April 2013 Issue

Mobile : 01744-399207 Tel : 9571389

Reg. No. DA-6152

MARCH

Vol. II

2013

The

Lawyers & Jurists (A Monthly Law Report)

Cheif Editor Editor Reporters

: : : : : :

Syed Mokaddas Ali, Advocate, Supreme Court Borun Kumar Biswas, Advoate M. Arif Billah, Bar-at-Law SK. Reajul Haque, Advocate, Supreme Court Md. Ashik Ferdous, Advocate, Supreme Court Md. Faruk Hossain, Advocate

THIRD ISSUE Cit 1 LNJ (AD), 1 LNJ etc.

Appellate Division 25 - 32

CONTENTS

High Court Division 105- 144

Appellate Division 1.

Anika Ali Vs. Rezwanul Ahsan, (Civil)

25.

High Court Division 1.

2.

3.

Kazi Nasir Uddin Babul Vs. The State, (Crl. Appeal) Md. Afzal Hossain Vs. Government of Bangladesh and others, (Spl. Original) Muhammad Salahuddin and others Vs. The Bar Council and others, (Spl. Original)

120.

111.

130.

1.

Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu , (Criminal) 95.

International Crimes Tribunal-2 (ICT-2)

For 2013 : (1) Annual subscription paid in advance is Tk. 720/- per 12 issues + Tk. 100/- as postage (postage free for Advocates only) (2) Annual subcription not paid in advance is Tk. 700/per 12 issues (including postage charge for 12 issues) for LNJ of 2012. Advance may be sent in by bank draft in the name of The Lawyers & Jurists A/C (3) For direct delivery price of current single issue is Tk. 60/-, Online Version Available at : Website : www.lawyersnjurists.com

Publisher : A. M. Masum (Bar-at-Law) E-mail : masum@lawyersnjurists.com

2 LNJ (2013)

INDEX APPELLATE DIVISION

Family Courts Ordinance (XVIII of 1985) Sections 5 and 16(3) The parties have agreed to the amount of dower money, maintenance for the wife and child. They also agreed, though by implication, that the child, who was at that time about 2(two) years and 3 (three) months old, should remain in the custody of his mother and a schedule of access/visits was agreed upon since both the parties to the ill-fated marriage amicably agreed to abide by certain terms and conditions regarding to the payment of dower, maintenance and custody of the child as stipulated in the solenama, there is no illegality in the essence of the impugned judgment and order. Anika Ali Vs. Rezwanul Ahsan, (Civil), 25.

HIGH COURT DIVISION Arms Act (XI of 1878) Section 19A and 19 (f) When the FIR named and seizure list witnesses do not support the prosecution story of recovery of arms, it is unsafe to base conviction on the evidence of police personnel. Kazi Nasir Uddin Babul Vs. The State, (Criminal Appeal).

120.

Bangladesh Legal Practitioners and Bar Council Order (PO 98 of 1972) Article 8 The word ‘shall’ as used in Article 8 has to be considered as merely directory. The neglect of which does not affect the validity or involve any other consequence if the election is held within the shortest possible time after 31st May in order to run the affairs of the Bar Council by the elected body following democratic process. Muhammad Salahuddin and others Vs. The Bar Council and others, (Spl. Original) 130 Local Government (Municipality) Election Rules, 2010 Rule 39 In the absence of any evidence regarding improper counting of votes it is difficult to accept the finding of the tribunal that the factual foundation for inspection and recounting has been established satisfactorily. The averments made in the petition and the materials brought on record by the respondent No. 7 did not at all proved. Both the tribunals acted unlawfully in passing the order of inspection and recounting of ballot papers. Md. Afzal Hossain Vs. Government of Bangladesh and others (Spl. Original) 111.

INTERNATIONAL CRIMES TRIBUNAL-2 (ICT-2) International Crimes (Tribunals) Act (XIX of 1973) Sections 3(1), 3(2)(a), 3(2)(c)(i), 4(1) and 20(2) It has been established that accused Abul Kalam Azad @ Bachchu was a potential associate of Pakistani army and also was a significant armed member of volunteer Razakar force which was organized after the Pakistani army struck Faridpur on 21 April 1971. This being the status that the accused was holding at relevant time, his presence at the crime site as an active accomplice of the principals inevitably prompts us to infer that, in addition to his direct participation of killing at the time of commission of the event of massacre, he substantially provided practical assistance, encouragement and moral support to the principals i.e co-perpetrators in perpetration of the offence of genocide that resulted in mass killing of individuals belonging to ‘Hindu Community’ which is a ‘distinct religious group’ and mass destruction and thereby he incurs liability under

2 LNJ (2013)

INDEX

section 4(1) of the Act for the offence of genocide as specified in section 3(2)(c) (i) of the Act of 1973.

Accused Abul Kalam Azad @ Bachchu is criminally liable under section 4(1) of the Act of 1973 for physical participation and also for providing substantial contribution to the commission of offence of abduction, confinement and torture upon Ranjit Nath @ Babu Nath as crime against humanity as specified in section 3(2)(a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act. On careful evaluation of evidence adduced in support of the charge no.2, persuaded that the offence of abducting, keeping confined at the army camp and causing torture to P.W.18 has been believably proved. But prosecution, as we have found, has been failed to establish it beyond reasonable doubt that the accused Abul Kalam Azad @ Bachchu by his act or conduct contributed or facilitated to the commission of the offence of abduction, confinement and torture upon Abu Yusuf Pakhi as crimes against humanity as specified in section 3(2) (a) of the Act and therefore, he is not found to have incurred criminally liability under section 4(1) of the Act for the offences as listed in the charge no. 2.

The killing of Sudhangshu Mohan Roy and the criminal acts committed in conjunction of the event by the accused and his accomplices were not isolated for which the accused Abul Kalam Azad @ Bachchu is found criminally responsible under section 4(1) of the Act of 1973. The criminal acts on part of the accused and his accomplices was certainly a part of attack against civilian population which qualifies the offence alleged as murder as crime against humanity as specified in section 3(2) (a) of the Act of 1973 which are punishable under section 20(2) read with section 3(1) of the Act. The criminal acts to the accomplishment of murder are characterized as the offence of crimes against humanity as specified in section 3(2) (a) of the Act as it was directed against civilian population. The accused, as has been proved, had directly participated to the commission of offence of murder of Madhab Chandra as described in the charge No. 4 and thus he incurs individual criminal liability under section 4(1) of the Act and he is found guilty for perpetration of the offence as listed in charge no. 04 which is punishable under section 20(2) read with section 3(1) of the Act. The accused Abul Kalam Azad @ Bachchu, as has been proved, had directly participated to the commission of the offence of rape upon Devi Rani and Shova Rani as described in the charge No.5 and thus he incurs individual criminal liability under section 4(1) of the Act and is found guilty for perpetration of the offence listed in charge No. 05 which is punishable under section 20(2) read with section 3(1) of the Act. The accused Abul Kalam Azad @ Bachchu being accompanied by his armed accomplices, as has been proved, had directly participated to the commission of the offence of murder and the gang of co-perpetrators led by the accused indubitably had committed the criminal acts as part of the attack directing the civilians belonging to Hindu community and thereby the accused Abul Kalam Azad @ Bachchu is found to have incurred individual criminal liability under section 4(1) of the Act and found guilty for committing the offence of murder as crime against humanity as specified in section 3(2) (a) of the Act which is punishable under section 20(2) read with section 3(1) of the Act .

INDEX

2 LNJ (2013)

We have found that accused Abul Kalam Azad @ Bachchu was a potential armed member of Razakar force. He is found to have launched attack being accompanied by his armed cohorts with intent to commit criminal acts constituting the offence of crimes against humanity. The accused, in furtherance of policy and plan of the Pakistani army and the organization collaborating it launched such attack directing the Hindu community, a part of civilian population and the criminal acts were done in context of the war of liberation in 1971. Therefore, the accused Abul Kalam Azad @ Bachchu is found to have incurred criminal liability under section 4(1) of the Act and found guilty for committing the offence of abduction, confinement and torture as crimes against humanity as specified in section 3(2) (a) of the Act which is punishable under section 20(2) read with section 3(1) of the Act. The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu (Criminal), 95.

Editor: Advocate Borun Kumar Biswas, Mobile: 01711-354773, Printed & Published by : A. M. Masum, Bar-at-Law, M.L. -Hotel Tower Ltd. (10th Floor), 208, Shahid Sayed Nazrul Islam Saroni, Bijoy Nagar, Dhaka-1000, Bandhu Printing Press, 149, R. K. Mission Road, Motijheel, Dhaka-1000, Correspondent Address: Md. Nazrul Islam, Manager, LNJ Sales Center, 64/C/3, R. K. Mission Road, Gopibag, Dhaka1203, Bangladesh. Mobile: 01913-775750, 01199-047076, E - m a i l : a d m i n @ l a w y e r s n j u r i s t s . c o m

THE LAWYERS & JURISTS, VOL. – II (2013) –THIRD ISSUE

2 LNJ (2013)

Kazi Nasir Uddin Babul Vs. The State, (Syed Md. Ziaul Karim, J.)

There is absolutely no reason to disbelieve the consistent and corroborative evidence of competent witness like PWs. 4, 6 and 7 having no reason whatsoever to depose falsely against the prosecution case. So, the prosecution case itself is vulnerable to the credibility. It is true that the prosecution relied upon the evidence of Police personnels and the seizure list witnesses and other local witnesses did not support the recovery of the arms and ammunitions from the possession of the accused. In such case where the evidence of the Police personnels form the only witness on which the Court has to act upon. It is absolutely necessary for the interest of justice that at least their statement must be in conformity with the probability and in a case like this the evidence of solitary witness calls for corroboration as a rule of prudence. ...(36) There cannot be conviction for such offence on mere suspicion or presumption. The commission of offence must be proved. The presumption cannot take the place of positive evidence, (1970 P. Crl. L.J.-166). …(39) It further appears to us that the instant case is absolutely a case of no legal evidence but the Court below without any legal evidence convicted the accused in moral view. Legal evidence in a criminal trial is the evidence of the incriminating facts and circumstances of involvement of the accused in the commission of offence inevitable pointing to their guilty as the perpetrators incompatible with the plea of their innocence. In view of the proved facts and circumstances of the present case which do not constitute any legal evidence moral conviction should not be substituted in place of the legal evidence. …(40).

Muzaffar Hossain Vs. Md. Humayun Kabir and other reported in 15 BLD (AD) page 245; Motaleb Vs. Md. Mostaque Ali and others reported in 19 BLD (AD) page 156; V.S. Achuthanda Vs. P.J. Francis and another reported in AIR 2001 SC page 837; Abdul Latif Bepari Vs. Md. Nurul Islam Howlader reported

121

in 20 BLD (AD) page 264; Ansaruddin Ahmed Vs. Senior Assistant Judge and Election Tribunal reported in 14 BLD (AD) 77; Ram Sewak Yadav and others Vs. Hussain Kamal Kedwai and others (AIR 1964 S.C.R. 239; Rajnarayon Vs. Indira Nehru Gandi reported in AIR 1972 S.C. 1302; Suresh Prasad Yadav Vs. Jai Prakash Mishra and others reported in AIR 1975 S.C. 376; Dr. Mohiuddin Khan Alamgir Vs. Government of Bangladesh reported in 62 DLR (AD) 425, ref.

Mr. S.M. Shahjahan, Advocate, with Mr. Md. Mohinur Rahman, Advocate, ---For the appellant.

Mr. M. A. Mannan Mohan, D.A.G. with Mr. Md. Osman Goni, A.A.G. and Mrs. Anowara Begum, A.A.G. ---For the respondent.

JUDGMENT Syed Md. Ziaul Karim, J: By this appeal the appellant has challenged the legality and propriety of the judgment and order of conviction and sentence dated 2006-2007 passed by learned Judge of Metropolitan Special Tribunal No. 3, Dhaka, in Metro. Special Tribunal case no. 354 of 2007 convicting the appellant under Sections 19A and 19(f) of the Arms Act and sentencing him to suffer rigorous imprisonment for ten years and seven years respectively with a direction to run both the sentences concurrently.

2. The prosecution case as projected in the first information report (briefly as FIR) and unfurled at trial are that on the basis of secret information regarding unauthorised arms, on 03-04-2007 at 23-30 hours S.I. Md. Roushan Ali (P.W. 3) accompanied by other police personnels launched a drive and laid in wait in “NAM Villa” of road no. 15, house no. 20+22, Gulshan-1(briefly as P.O.) to nab the suspected arms bearer. Later, at 23.40 hours they found

122

Kazi Nasir Uddin Babul Vs. The State, (Syed Md. Ziaul Karim, J.)

one man carrying a black bag entered into the P.O. On suspicion they nabbed him who later identified him as Kazi Nasiruddin Babul. On interrogation and search they recovered one foreign revolver having 8″ length made of Japan, four round bullets, two pass-ports, one driving licence and some bank documents from him in presence of locals namely 1. Nur Mohammad (PW. 4), 2. Mosharraf Hossain, 3.

Ahmmed Ali (PW. 6) and 4. C-Md. A. Razzak (PW-2), who could not provide any satisfactory explanation for keeping such arms and other documents. Then he seized those incriminating articles and prepared seizure list in presence of above locals. Afterwards he handed over him to Gulshan Police Station with those seized alamats. Then the prosecution was launched by lodging a FIR by S.I. Md. Roushan Ali (PW-3) as informant making arrestee as accused which was recorded as Gulshan P.S. Case no. 11(4) of 2007 corresponding to G.R. no. 364 of 2007.

3. The Police, after investigation submitted charge sheet under sections 19A and 19(f) of the Arms Act accusing the appellant as accused.

4. Eventually, the accused was called upon to answer the charge under Sections 19A and 19(f) of the Arms Act who pleaded not guilty and claimed to be tried.

5. In course of trial the prosecution in all examined eight witnesses.

6. After closure of the prosecution case, accused was again examined under Section 342 of the Code of Criminal Procedure( briefly as the Code), again he pleaded not guilty but led no evidence in defence, however he offered an explanation supporting his innocence and false implication.

7. The defence case as it appears from the trend of cross-examination of the prosecution witnesses are that of innocence and false implication; it was divulged in defence that he

2 LNJ (2013)

is well placed in the society and on 17-03-2007 at 11 p.m. some unknown persons identified them as law enforcer nabbed him from his residence i.e. P.O. and seized his pass-ports and some bank documents and kept him in their custody upto 03-04-2007 at 11 p.m. Later he was dropped at his residence at 11:30 p.m., by a black taxi cab from where he was again arrested showing the possession of arms and bank documents.

8. After trial the learned Judge convicted the accused as aforesaid holding: (a) The prosecution successfully proved the charge by corroborative evidence; (b) The evidence of Police personnel are consistent and the same can be believed for awarding conviction of the accused for holding unauthorised arms.

