126. At every court-martial the senior member shall sit as President.

127. Every general court-martial shall, and every district or field general court-martial may, be attended by a judge advocate, who shall be either an officer belonging to the department of the Judge Advocate General, or if no such officer is available, a fit person appointed by the convening officer.

128. (1) At all trials by courts-martial, as soon as the court is assembled, the names of the president and members shall be read over to the accused, who shall thereupon be asked whether he objects to being tried by any officer sitting on the Court. (2) If the accused objects to any such officer, his objection, and also the reply thereto of the officer objected to, shall be heard and recorded, and the remaining officers of the court shall, in the absence of the challenged officer, decide on the objection. (3) If the objection is allowed by one-half or more of the votes of the officers entitled to vote, the objection shall be allowed, and the member objected to shall retire, and his vacancy may be filled in the prescribed manner by another officer, subject to the same right of the accused to object. (4) When no challenge is made, or when challenges have been made and disallowed, or the place of every officer successfully challenged has been filled by another officer to whom no objection is made or allowed, the court shall proceed with the trial.

129. (1) An oath or affirmation in the prescribed form shall be administered in open court to every member of every court-martial and to the judge advocate (if any) before the commencement of the trial. (2) An oath or affirmation in the prescribed form shall be administered in open court to every officer (if any) in attendance on a court-martial for the purpose of instruction, and also to every shorthand writer or interpreter (if any). (3) Every person giving evidence before a court-martial shall be examined after being duly sworn or affirmed in the prescribed form: Provided that where a court-martial is satisfied that a child of tender years is unable to understand the nature of an oath or affirmation, it may dispense with the administration of oath or affirmation.

130. (1) Every decision of a court-martial shall be passed by an absolute majority of votes; and where there is an equality of votes on either the finding or the sentence, the decision shall be in favour of the accused: Provided that no sentence of death shall be passed without the concurrence, in the case of a general court-martial of at least two-thirds of the members and in the case of a field general court-martial of all the members of the court. (2) In matters other than a challenge or the finding or sentence, the president shall have a second or casting vote.

131. Subject to the provisions of this Act, the rules of evidence in proceedings before court-martial shall be the same as those which are followed in criminal courts.

132. A court-martial may take judicial notice of any matter within the general, Naval, Military or Air Force knowledge of the members.

133. (1) The convening officer, the president of the court, the judge advocate, or the commanding officer of the accused person may, by summons under his hand, require the attendance at a time and place to be mentioned in the summons of any person either to give evidence or to produce any document or thing. (2) In the case of a witness amenable to Air Force, Naval or Military authority, the summons shall be sent to his commanding officer and such officer shall serve it upon him accordingly. (3) In the case of any other witness, the summons shall be sent to the magistrate within whose jurisdiction he may be or reside, and such magistrate shall give effect to the summons as if the witness were required in the court of such magistrate. (4) When a witness is required to produce any particular document or other thing in his possession or power the summons shall describe it with reasonable precision.

134. (1) Nothing in section 133 shall be deemed to affect the operation of sections 123 and 124 of the Evidence Act, 1872, or to apply to any letter, postcard, telegram or other document in the custody of the postal or telegraph authorities. (2) If any document in such custody is, in the opinion of any District Magistrate, ¹[High Court Division] or Court of Session, wanted for the purpose of any court-martial, such magistrate or court may require the postal or telegraph authorities, as the case may be, to deliver such document to such person as such magistrate or court may direct. (3) If any such document is, in the opinion of any other magistrate or of any commissioner of police or district superintendent of police, wanted for any such purpose, he may require the postal or telegraph authorities, as the case may be, to cause search to be made for and to detain such documents pending the orders of any such District Magistrate, ²[High Court Division] or Court of Session.

135. (1) Whenever, in the course of a trial by a court-martial, it appears to the court that the examination of a witness is necessary for the ends of justice, and that the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, in the circumstances of the case, would be unreasonable, such court may, if it thinks necessary, issue a commission in the manner specified in Chapter XL of the Code of Criminal Procedure, 1898, according as the witness resides in a place in or outside Bangladesh. (2) The Court may be adjourned for a specified time reasonably sufficient for the execution and return of the commission. (3) Such a commission shall be executed by the magistrate or officer to whom it is issued in the same manner as if it was issued in the trial of a warrant case under the Code of Criminal Procedure, 1898, or of any corresponding law in force at the place where the evidence is recorded; and shall be returned, together with the deposition of the witness examined thereunder, to the Judge Advocate General. (4) The Judge Advocate General will forward the same to the court-martial who issued it or, if the said court-martial is in the meanwhile dissolved, to another court-martial convened for the trial of the accused in respect of the same charge and any deposition so taken shall be recorded in evidence and shall form part of the proceedings of the court. Explanation.- In this section, the expression “Judge Advocate General” includes a Deputy Judge Advocate General.

