order, however, is made to interfere with the
petitioner’s conviction or the sentence for the reasons stated
above and hence he must surrender to his bail.”
This Division in the 7th Amendment Judgment also
expressed;
(67) “These Constitutional provisions have been mirrored
above for the sole purpose of vindicating the assertion that (1)
martial law or any similar usurpation of power has no threshold
under our constitution (2) our Constitutional Scheme, from the
top to the toe, owes its existence to the will of the people (3) it
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is the Parliament, elected through popular vote, which is the
centrifugal body for all democratic activities (4) the Head of the
Executive Government, along with his colleagues survive so
long as they command the support of the majority members of
parliament (5) members of Parliament, who alone enjoy
prerogative to legislate, with the only exception of parochial
and short lived legislative power of the President, and who do
effectively and virtually form the electoral college for the
formation of the executive Government, are all elected directly
by the people, (6) a set of fundamental rights, which
corresponds to the universal declaration of Human Rights,
1948, and other U N Covenants on human rights, remain
stoutly erected as the Constitutional Arch Stone to insulate
every individual’s fundamental rights (7) there is a Supreme
Court, comprising two hierarchical Divisions, to act as the
invincible vanguard, to shield the sacrosanctity of the
Constitution by performing the sacred duty of being it’s
Guardian and to protect and enforce the fundamental rights,
firmly and inflexibly secured by the Constitution and, most
importantly, to act as the inviolable bastion to keep the
Constitution immune from extra-Constitutional infringement

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and also to ensure that no law, contravening any provision of
the Sacred Instrument, is passed.”
The High Court Division in the 5th Amendment case was
rather repetitive in invalidating martial law and all the
proclamations and the purported edicts that tagged along, while
the Appellate Division in the said case, denounced martial law
and all its spawns in no ambiguous terms with a view to warn
potential adventurers.
This Division in the 7th Amendment case did not lag
behind in nullifying martial law and its offshoots with
conspicuous audibility but went all the way to make identical
finding on the so-called martial law tribunal’s enervation to try
the Petitioner in that case, though, on a technical ground
refused to interferer with the Petitioner’s conviction expressing
that a different forum, instead of a Writ Bench, should resolve
that question. This Division’s said finding on conviction, was,
nevertheless, reversed by the Appellate Division, which finally
set aside the purported conviction pretentiously handed down
by a so-called martial law tribunal on the ground of the nullity
of all martial law pronunciamento.
The ratio in those two decisions, command us to be
swayed to the irrestible and immutatable conclusion that the

=176=
proclamation dated 20th August, 1975 and all the so-called
martial law instruments that followed were totally divorced
from legal sanction, which follows, as day follows night, that
the purported trial of all the Petitioners, was also a sham one
equally well.
The questions no (I) and (II) are, as such, answered in the
negative, ie in favour of all the Petitioners in all the Writ
Petitions, viz W.P. 7236/10, W.P. 826/11, W.P. 1048/11 and
W.P. 1059/11.
Having found, as above, that the trial conviction and
sentence purportedly pronounced by the said trubunal was void
from the top to the toe, we are now swang to address question
no (III) i e, whether the impugned conviction is, nonetheless,
protected by the index of condonation, the Appellate Division
finally formulated, supra.
Again, on perusal of the said table, we are oscillated to the
invariable synthesis that the action purportedly resorted to by
the hollow tribunal, is not embraced by the doctrine of
condonation as enunciated by the Apex Division, because it
kept within the exclusionary zone actions which were
derogatory to the rights of the citizens.

