HABIBUR RAHMAN MOLLAH Vs. STATE

JUDGEMENT

(1.) The appellant Habibur Rahman Mollah, ex-member of Parliament, submitted his statement of wealth including the members of his family to the Durnity Daman Commission in pursuance of its letter under memo dated 29th May, 2007 directing him to submit as such. The Commission upon scrutiny for his wealth statement having suspected the statement as not true, made a thorough enquiry and it was said that he had concealed his wealth and submitted a falls return and that he had acquired property worth Taka 2 crore and odd by corrupt means. Accordingly an officer of the Commission lodged an first information report with the Ramna Police Station on 3rd October, 2007 against him for alleged commission of offences punishable under sections 26(2) and 27(1) of the Durnity Daman Commission Ain, 2004 read with Rule 15Gha (5) of the Emergency Powers Rules, 2007. The Commission investigated into the matter and having allegedly found disproportionate to the appellant's known source of income was of the opinion that he had committed offence punishable under the said provisions of law and accordingly submitted a police report re-commending for prosecution of the appellant under the aforesaid provision on 20th April, 2008.

(2.) The case record was eventually sent to the Metropolitan Senior Special Judge, Dhaka for putting the appellant on trial where Special Case No. 10 of 2008 was registered. Learned Special Judge after taking cognizance of the offences framed charge against the appellant under sections 26(2) and 27(1) of the Durnity Daman Commission Ain on 14th May, 2008. The appellant pleaded not guilty and claimed to be tried. The prosecution examined 17 witnesses out of 25 witnesses cited in the police report and the appellant thoroughly cross-examined them. It is at this stage the appellant came up with an application for quashing of the proceedings of the case before the High Court Division. The learned Judges of the High Court Division by judgment and order dated 20th November, 2008 discharged the rule. Thereafter the appellant moved this Division a leave petition. This Division granted leave to consider the following points:

(3.) Mr. Rafique-ul-Huq and Mr. Azmalul Hossain extensively argued on behalf of the appellant on the point of jurisdiction of the Special Judge to hold trial of the offence punishable under section 26(2) and 27(1) of the Durnity Daman Commission Ain, 2004 over an occurrence alleged to have been committed from 1971 to June 2007. Their main contention is that the Anti-Corruption Ain came into force on 9th May, 2004 but the alleged occurrence took place long before coming into force of the said Ain and institution of the case for alleged offences committed prior to coining of the aforesaid Ain with retrospective effect is totally illegal and without jurisdiction. In this connection learned Counsel have referred certain provisions of the Anti-Corruption Act, 1957, the Durnity Daman Commission Ain 2004, relevant rules of Durnity Daman Commission Rules, 2007, section 6 of the General Clauses Act and Articles 31 & 35(1) of the Constitution.