136. [Examination of a witness on commission.- Omitted by section 3 of the Pakistan Army and Air Force (Amendment) Ordinance, 1964 (Ordinance No. VI of 1964).]

137. (1) A person charged before a court-martial with desertion may be found guilty of attempting to desert or of being absent without leave. (2) A person charged before a court-martial with attempting to desert may be found guilty of being absent without leave. (3) A person charged before a court-martial with using criminal force may be found guilty of assault. (4) A person charged before a court-martial with using threatening language may be found guilty of using insubordinate language. (5) A person charged before a court-martial with any one of the offences specified in clauses (a), (b), (c) and (d) of section 52 may be found guilty of any other of these offences with which he might have been charged. (6) A person charged before a court-martial with an offence punishable under section 71 may be found guilty of any other offence of which he might have been found guilty if the provisions of the Code of Criminal Procedure, 1898, were applicable. (7) A person charged before a court-martial with any other offence under this Act may, on failure of proof of an offence having been committed in circumstances involving a more severe punishment, be found guilty of the same offence as having been committed in circumstances involving a less severe punishment. (8) A person charged before court-martial with any offence under this Act may be found guilty of having attempted to commit or of abetment of that offence although the attempt or abetment is not separately charged.

138. In any proceeding under this Act, any application, certificate, warrant, reply or other document purporting to be signed by an officer in the ³[service of the Republic] shall, on production, be presumed to have been duly signed by the person by whom and in the character in which it purports to have been signed, until the contrary is shown.

139. (1) Any enrolment paper purporting to be signed by an enrolling officer shall, in proceedings under this Act, be evidence that the person enrolled gave the answers which he is therein represented as having given. (2) The enrolment of such person may be proved by the production of the original or a copy of his enrolment paper purporting to be certified to be a true copy by the officer having the custody of the enrolment paper.

140. (1) A letter, return or other document with respect to a person,- (i) having, or not having, at any time served in, or been dismissed or discharged from any part of the armed forces of Bangladesh, or(ii) having, or not having, held any rank or appointment in, or been posted or transferred to any part of such forces, or having or not having served in any particular country or place, or (iii) being, or not being, authorised to use or wear any Naval, Military or Air Force decoration, medal, medal ribbon, badge, wound stripe or emblem, the use or wearing of which by an unauthorised person is, by any law in force for the time being, an offence, if purporting to be signed by or on behalf of a Secretary to the Government, or on behalf of the Bangladesh Military, Naval or Air Force Headquarters, or by the commanding officer or the officer or record officer having the custody of the records of any portion of those forces or of any of the ships of Bangladesh Navy to which such person appears to have belonged, or alleges that he belongs or had belonged, shall be evidence of the facts stated in such letter, return or other document. (2) Any Army, Navy or Air Force list or gazette purporting to be published by authority shall be evidence of the status and rank of the officers or ⁴[master warrant officers or warrant officers] therein mentioned, and of any appointment held by them and of the unit or branch of the service to which they belong. (3) Where a record is made in any service book in pursuance of this Act or of any rules made thereunder or otherwise in pursuance of duty and purports to be signed by the commanding officer or by the officer whose duty it is to make such record, such record shall be evidence of the facts therein stated. (4) A copy of any record in any service book purporting to be certified to be a true copy by the officer having the custody of such book shall be evidence of such record. (5) Where any person subject to this Act is being tried on a charge of desertion or of a absence without leave and such person has surrendered himself into the custody of, or has been apprehended by, any officer, or any portion, of the armed forces of Bangladesh, a certificate purporting to be signed by such officer, or by the commanding officer of that portion of the armed forces and stating the fact, date and place of such surrender or apprehension, shall be evidence of the matters so stated. (6) Where any person subject to this Act is being tried on a charge of desertion or of absence without leave and such person has on arrest or surrender been taken to a police station in Bangladesh, a certificate purporting to be signed by the officer-in-charge of that police station, and stating the fact, date and place of such surrender or apprehension shall be evidence of the matters so stated. (7) Any document purporting to be a report under the hand of any Chemical Examiner or Assistant Chemical Examiner to the Government upon any matter or thing duly submitted to him for examination or analysis and report may be used as evidence in any proceeding under this Act.