=177=
True it is that the Appellate Division directed de-novo
trial of the Petitioner in the 7th Amendment case, but that
scenario was distinctively at variance with the instant one in
that in the earlier case initial cognisance was taken by, and the
proceedings first commenced in, a properly and validly
constituted court, i.e. the court of sessions, having its origin in
the Code of Criminal Procedure.
The issue no (III) also is, thus, resolved in all the
Petitioners’ favour.
Although with our above finding we need go no further
to declare illegal and set aside the trial, sentence and the
conviction of the Petitioners and to make all the Rules absolute,
we are, nonetheless, inclined to explore the quality of the so-
called trial process because of the general inquisitiveness on the
question of the propriety of that trial irrespective of the
Constitutional consideration.
Nothwithstanding an initial quandary and somewhat
enigma that resulted from the absence of vital documents, we
did not, at the end of the day, find the issue no (IV) very
cumbersone either, because the lacuna so caused was cured by
the information otherwise procured from the averments of all
the petitioners, as well as from some people who were placed at

=178=
the relevant offices in those days and also from the
information, an internationally acclaimed journalist, Mr.
Lawrence Lifschulz, furnished.
Those who were proximate state functionaries during the
period in issue proved immenesly resourceful. Their memory
had not faded. They yielded all the information we needed to
adjudicate upon the factual inquisitories.
It goes without saying that information and data provided
by Mr. Lawrance Liftschulz and assistance provided by the
learned Advocates of great bestowal had been quite prolific
while the Gazette notificatiions supplied by the Petitioners also
appeared to be of exquisitive value.
Facts that emerged from the uncontroverted statement
made by the Petitioners, and those functionaries who deposed
before us, as well from the information supplied through
various documents, we can safely deduce the following facts as
established;
(1) The Father of the Nation along with all the
members of his family, save two daughters,
were gruesomely assassinated by a few
disgrantled army officers at the early hours on
15th August 1975, following which Khandakar

=179=
Mustaque, who was a member of the cabinet,
occupied the seat of the President of the
country as an usurper.
(2) The whole of Bangladesh was placed under
military rule as from 20th August 1975, a
couple of days after the diobolic slaying of the
Founding Father of the Nation.
(3) Althouth initially Khandakar Mushtaque
Ahmed was seen to have been placed as the
so-called president, for all practical purposes
real power rested with General Ziaur Rahman.
(4) On 20th August 1975, a so-called martial law
was proclaimed with Mostaque as the titular
head.
(5) A succession of events followed, which
included the arrest of all the Petitioners in all
the Writ Petitions under review, as well the
husbands of the petitioner nos. 2 and 3, in
Writ Petition No. 7236 of 2011.
(6) Their arrest was preceded by the lodging of a
first informatiion report with the
Mahammadpur Police Station in Dhaka on 4th

=180=
June, 1976, invoking martial law regulatiions
as well as Section 121A of the Penal Code.
(7) A special martial law tribunal was animated on
14th June 1976 pursuant to so-called power,
purportedly conferred by regulation no. XVI
of 1976, section 3(4), with a Colonel in the
Army as its chair, flanked by four members,
one of whom was a Wing Commander in the
Air Force, another one being an Acting
Commanders of the Navy and Two from
Dhaka Magistratcy.
(8) The said tribunal was purportedly fortified
with power to try any offence under the so-
called martial law regulations as well as those
covered by Chapter VI and VII of the Penal
Code.
(9) The regulation aforementioned, empowered
the tribunal to sit in camera if the chair so
decided.
(10) The chair could, and did, administer oath of
secrecy to bar those present before it from
diclosure of anything on the proceeding.

=181=
(11) There was no right of appeal against the
tribunal’s purported verdicts.
(12) The case in which all the Petitioners were
tried was registered as Special Martial Law
Tribunal Case No. 1 of 1976.
(13) The Proceeding took place within the eclosure
of Dhaka Central Jail in total seclusion and
surreptitiousness: even the close ones were
not allowed to attend or have access to the
accused, it continuned for 17 days and the
verdict was delivered on 17th July 1976, by
which all the Petitioners and the spouses of
the Petitioners no. 2 and 3 of the Writ
Petition No. 7236, were declared guilty and
sentenced to imprisonment of various terms,
save the spouse of the petitioner no. 2 in Writ
Petition no. 7236 of 2010, who was
condemned with capital punishment.
(14) Neither the accused persons nor the lawyers
appearing for different accused were allowed
to cross examine the prosecution witnesses.
The witnesses were ushered to the court room