9. Feeling aggrieved by the aforesaid judgment and order of conviction and sentence the appellant preferred the instant appeal.

10. The learned Counsel appearing for the appellant seeks to impeach the impugned judgment and order of conviction and sentence on five fold arguments: (a)

Firstly: It is the definite case of the prosecution that the alleged arms were recovered from a black bag but the same was not seized which casts a serious doubt upon the prosecution case.

In support of his contentions he refers the case of Muslimuddin and others Vs. The State 38 DLR(AD)-311 held: “Accused presumed to be innocent of the charge till guilt is

2 LNJ (2013)

Kazi Nasir Uddin Babul Vs. The State, (Syed Md. Ziaul Karim, J.)

123

established by legal evidence- No particular number of witnesses legally required to prove the offence.

On the same point he refers the case of Md. Harisuddin Vs. The State 20 BLD-576 held:

The fundamental principle of a criminal trial is that the accused shall be presumed innocent and that he is not required to adduce evidence to prove his innocence, but the entire burden of proof of his guilt lies on the prosecution alone and till that time the presumption of innocence continues, whether the case is before the trial Court or at higher forums.

Again, law does not require a particular number of witnesses to prove a case and conviction may be founded on the testimony of a solitary witness. But rule of prudence, if not rule of law, requires corroboration of such evidence.”

“In view of section 134 of the Evidence Act an accused may even be convicted on the sole evidence of a lone witness if his evidence is found to be unimpeachable and unshaken.”

Secondly: In this particular case the Court below only relied upon the evidence of Police personnels but those evidence are contradictory with each other so the same cannot be relied.

In support of his contentions he refers the case of Md. Alauddin and others Vs. State 22 BLD- 256 held: “If the testimony of a single witness is found to be entirely reliable, there is no legal impediment to convict, but it needs only to be seen whether the veracity of the witness is tainted at any stage of the trial. There is no rule or law to the effect that all the charge sheeted witnesses are to be produced before the court and examined.”

Thirdly: The seizure list witnesses do not support the prosecution case of recovery of arms from the possession of the appellant so it is unsafe to convict the accused under the Provisions of the Arms Act. In support of his contentions he refers the case of Iftekhar Hasan Choudhury (Md.) alias Riaz Vs. State47 DLR-451 held: “Mere knowledge of the accused that the arms or ammunition was lying at the spot pointed out by him, in the absence of any evidence or circumstances to show that he had exclusive possession over the spot or that none else had access to it, cannot make him liable for conviction.

When the First Information Report named and seizure list witnesses, who are the owners of shops and business concerns adjacent to the place of the occurrence, do not support the prosecution story of recovery of arms or ammunition from the possession of the accused, it is unsafe to base conviction on the evidence of police personnels interested in the prosecution case.”

124

Kazi Nasir Uddin Babul Vs. The State, (Syed Md. Ziaul Karim, J.)

Fourthly: It appears from the record that the appellant was under the Police custody since 17-03-2007 to 0304-2007 and his explanation made in the statement recorded under section 342 of the Code indicates that he was under the custody of the law enforcer since 17-03-2007 upto 03-04-2007 at 11:00 p.m. so it was improbable to hold those alleged arms with him.

Fifthly: It is a case of no evidence rather the alleged arms were planted and thereby he was falsely implicated in this case.

He lastly submits that the judgment and order of conviction and sentence based on misreading and non consideration of the evidence on record and as such the same cannot be sustained in the eye of law.

11. The learned Deputy Attorney General appearing for the respondent opposes the appeal and submits that the appellant had the knowledge about the seized arms and he had the control and possession over it. He adds that the Police personnels categorically testified in respect of recovery of the arms from the exclusive control and possession of the appellant. So the learned Judge of the Court below considering the materials on record rightly convicted him which calls for no interference by this Court. In support of his contentions he refers the case of Abdul Razzak Talukder Vs. State 51 DLR-83 held: “f¤¢mn p¡r£l p¡rÉ ¢hQ¡l ¢h-nÔoZ L-l k¢c a¡ ¢hnÄ¡p ®k¡NÉ j-e L-le a-h Øq¡e£u|p¡r£ A¢i-k¡NL¡l£ f-rl pjbÑ-e p¡rÉ e¡ ¢c-mJ h¡ p¡rÉ ¢c-m a¡ paÉ e¡ q-m f¤¢mn p¡r£l p¡-rÉl Efl ¢eiÑl L-l

2 LNJ (2013)

Bp¡j£-L ®c¡o£ p¡hÉØq BCeax ®L¡e h¡d¡ ®eC z

Ll-a

Øq¡e£u p¡r£-cl q¡hi¡h J BQlZ mrÉ L-l a¡q¡-cl p¡rÉ h¡ f¤¢mn p¡r£-cl p¡-rÉl j-dÉ ®L¡e¢V p¢WL ®p pÇf-LÑ paLÑa¡l p¡-b ¢hQ¡l ¢h-nÔoZ L-l ¢pÜ¡¿¹ NËqe Ll-a q-h z k¢c p¡rÉ fËj¡e ¢hQ¡l ¢h-nÔoZ L-l ®cM¡ k¡u ®k Bp¡j£l p¡-b nH²a¡l L¡l-Z h¡ Bp¡j£l nH²f-rl à¡l¡ eÉ¡u AeÉ¡ui¡-h fËi¡h¡¢eÄa q-u f¤¢mn Bp¡j£-L qul¡e J Së Ll¡l S-eÉ a¡l ¢hl²-Ü ¢jbÉ¡ j¡jm¡ p¡¢S-u-R aMe ¢hQ¡lL f¤¢mn p¡r£l p¡rÉ ANË¡qÉ Ll-a f¡-le z” 12. He further refers the case of Babul alias Pet Kata Babul and others Vs. The State 5 MLR-377 held: “Sections 19A and (f)–Offence of possession of arms without valid documentKeeping dagger in possession is not an offence punishable under the Arms Act, 1878Evidence of Police Personnel cannot always be discarded in the absence of corroborative evidence by public witness.

The evidence of police witness and that of public witness on the same occurrence when forms part of the same transaction can well form the basis of conviction.”

13. In order to appreciate their submissions we have gone through the record and given our anxious consideration to their submissions.

2 LNJ (2013)

Kazi Nasir Uddin Babul Vs. The State, (Syed Md. Ziaul Karim, J.)

14. Let us now weigh and sift the evidence on record as adduced by the prosecution to prove the charge.

15. P.W.1, S.I. Md. Abdul Based. He deposed that on 04-04-2007 at 1:30 a.m. he was in duty Officer at Gulshan P.S.; at that time S.I. Roushan Ali lodged the FIR and he recorded the same and filled up its form. He proved the same as Exhbt. 1 and his signature on it 1/1. He proved the FIR as Exhbt. 2 and his signature on it 2/1.

16. In cross-examination he stated that the occurrence took place on 03-04-2007 at 23:40 hours and he recorded it on 04-04-2007 at 1:30 hours. He denied the suggestion that being influenced by higher officer he recorded such FIR. 17. P.W.2 C-Md. Abdur Razzak. He was accmpanied with the informant. He deposed that on 03-04-2007 at 11:40 hours when accused Kazi Nasiruddin Babul was entering in his residence with a black bag then S.I. Roushan Ali challenged him and recovered one revolver with four round bullets, one driving licence along with some bank documents from the black bag. The accused failed to show its valid documents. He prepared seizure list. He identified the accused on dock.

18. In cross-examination he stated that the alamats were not produced in the Court. He denied the suggestion that no arms or ammunitions were recovered from the possession of the accused and on 17-03-2007 the accused was arrested; since 17-03-2007 to 03-04-2007 he was under the Police custody.

He denied the suggestion that being influenced by the other higher officers he signed in the seizure list.

125

19. P.W. 3 S.I. Roushan Ali is the informant of the case. He deposed that on 03-04-2007 he was attached with Gulshan Police Station and on the basis of an information he rushed to the P.O. at 23:30 hours; he found that one man carrying a black bag was entering into the P.O. and after challenge and search he recovered one foreign revolver, four round bullets and two pass-ports and some bank documents from his bag. He prepared seizure list( Exhbt. 3) and his signature on it( 3/1). He also identified the revolver (Mat. Exhbt. i), four round bullets (Mat. Exhbt. ii series). He identified the accused Kazi Nasiruddin Babul on dock.

20. In cross-examination he stated that in the seizure list he did not mention that the seized revolver and four round bullets were belonged to Kazi Nasiruddin. He denied the suggestion that he forged the signatures of seizure list witnesses and on 17-03-2007 the accused was hijacked by them. He further stated that he is not an ballistic expert and the black bag was possessed by the accused.

21. P.W. 4 Nur Ahmed, a seizure list witness. He deposed that on 03-04-2007 he was care-taker of the P.O. He was asleep and another security guard Ali Ahmed called him, then he came out and found accused Babul, was sitting. Police asked him to sign in a blank paper and he signed. He proved his signature as (Exhbt. 3/2 ).

22. In cross-examination he stated that “B¢j p¡c¡ L¡N-S fË¡u O¤j¿¹ AhØq¡u p¢q -cC zÚ” 23. P.W. 5 Md. Israil Hossain was the driver of the car of law enforcers. He deposed that on 03-04-2007 he was in duty with S.I. Roushan Ali, at night 12’0 clock S.I. Roushan Ali went in ‘NAM Villa’ but he was sitting in the car,

126

Kazi Nasir Uddin Babul Vs. The State, (Syed Md. Ziaul Karim, J.)

after sometime accused Nasiruddin was brought into the car and he was taken to the Police Station. He identified accused in dock.

The defence declined to cross-examine him.

24. P.W. 6 Ahammed Ali, a seizure list witness. He deposed that on 03-04-2007 he was the security guard of ‘Nam Villa’. At night 12’0 clock police asked him to open the door and they sat in the dark. After 1/½ hour one black taxi cab reached. By which journalist Babul came. Then the Police cordoned the cab.

Then the Police arrested him and asked him (P.W. 5) to sign in a blank paper. He proved the signature as (Exhbt. 3/3). The defence declined to cross-examine him.

25. P.W. 7 Md. Israil Hossain was the wellfare secretary of ‘NAM Villa’. He deposed that on 03-04-2007 he was asleep, on call he came out and found some Police personnels along with his care-taker and the police asked him whether Nasiruddin Babul was known to him.

He answered in positive. He did not sign in the seizure list. He was declared hostile by the prosecution.

26. In cross-examination by the prosecution he denied that he signed in the seizure list after recovery of arms from accused Babul, and did not depose against accused as he had a good relation with him. The defence declined to cross-examine him. On query by the Court he stated that the accused was not his relation or his guardian.

27. P.W.8 S.I. Molla Afzal Hossain, was the investigating officer of the case. He deposed that on 03-04-2007 he was attached with Gulshan P.S. The case was entrusted to him for investigation. He visited the place of occurrence; prepared sketch map and index( Exhbts. 4 and 5) and his signatures on it (Exhbts. 4/1 and 5/1). He recorded the statements of the witnesses under Section 161

2 LNJ (2013)

of the Code. After investigation he submitted charge sheet accusing the accused.

28. In cross-examination he stated that on 0404-2007 at 1:30 hours he received the case for investigation and on 06-04-2007 he went to the P.O. then on 15-04-2007 at 9:30 a.m. he again visited the P.O. but he did not find any witness.

At the time of investigation accused and the alamats were handed over; he denied the suggestion that he never visited the P.O. and recorded the statement of the neighbouring witness. The alamats were not examined by ballistic expert. He also denied that the alamats which were shown in the court were not the alamats of the case and being influenced by the higher officer he submitted the charge sheet and deposing falsely.

29. These are all of the evidence on record adduced by the prosecution to prove the charge.

30. The prosecution case is that one foreign revolver along with four round bullets were recovered from the exclusive possession of the accused. Such facts were disowned by the defence. Its case was that he had no knowledge about the arms and the same were planted.

31. On going to the materials on record it transpires that the prosecution in all examined eight witnesses, of them P.W.1, 2,3 and 8 are the Police personnel, of whom P.W.1 recorded the case, P.W. 2 was accompanied with the informant at the time of recovery of arms, P.W. 3 is the informant and P.W. 8 was the I.O., P.W, 4, 6 and 7 were local seizure list witnesses, of whom P.W. 7 disowned the prosecution case and as such he was declared hostile. P.W. 5 was the driver of the Police personnels.

32. We should bear in mind, credibility of testimony oral and circumstantial, depends considerably on a judicial evaluation of the

2 LNJ (2013)

Kazi Nasir Uddin Babul Vs. The State, (Syed Md. Ziaul Karim, J.)

totality, not isolated scrutiny. When dealing with the serious question of guilt or innocence of persons charged with crime, the following principles should be taken into consideration. (a) The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecutor. (b) The evidence must be such asto exclude to a moral certainty every reasonable doubt of the guilt of the accused. (c) In matters of doubt it is safer to acquit than to condemn, for it is better that several guilty persons should escape than that one innocent person suffer. (d) There must be clear and unequivocal proof of the corpus delicit. (e) The hypothesis of delinquency should be consistent with all the facts proved.

33. Inspite of the presumption of truth attached to oral evidence under oath if the Court is not satisfied, the evidence inspite of oath is of no avail.

34. We find from the evidence on record that the prosecution case absolutely rest upon the evidence of Police personnels particularly P.W. 3 who is the informant of the case and P.W.2 who accompanied with the informant. P.W. 3 S.I. Md. Roushan Ali stated that on the basis of a secret information he went to the P.O. with other police personnels wherein they found that one person carrying a black bag was entering into the P.O. Later, he nabbed that man and on search he found one foreign revolver with four rounds of bullets along with other bank

127

documents and one driving licence etc. in the bag.

35. In cross-examination he categorically stated that he did not seize that black bag and those incriminating revolver and bullets were belonged to accused Kazi Nasiruddsin was not written in the seizure list. He although denied that signature of the seizure list, witnesses were forged. Moreso, this witness stated that the alleged arms were not examined by ballistic expert. P.W. 2 C-Abdur Razzak was examined to corroborate the evidence of P.W. 3. He stated that from a black bag the aforesaid arms were recovered and the accused could not show any valid documents but in cross-examination he stated that the alleged alamats were not produced in the court. Moreso, the accused was in the custody of Police since 17-03-2007 to 03-04-2007. PWs. 4, 6 and 7 who were the care-taker, Security guard and well-fare secretary of the P.O. i.e. “NAM Villa� and seizure list witnesses. They did not support the prosecution case in respect of recovery of arms.

Of them. PW-7 denied his signature in the seizure list and attention to such fact was drawn to PW-3, who however denied it.

