Appellate Division
Begum Khaleda Zia and others v Durnity Daman Commission and others
Criminal Appeal (A) 64/2024 · Appeals allowed; all appellants acquitted · Decided 15 January 2025
Three appellants, including a former Prime Minister (the first appellant), brought four appeals against a High Court Division judgment of 30.10.2018. The Special Judge, Court No. 5, Dhaka had convicted them under sections 409/109 of the Penal Code over money deposited in 1991 in a 'Prime Minister's Orphanage Fund' account and later transferred to the Zia Orphanage Trust, sentencing the first appellant to five years and the others to ten years' rigorous imprisonment. The High Court Division dismissed the appeals and, on the Anti-Corruption Commission's revision, enhanced the first appellant's sentence to ten years. The Appellate Division unanimously allowed all the appeals. It held that the courts below had overlooked the Trusts Act, 1882, that neither entrustment upon the first appellant nor dishonest misappropriation was proved, and that the case was a malicious prosecution. Although a revision against an inadequate sentence lay under section 10(1A) of the Criminal Law Amendment Act, 1958, the enhancement ignored the evidence. All convictions, including those of convicts who did not appeal, were set aside.
- Whether the offence of criminal breach of trust under section 409 of the Penal Code was made out where entrustment of the fund upon the first appellant and dishonest misappropriation were not proved.
- Whether a revision lies to the High Court Division against the inadequacy of a sentence passed by a Special Judge, and whether the enhancement of the first appellant's sentence was sustainable.
- Whether the prosecution concerning a private trust amounted to malicious prosecution so that the entire proceedings should be set aside.
- Criminal breach of trust under section 405 of the Penal Code requires entrustment of, or dominion over, property belonging to another and its dishonest misappropriation; as there was no entrustment upon the first appellant, the convictions under section 409 were misconceived.
- Under section 23 of the Trusts Act, 1882 a breach of trust is primarily a civil wrong remedied by making good the loss; criminal liability additionally requires mens rea, which cannot be inferred where misappropriation itself is not established.
- The first appellant was at most a constructive trustee under section 94 of the Trusts Act between 1991 and 1993, discharged that role on transfer of the funds, and no actus reus could be imputed to her after that period.
- As no appeal lies against the inadequacy of a sentence passed by a Special Judge, a revision lies to the High Court Division under section 10(1A) of the Criminal Law Amendment Act, 1958, but the High Court Division enhanced the sentence without considering the evidence on record.
- The Anti-Corruption Commission stepped beyond its jurisdiction in initiating proceedings concerning a private trust without any complaint from the relevant party, and the proceedings amounted to malicious prosecution.
- The courts below convicted on hypothetical presumptions in breach of the principle that the State must prove the charge beyond reasonable doubt, so the entire proceedings were set aside, with the benefit extended to convicts who had not appealed.
The convictions under section 409 of the Penal Code, 1860 for alleged criminal breach of trust in the absence of the constitutive ingredients of such offence as defined under section 405 with illustrations are misconceived and have resulted in a travesty of justice.