=182=
heavily guarded and used to be hurriedly
escorted away after their hasty deposition.
The accuseds were not at all aware of what
the witnesses uttered. They were not given
any chance to say anything in their defence or
to produce any defence witness.
(15) Some of the accused were not allowed to
engage lawyers or to talk to the lawyers that
voluntarily appeared for other accused
persons.
(16) Case records, including the first information
report, and other connected papers were
never placed before the Sub-Divisional
Officer, Dhaka Sadar (South), although the
law required them to be put before him for
taking cognisance and passing necessary
orders as the Sub-Divisional Magistrate.
(17) The District Magistrate, Dhaka was never
intimated that one of the Magistrate under
him would be deployed in the said tribunal as
a member, although the procedure and the
convention demanded it.

=183=
(18) As Colonel Taher retired from the Army long
ago, he should have been tried in ordinary
Court.
(19) No papers pertaining to the indictment was
placed before the member of the so-called
trubunal, who filed affidavit before us, he was
not consulted on the conviction nor was
the mandatory procedures ordinarily followed
or ought to be followed in a criminal, trial,
was adopted during the subject so-called trial.
(20) Most importantly, none of the offences the
Petitioners were purportedly indicted with,
carried death sentence.
(21) The so-called tribunal went into oblivion after
passing the purported verdict on 17th July
1976 on the Petitioners, the spouses of the
Petitioner no. 2 and 3 in WP 7236/10 and the
other co-accused who were simultaneously
tried with them, never to convene again.
We find no reason to deprecate those facts: not only that
they emanated from persons credited with impeccable integrity,
but also because none came forward to refute them.

=184=
Question is what nomenclature can be attributed to that
which went on within that chamber of Dhaka Central Jail upto
the period that ended on 21st July, 1976? Can it be described as
a judicial proceeding?
Blacks Law Dictionary contemplates a judicial proceeding
as one whcih encapsulates (i) the taking of testimony and (ii)
the trial.
The same dictionary defines a trial as a formal judicial
examination of evidence and determination of legal claims in an
adversary proceeding.
A “fair trial”, according to Blacks Law Dictionary,
encompasses a trial by an impartial and disinterested tribunal in
accordance with regular procdure; specially in criminal trial in
which the defendants’ constitutional and legal rights are
respected.
The concept, “fair trial” invariably embraces due process,
where the following incidences must show up;
(a) Presecmption of innocence
(b) Arraignment
(c) Right to be heard
(d) Right to counsel
(e) Right to be informed of the grounds of arrest.

=185=
(f) Right to speedy, impartial and public trial
(g) Protection against self incrimination
(h) Right to cross examine presecution witness.
(i) Right as granted by Section 342 of the Code of
Criminal Procedure.
Mr, Mahbubey Alam, the learned Attorney General, Dr.
Kamal Hussain, Mr. M. Amirul Islam, Dr. Zahir, Mr. M.I.
Faruqui, Mr. Rukounddin Mahmood, Mr. Akter Imam, and Mr.
M.K Rahman projected comprehensive lists containing such
aspects which are sine qua non for a judicial proceeding and we
do fully endorse and adopt the catalogue they portrayed.
It is amply clear form the sequence of events, displayed
earlier, that the above requirements were conspicuously missing
during or at the outset of the trial. The so-called regulation that
engendered the so-called tribunal did not lay down the above
cited requirements. The trial was held in camera and thus it
lacked public character. An oath of secrecy further devastated
the pellucidity and rendered the purported trial, virtually a
clandastine process.
In this respect we endorse Mr. Lifschulz’s view that it was
not even a show trial as it was not visible.