Therefore when the FIR named and seizure list witnesses who were the care-taker, security guard and secretary of the well-fare society of the P.O. do not support the prosecution story of recovery of arms or ammunitions from the possession of the accused, it is unsafe to base conviction on the evidence of police personnels interested in the prosecution case.

36. It is pertinent to point out that it is the definite case of prosecution that the alleged arms were recovered from a black bag carried by the appellant but the said black bag was neither seized nor any explanation was provided for non seizing of black bag, which cast a serious doubt upon the manner of recovery of the alleged arms from the accused.

From the evidence of PW-2 we also find that the accused was under the Police custody since

128

Kazi Nasir Uddin Babul Vs. The State, (Syed Md. Ziaul Karim, J.)

17-03-2007 to 03-04-2007. The accused offered an explanation in his statement made under section 342 of the Code to the effect that he was nabbed by the law enforcer on 17-03-2007 at 11:00 p.m. and he was under their custody upto 03-04-2007 at 11:00 p.m. then he was dropped in front of his residence i.e. P.O. by a black car at 11:30 p.m. P.W. 6 categorically stated that the accused reached at the P.O. by the black car. So the defence case provides corroboration by the prosecution witness. So in our view it was quite improbable that the accused being released at 11:30 p.m. possessed those arms at 11:40 p.m., which also cast a serious doubt upon the prosecution case.

Moreso, the prosecution case itself is contradictory inasmuchas informant (PW-3) narrated the case in one manner and PW-6 narrated the case in different manner. It also appears to us that the evidence of Police personnels in respect of recovery of arms are not consistent and uniform, but it is contradictory with each other with all material particulars. There is absolutely no reason to disbelieve the consistent and corroborative evidence of competent witness like PWs. 4, 6 and 7 having no reason whatsoever to depose falsely against the prosecution case. So, the prosecution case itself is vulnerable to the credibility. It is true that the prosecution relied upon the evidence of Police personnels and the seizure list witnesses and other local witnesses did not support the recovery of the arms and ammunitions from the possession of the accused. In such case where the evidence of the Police personnels form the only witness on which the Court has to act upon. It is absolutely necessary for the interest of justice that at least their statement must be in conformity with the probability and in a case like this the evidence of solitary witness calls for corroboration as a rule of prudence.

37. It is true that the conviction and sentence can be awarded reling on the evidence of Police personnels, but herein this case the evidence of Police personnels are not impeccable.

2 LNJ (2013)

The prosecution itself brought the seizure list, local, competent and independent witnesses to prove the charge. So as a rule of prudence both the evidences should be scrutinised and squarely considered together. If we consider only the evidence of Police personnels which favour the prosecution disowning the evidence of local competent witnesses which disfavour the prosecution case, will be against the principles of Criminal Jurisprudence.

38. Moreover, it is the definite case of the defence that there was an internal feud between the parties and when there is a background of enmity and the Police witnesses are not natural and independent witnesses and further natural and independent witnesses did not support the prosecution case in respect of recovery of arms, it is unsafe to rely on the evidence of Police witnesses to make a nexus between the accused and the crime. So we hold that there is no cogent, convincing and unimpeachable evidence on record to prove the complicity of the accused with the crime under the Arms Act. Prosecution utterly failed to bring home guilt to the accused beyond reasonable doubt.

39. It is true that crime like holding of arms is shocking in nature and also, revolting. The Crime is against Society and humanity, but the prosecution convicted the accused merely on suspicion that the accused committed such offence. There cannot be conviction for such offence on mere suspicion or presumption. The commission of offence must be proved. The presumption cannot take the place of positive evidence, (1970 P. Crl. L.J.-166).

40. It further appears to us that the instant case is absolutely a case of no legal evidence but the Court below without any legal evidence convicted the accused in moral view. Legal evidence in a criminal trial is the evidence of

2 LNJ (2013)

Kazi Nasir Uddin Babul Vs. The State, (Syed Md. Ziaul Karim, J.)

the incriminating facts and circumstances of involvement of the accused in the commission of offence inevitable pointing to their guilty as the perpetrators incompatible with the plea of their innocence. In view of the proved facts and circumstances of the present case which do not constitute any legal evidence moral conviction should not be substituted in place of the legal evidence.

41. The accused was convicted merely on suspicion without any legal evidence. To that end in view, law is now well settled that suspicion or doubt however strong it might be cannot take place of evidence or there be slightest doubt asto the involvement of the accused in the crime, he cannot be convicted.

With this regard reliance are being placed in the cases of Abdul Haq and others Vs. The State 14 BLT 485, Fazu alias Fazlur Rahman Vs. The State 1 BLC 558, Rekatfullah Vs. The State 13 DLR-750. It is further held in the case reported in AIR 1921(PC)69, that the decision of the Court must rest upon legal ground established by legal testimony from the prosecution.

42. Moreso in all respect, the convict is also entitled to benefit of doubt. In the case of Safder Ali Vs. Crown 5 DLR(FC) 107 held: “In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to benefit of doubt, not

129

as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt”.

43. So, there is no cogent, convincing and unimpeachable evidence on record to prove the complicity of the accused with the crime of holding arms. Prosecution utterly failed to bring home guilt to the accused beyond reasonable doubt.

44. Moreover, the impugned judgment and order of conviction and sentence in its entirety is not well founded in the facts and circumstances of the case. Therefore, the submissions advanced by the learned Deputy Attorney General are not the correct exposition of law.

Therefore, we are unable to accept his submissions. On the contrary submissions advanced by the learned Counsel for the defence prevails and appears to have a good deal of force.

45. In the light of discussions made above and the preponderant judicial views emerging out of the authorities refer to above, we are of the view that the impugned judgment and order of conviction and sentence suffers from legal infirmities which calls for interference by this Court. Thus the appeal having merit succeeds.

46. In the result:(a) The appeal is allowed. (b) The impugned Judgment and order of conviction and sentence dated 20-062007 passed by learned Judge of Metropolitan Special Tribunal no. 3, Dhaka, in Metro. Special Tribunal Case no.

354 of 2007 is hereby set aside and the accused– appellant Kazi Nasiruddin Babul

130

Kazi Nasir Uddin Babul Vs. The State, (Syed Md. Ziaul Karim, J.)

is found not guilty and acquitted from the charge. (c) The accused–appellant who is presently on bail is discharged from the bail bond.

The Office is directed to send down the records at once.

Ed.

2 LNJ (2013)

2 LNJ AD, (2013)

Anika Ali Vs. Rezwanul Ahsan, (Muhammad Imman Ali, J.)

APPELLATE DIVISION (CIVIL) Mr. Md. Muzammel Hossain, C, J. Mr. Surendra Kumar Sinha, J. Mr. Md. Abdul Wahhab Miah, J. Mr. Syed Mahmud Hossain, J. Mr. Muhammad Imman Ali, J. Mr. Muhammed Mamtaz Uddin Ahmed, J. Mr. Md. Shamsul Huda, J. Judgment 09.06.2011

} } }

Anika Ali, daughter of late Kazi Haider } Ali }

}

---Petitioner -Versus-

Rezwanul Ahsan, } son of Monjurul } Ahsan Munshi }

---Respondents

} } }

Family Courts Ordinance (XVIII of 1985) Sections 5 and 16(3) Convention of the Rights of the Child Articles 9 and 12 The parties to the marriage filed suits in the Family Court asserting their respective claims that led to the dissolution of the marriage.

The Family suits were heard simultaneously and the same was decreed in terms of a solenama filed in the family suits. The terms and conditions in each of the solenama are the same. The parties have agreed to the amount of dower money, maintenance for the wife and child. They also agreed, though by implication, that the child, who was at that time about 2(two) years and 3 (three) months old, should remain in the custody of his CIVIL PETITION FOR LEAVE TO APPEAL NO. 527 OF 2011

(Arising out of Civil Revision No.4310 of 2010)

25

mother and a schedule of access/visits was agreed upon since both the parties to the illfated marriage amicably agreed to abide by certain terms and conditions regarding to the payment of dower, maintenance and custody of the child as stipulated in the solenama, there is no illegality in the essence of the impugned judgment and order. As the payment of maintenance for the child is a continuous process, the door of the Courts is always open to the child’s mother to ensure the payment of the maintenance of the child.

Similarly, the father has the same right as embodied in the solenama. ‌(10, 12 and 13).

Abdul Mazid Sarker Vs. State, 55 DLR (AD) 1; Badiur Rahman Chowdhury Vs. Nazrul Islam and another, 16 BLD (AD) 263; Abdul Jalil and others Vs. Sharon Laily Begum Jalil, 50 DLR (AD) 55; Abu Bakar Siddique Vs. SMA Bakar, 38 DLR (Ad) 106; Hussian Muhammad Ershad Vs. State, 21 BLD (AD) 69 and State Vs. Metropolitan Police Commissioner, 60 DLR 660, ref.

For the petitioner : Mr. Md. Asaduzzaman, Advocate instructed by Mr. Syed Mahbubur Rahman, Advocate-onRecord.

For respondent : Mr. A.F. Hasan Arif, Senior Advocate (with Mr. Rafiqul Islam Miah, Senior Advocate) instructed

by Mr. Zahirul Islam, Advocateon-Record.

JUDGMENT MUHAMMAD IMMAN ALI, J. This Civil Petition for Leave to Appeal arises out of the judgment and order dated 23.02.2011 passed by the High Court Division in Civil Revision No.4310 of 2010 disposing

26

Anika Ali Vs. Rezwanul Ahsan, (Muhammad Imman Ali, J.)

of the Rule, with observations and a direction upon the parties to strictly follow the terms and conditions of the solenama filed in the Family Suits.

2. The facts relevant for disposal of the instant petition, in brief, are that the petitioner Anika Ali and the respondent Rezwanul Ahsan were married on 23.12.2002 under Muslim Law and the dowry was fixed at Tk.10,00,000/- of which 2,00,000/- was shown as paid, although, according to the petitioner, no money was paid. A child Farzan Ahsan, was born during their wedlock on 24.12.2003.

Soon thereafter, the relationship between the petitioner and the respondent deteriorated. The petitioner claims that she was physically and mentally tortured by the respondent, who was a drug addict from the time of his studies in America and he had been arrested on several occasions due to his drug addiction and he had also received treatment for his addiction in New Delhi as well as in Bangladesh. However, all this information was suppressed at the time of the marriage. It is alleged by the petitioner that in July, 2004 the respondent pushed her out of his house during the night after torturing her, but she went back to the house of the respondent for the sake of her son. On 26.07.2004 the respondent again pushed the petitioner out of his house. However, there was reconciliation on the assurance by the respondent, in the presence of the guardians of both the parties, to the effect that he would not take drugs again and would not physically and mentally torture the petitioner and would arrange to rent separate accommodation. On 10.11.2004, they lived together in the rented accommodation, but the respondent again physically tortured the petitioner on 17.12.2004 and pushed her out of his house

2 LNJ AD, (2013)

and compelled her to divorce him by the power given to her in the Kabinnama and accordingly the petitioner divorced the respondent on 18.12.2004. The petitioner then filed Family Suit No.175 of 2005 before the Court of 2nd Assistant Judge and Family Court, Dhaka against the respondent for her dower money and maintenance for herself and her minor son.

The suit was transferred to the Court of 5th Additional Assistant Judge and Family Court, Dhaka where it was renumbered as Family Suit No.322 of 2005. In her suit, the petitioner detailed the matters narrated above. She claimed that the respondent did not pay any maintenance to the petitioner since 26.07.2004 and, therefore, claimed for herself maintenance at the rate of Tk.20,000/- per month from 26.07.2004 to 18.12.2004, i.e. Tk.1,00,000/-.

In addition she claimed Tk.60,000/- for her maintenance during the three months’ iddat period. She claimed maintenance for her minor son at the rate of Tk.15,000/- per month from 26.07.2004 to 30.06.2005, i.e. Tk.1,65,000/-.

3. The respondent filed Family Suit No.284 of 2005 before the Court of 2nd Assistant Judge and Family Court, Dhaka for custody of his minor child. On transfer to the Court of 5th Additional Assistant Judge and Family Court, Dhaka the suit was renumbered as Family Suit No.484 of 2005. The respondent claimed, inter alia, that after the wedding both families were quite happy, but when his wife became pregnant she and her parents were not happy.

After their son was born, he was under the care of his (the respondent’s) mother when his wife went abroad to study on two occasions. The minor child was all along under the care of his father (the respondent). He took out an education insurance policy and a general insurance policy in his son’s name for

2 LNJ AD, (2013)

Anika Ali Vs. Rezwanul Ahsan, (Muhammad Imman Ali, J.)

Tk.9,00,000/- and Tk.6,00,000/- respectively.

The child’s paternal grandmother took out an insurance policy for Tk.15,00,000/- in which the child was named as the beneficiary. The respondent further claimed in his plaint that at one stage his wife insisted that he take a separate rented house, and when he declined to do so, she left with their child, taking with her all her jewellery and clothes. When he requested to her to return, she stated that she would not cohabit with the respondent unless they lived in a separate house. She also claimed the remainder of her dower money.

Thereafter, he rented a flat in Banani, but his wife (the petitioner) refused to rejoin him unless he paid up the dower money. On 10.11.2004, with the help of his father, the respondent paid up the dower money and his wife joined him in their rented flat along with their child on 10.11.2004. However, his wife started argument with him without any good cause and eventually left his house on 17.12.2004 without his permission, taking with her their child as well as jewellery and other material belongings. Thereafter, she sent him her divorce on 18.12.2004. The respondent further claimed in his plaint that his ex-wife left the child with her mother while roaming around. He also came to know that she had gone abroad leaving the child with her mother.

Claiming that the child is not safe in that house and was not receiving proper care and attention, the respondent prayed for an order of custody and full care and control over the child.

4. Family Suit No.322 of 2005 filed by the petitioner and Family Suit No.484 of 2005 filed by the respondent proceeded simultaneously and the instant petitioner’s lawyer advised her to settle the matter amicably. On

27

03.04.2006 two solenamas were executed, one for each of the suits. The solenama in Family Suit No.322 of 2005 provided inter alia that the dower money of Tk.8,00,000/- will be paid by the respondent in twelve installments, a cheque for Tk.66,666/- was paid to the petitioner on 03.04.2006 and eleven post-dated cheque would be handed over to the petitioner on that date; a cheque for Tk.60,000/- was paid to the petitioner on 03.04.2006 as maintenance for the period of iddat; maintenance for the minor child was fixed at Tk.15,000/- per month from January, 2005; the child would visit his father on two days per week from 10:00 a.m. to 10:00 p.m. till his admission in school and after his admission in school, from 10:00 a.m. to 8:00 p.m. on Fridays and from 5:00 p.m. to 8:00 p.m. on any one weekday during school term.

