Triumph of Law Over Politics: Supreme Court’s Stand on Zia Orphanage Malicious Prosecution

In January 2025, the Appellate Division of the Supreme Court of Bangladesh delivered a judgment that will echo through our legal landscape for decades. Begum Khaleda Zia & Others vs. Durnity Daman Commission was not just another criminal appeal, it was the judiciary stepping onto a storm-ridden battlefield and raising the flag of the rule of law when many thought it had been lowered beyond repair. The Court did not merely acquit. It unmasked a prosecution it described as a “manifest contrived misapplication of the law,” a phrase that landed like a thunderclap in a political climate long clouded by suspicion. In a justice system often accused of being bent by the winds of politics, this judgment was a rare act of judicial spine, a lighthouse flashing defiantly against the dark waves of state overreach.

The Case and its Context

The Zia Orphanage Trust case was more than a criminal prosecution; it was a political and legal spectacle. The case alleged that Begum Khaleda Zia, during her tenure as Prime Minister (1991-1996), misappropriated funds from a “Prime Minister’s Orphanage Fund” by funneling them into a private trust named after her late husband, which were then illicitly laundered through bank transactions involving her co-appellants. The case culminated in convictions by a Special Judge Court and a subsequent enhancement of sentences by the High Court Division.

The Supreme Court’s reversal is remarkable not for its outcome alone, but for the depth and breadth of its legal reasoning. The Court moved beyond a routine assessment of evidence to interrogate the very foundations of the prosecution, ultimately declaring it a malicious enterprise. This write up deconstructs the judgment’s core legal pillars to illuminate its significance for Bangladeshi law and for common law jurisdictions grappling with similar issues.

The Demise of the Prosecution’s Case: A Failure to Prove Actus Reus and Mens Rea

The legal architecture of the acquittal begins with the Supreme Court’s dismantling of the prosecution’s case for failing to establish both actus reus and mens rea, the foundational elements of any criminal conviction. Regarding actus reus, the Court identified a fatal flaw: there was no evidence that Begum Khaleda Zia was ever entrusted with, or exercised dominion over, the so-called “Prime Minister’s Orphanage Fund.” Not a single document the account opening form, cheques, or transaction records bore her signature, and the prosecution’s theory of her involvement rested entirely on inference rather than concrete proof.

Without entrustment, the foundation of a charge under Section 409 of the Penal Code collapses. Turning to mens rea, the Court emphasized that the funds were fully traceable into the Zia Orphanage Trust and various financial instruments, with no evidence that any appellant personally benefited from them. The Trust’s purchase of land in Bogura, far from suggesting misappropriation, indicated an intention to use the funds for legitimate purposes. The Court held that mere non-utilization of funds or their movement between accounts cannot amount to “dishonest misappropriation” under Section 405 unless accompanied by proof of fraudulent conversion for personal use.

A Judicial Rebuke of Abuse: The Court’s Findings on Malicious Prosecution

The most damning and groundbreaking aspect of the judgment is its explicit finding of malicious prosecution. The Court did not shy away from labeling the proceedings as a maliciously engineered endeavor, a rare and powerful move for an apex court. After outlining the classic elements of the doctrine, the Court concluded that each was fully satisfied, the proceedings were undeniably instituted by the ACC through its investigators; there was a blatant absence of reasonable and probable cause, evidenced by the “calculated act” of the second Investigating Officer, Harunur Rashid, who after being reinstated copied the earlier report that had cleared Begum Zia and then inserted an additional paragraph implicating her while upgrading the charges to bring the case within the ACC’s jurisdiction, a maneuver the Court described as an afterthought and a tainted process.

The element of malice was also established, with the Court pointing to improper motive rooted in political context, the timing of the prosecution when Begum Zia was out of power, and the Investigating Officer’s failure to undertake basic verification steps such as contacting the Kuwaiti embassy regarding the source of the donation. Finally, the appellants’ acquittal satisfied the requirement that the proceedings terminate in favor of the accused. By grounding its reasoning in Commonwealth and Indian jurisprudence on malicious prosecution, the Court delivered an unequivocal message: the legal process cannot be transformed into a weapon of political persecution, and Article 31’s guarantee of protection of the law stands as a vital constitutional shield against such abuse.

A Judgment That Reshapes the Boundaries of State Power

The Zia Orphanage Trust judgment is far more than a routine acquittal; it is a restorative act of judicial conscience, a forceful resetting of the balance between state power and individual rights. Its implications ripple far beyond the fate of a single case.

First, it reaffirms the rule of law by declaring, with unmistakable clarity, that no citizen regardless of political identity is outside the law’s protection, and no authority no matter how powerful is above legal scrutiny.

Second, it delivers a long-overdue check on prosecutorial discretion, warning institutions like the ACC that investigations must be impartial, evidence-driven, and untouched by political winds or personal vendettas.

Third, it lays down a robust legal roadmap for future litigants who may find themselves targeted through engineered prosecutions, equipping defense lawyers with doctrinal tools to expose weak or motivated cases.

And finally, it stands as a stern admonition against the global trend of transforming courtrooms into arenas of political warfare.

At this point, the Appellate Division offered a profound reminder of the judiciary’s constitutional purpose, observing that:

we have been alerted to the fact that how much more a court is than a courtroom. It is a process and a spirit structured and nurtured to prevent the violation of constitutional guarantees and the withholding of due process of law.

In the same breath, the Court warned against the perversion of legal proceedings for political spectacle, noting that:

courts are there to ensure that judicial proceedings are not reduced to being sacrificial rituals.

Through these words, the Court reclaimed the sanctity of judicial space from the creeping theatrics of partisan prosecution.

End Note: Justice Does Not Perform, Justice Prevails

In the final cadence of its judgment, the Supreme Court reminded the nation that law is not a costume, justice is not an actor, and the courtroom is not a stage built for the choreography of power. When the state attempts to script prosecutions as political drama, the judiciary must like a vigilant guardian of the republic lower the curtain and extinguish the spotlight.

In the Zia Orphanage Trust case, the Court did exactly that.

For in any democracy that dares to call itself free,

the courtroom must remain a sanctuary of truth

never a theatre for political punishment,

never an altar for sacrificial rituals.

Author Mokarramus Shaklan is an Advocate, Supreme Court of Bangladesh.