=186=
While some accused may have been lucky enough to be
theoritically allowed legal representation, the same was reduced
to burlesque any way because they were not allowed (i) to cross
examine prosecution witnesses, (ii) to call defence witnesses.
No accused was allowed to make any effort to refute
what the prosecution witnesses deposed or to make any
submission in their defence. What appeared to be more
reproachful was the declination to intimate the accused as to
the so-called allegation against them-they were not supplied
copy of the so-called first information report, charge sheet or
charges as may have been framed, even purportedly.
There was no arraignment, the charges were not read
over to them, they were not asked about pleading, were not
reminded of their right to call defence witnesses. No copy of
the prosecution witnesses’ deposition was made available to
them, no examination mandatorily warranted by section 342 of
the Code of Criminal Procedure.
There was no right of appeal, no procedure for
confirmation by the High Court Division or an alternative
superior judicial body.
It is quit possible, as Mr. Aktar Imam wished to have us
to believe, these documents may very well have been destroyed

=187=
to conceal the evidence of illeglities committed by the tribunal
as well as those who brought it into being.
According to Mr. Alim, who was a member of the so-
called tribunal, no paper was placed before him and he was not
consulted on the verdict.
Death sentence passed on Col. Taher was, by far, the
most dreatful factor that totally and, indeed, conspicuously,
infested the whole secnario with squalid stink because the
legislative schemes, and even the so-called martial law
regulations that were showingly invoked, did not allow the so-
called tribunal to pass death sentence on the date the so-called
trial commenced. The purported death sentence was, thus,
imposed flexing sheer gun power in whimsical and ludicrous
defiance of even those laws that were promulgated by the
military usurpers.
Can the execution of the death sentence, be termed as

anything other than a cold blooded murder as some of those
who appeared before us have posited? The answer in our
brooding must be in the affirmative for three reasons; firstly
when an execution is carried out barren of legal sanction, that is
nothing but murder, secondly, and that is irrespective of the
invalidity of the tribunal, it was a murder because even on the
date of the commencement of the so-called trial, none of the
=188=
charges labelled against Taher prescribed death sentence, no

procedure appertaining to criminal trials, was followed, finally,
and indeed most significantly, as pointed out by Mr. Moudud
Ahmed in printed form and then verbally before us, Taher’s
sentence was pre-determined by General Ziaur Rahman well
before even the tribunal was constituted, at the meeting of the
formation commandars, which statement of Mr. Moudud
Ahmed vindicates the allegation that it was General Zia, rather
than the tribunal that decided on the death sentence, though
sentencing is a judicial, not an executive, matter and that the
tribunal only acted as a surrogate mother.
We have no reason to brush aside Mr. Moudud Ahmed’s
written assertions, on the truthfulness of which he quite
guilelessly vowed when we asked him verbally as to his written
version. He was, and we do take judicial notice of this fact, a
very close associate of General Ziaur Rahman, which fact make
his statement all the more eredible. His account has been
corroborated in toto by Mr. Lifschultz, who relied on the
information divulged by General Manzur, who was a reigning
general at the postulated time and, who, in Mr. Lifschultz’s
portrayal, attended the decisive meeting of the formation
commandars. Both of them indicated that General Ziaur
Rahman was bent and, resolved to annihilale Lt. Colonel Taher,
Bir Uttan, before the so-called tribunal passed its purported
judgment on 17th July 1976. As evinced by Mr. Moudud
Ahmed, this decision was aimed to appease officers re-patriated
from Pakistan.
=189=
Mr. Lifschultz’s claim, which lends support to what Mr.
Moudud Ahmed stated, deserves credence as he cited General
Manzur’s statement in this respect.
These scenario naturally led to the irresitible narrative that
the so-called tribunal was nothing other than a device to air its
“Masters’ Voice”, it’s verdicts were spurious and the capital
punishment it inflicted on Lt. Col. Taher, Bir Uttam, as Syed
Badrul Ahsan expressed, amounted to an extra-judicial murder,
“pure and simple,” when the same was executed.
Hence, irrespective of the question of the legal status of
the so-called tribunal, which question has been answered in the
negative, the event that proceeded within the canopy of Dhaka
Central Jail, can by no means, be termed as a judicially
recognised criminal trial. It can not even be termed as a drama
of a criminal trial-it was a hoax, in the pretext of a judicial trial.
The ramification of the said murder has, as all
conscientious and self righteous people would agree, been very
severe indeed. Dastardly killing of Colonel Taher, Bir Uttam,
means depriving this Republic of such a valorous Freedom
Fighter whose contribution for our liberation can not be
exaggerated. This loathsome event will represent a blotted era
in our history.
=190=
Be it as may, everything stated above lead to the
inevitable conclusion that all of the 4 Rules under review are
foreordained to be crowned on counts no. (i) through (iv).
Resultantly, it is reiterated that the proclamation of
martial law dated 20th August 1975 and all the chicks the said
proclamation breeded, viz, all the proclamations, regulations,
orders, ordinances, directives and instruments and everything
that flowed therefrom, save those saved by the condonation
indexed by the Appellate Division in the 5th Amendment Case,
supra, were void and non-est, the so-called martial law
instrument that caused the abortive embryogenesis of the so-
called special Martial Law Tribunal along with the Tribunal
itself is declared to have been a still born one which follows
that the purported convictions passed by the said stale tribunal
are but vacuous, void and non est. That leaves us to address the
count no. (v) which relate to the relief craved.
It can not be gainsaid that the sequel of our above finding
would invariably impose upon the authorities an obligation to
wipe out the names of all the Petitionres in W.Ps 7236/10,
826/11, 1048/11 and 1059/11 and the spouses of the
Petitioners no. 2 and 3 in W.P. 7236/10 from the criminal
records that came into being in consequence of the