5. The solenama executed in Family Suit No.484 of 2005 provided maintenance for the child at the rate of Tk.15,000/- per month from January, 2005 which may be increased in the future upon consultation between the parties and would be deposited in the account of the petitioner with HSBC Bank. The due amount of Tk.2,25,000/- for the months January, 2005 to March, 2006 would be adjusted with the current month’s payment; the minor child would visit his father on two days per week from 10:00 a.m. to 10:00 p.m. before admission in school, and after admission in school the visit would take place from 10:00 a.m. to 8:00 p.m. on Fridays and 5:00 p.m. to 8:00 p.m. on any one school-day during the week.

The child would be admitted to school after discussion amongst the parties and the petitioner (mother) would be entitled to take her minor son abroad subject to permission of the Court.

28

Anika Ali Vs. Rezwanul Ahsan, (Muhammad Imman Ali, J.)

6. According to the petitioner the respondent did not comply with the terms and conditions of the solenama and as a result she filed violation Miscellaneous Case No.893 of 2007 (Arising out of Family Suit No.322 of 2005) before the Court of 5th Additional Assistant Judge and Family Court, Dhaka, which is still pending. On the other hand the respondent filed an application for enforcement of the decree on 13.11.2007 which was rejected by the Family Court on 26.11.2008 upon hearing the parties, and the respondent, without preferring any appeal against the said order dated 26.11.2008, filed a Writ Petition being No.2890 of 2009 in the form of habeas corpus, claiming that the child was in unlawful custody of the petitioner. By judgment and order dated 12.08.2009 the Rule in that writ petition was discharged with the observation that if the writ-petitioner files any petition for enforceement of the terms of the solenama before the lower Court, the Court concerned shall dispose of such application within 2(two) months from the date of filing thereof. The respondent thereafter filed Family Execution Case No.77 of 2009 before the Court of 5th Additional Assistant Judge and Family Court, Dhaka for execution of the judgment and decree dated 11.07.2007 passed in Family Suit No.484 of 2005. The petitioner filed an application for dismissing the execution case on the ground that an earlier application for enforcement of the decree on 13.11.2007 was rejected on 26.11.2008 and the respondent did not prefer any appeal against that order and also that the execution case was barred by limitation (since the judgment and decree was dated 03.04.

2006, decree signed on 09.04.2006). By his order dated 14.01.2010 the learned Assistant

2 LNJ AD, (2013)

Judge, 5th Additional Assi-stant Judge Court, Dhaka rejected the instant petitioner’s application for dismissing the execution case.

The instant petitioner challenged the said order of dismissal by way of Family Appeal No.30 of 2010 before the Court of learned District Judge, Dhaka, which upon transfer to the learned Additional District Judge, 1st Court, Dhaka was dismissed by judgment and order dated 22.06.2010. The instant petitioner then challenged the dismissal of the appeal by preferring Civil Revision No.4310 of 2010 before the High Court Division. By the impugned judgment and order dated 23.02.2011 the Rule was disposed of with direction upon the parties “to strictly follow the terms and conditions of the solenama and violation of any term of the solenama by any party shall be treated as contempt of court. The petitioner is further directed to receive the entire dues within 14 days now deposited with the court and the opposite party is also directed to regularly pay the maintenance cost of the child born during their wedlock and the petitioner is also directed to make available the child before his father the opposite party, twice in a week as per the term of the aforesaid solenama.”

7. Being aggrieved by and dissatisfied with the judgment and order dated 23.02.20011 passed by a single Bench of the High Court Division, the petitioner has filed the instant Civil Petition for Leave to Appeal.

8. Mr. Md. Asaduzzaman, learned advocate appearing on behalf of the petitioner, submits that the learned Judge of the High Court Division committed a gross illegality by effectively acting as the executing Court by

2 LNJ AD, (2013)

Anika Ali Vs. Rezwanul Ahsan, (Muhammad Imman Ali, J.)

directing the petitioner to receive the money paid into Court and also directing the parties to follow the terms and conditions of the solenama and violation of any terms of the solenama by any party shall be treated as contempt of Court. He submits that such finding, direction and observation is illegal, unwarranted and is liable to be set aside. He submits that the High Court Division failed to appreciate that the execution case was barred by limitation under section 16(3) of the Family Court Ordinance, 1985, and by the impugned judgment and order, the decree has effectively been executed, although it was barred by limitation. He further submits that even if the decree is not considered to be a money decree, it is still barred by limitation under Article 182 of the Limitation Act read with section 16(3C) of the Family Court Ordinance, 1985. He submits that the High Court Division has committed an illegality in entertaining the Family Execution Case.

9. Mr. A.F. Hasan Ariff, learned Senior Counsel appearing for the respondent, submitted that the petitioner has not been prejudiced in any way by the impugned judgment and order.

He further submits that in a case of this nature where the marriage has broken down between two adults, the child of the union is the victim, and his best interests should be protected.

10. We have considered the submissions of the learned advocates for the petitioner and the respondent and perused the judgment and order of the High Court Division as well as those of the Courts below. We note that both the parties to the marriage filed Suits in the Family Courts with their own claims and narrated events that led to the dissolution of the marriage. Both the family suits were heard simultaneously and

29

decreed in terms of a solenama filed in each of the family suits. The terms and conditions in each of the solenamas are essentially the same.

The parties have agreed to the amount of dower money, maintenance for the wife and maintenance for the child. They also agreed, though by implication, that the child, who was at that time about two years and three months old, should remain in the custody of his mother and a schedule of access/visits was agreed upon whereby before his admission in school the child would visit his father’s house on two days in every week between 10:00 a.m. and 10:00 p.m. After the child’s admission in school he would visit his father’s house only on Fridays between 10:00 a.m. and 8:00 p.m. and on one school-day per week between 5:00 p.m. and 8:00 p.m. In this way the dower, maintenance and custody of/access to the child was mutually agreed upon by the parties. It was also agreed that the mother of the child could take him abroad subject to the permission of the Court. The family suits were decreed on 03.04.2006. The respondent filed an application for enforcement of the solenama, which was rejected on 26.11.2008.

For non-performance of the terms of the solenama, the petitioner filed a violation Case, which is still pending.

11. As the mother of the child took him out of the country and the father could not see his child and allegedly did not know his whereabouts, and in view of the fact that the mother of the child had married another person, he filed Writ Petition No.2898 of 2009 in the form of a writ of habeas corpus. The High Court Division upon hearing both the parties by judgment and order dated 12.08.2009 discharged the Rule upon finding that since the minor boy was staying with his

30

Anika Ali Vs. Rezwanul Ahsan, (Muhammad Imman Ali, J.)

mother as per order of the Court, it could not be said that the boy was illegally detained. It was observed that since in the solenama it has been categorically written that the mother of the child shall send him to his father’s house on two days every week, the writ-petitioner (respondent herein) is not without remedy and that he could take proper steps for enforcement of the terms of the solenama. The writ Bench directed as follows: “If the petitioner files any such petition before the lower Courts for enforcement of the terms of the solenama, the Court concerned shall dispose of such application, if any, within 2(two) months from the date of filing thereof.” Accordingly, the respondent, father of the child, filed the Family Execution Case No.77 of 2009 which has culminated in the judgment and order impugned before us.

12. Since both the parties to the ill-fated marriage amicably agreed to abide by certain terms and conditions with regard to the payment of dower, maintenance and custody of the child, as embodied in the solenama, we do not find any illegality in the essence of the impugned judgment and order. Effectively, the High Court Division has ensured payment of the money due to the petitioner. Since the payment of maintenance for the child is a continuous process, the door of the Courts is always open to the child’s mother to ensure the payment of the maintenance for the child, if ever there is any default in payment. Equally, the father has the right of access as mentioned in the solenama.

13. With regard to the custody of the child, again it is a matter that can be redressed by the Family Court, should there be any default in implementing the Court’s order. Moreover, the

2 LNJ AD, (2013)

order in relation to custody of a child should never be presumed to be inscribed in stone.

Matters such as custody must always remain fluid since change in circumstances may at any time require the terms of the custody of the child to be varied upon a fresh application in order to comply with the age-old principle that the welfare of the child is a paramount consideration and in modern parlance “the best interests of the child” must be given due consideration.

14. Mr. Hasan Ariff appearing for the respondent candidly submitted that the child of the broken marriage finds himself as the victim and his best interests must be ensured. The child of the marriage Farzan Ahsan is now almost seven and half years old. Although, under Mohammedan Law, hizanat (custody) of a male child over the age of seven years usually goes to the father, there are numerous decisions of our apex Court that if the welfare of the child demands, then the custody may be retained by the mother of the child. There is nothing to preclude either parent of the child from filing fresh application before the appropriate Court for changing the terms relating to the custody/access of the child.

15. We may also mention that within the modern concept of custody and other matters concerning children, there is a requirement that the child should be allowed to express his views. (see Article 12 of the Convention of the Rights of the Child (CRC) quoted below). This is a small progression from section 17(3) of the Guardians and Wards Act 1890, which provides that if the minor is old enough to form an intelligent preference, the Court may consider that preference. The Court when considering any matters relating to the custody

2 LNJ AD, (2013)

Anika Ali Vs. Rezwanul Ahsan, (Muhammad Imman Ali, J.)

of the child should also keep in mind the provision of Article 3 of the CRC, which provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. Article 12 of the CRC provides as follows: Article 12.1: States parties, shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

In has been held by this Division in a number of cases that the views of the minor child is of no value (see Abdul Majid Sarker vs. The State, 55 DLR (AD)1 and Badiur Rahman Chowdhury vs. Nazrul Islam and another, 16 BLD (AD)263). However, those cases relate to a different category of minors, i.e. those deciding to leave the paternal home in favour of their paramours. There is a marked divergence in the views of the Appellate Division in case of custody of children who are victims of a broken marriage. A clear

31

distinction may, therefore, be made in case of children who find themselves victims of turbulent or broken-down marriages. The decision as to which parent shall have the custody of the child and how much access may be afforded to either parent is a most delicate one. A wrong decision may create a traumatic situation for the child, which would result in indelible psychological damage throughout his/her life.

In this context it would be wise to allow the child to freely express his/her views so that the judge adjudicating upon the matter can decide what the welfare or the best interest of the child demands. The final decision, of course, lies with the judge, who will come to a decision upon consideration of all the attending facts and circumstances. These aspects have been elaborately discussed in the case of Abdul Jalil and others vs. Sharon Laily Begum Jalil, 50 DLR (AD) 55. Their Lordships agreed that “nothing is more paramount, not even the rights of the parties under the rules of personal law or statutory provisions, than the welfare of the children which must be the determining factor in deciding the question of custody of children whether in a proceeding in the nature of habeas corpus or in a proceeding for guardianship under the Guardians and Wards Act 1890.” Their Lordships also made reference to Abu Baker Siddique vs. SMA Bakar, 38 DLR (AD)106, where it was held that “If circumstances existed which justified the deprivation of a party of the custody of his child to whose custody he was entitled under Muslim Law, Courts did not hesitate to do so.”

In this case the eight year old child was also asked about his preference, and such preference was taken into consideration by the trial Court before giving custody to the mother. The

32

Anika Ali Vs. Rezwanul Ahsan, (Muhammad Imman Ali, J.)

matters to be considered before deciding the issue of custody of children were also elaborately discussed in this case.

16. Hence, at any time in the future either of the parents of the child shall be at liberty to move the appropriate Court for an appropriate order in respect of the custody of/access to the child in the light of prevailing circumstances at that time and the Court shall be at liberty to entertain such application and to pass necessary order in respect of the child’s custody keeping in view the best interests of the child giving the child an opportunity to express his views. The Court should also keep in mind the provisions of Article 9 of the CRC. Article 9(1)(2) and (3) provide as follows: “9(1). States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.

(2). In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

2 LNJ AD, (2013)

(3) States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.

17. With regard to the applicability of provisions of international instruments, which have not been incorporated into our Municipal Law, reference may be made to the judgment of B.B. Roy Chowdhury, J. in Hossain Muhammad Ershad vs. State, 21 BLD (AD)69. It may be noted that in the Abdul Jalil case cited above reference was made to the Declaration of the Rights of the Child 1959. Unless provisions of international instruments are contrary to our domestic laws, the beneficial provisions may profitably be referred to and implemented in appropriate cases. (see The State vs.

Metropolitan Police Commissioner, 60 DLR 660).

18. The observation of the learned Judge of the High Court Division that “violation of any terms of the solenama by any party shall be treated as contempt of Court,” being unwarranted and beyond jurisdiction, is hereby expunged.

Save as mentioned above, we do not find any reason to interfere with the judgment and order of the High Court Division. This petition is dismissed with the above observations without, however, any order as to costs.

Ed.

2 LNJ (2013)

Md. Bodiuzzaman Milon Vs. Bangladesh Commerce Bank Limited and others, (Md. Abu Zafor Siddique, J.)

Sultana Jute Mills Ltd. And others Vs. Agrani Bank and others, 46 DLR (AD) 174; Hosne Ara Begum Vs. Islami Bank Bangladesh Ltd., 5 MLR (AD) 290; Md. Harun-or-Rashid Vs. Pubali Bank Limited and others, 12 MLR (AD) 343; Kazi Jowaherul Islam (K.J. Islam) Vs. Standard Co-operative Credit Society and another, 50 DLR 333; Belayet Hossain Vs. Bank Indosuez, 50 DLR 431, Iftekhar Afzal and another Vs. Pubali Bank Limited and others, 50 DLR 623 and Syed Monjur Morshed and another Vs. Manager, Agrani Bank Ltd. 14 BLC 501 ref.

Mr. Md. Nurul Amin, Advocate ---For the petitioner.

Mr. Shahajada Al Amin Kabir, Advocate ---For the opposite party.

(In C.R. No.1454/2009 and 1318/2009) No one appears.

---For the petitioner.

Mr. S.M. Maniruzzaman with Mr. M. Ataul Gani, Advocates.

---For the opposite party.

(In C. R. No.195 of 2010) JUDGMENT Md. Abu Zafor Siddique,J: All these Rules were heard together and disposed of by a common judgment as they do involve similar questions of facts and laws though the parties are different.

2. In Civil Revision No.1454 of 2009, Rule was issued calling upon the opposite parties to show cause as to why the impugned order No.47 dated 23.10.2008 passed by the learned Joint District Judge, and Artha Rin Adalat, Court No.02, Dhaka in Artho Execution Case No.18 of 2003 should not be set aside and/or such other or further

105

order or orders passed as to this Court may seem fit and proper.