141. (1) If at any trial, or other proceedings for desertion or absence without leave, overstaying leave, or not re-joining when warned for service, the accused states in his defence any sufficient or reasonable excuse for his unauthorised absence, and refers in support thereof to any officer in the ⁵[service of the Republic] or if it appears that any such officer is likely to prove or disprove the said statement in the defence, the court or officer conducting the proceedings shall address such officer and adjourn the court or proceedings until his reply is received. (2) The written reply of any officer so addressed shall, if signed by him, be received in evidence and have the same effect as if made on oath before the court or officer conducting the proceedings. (3) If the court-martial is dissolved before receipt of such reply or if it omits to comply with the provisions of this section, the convening officer may, at his discretion, annul the proceedings and order a fresh trial by the same or another court-martial.

142. (1) When any person subject to this Act has been convicted by a court-martial of any offence, such court-martial may inquire into, and receive and record evidence of any previous convictions of such person, either by a court-martial held under this Act or under any other enactment, or by a criminal court, or of any previous award of punishment under section 82 or section 86, and may further inquire into and record the general character of such person, and such other matters as may be prescribed. (2) Evidence received under this section may be either oral or in the shape of entries in, or certified extracts from service records; and it shall not be necessary to give notice before trial to the person tried that evidence as to his previous convictions or character will be received.

143. (1) Whenever, in the course of a trial by a court-martial, it appears to the court that the person charged is by reason of unsoundness of mind incapable of making his defence, or that he committed the act alleged but was by reason of unsoundness of mind incapable of knowing the nature of the act or knowing that it was wrong or contrary to law, the court shall record a finding accordingly. (2) The president of the court shall forthwith report the case to the confirming officer. (3) The confirming officer to whom a case is reported under sub-section (2) may, if he does not confirm the finding, take steps to have the accused person tried by the same or another court-martial for the offence with which he was charged. (4) The confirming officer confirming a finding in any case so reported to him under sub-section (2) shall order the accused person to be kept in custody in the prescribed manner and shall report the case for the orders of the Government. (5) On receipt of a report under sub-section (4) the Government may order the accused person to be detained in a lunatic asylum or other suitable place of safe custody.

144. Where any accused person, having been found by reason of unsoundness of mind to be incapable of making his defence, is in custody or under detention under section 143, the officer commanding a unit or detachment within the area of whose command the accused is in custody or is detained, or any other officer prescribed in this behalf, may- (a) if such person is in custody under sub-section (4) of section 143, on the report of medical officer that he is capable of making his defence, or (b) if such person is detained in a jail under sub-section (5) of section 143, on a certificate of the Inspector General of Prisons; and if such person is detained in a lunatic asylum under the said sub-section, on a certificate of any two or more of the visitors of such asylum that he is capable of making his defence,take steps to have such person tried by the same or another court-martial for the offence with which he was originally charged, or, if the offence is a civil offence, by a criminal court.

145. A copy of every order made by an officer under section 144 for the trial of the accused shall forthwith be sent to the Government.

146. Where any person is in custody under sub-section (4) of section 143, or under detention under sub-section (5) of that section- (a) if such person is in custody under the said sub-section (4), on the report of a medical officer, or (b) if such person is detained under the said sub-section (5), on a certificate from any of the authorities mentioned in clause (b) of section 144 that, in the judgment of such officer or authority such person may be released without danger of his doing injury to himself or to any other person, the Government may order that such person be released, or detained in custody, or transferred to a public lunatic asylum if he has not already been sent to such an asylum.

147. Where any relative or friend of any person, who is in custody under sub-section (4) of section 143 or under detention under sub-section (5) of that section, desires that he should be delivered to his care and custody, the Government may, upon application by such relative or friend and on his giving security to the satisfaction of ⁶[the Government] that the person delivered shall-(a) be properly taken care of and prevented from doing injury to himself or to any other person; and(b) be produced for the inspection of such authority, and at such times and places, as the Government may direct, order such person to be delivered to such relative or friend.

148. When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence, is produced before a court-martial during a trial, the court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the trial and, if the property is subject to speedy or natural decay, may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.

149. (1) After the conclusion of a trial before a court-martial, the court or the officer confirming the finding or sentence of such court-martial, or any authority superior to such officer, may make such order as it or he thinks fit for the disposal by destruction, confiscation, delivery to any person claiming to be entitled to possession thereof or otherwise of any property or document produced before the court or in its custody, or regarding which any offence appears to have been committed or which has been used for the commission of any offence. (2) Where any order has been made under sub-section (1) in respect of property regarding which an offence appears to have been committed, a copy of such order signed and certified by the authority making the same may, whether the trial was held within Bangladesh or not, be sent to a magistrate in any district in which such property for the time being is, and such magistrate shall thereupon cause the order to be carried into effect as if it was an order passed by such magistrate under the provisions of the Code of Criminal Procedure, 1898. Explanation.- In this section the term “property” includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any person, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange whether immediately or otherwise.

150. Any trial by a court-martial under the provisions of this Act shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the ⁷[Penal Code], and the court-martial shall be deemed to be a court within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898.