=191=
aforementioned illegal convictions and to project them with
unblemished image, while the execution of Col. Taher, Bir
Uttam, must be recorded as a clear cut extra-judicial murder.
Orders dismissing Major Ziauddin, Corporal Shamsul Haque,
Habildar Ahdul Hai Mazumdar (W.P No. 1048/11) and Abdul
Mazid (WP. No. 1059/11) must also be reversed to treat them
to have been in the service till their normal retirement age.
However, Major Ziauddin, a Freedom Fighter of national
repute claims that given his commendable achievement during
his cadetship and the War of Liberation and given that his
fellow peers rose to the highest strata of the army, he has every
reason to believe that he would also have rosen at least to the
rank of a Brigadier General had he not been illegally dismissed.
We are in total agreement with his claim that in the
attendant circumstances and because of his glorious antecedent
he would, in all possibility, have ended up with such a superior
rank. That said, however, we find ourselves a bit handicapped
to apply the doctrine of legitimate expectation in this respect
for the reason that unlike in the civil service, promotion
prospect of the officers in the armed forces is not automatic or
contemplatable, while recognising that the illegal conviction

=192=
and the resultant dismissal wrecked a havoc on his personal life
and career.
We can, however, to mitigate as far as law permits us, the
losses he suffered, as a result of the illegal conviction and
followant illegal dismissal, by directing the authorities to pay
him the money he would have received as salary and other
benefits till the last day that he would have served as a Major
had he not been illegally dismissed. Accordingly we direct the
respondents to remove the illegal dismissal order and to treat
him to have been in the service as a Major till that date on
which he would have normally retired as a Major and to pay
him all the arrear salaries, and other benefits, inclusive of
retirement benefit, pension etc., he would have received. Same
shall apply to Corporal Shamsul Haque, Habildar Abdul Hai
Mazumdar and Md. Abdul Mazid. They must also be treated to
have been in their respective jobs until the date on which they
would have normally retired had they not been illegally
convicted and dismissed, and, shall be paid all arrear salaries,
benefits and pensions accordingly as if they were not
terminated from their jobs premature.
So far as Major Ziauddin is concerned it will however,
remain open to the authorities to decorate him with superior