3. In Civil Revision No.1318 of 2009, Rule was issued calling upon the opposite parties to show cause as to why the impugned order No.54 dated 23.10.2008 passed by the learned Joint District Judge, Court No. 2, Dhaka in Artha Rin Jari No.15 of 2003 should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

4. In Civil Revision No.195 of 2010, Rule was issued calling upon the opposite party to show cause as to why the Order No.17 dated 03.08.2008 passed by the learned Additional Joint District Judge (Artha Rin Adalat), Jessore in Money Execution Case No.07 of 2007 should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

5. In all these revisional applications the common fact is that the respective opposite parties namely different financial institutions instituted “Artha Rin Suits� in the respective Artha Rin Adalat impleading the respective petitioners and others as the defendants for realization of loan amount. In all these cases the plaintiffs-opposite-parties obtained decree against the defendants and pursuant to the decrees obtained by them they have filed execution cases as per the provision of Artha Rin Adalat Ain of 2003 (shortly the Ain of 2003) in the respective Artha Rin Adalat (shortly the Adalat) as define in section 2 (kha) of the 2003. During pendency of the

106

Md. Bodiuzzaman Milon Vs. Bangladesh Commerce Bank Limited and others, (Md. Abu Zafor Siddique, J.)

respective Artha Rin Execution cases, the respective decree holder banks filed applications under section 34 of the Ain of 2003 for detaining the petitioners in civil jail, in order to realize the decreetal amount. In all these revisional applications before this Court, the petitioners have challenged the orders passed by the Adalat directing to detain the respective petitioners as per section 34 of the Ain of 2003. Being aggrieved by and dissatisfied with the aforesaid orders passed by the court below the respective petitioners moved these applications and obtained the present Rules.

6. In Civil Revision Nos.1454 of 2009 and 1318 of 2009 Mr. Md. Nurul Amin, the learned Advocate appearing on behalf of the petitioners submits that the Court below without applying its judicial mind and without considering the facts and circumstances and the provision of law most illegally and in an arbitrary manner passed the impugned judgment and orders and thereby the Court below committed error occasioning failure of justice. He further submits that in the case in hand the Court below without complying with the provision of section 34(9) of the Ain of 2003 passed the impugned judgment and order and thereby committed error of law occasioning failure of justice. He further submits that the Court below without issuing any notice or giving any opportunity of being heard passed the impugned judgment and orders and thereby the Court below not only committed an error of law but also violated the principle

2 LNJ (2013)

of natural justice. However, he submits that the petitioner could have preferred writ petition before this court challenging the impugned order because the question of maintainability of the instant Revisional applications is involved. He also prays for a direction from this court enabling the petitioner to approach the proper forum.

7. Mr. Md. S.M. Maniruzzaman with Mr. M. Ataul Gani, the learned Advocate appeared on behalf of the petitioner in Civil Revision No.195 of 2010. He, however, adopted the submission made by Mr. Md. Nurul Amin, the learned Advocate.

8. Mr. Shahajada Al Amin Kabir, the learned Advocate appearing on behalf of the opposite party in Civil Revision No.1454 of 2009 and Civil Revision No.1318 of 2009 vehemently opposes the Rule and submits that the Court below in the cases in hand committed no error of law occasioning failure of justice in passing the impugned judgments and orders and as such all these Rules are liable to the discharged with costs.

By referring to the provision of the Ain of 2003 he submits that the revisional applications under section 115 of the Code of Civil Procedure is not at all maintainable as no revision lies against any interlocutory order passed by the Adalat exercising the power conferred by the Ain of 2003.

9. No one appear on behalf of the opposite party Civil Revision No.195 of 2010.

10. We have heard the learned Advocates, perused the revisional applications, impugn-

2 LNJ (2013)

Md. Bodiuzzaman Milon Vs. Bangladesh Commerce Bank Limited and others, (Md. Abu Zafor Siddique, J.)

ed judgments and orders, annexures and the provision of law.

11. On perusal of the same it appears that in all these Rules the opposite parties instituted suits in the respective Adalats for realization of outstanding loan from the borrower petitioners and after due process of law the respective courts passed decrees in favour of the opposite parties. Pursuant to the provisions laid down in the Ain of 2003, the respective opposite party instituted execution cases as per Chapter-VI of the Ain of 2003.

Thereafter, the Courts below proceeded with the execution cases in the respective Artha Rin Adalat. During pendency of the execution cases on the applications made by the opposite parties the Courts below passed the impugned judgment and orders for detaining the respective petitioners in civil jail. Being aggrieved the petitioners moved this Court.

12. Section 34(1) of the Ain, 2003 deals with the provision relating to detaining any person in civil jail which runs as follows; “34| (1) Dc-aviv (12) Gi weavb

mv‡c‡¶, A_© FY Av`vjZ, wWµx`vi KZ©„K `vwLjK…Z `iLv‡¯Íi cwi‡cw¶‡Z, wWµxi UvKv cwi‡kv‡a eva¨ Kwievi cÖvqm wnmv‡e, `vwqK‡K 6 (Qq) gvm ch©šÍ †`Iqvbx KvivMv‡i AvUK ivwL‡Z cvwi‡e|” 13. It appears that from the above provision of law the Court namely “Artha Rin Adalat” can pass an order detaining a judgment debtor in civil jail up to 6(six) months for

107

realization of outstanding dues. It appears that in the present cases in hand the Courts below passed the orders on the basis of the applications made by the respective Banks.

On perusal of the same it is apparent that the Courts below namely “Artha Rin Adalats” reserve the powers to detain a person for the period stipulated in sub-section(1) of section 34.

14. Hence, the main question which is to be decided in these revisions is whether the instant revisional applications under section 115(1) of the Code of Civil Procedure are at all maintainable against any interlocutory order passed by the Artha Rin Adalat exercising the powers conferred by the provisions of the Ain of 2003. It is apparent that the instant proceedings are pending being Artha Rin Execution Cases and before the competent Artha Rin Adalat established as per section 2(kha) read with section 4 of the said Ain of 2003. Apart from that as per section 5 of the Ain of 2003, the Court enjoys exclusive jurisdiction relating to all matters for realization of loan of the financial institutions as defined in section 2(ka) of the said Ain. 15. Section 26 to section 39 of the Ain of 2003 deal with the detailed provisions relating to execution proceeding by a Artha Rin Adalat and these provisions described the procedure for realization of the loan after passing of decree by the Adalat. There is no doubt about the jurisdiction of the Court, in which the execution cases have been filed and proceeded. As per the Ain of 2003 all

108

Md. Bodiuzzaman Milon Vs. Bangladesh Commerce Bank Limited and others, (Md. Abu Zafor Siddique, J.)

these Courts are, “Artha Rin Adalat”. Section 2(kha) of the said Ain runs as follows; “(L) ÔÔAv`vjZÓ ev ÔÔA_© FY Av`jZÓ

A_© GB AvB‡bi D‡Ïk¨ c~iYK‡í aviv 4 G DwõwLZ Aaxb cÖwZwôZ ev †NvwlZ †Kvb Av`vjZ A_ev A_© FY Av`vjZ wnmv‡e MY¨ nB‡e g‡g© †Kvb hyM¥-†Rjv R‡Ri Av`vjZ|” 16. Now it is to be seen whether impugned orders passed by the executing Court in the present Artha Rin Execution Case are revisable under section 115(1) of the Code of Civil Procedure and as such, the said issue needs to be dealt with before entering into the merit of the cases.

17. Section 3 of the Ain of 2003 reads as follows: ÔÔ3| AvB‡bi cÖavb¨- AvcvZZt ejer AeÉ †Kvb AvB‡b wfbœZi hvnv wKQyB _vKzK bv †Kb, GB AvB‡bi weavbvejxB Kvh©Ki nB‡e|Ó Furthermore, section 26 of the Ain of 2003 runs as follows: “26 | †`Iqvbx Kvh©wewa AvB‡bi cÖ‡qvMThe Code of Civil Procedure, 1908 Gi Ad£e gvwb wWµx Rvix msµvšÍ weavbejx, GB AvB‡bi weavbejxi mwnZ AmsMwZc~b© bv nIqv mv‡c‡¶, GB AvB‡bi Aaxb wWµx Rvixi †¶‡Î cÖ‡hvR¨ nB‡e|Ó 18. It is important to mention that in promulgating this “Remedial Statute”, the Ain of 2003, the legislature has intended to cure some defects, errors and procedures of

2 LNJ (2013)

the repealed Artha Rin Adalat Ain, 1990, in order to ensure speedy recovery of long pending outstanding dues advanced by the financial institutions to the borrowers who are in the habit of developing a culture of non-payment of loan. To put an end to such culture some special provisions have been made including rigorous provisions like sections 19, 34, 41, 42 and 44 in the Ain, 2003. If the defaulters or borrowers are allowed to challenge each and every order passed by the Adalat, the Ain of 2003 will have to face the same consequence like that of the Ain, 1990. So, the Court must avoid construction of statute which will render the statute meaningless and ineffective and the court is to adopt the rule of liberal construction so as to give meaning to all parts of the provisions and to make the whole statute effective and operative. Apart from that the Ain of 2003 is a special law effective for the very purpose of realizing loan from the defaulted borrowers.

19. From the above quoted provisions of law, it is manifest that the legislature with the intention of speedy recovery of loan liability without any hindrance or obstruction being created by the judgment-debtors by way of filing frivolous application before the Court of law to delay and frustrate realization of the decretal amount incorporated non-obstinate clause in section 3 of the Ain of 2003 to have the effect that the said Ain shall prevail over other laws which are contrary to the said Ain of 2003.

20. As to the significance of non-obstante clause our Apex Court in the case of New

2 LNJ (2013)

Md. Bodiuzzaman Milon Vs. Bangladesh Commerce Bank Limited and others, (Md. Abu Zafor Siddique, J.)

Ideal Engineering Works Ltd. Vs. Bangladesh Shilpa Bank and others reported in 42 DLR (AD) 221 held as follows; “a non-obstinate clause is usually used in a provision to indicate that, that provision should prevail despite anything to the contrary in the provision mentioned in such nonobstinate clause.”

21. Section 26 of the Ain of 2003 has expressly debarred application of the provisions of other statutes including the Code of Civil Procedure pending execution proceeding so far it is inconsistent with the provisions of the Ain of 2003. In other words, the relevant provisions of the Code of Civil Procedure so far it relates to the procedure to make the suit ready for holding trial of Artha Rin suit as well as for execution of decrees are applicable which are not in conflict with the Ain of 2003.

22. Section 44 of the Ain of 2003 is relevant to the instant civil revisional applications, which runs as follows: “44| AšÍe©Z©xKvjxb Av‡`k-(1) A_© FY Av`vjZ, gvgjvi mwVK I cwic~Y© wePvi I b¨vq wePv‡ii cª‡qvR‡b Ges wePvi Kvh©µ‡gi Ace¨envi cÖwZ‡ivaK‡í ‡hiƒc AšÍ©eZ©xKvjxb Av‡`k cÖ`vb Kiv msMZ g‡b Kwi‡e, †miƒc AšÍ©eZ©xKvjxb Av‡`k cÖ`vb Kwi‡Z cvwi‡e| (2) Dc-aviv (3) Gi weavb mv‡c‡¶, GB BC-el Ad£-e ‡Kvb Av`vjZ KZ©„K cÖ`Ë †Kvb AšÍ©eZ©xKvjxb Av‡`k‡K D”PZi †Kvb Av`vj‡Z Avcxj ev wiwfkb AvKv‡i weZ©wK©Z Kiv hvB‡e bv|

109

(3) Dc-aviv (2) Gi weavb m‡Ë¡I, †Kvb c¶ aviv 41 Gi Aaxb `v‡qiK…Z Avcxj GBiƒc †Kvb welq hyw³ wnmv‡e MÖnb Kwi‡Z cvwi‡e, hvnv DcwiE¢õ¢Ma weav‡bi Kvi‡Y weZwK©Z Kiv hvq bvB, Ges Avcxj Av`vjZ Hiƒc welq we‡ePbvq MÖnY Kwiqv b¨vqwePv‡ii ¯^v‡_© Dchy³ †h †Kvb Av‡`k cÖ`vb Kwi‡Z cvwi‡e|Ó 23. In view of above provision of law no interlocutory order passed by the Artha Rin Adalat under the Ain of 2003 is appealable or revisable. In the case of Sultana Jute Mills Ltd. and others Vs. Agrani Bank and others reported in 46 DLR (AD) 174 the Appellate Division held as follows; “revision is impliedly barred because the Adalat Act being a special legislation setting up a special Court the remedies will follow as provided therein and if there is any exclusion indicated therein, as in section 6, it will include a remedy under the general law.”

24. In the case of Mrs. Hosne Ara Begum and another Vs. Islami Bank Bangladesh Limited reported in 5 MLR (AD) 290 the Appellate Division further held; “this Division has clearly held that revision does not lie against an order of Artha Rin Adalat.”

25. In the case of Md. Harun-or Rashid Vs. Pubali Bank Limited and others reported in 12 MLR (AD) 343 the Appellate Division held :

110

Md. Bodiuzzaman Milon Vs. Bangladesh Commerce Bank Limited and others, (Md. Abu Zafor Siddique, J.)

“Joint reading of section 6 (1) and 7 of the Act shows that all judgment and order not being a decree of the Artha Rin Adalat have been treated as final and conclusive. In such situation the party aggrieved by such judgment or order of the Artha Rin Adalat cannot invoke revisional jurisdiction of the civil Court including the High Court Division under section 115 of the Code of Civil Procedure inasmuch as to construe otherwise would be inconsistent with the provisions of sections 5 (4) and 5(5) of the Artha Rin Adalat Ain.” 26. In the case of Kazi Gowaherul Islam (K J Islam) vs. Standard Co-operative Credit Society Ltd. and another reported in 50 DLR 333, Belayet Hossain vs. Bank Indosuez reported in 50 DLR 431, and the case of Iftekhar Afzal and another vs. Publi Bank Limited and others reported in 50 DLR 623 their Lordships also held that a revisional application under section 115 of the Code of Civil Procedure against any interlocutory order passed by an Artha Rin Adalat is not at all maintainable in law.

27. In the cases as mentioned above, the said observations/decisions of our Apex Court and this Court were given under the Ain of 1990, which has already been repealed, wherein there was no specific provision debarring exercise of revisional jurisdiction by the Court concerned including the High Court Division. The impugned orders as have been passed by the executing Court are interlocutory orders, not being a decree, as has been found in the case of Syed Monjur Morshed and another vs. Manager,

2 LNJ (2013)

Agrani Bank Ltd. reported in 14 BLC 501 wherein it has been held: “In the present Artha Rin Adalat Ain, 2003 the legislature by incorporating section 44 has expressly debarred filing revisional application against an interlocutory order passed by the Adalat pending execution proceeding. The impugned orders passed by the Adalat under section 34 of the Ain, 2003 in the present cases are, no doubt, interlocutory orders. Accordingly, in view of section 44 of the Ain those orders are not revisable under section 115(1) of the Code of Civil Procedure.”

28. In view of the above facts and circumstances, the provision of law as contained in section 44(2) of the Ain of 2003, as well as the decisions of our Apex Court and this Court as referred to above, we have no other option but to hold that the impugned orders in these revisional applications passed by the executing Court are interlocutory orders, and as such revision under section 115 of the Code is not maintainable.

29. Accordingly, all these Rules are discharged as not maintainable without any order as to costs. The order of stay granted in Civil Revision No.195 of 2010 is hereby vacated. The interim orders granted by this Court in Civil Revision No.1454 of 2009 and Civil Revision No.1318 of 2009 are hereby recalled.

30. The respective petitioners of Civil Revision Nos. 1454 of 2009 and 1318 of 2009 are however, directed to surrender

2 LNJ (2013)

Md. Bodiuzzaman Milon Vs. Bangladesh Commerce Bank Limited and others, (Md. Abu Zafor Siddique, J.)

before the Courts below within 2(two) months from the date of receipt of the order.

31. Furthermore, the petitioners are at liberty to invoke any other Jurisdiction as prayed for to challenge the impugned orders, if so advised.

Communicate this order at once.

Ed.

111

2 LNJ (2013)

The Chief Prosecutor Vs. Abdul Quader Molla

written by her titled ‘Shahid Kabi Meherunnesa’ published in June 2011, in narrating the event, she has not incriminated the accused with the alleged killing. P.W.4 even in her earlier statement made to IO has not stated anything incriminating the accused.

232. It is further argued by the learned defence counsel that the hearsay version as to complicity of the accused does not carry value.

Besides, P.W.10 another hearsay witness has stated that he learnt that non-Bangalees of the Mirpur locality killed Meherunnesa. Therefore, there has been no credible evidence to connect the accused with the perpetration of the crime alleged in charge no. 2.

233. Conversely, the learned prosecutor has submitted that P.W.2 and P.W.4 are quite reliable witnesses and their hearsay evidence coupled with other proved relevant facts and circumstances carries reasonable probative value. Even an ‘individual’, apart from member of ‘auxiliary force’ , may be brought to justice under the Act of 1973 and he can be held guilty even if he is found to have committed offence specified in section 3(2) of the Act of 1973.

Context of war of liberation in 1971, extent of atrocities committed in furtherance of ‘operation search light’ and the pattern of criminal acts forming attack directed against civilians constituting the offence of murder itself proves that the offence was not isolated crime but those were committed in violation of customary international law.

234. The Tribunal notes that hearsay evidence, under the International Crimes (Tribunals) Act 1973 is admissible and we do have jurisdiction to act on it if it is found to have reasonable probative value. It is found from evidence that immediately after the ‘operation search light’ on 25 March, 1971 the perpetrators had

57

launched horrific attack on 27 Match 1971 to Meherunnesa and her family inmates and it is not disputed that they were brutally slaughtered at their own house.

235. The defence has not been able to offer even a hint, by cross-examining the prosecution witnesses, that the murder was not a part of planned or systematic attack and it was an isolated crime. Therefore, the context, facts and circumstances revealed inevitably have proved the elements to constitute the alleged offence of murder as crime against humanity.

236. From the hearsay evidence of P.W.2 Syed Shahidul Huq Mama it has been proved that on 27 March accused Abdul Quader Molla, Hasib Hashmi, Abbas Chairman, Aktar Goonda, Hakka Goonda, Nehal and their accomplices slaughtered poetess Meherunnesa, her brothers and mother. In cross-examination it has been simply denied but could not be shaken. P.W.2 had learnt the event of horrific killing of Meherunnesa and her family inmates from mass people. Defence could not dislodge it.

Besides, in view of frightened situation prevailing at that time it was not natural and probable for particular Bengali resident of the locality to witness such atrocious event of killing. Rather learning the incident from mass people was natural and probable. Thus, hearsay evidence of P.W.2, if viewed together with the facts relevant to the role and continuous culpable association of the accused with the local Bihari perpetrators, inspires reasonable degree of credence.

237. Next, hearsay evidence of P.W.4 goes to show that she had sensed that an attack would have been directed to her and Meherunnesa for the reason that they were actively involved with the ‘action committee’ organized to resist the disgrace caused to Bengali residents of

58

The Chief Prosecutor Vs. Abdul Quader Molla

Mirpur locality by the Biharis. This fact remains unshaken. Next, it has been already proved that local Bihari Aktar Goonda, Nehal goonda, Hakka goonda and Bihari hooligans were accomplices of the accused Abdul Quader Molla who led the gang to the crime site. We have also found from evidence of P.W.4 that accused himself did not enter into the house of Meherunnesa.

238. We are convinced to pen our unambiguous view that leading the gang to the crime site is a significant act to establish culpable link of accused to the actual commission of the crime. In the case in hand we have found that accused Abdul Quader Molla led the gang of perpetrators to the house of the unarmed civilian victims, although the evidence does not show that the accused himself had directly participated to the actual commission of the crime alleged. As a result hearsay evidence of P.W.4 together with the relevant facts as to close culpable association of accused with the gang of Bihari perpetrators inevitably goes to adequately indicate his conduct as a link to the perpetration of the brutal killing.

239. Murder as a crime against humanity under section 3(2) of the Act does not require the Prosecution to establish that the accused personally committed the killing. Personal commission is only one of the modes of responsibilities identified under section 4(1) of the Act. The accused shall be considered to have incurred criminal responsibility for the commission of murder as crime against humanity if it is established that his act in any way proves his complicity to the commission of such crime.

240. It is the ‘attack’, not the acts of the accused, which must be directed against the target population, and the accused need only

2 LNJ (2013)

know that his acts are part thereof. The context prevailing at the relevant time (27 March 1971) together with the pattern and extent of attack signifies that intent of launching attack was to cause wrongs and criminal acts directing Meherunnesa and her family inmates, the unarmed civilians.

241. The learned defence counsel has argued that P.W.4 is not a credible witness as her testimony made before the Tribunal is contradictory to the account she made in the book (Exhibit-B) titled “ Shahid Kabi Meherunnesa’ written by her.

242. P.W.4 Kazi Rosy admitted that she did not mention anybody’s name in her book titled ‘Shahid Kabi Meherunnesa’ as there had been no judicial mechanism of prosecuting the perpetrators. She further explained that for the reason of fear she could not name any perpetrator responsible for the killing of Meherunnesa and her family. Since a judicial forum has been set up she is now testifying implicating accused Abdul Quader Molla.

243. First, the oral evidence of a witness may not be identical to the account given in a prior statement. A witness may be asked different questions at trial than he/she was asked in prior interviews and that he/she may remember additional details when specifically asked in court. Second, presumably a predictable fear might have prevented P.W.4 in mentioning name of perpetrators in her book. Undeniably, for the reason of lack of a favourable situation and well-built consensus the issue of prosecuting and trying the perpetrators of dreadful crimes committed during the war of liberation in 1971 remained halted for several decades. Third, in the intervening time the proPakistan political organisation has been able to revitalize its position in the independent

2 LNJ (2013)

Bangladesh, impediment.

The Chief Prosecutor Vs. Abdul Quader Molla

without

any

substantial

244. For the rationales as stated above, a proliberation individual like P.W.4 usually is not likely to come forward with all details in narrating the account in the book written by her prior to making testimony before the Tribunal, for the reason of apprehended fear and risk.

Explanation offered for the differences by the P.W.4 seems to be attuned to circumstances prevailing till setting up of a judicial mechanism under the Act of 1973. On contrary, defence could not suggest or establish any motive whatsoever for testifying such version which differs from her earlier account.

Therefore, mere lack of specificity of perpetrator(s) or any omission in the book written by her earlier does not turn down her sworn testimony made before the Tribunal branding it to be a glaring contradiction, provided if it inspires credence in light of other relevant facts and circumstance.

245. The act of leading the gang of actual perpetrators is indeed an act forming part of the attack that substantially contributed and provided ‘moral support’ and ‘encouragement’ to the actual commission of the crime. Merely for the reason that the accused had no physical participation to the perpetration he cannot be relieved from liability as his act of leading the gang of course provided substantial moral support and encouragement to the principals.

246. Complicity encompasses ‘culpable association’ with the principals, and providing ‘moral support’, ‘encouragement’ to them. An accused can be considered to have participated in the commission of a crime if he is found to be ‘concerned with the killing’. By the act of leading the gang of perpetrators the accused is thus found to have provided moral support and

59

encouragement to the principals to the actual commission of the crime. It is to be noted that a single or relatively limited number of acts on part of the accused would qualify as a crime against humanity, unless those acts may be said to be isolated. Leading the gang of perpetrators to the crime site was of course not an isolated act.

247. It has been observed by the Appeal Chamber (ICTY) in the case of Deronjic, [July 20, 2005, para. 109] that “All other conditions being met, a single or limited number of acts on the accused’s part would qualify as a crime against humanity, unless those acts may be said to be isolated or random.”

248. Also in the case of Kupreskic, the Trial Chamber of ICTY [January 14, 2000, para.

550] has observed that “In certain circumstances, a single act has comprised a crime against humanity when it occurred within the necessary context.”

249. Therefore, it is now settled that even a single act on part of accused constitutes part of attack for committing the offence of murder as ‘crime against humanity’. But the acts or conducts of accused must have been shown to have ‘link’ with the commission of the crime.

‘Leading the gang of perpetrators’ to the crime site is such a conduct that establishes a sufficient ‘link’ of the accused Abdul Quader Molla with the actual commission of the offence alleged.

250. Merely for the reason of absence of direct evidence the hearsay evidence, as discussed above, as to the complicity and conduct of the accused Abdul Quader Molla to the accomplishment of actual commission of the

60

The Chief Prosecutor Vs. Abdul Quader Molla

offence alleged cannot be brushed aside, particularly when it gets strength from some proved pertinent relevant facts and circumstances as to his patent culpable association with the gang of principal perpetrators.

251. The intent or mental element of complicity implies in general that, at the moment he acted, the accomplice knew of the assistance he was providing in the commission of the principal offence. In other words, the accomplice must have acted knowingly.

Leading the gang of perpetrators in launching an attack directed against Meherunnesa and her family inmates who were unarmed civilians itself indicates that the accused acted so knowingly and he was aware of the consequence of his act. Attack directed to Mehernnusa and her family inmates on 27 March 1971, in view of context of the war of liberation in 1971 and circumstances prevailing particularly in Dhaka, in furtherance of ‘operation search light’ on 25 March, 1971, was of course launched with knowledge and with criminal intent.

252. It may be lawfully inferred that the accused knew or had reason to know that the principals were acting with intent to commit the offence of murder. The circumstances and facts insist to believe that the accused, as he led the gang of perpetrators, knew the intent of the principals. Thus, it has been proved that the accused Abdul Quader Molla had, with knowledge and mens rea, conscious complicity to the commission of the offence murder as crimes against humanity as listed in charge no.2 and thereby he incurs criminal liability for ‘complicity’ in commission of the murder of Meherunnesa and her inmates constituting the offence of crimes against humanity as specified in section 3(2)(a)(h) of the Act of 1973 which

2 LNJ (2013)

are punishable under section 20(2) read with section 3(1) of the said Act. Adjudication of Charge No. 03 [ Khandaker Abu Taleb Killing] 253. Summary Charge No.03: During the period of War of Liberation, on 29.3.1971 in between 04:00 to 04:30 evening, victim Khandoker Abu Taleb while returning from his house located at section-10, Block-B, Road-2, Plot-13, Mirpur, Dhaka to Arambag the accused Abdul Quader Molla one of leaders of Islami Chatra Sangha and as well as prominent member of Al-Badar, being accompanied by other members of Al-Badars, Razakars, accomplices and non-Bengalese apprehended him from a place at Mirpur-10 Bus Stoppage, tied him up by a rope and brought him to the place known as ‘Mirpur Jallad Khana Pump House’ and slaughtered him to death and thereby the accused had participated, and substantially contributed to the execution of the attack upon the victim, an unarmed civilian, causing commission of his horrific murder as crime against humanity’ as specified in section 3(2)(a) of the Act of 1973 or in the alternative had 'complicity to commit such crime' as specified in section 3(2)(a)(h) of the said Act which are punishable under section 20(2) read with section 3(1) of the Act. Witnesses 254. Prosecution adduced and examined two witnesses in support of the charge no.2. Of them P.W.5 Khandoker Abul Ahsan(55) is the survived son of victim Khandoker Abu Taleb and P.W.10 Syed Abdul Qayum was a friend of the victim. They at the relevant time used to reside in Mirpur locality of Dhaka city. Both of them are hearsay witnesses as to the actual event of killing, as they had no opportunity to

2 LNJ (2013)

The Chief Prosecutor Vs. Abdul Quader Molla

see the event. They have also testified facts relevant to the event of killing.

Discussion of Evidence 255. P.W.5 Khandoker Abul Ahsan is the survived son of Khandoker Abu Taleb. At the relevant time he was student of class IX of Mirpur Shah Ali Academy High School. His father was an eminent journalist and lawyer and had been residing in the house situated in plot 13 road no. 2 block-B sections 10 of Mirpur locality.

256. P.W.5 Khandoker Abul Ahsan stated that on 23 March 1971, while Syed Qayum (P.W.10), Head Master of Mirpur Bangla School had been staying at his house at Mirpur 10, block-C, at 02:30-03:00 am 3-4 persons entering inside the house by breaking door attacked said Qayum and started him scolding for hoisting the flag of ‘Swadhin Bangla’ at his school and then they stabbed him by repeated dagger blow causing bleeding injuries. Qayum attempted to flee there from but fell down on the street and then one Bangalee people somehow brought him to their (P.W.5) house wherefrom after giving him first aid, on the following morning, he was brought to Dhaka Medical College Hospital for having treatment and then his (P.W.5) father rushed to Bangabandhu and informed him of the incident. His father (victim) became mentally upset seeing the condition of Qayum and then on 24 March they came to the place of his ‘phupu’ at Shantinagar’ area leaving his father at Mirpur house. His father was, at the relevant time, a part time feature editor of the ‘Daily Paigam’ and also was associated with a law firm.

257. P.W.5 further stated that on 25 March, on getting information of demolishing the Ittefaque office his father (victim) rushed there for seeing condition of his colleagues but on arriving there he found some dead bodies there.

61

On 29 March, his father(victim) was about to go to their Mirpur residence for bringing his car and money there from but on his way to Mirpur he had occasion to meet one non Bengali Abdul Halim, the chief accountant of the ‘Daily Ittefaque’ who in the name of taking him to Mirpur by his own car brought him(victim) to the accused Abdul Quader Molla and then his father was slaughtered by the accused to death by repeated dagger blows at Mirpur 10 ‘Jallad Khana’ and at that time Aktar Goonda and some non Bangalee were with Abdul Quader Molla(accused) .