=193=
ranks and honour at their discretion in recognition of his
Spectacular and Tireless contribution in our War of Liberation,
taking into account the predicament he was subjected to by the
said vile trial, which plunged his potentially bright career to
devastation.
Subject to certain reservation as to the relief sought by
Major Ziauddin (WP. 1048/11) as stated in the preceeding
paragraphs, all the Rules that sprang from Writ Petitions no
7236/10, 826/11, 1048/11 and 1059/11 are made absolute on
all counts with the following declaration and directions,
without, however, any order on cost;
(i) Proclamation of martial law dated 20th August 1975
and all the ensuing proclamation, orders,
ordinances, regulations, directions, rules, and all
martial law instruments are declared to be void ab-
initio and non-est.
(ii) All so-called martial law tribunals and
martial law courts stemming from or
created by any martial law instrument,
inclusive of the Special Martial Law
Tribunal that operated inside Dhaka
Central Jail in July 1976 which purportedly

=194=
tried and convicted all of the instant
Petitioners of W.Ps 7236/10, 826/11,
1048/11 and 1059/11 and the spouses of
Petitioners no. 2 and 3 in WP 7326/10 in
Special Tribunal Case no 1 of 1976, are
declared to have been barren of lawful
authority and hence void and non-est at all
times.
(iii) Since all orders, convictions, sentences
purportedly passed by the so-called Special
Martil Law Tribunal, which purportedly
tried and convicted all of the instant
Petitioners, supra, and the spouses of the
petitioners no 2 & 3 WP 7236/10 are
declared to have been without lawful
authority and hence void and non-est ab-
initio, inclusion in criminal record of all the
Petitioners, as well as the spouses of
Petitioners no 2 & 3 in WP 7236/10, are
declared to have been without lawful
authority and , hence, void ab-initio in
respect to the purported convictions

=195=
passed by the said unlawful Special Martial
Law Tribunal in Special Tribunal Case No.
1 of 1976, and, as such, the respondents
are directed to erase the names of (1) Lt.
Col. Abu Taher, Bir Uttam,(2) Flight
Sergeant Abu Yusuf Khan, Bir Bikram (3)
Prof. Anwar Hussain (4) Mr. Hasanul
Haque Inu M. P. (5) Mr. Rabiul Alam (6)
Major Ziauddin (7) Corporal Shamsul
Haque (8) Habildar Abdul Hai Mazumdar
(9) Md. Abdul Mazid from the criminal list
that was compiled pursuant to the illegal
conviction passed by the aforementioned
unlawfully constituted Special Martial Law
Tribunal, mentioned above, to treat them
as utter Patriots and to record as an act of
culpable murder the illegal execution of Lt.
Col. Taher, Bir Uttam, on 21st July 1976
following the illegal order passed by the
said unlawful, surrogate tribunal, treat him
as a Martyr and to duly compensate his
family.
=196=
(iv) the respondents are directed to efface

illegal dismissal order passed on Major
Ziauddin, Corporal Shamsul Haque,
Habildar Abdul Hai and Md. Abdul Mazid
and treat them to have been in their
respective jobs until their normal
retirement age from those positions and to
pay them all arrear salaries, other benefits
and pension money that they would have
received had they not been unlawfully
dismissed in consequence of the said illegal
orders of conviction and the consequential
illegal orders of dismissal passed on them,
within 180 days from the date of the
receipt of this judgment (vi) General Zia,
who according to Mr. Moudud Ahmed and
Mr. Lifschultz, pre-determined and thereby
Masterminded Col. Taher Bir Uttam’s
death sentence, now being dead and being
beyond the clutches of our Penal Code, the
authorities should, nonetheless, track and
indict those who may still be alive and,
since one case of murder stands proved,
and there are allegations of more killing
during that authoritarian period, these
should be investigated by a Commission as
suggested by Mr. Panna and, as Mr.
Moudud Ahmed stated, “it seems that Zia
also maintained close link with officers that
killed Mujib.......”(page 33 of his book), it
should also be investigated whether
General Zia had a role in Bangabandhu’s
killing.
(vi) Neither the orders passed by the
aforementioned Special Martial Law
Tribunal unlawfully convicting and
sentencing all the Petitioners in all the 4
Writ Petitions and the spouses of the
Petitioners No. 2 and 3 in WP No. 7236/10,
nor the unlawful orders dismissing from
=197=
the services Major Ziauddin, Corporal