258. In cross-examination, P.W.5 stated that he cane to know from Advocate Khalil of BNR (Law Firm) that one non Bengali Abdul Halim, the chief accountant of the ‘Daily Ittefaque’ brought his father by his car and Abdul Halim handed his (P.W.5) father over to Abdul Quader Molla and his accomplices at Mirpur. He also re-affirmed, on crossexamination, that he heard from their nonBangalee driver Nizam that Abdul Halim handed his father over to Abdul Qauder Molla and his accomplices and his father was slaughtered at ‘Jallad Khana’. At the revenant time Abdul Qauder Molla was a resident of Duari para, Mirpur and most people knew it.

259. If we consider the narration made by P.W.5 in examination-in-chief and that he has re-affirmed on cross-examination together it is amply found that his hearsay testimony as to the fact of taking his farther the victim to Mirpur by Abdul Halim by his car and handing him over to Abdul Qauder Molla and his accomplices inspires credence. The sources of knowledge about the taking away of his father to Mirpur and handing him over to the accused and his accomplices were Advocate Khalil and their (P.W.5) non Bengali driver Nizam and both of them are not alive now.

62

The Chief Prosecutor Vs. Abdul Quader Molla

260. P.W.5 stated that he himself did not witness the horrific incidents happened in 1971 and it was not possible for any Bangalee excepting a very few to witness it. This version reflects the horrifying reality and situation prevailing at the relevant time and as such availability of direct witness to prove the fact of actual commission of killing Khandaker Abu Taleb naturally may not be possible.

261. P.W.5 further stated that subsequently he came to know from Nizam, their (P.W.5) nonBangalee driver that the people who embraced defeat in 1970 national election i.e. Aktar Goonda, Abdullah and some other Biharis, on order of Abdul Quader Molla, committed extensive killings in the locality of Muslim Bazar, Shialbari, Jallad Khana. This version remains totally unshaken and rather it appears to have been re-affirmed on cross-examination.

262. P.W.10 Syed Abdul Qayum a resident of Mirpur and friend of victim Khandoker Abu Taleb stated that Faruk Khan came to meet him in the month of June 1971 when he had been at his native village Nasirnagar after he had left Dhaka Medical College on 27 March 1971 wherein he was undergoing treatment for injuries he sustained resulting from the attack launched directing him in the night of 23 March 1971.

263. From Faruk Khan he (P.W.10) came to know that local Aktar Goonda, Biharis and Abdul Quader Molla had killed Taleb Saheb at Mirpur 10 ‘Jallad Khana’. He (P.W.10) returned home on 3 January 1972 after the independence and afterwards, he learnt from Nizam the non Bangalee driver of Abu Taleb(victim) that Abu Taleb was coming his home at Mirpur with non-Bengali accountant Halim but Halim handed him (Abu Taleb) over to the Biharis who slaughtered him at ‘Jallad

2 LNJ (2013)

khana’. In cross-examination, defence simply denied this version instead of shaking its credibility.

Evaluation of Evidence and Finding 264. Slaughtering Kahndaker Abu Taleb to death at Mirpur ‘Jallad Khana’ is not disputed.

From evidence of P.W.5 it has been proved that on 29 March 1971 victim was coming to his Mirpur home with non-Bengali accountant Abdul Halim by his (Halim) car. The fact of handing the victim over to accused Abdul Qauder Molla is denied by the defence. But the involvement of Aktar Goonda and local Bihari in slaughtering the victim to death remains also unshaken.

265. The Defence attacked the credibility of hearsay evidence of P.W.5 mainly on the ground of inconsistencies between his narration in court and that made to the investigation officer. The learned defence counsel has argued that P.W.12 the Investigation officer has stated in his cross-examination P.W.5 did not state to him that non Bengali Abdul Halim, the chief accountant of the ‘Daily Ittefaque’ brought his father by his car and Abdul Halim handed his (P.W.5) father over to Abdul Quader Molla and his accomplices at Mirpur.

266. The learned defence counsel has argued that both the P.W.5 and P.10 are hearsay witnesses who have been examined by the prosecution in support of charge no.3. P.W.5 claims to have heard from their non-Bangalee driver Nizam that non-Bangalee Abdul Halim handed his father over to the accused Abdul Quader Molla. But he did not state it earlier to the IO. Besides, the book (Exhibit-B-Page 24, 2nd paragraph) speaks that said Abdul Halim handed the victim to non-Bangalees. Thus the defence does not dispute the fact of taking the

2 LNJ (2013)

The Chief Prosecutor Vs. Abdul Quader Molla

victim by Abdul Halim by his car to Miprur and then he was slaughtered by Biharis. But the hearsay evidence of P.W.5 as to the fact of handing the victim over to accused is inconsistent with his earlier statement made to IO. Thus, the accused cannot be linked or said to have acted in any manner to the perpetration of killing Khandoker Abu Taleb.

267. The learned defence counsel went on to argue further that hearsay evidence of P.W.10 has stated that he learnt the event alleged first from one Faruk Khan during 1971 and then in January 1972 from Bihari Nizam , the driver of victim Khandoker Abu Taleb. Faruk Khan told P.W.10 that Biharis, Aktar goonda and Abdul Quader Molla slaughtered Khandoker Abu Taleb to death at Muslim Bazar. But Driver Nizam disclosed to P.W.10 that Bihari Aktar goonda and other Bihari people killed Khandoker Abu Taleb which is consistent with the narration made in the book Exhibit-B. Which one is true? Inconsistent hearsay evidence thus cannot be relied upon for finding the accused guilty.

268. The Tribunal notes that P.W.12 the IO has stated that P.W.5 stated to him that he learnt from Khalil that Halim brought his (P.W.5) father (victim) to Mirpur by his (Halim) car.

Therefore, this cannot be a contradiction or subsequent embellishment, particularly when the P.W.5, in reply to question elicited to him by the defence stated that he came to know from Advocate Khalil of BNR (Law Firm) that one non Bengali Abdul Halim, the chief accountant of the ‘Daily Ittefaque’ brought his father by his car and Abdul Halim handed his (P.W.5) father over to Abdul Quader Molla and his accomplices at Mirpur.

269. It would be only an omission presumably due to his not being questioned on the point

63

[Abdul Halim handed his (P.W.5) father over to Abdul Quader Molla and his accomplices at Mirpur] by the IO, during investigation.

Therefore, that cannot be of any benefit to the defence to suggest that the witness is now making intelligent improvements.

270. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Thus, exaggerations per se do not render the evidence brittle. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety.

271. The fact of coming the victim on the date at his Mirpur home with Abdul Halim by his car, handing him over to the Bihari perpetrators and then slaughtering him to death at Mirpur ‘Jallad Khana’ remain quite unshaken. The hearsay evidence of P.W.5 and P.W.10 seems to be credible and relevant and thus carries probative value.

272. Having appraisal of evidence of P.W.2, we have already found as to who the accomplices of accused Abdul Quader Molla were and his culpable association with them, particularly during the early part of war of liberation 1971. It is proved that the local Biharis namely Aktar Goonda, Nehal, Hakka goonda, Abbas Chairman, Hasib Hashmi were close accomplices of accused Abdul Qauder Molla in all antagonistic activities during pre25 March time and also during the early part of war of liberation in perpetrating atrocities in

64

The Chief Prosecutor Vs. Abdul Quader Molla

Mirpur locality. The event of killing as listed in charge no.3 took place on 29 March 1971 i.e within four days of the ‘operation search light’ on 25 March 1971. We have got a clear depiction as to role, conduct and culpable association of the accused with the local Bihari hooligans that he had shown on 26 March 1971, as described by P.W.2. It is significantly relevant to lend assurance as to complicity of accused with the commission of the event of killing Khandoker Abu Taleb, an unarmed civilian.

273. The above proved facts together with the evidence of P.W.5 that Abdul Qauder Molla, Aktar Goonda and some non-Bengali were at the Miprur ‘Jallad khana’ when his father (Khandoker Abu Taleb) was slaughtered to death sufficiently proves the complicity of the accused Abdul Quader Molla with the event of killing. Therefore, we are convinced that the hearsay evidence of P.W.5 carries probative value as it is found reliable and relevant.

274. Complicity encompasses assistance, encouragement, or moral supports which are mostly possible to provide if culpable association is maintained with the principals.

Amongst 10% of Bangalee residents of Mirpur locality why accused Abdul Quader Molla opted to be associated for almost all the time with the local Bihari hooligans namely Aktar goonda, Nehal, Hakka Goonda, Hasib Hashmi who were extremely antagonistic to Bangalees of the locality, instead of saving fellow Bangalee residents?

Of course such association of the accused fueled the principals targeting the local pro-liberation Bangalee civilians in furtherance of ‘operation search light on 25 March 1971.

275. Cumulative effect of evidence and relevant facts and circumstances may have a

2 LNJ (2013)

decisive role in determining the culpability of the accused. Circumstantial evidence is not considered to be of less probative value than direct evidence. The act of culpable association of the accused with the principals and the evidence as discussed above inevitably proves that the accused Abdul Quader Molla was involved with the commission of the alleged brutal killing. Considering the context and pattern of attack we are satisfied that the aforementioned killing formed part of a systematic or organised attack against the civilian population. The victim of the alleged killing was a member of pro-liberation civilian population. The Tribunal is thus satisfied that the aforementioned killing constitutes the offence of murder as a crime against humanity committed in violation of customary international law.

276. We have already observed that actual physical participation when the crime is committed is not necessary and an accused can be considered to have participated ‘in the commission of a crime’ if he is found to be ‘concerned’ with the killing. Since the testimony of P.W.5 as to the fact of bringing the victim to Mirpur by Non-Bangalee accountant Abdul Halim by his car who handed him over to accused Abdul Quader Molla and at the time of slaughtering the victim accused was present at the crime site carries sufficient probative value the accused is considered to have acted so intending to provide moral support and encouragement to the principals with whom he maintained continuous and culpable association accused Abdul Quader Molla incurs criminal liability for ‘complicity’ in commission of the murder of Khandoker Abu Taleb constituting the offence of crimes against humanity as specified in section 3(2)(a)(h) of the Act of 1973 which are

2 LNJ (2013)

The Chief Prosecutor Vs. Abdul Quader Molla

punishable under section 20(2) section 3(1) of the said Act.

read with

65

which are punishable under section 20(2) read with section 3(1) of the Act.

Adjudication of Charge No.4

Witnesses

[Ghatar Char and Bhawal Khan Bari killing]

278. Prosecution, in support of the charge no.4, has adduced as many as three witness who have been examined as P.W.1, P.W.7 and P.W.8.Of them P.W.7 claims to have witnessed the event of killing. P.W.1 and P.W.8 are hearsay witnesses.

277. Summary Charge No.04: During the period of War of Liberation ,on 25.11.1971 at about 07:30 am to 11:00 am the accused Abdul Quader Molla one of leaders of Islami Chatra Sangha and as well as prominent member of Al-Badar, being accompanied by his 60-70 accomplices belonging to Razaker Bahini went to the village Khanbari and Ghatar Char (Shaheed Nagar) under police station Keraniganj, Dhaka and in concert with his accomplices, raided the house of Mozaffar Ahmed Khan and apprehended two unarmed freedom fighters named Osman Gani and Golam Mostafa there from and thereafter, they were brutally murdered by charging bayonet in broad day light. In conjunction of the event of attack the accused and his accomplices attacking two villages known as Bhawal Khan Bari and Ghatar Chaar (Shaheed Nagar) , as part of systematic attack, opened indiscriminate gun firing causing death of hundreds of unarmed civilian village dwellers including the civilians named in the charge no.04 and thereby the accused had actively participated, facilitated, aided and substantially contributed to cause murder of two unarmed freedom fighters including large scale killing of hundreds of unarmed civilians and thereby committed the offence of murder as ‘crimes against humanity’, 'aiding and abetting’ the commission of the offence of murder as ‘crime against humanity' or in the alternative he had 'complicity in committing such offence' as mentioned in section 3(2)(a)(g)(h) of the International Crimes (Tribunals) Act,1973

279. The commission of the crime causing mass killing as narrated in charge no.4 is however not disputed. Defence has argued that the accused was not involved with it in any manner as the prosecution has been totally failed to prove involvement of the accused either as a physical perpetrator or as an abettor or as an accomplice of the principals. Hearsay evidence of P.W.1 and P.W.8 does not carry any reliability and as such recognised standard of proof does not allow depending on it.

Discussion of Evidence 280. P.W.1 Mozaffar Ahmed Khan is a valiant freedom fighter who is from the crime village. It is found from evidence of P.W.1 that he knew the accused even since 1969 as he while attending meetings at ‘Madhur canteen’; Dhaka University saw the accused who was a leader of Islami Chatra Sangha. But P.W.1 does not claim to have witnessed the accused committing any criminal act. However, he had learnt the incident from Abdul Mazid Palwan (P.W.7). P.W.1 testified the commission of the event and killing of two freedom fighters Osman Gani and Golam Mostafa. But he however has not claimed to have witnessed the involvement of accused with the commission of the massacre.

281. P.W.1 however, has stated that prior to the alleged event he saw the accused standing in

66

The Chief Prosecutor Vs. Abdul Quader Molla

front of Mohammadpur Physical Training center, Dhaka having rifle in hand while he was coming back home from Mohammadpur.

282. P.W.1 Mozaffar Ahmed Khan lodged a complaint against accused bringing accusation relating the alleged event of killing in the court of Magistrate, Keraniganj. It is admitted.

P.W.12 the IO has admitted that for the purpose of initiating investigation he obtained information from the complaint petition after the same was sent to the Investigation Agency through the office of the Registrar, ICT. 283. P.W.7 Abdul Mazid Palwan claims to have witnessed the event of massacre and the accused Abdul Quader Molla accompanying the gang of perpetrators to the crime site.

P.W.8 claims to have heard that accused was with the gang with a rifle in hand who killed her father.

284. We are to determine, was P.W.7 able to observe what he alleges to have witnessed?

Does the witness have any reason to say something different from what he actually observed? It is not necessarily due to the bad faith of the witness. It may be that the witness was really present and that he saw the commission of the crime.

285. Let us see what the P.W.7 has stated.

P.W.7 Abdul Mazid Palwan, a resident of crime site Ghatar Char at the relevant time, stated that on 25 November 1971 in the early morning on hearing gun firing from northern end of the village he started approaching towards that end and found, remaining in hiding into a bush, Pakistani army, Abdul Qauder Molla and Biharis killing civilians.

Abdul Quader Molla also fired by the rifle in his hand.