Shamsul Haque, Habildar Abdul Hai and Md.
Abdul Mazid is saved by condonation and,
hence, they are beyond the ambit of
condonation.
Before parting we would take the opportunity to thank all
the Learned Advocates and all those, inclusive of Mr. Lawrence
Lifschultz, who devoted their valued time to assist us to
adjudicate upon these Cases.
We would also like to conclude this judgment by
reproducing hereunder what Dr. Humayun Ahmed, (popularly
known as Humayun Ahmed), a living Mega Star in our literary
horizon, who inspired millions of Bengali people to read
novels, who had succeeded to accumulate immense popularity
from the Bengali people on both sides of the territorial
boundary, and who had been compared with Immortal Sharat
Chandra Chattapadhya by none other than another Living
Legend in Bengali literary realm, Mr. Sunil Gangapadhya, once
expressed, while he was in the process of a research work as a
prelude to author a period confined history based novel, to be
named, “Deyal”;
=198=
ÔÔfËqp−el HL ¢hQ¡l öl¦ q−m¡ Y¡L¡ ®L¾cÐ£u L¡l¡N¡−lz j¡jm¡l
e¡j ‘l¡øª’ he¡j ®jSl S¢mm Nw’z L−eÑm a¡−qlpq A¢ik¤š² phÑ−j¡V
33 Sez
j¡jm¡l fËd¡e ¢hQ¡l−Ll e¡j L−eÑm CEp¤g q¡uc¡lz j¤¢š²k¤−Ül
f¤−l¡ pjuV¡ HC h¡P¡¢m A¢gp¡l h¡wm¡−c−nC ¢R−mez j¤¢š²k¤−Ü
®k¡Nc¡e e¡ L−l f¡¢LÙ¹¡e ®pe¡h¡¢qe£l ®Mcja L−l ®N−Rez
j¡jm¡ Qm¡L¡m£e HLfkÑ¡−u L−eÑm a¡−ql fËd¡e ¢hQ¡l−Ll ¢c−L
a¡¢L−u BP¥m Ey¢Q−u ¢hpÈ−ul p−‰ h−me, B¢j Bj¡l S£h−e A−eL
r¥â j¡e¤o ®c−M¢R, Bfe¡l j−a¡ r¥â j¡e¤o ®c¢M ¢ez L−eÑm a¡−q−ll
e³e¨ ö−e Bc¡m−a q¡¢pl qõ¡ J−Wz
p¡wh¡¢cL ¢mgp¤m−Sl ¢hMÉ¡a NË¿Û Bangladesh : The
Unfinished Revolution NË−¿Û m¤vg¡ a¡−q−ll HL¢V ¢Q¢W B−Rz HC
¢Q¢W−a ¢a¢e L−eÑm a¡−q−ll S£h−el ®no L−uL O¾V¡l jjÑ−ic£ hZÑe¡
®cez HC ¢Q¢W f−s AnË¦−l¡d Ll¡ ®L¡−e¡ h¡wm¡−c¢n j¡e¤−ol f−rC
pñh e¡zÕÕ
Sheikh Md. Zakir Hossain,J.-
I agree.

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IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

Mr. Mohammad Salim, DAG and

23rd January, 3rd February, 15th, 16th, 20th March,

As many as four Writ Petitions, registered as Writ

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

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

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.

petitions are identical, they are taken up for adjudication as a

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,

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

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

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