286. P.W.7 in the next breath has stated that after the gang of perpetrators had left the crime

2 LNJ (2013)

site at about 11:00 am he learnt that the person accompanying the gang wearing PajamaPanjabi was Abdul Qauder Molla and some Bangalee having their body covered by ‘borkha’ also accompanied the Pakistani army to the crime site.

287. P.W.8 Nurjahan is the wife of victim Nabi Hossain. At the relevant time she was 13 years old and used to reside at village Ghatar Char with her husband and she was pregnant at that time. On 25 November 1971 in the early morning on hearing heavy gun firing they remained in hiding under a cot. After gun firing had ceased her husband came out of house to see what was happening and he saw the Pakistani army coming toward their house and then her husband moved to his uncle Mozammel’s house and then she again heard gun firing. Afterwards her mother-in-law came and told that her husband was no more and with this she started running to the house of Mozammel and found her husband lying dead there. She also found there some Pakistani army and a Bangalee person of black complexion and dwarf height who by a rifle in his hand asked her to leave the place and with this being frightened she went inside the dwelling hut.

288. The event of attack causing murder of husband of P.W.8 remains undisputed and defence could not shake it by cross-examining her.

289. P.W.8 stated that afterwards she , at about 10:30-11:00 am found her husband dead receiving bullet injury on forehead and chest.P.W.8 also stated that she learnt that in conjunction of the event about 50-60 civilians of Ghatar Char were killed. She heard from her father-in-law Luddu Mia and Mazid Palwan (P.W.7) of their village that a person named

2 LNJ (2013)

The Chief Prosecutor Vs. Abdul Quader Molla

Qauder Molla belonging to Jamat had killed her husband.

67

population of its civilian character. [ Tadic Trial Judgment, 638; Blaskic Trial Judgment, 209] .

Evaluation and Findings 290. The learned defence counsel argued that two victims of Ghatarchar event(as listed in charge no.4) were freedom fighters who were not ‘civilians’ as they were volunteer corps and a party to conflict and hostility and thus the acts resulted in their death cannot be considered as ‘directing any civilian population’.

291. We cannot agree with the argument that merely for the reason that two out of numerous civilian victims were freedom fighters the crimes committed resulting death of civilians cannot be characterized as the offence of crimes against humanity. The Tribunal notes that specific situation of the victim at the moment of the crimes committed, rather than his status, at the time of event of the attack is to be considered. In the case of Prosecutor v.

Blaskic para 214 it has been observed that “a civilian is everyone who is no longer an active combatant in the ‘specific situation’ at the time of the commission of the crime. Besides, broad definition of civilian adopted by the adhoc tribunals implies that the character of a predominantly civilian population is not altered by the presence of certain non-civilians in their midst” 292. The ICTY and ICTR Statutes as well as jurisprudence state that the attack must be committed against any civilian population. This qualification has been interpreted to mean that the inclusion of non-civilians (military forces or those who have previously borne arms in a conflict) does not necessarily deprive the

293. However, the targeted population must remain predominantly civilian in nature. But according to ICTR and ICTY jurisprudence, it is the situation of the victim at the time of the attack, and not the victim’s status, that should be the focus of the inquiry. Therefore, we are of view that the attack as narrated in charge no.4 was directed against civilian population that resulted in numerous deaths of civilians and thus the offence of such murder is characterized as crimes against humanity as specified in section 3(2) of the Act. 294. The learned defence counsel also advanced his submission on definition of ‘murder’ by citing decision dated 26 July 2010 in the case No.001/18-07-2007/ECCC/TC of the Extraordinary Chambers in the Courts of Cambodia(ECCC), para, 331 [ Page- 156 of the Final Argument Pack submitted by the defence)]. Paragraph 331 of the judgment reads as below: “Murder, a well established crime under customary international law, requires the death of the victim resulting from an unlawful act or omission by the perpetrator. The conduct of the perpetrator must have contributed substantially to the death of the victims.”

295. The fact of death of victims resulting from the attack launched in the locality of Ghatarchar and Bhawal Kahnbari is not disputed. The accused is alleged to have accompanied the principals in perpetrating the crimes (as listed in charge no.4). Of course the burden is on prosecution to establish first the presence of accused at the crime site and then

68

The Chief Prosecutor Vs. Abdul Quader Molla

his conduct or act that provided encouragement or moral support to the principals in committing the offence of crimes against humanity. Only after proving the presence of accused at the crime site, it is to be adjudicated whether the death of victims was a result of act or conduct of the accused and it must be the only reasonable inference that can be drawn from the evidence and circumstances.

‘Awareness’ as to consequence of act or conduct on part of the accused is sufficient to prove contribution of accused to the commission of the murder of victims.

296. However, now let us evaluate what the P.W.1, P.W.7 and P.W.8 have testified in relation to charge no.4 . Of them P.W.7 and P.W.8 claim to have witnessed the event that allegedly continued from early morning to about 11:00 am of 25 November 1971. The attack was allegedly launched directing the civilian population of village ‘Ghatarchar’ and ‘Khan Bhawalbari’ under keraniganj police station district Dhaka. A gang of Pakistani army, Biharis and Al-Badar allegedly perpetrated the crime while accused Abdul Quader Molla is also alleged to have accompanied them.

297. First, we find that P.W.7 has made conflicting version as to the fact that accused accompanied the Pakistani army having rifle in his hand. Because, once he claims to have witnessed the accused at the crime site having rifle in hand and then claims to have learnt that a person named Abdul Quader Molla accompanied the gang after they had left the crime site. Which one is true version?

298. P.W.7 has not even disclosed the source of his knowledge as to presence of accused at the crime site. Next, according to him, he on hearing frequent gun firing from the end of northern part of village started approaching to

2 LNJ (2013)

that end and then he saw the accused Abdul Quader Molla with the Pakistani army. This version does not seem to be natural. Because, normal human prudence suggests that, particularly in circumstances prevailing through out the country, it was not natural for a Bangalee civilian to come forward to a place from which direction the perpetrators were moving with frequent gun firing. Rather in such a horrific situation non combatant civilians were supposed to escape. But P.W.7 claims that he rather moved forward to see what was happening. It is not believable as well.

299. Next, P.W.7 denied that he did not state what he has narrated here in Tribunal incriminating the accused with event alleged.

But it appears that the I.O P.W.12 has stated that P.W.7 did not state all these to him implicating the accused, during investigation.

Earlier statement made to IO is not evidence, true. But it is used to contradict what the witness deposes in court. Thus, it appears that there has been a fatal omission in earlier statement made to IO as to pertinent fact relating to culpability of the accused with the alleged event of attack causing mass killing of unarmed civilians which is a ‘glaring contradiction’ in evidence made before the Tribunal by P.W.7 on material particular which has created serious doubt as to credibility and truthfulness of his testimony.

300. This being the situation, naturally the hearsay evidence as to the fact of learning the event by P.W.1 from Abdul Mazid Palwan (P.W.7) loses weight and thus does not inspire any amount of credence.

301. Admittedly P.W.8 does not claim that she knew accused Abdul Qauder Molla even since prior to the alleged event. Her version goes to

2 LNJ (2013)

The Chief Prosecutor Vs. Abdul Quader Molla

show that she learnt from P.W.7 that a person named Qauder Molla had killed her husband.

But already we have found that P.W.7 Abdul Mazid Palwan has made seriously contradictory testimony as to seeing the accused at the crime site accompanying the principals carrying rifle in hand. His evidence has been rather found to be subsequent embellishment which is a glaring contradiction on material particular. Thus, the claim that P.W.7 learnt about the complicity of accused from P.W.8 does not carry any value and it adds no corroboration to what has been testified by P.W.7.

302. Next, the version as made by P.W.8 that she also found, at the place where her husband was killed, some army men and a Bangalee of black complexion and dwarf height who by a rifle in his hand asked her to leave the place does not prove that the said person was nobody but accused Abdul Qauder Molla. Therefore, identification of accused on dock 40/41 years after she had seen the said ‘Bangalee person’ at the crime site cannot be relied upon at all as it is not even possible to keep one’s face memorized particularly for a traumatized wife of victim.

303. Drawing attention to the above version defence suggested that she did not state it to the IO. P.W.8 denied it. But the IO (P.W.12), while contradicting P.W.8’s evidence made before the Tribunal, has stated that P.W.8 did not state it to him during investigation. That is to say, there has been crucial omission in her earlier statement on material particular. Indeed such omission in her earlier statement turns her testimony made here in Tribunal as subsequent embellishment which is a glaring contradiction that makes testimony of P.W.8 significantly unbelievable and perverted.

69

304. Like all elements of a crime, the identification of the Accused must be proved by the Prosecution beyond reasonable doubt. In assessing identification evidence, it is to be taken into account a number of relevant factors, including: the circumstances in which each witness claimed to have observed the accused; the length of the observation; the familiarity of the witness with the Accused prior to the identification; and the description given by the witness of his or her identification of the accused. But as we see, the evidence does not inspire us to believe that the P.W.7 and P.W.8 were familiar as to identity of the accused even since prior to the alleged event. None of these two witnesses claim so.

305. In view of above discussion and reasons the Tribunal notes unanimously that it has not been proved beyond reasonable doubt that the accused Abdul Quader Molla accompanied the Pakistani perpetrators to the crime site having rifle in hand and that the person whom P.W.8 claims to have seen at the crime site was none but the accused. It is not plausible too that P.W.8 had learnt from P.W.7 that accused Abdul Qauder Molla accompanied the principals to the crime site to the accomplishment of the offence of mass killing.

Because. Testimony of P.W.7, in this regard, has been found to be disgustingly conflicting and contradictory inspiring no credence.

306. Mere fact that P.W.1 saw the accused standing in front of Physical Training center, Dhaka having rifle in hand, on one day prior to the alleged event, does not connect the accused with the commission of the event of massacre as listed in charge no.4. Although form this relevant fact it can be validly inferred that during the war of liberation the accused had complicity with the Pakistani occupation army as an armed member of Al-Badar.

70

The Chief Prosecutor Vs. Abdul Quader Molla

Therefore, we are persuaded to note that the commission of the event of mass killing by launching attack directing the civilians as crimes against humanity on the date time and in the manner causing deaths of numerous civilians has been proved. Besides, commission of crimes alleged is not disputed. But for the reasons as stated above we are not convinced to arrive at decision that the guilt of accused has been proved. Prosecution has failed to prove participation or complicity or act on part of the accused to the commission of the offence of crimes against humanity by adducing lawful and credible evidence. As a result accused Abdul Quader Molla is not found to have incurred criminal liability for the commission of offence of mass killing as crimes against humanity as listed in charge no.4.

Adjudication of Charge No.05 [Alubdi Mass Killing] 307. Summary Charge No.05: During the period of War of Liberation ,on 24.4.1971 at about 04:30 am, the members of the accused Abdul Quader Molla one of leaders of Islami Chatra Sangha and as well as prominent member of Al-Badar or member of group of individuals accompanied the Pakistani armed forces in launching the attack directed against civilian population of the village Alubdi (Pallabi, Mirpur) and suddenly by opening indiscriminate gun firing caused mass killing of 344 civilians including the persons listed in the charge no.05 constituting the offence of their murder and thereby the accused had committed the offence of 'murder as crime against humanity', 'aiding and abetting’ to the commission of such offences or in the alternative he committed the offence of 'complicity in committing such offence' as mentioned in section 3(2)(a)(g)(h) of the International Crimes (Tribunals) Act,1973

2 LNJ (2013)

which are punishable under section 20(2) read with section 3(1) of the Act. Witnesses 308. Prosecution has adduced and examined two witnesses in relation to this charge. The witnesses are P.W.6 Shafiuddin Mulla and P.W.9 Md. Amir Hossain Molla. They claim to have witnessed the atrocious event of mass killing participated by the accused Abdul Qauder Molla with the principal perpetrators.

At the relevant time they were residents of the crime village Alubdi under police station Mirpur, Dhaka.

Discussion of Evidence 309. P.W.6 Shafiuddin Mulla(60) , at the relevant time , was an inhabitant of Alubdi village. He was 19 years of age at the time of the alleged event of mass killing happened at their village. He narrated that on 24 April 1971 in the early morning, on hearing sound of helicopter, he came out of the house and found a helicopter landing at a place near the bank of river which was western part of the village and he instantly heard sound of indiscriminate gun firing and then being frightened they started running within the village. At a stage, he found dead bodies of some persons here and there. He then remained in hiding beneath a bush at the northern side of the village and there from had witnessed, from western side, the Pakistani army bringing the villagers and the paddy harvesting laborers. There after, he also found that the accused Abdul Quader Molla, his Bihari accomplices and Pakistani army brought the villagers and the paddy harvesting laborers from eastern side and made all of them assembled at the same place.

310. P.W.6 further stated that after a short while he saw the accused Abdul Quader Molla

2 LNJ (2013)

The Chief Prosecutor Vs. Abdul Quader Molla

talking with the officers of Pakistani force in Urdu, although he could not exactly hear it from far and then gun shooting was started targeting the apprehended civilians and Quader Molla (accused) also had fired by the rifle in his hand and thus, in this way, they had killed 360/370 Bangalee civilians including 70/80 paddy harvesting laborers and his own uncle Nabiullah. The massacre continued till 11:00 am and the perpetrators also committed looting and burnt houses of civilians.

311. Defence, however, could not dislodge the fact of the incident of atrocious and planned mass killing in Alubdi village, in any manner.

From cross-examination of P.W.6 it has been revealed that since 24 April 1971, the date of the incident of mass killing, they had been in the locality of Savar, leaving their own village Alubdi. This fact is a corroborative indication to the commission of the horrific massacre.

Because, they would not have preferred their shelter elsewhere leaving their own place if actually no such horrific incident would not happen. We do not find any reason that the P.W.6 has testified falsely as to witnessing the incident and presence of the accused Abdul Quader Mollah with the Pakistani army with a rifle in his hand at the crime site.

312. Now the question may validly come forward as to how the P.W.6 could recognize the accused at the crime site? Had he any opportunity to know the accused from earlier?

P.W.6 blatantly denied the suggestion put to him by the defence that he did not know the accused Quader Mollah in 1970-71. Rather, P.W.6 stated that he was associated with the ‘Chatra League’ (student wing of Awami League) and during 1970 election he had participated in the campaign in favour of the Awami league candidate Advocate Zahir Uddin(Mirpur constituency) while accused

71

Abdul Qauder Molla, the then leader of Islami Chatra Sangha (ICS) and the Biharis were engaged in campaign in support of the candidate having symbol of ‘dari palla’.

313. Thus we see that the P.W.6 was actively associated with the student wing of the Awami League, a pro-liberation political party, while accused Abdul Quader Molla had worked actively for the opponent in 1970 general election in favour of the Jamat-E-Islami candidate, in the locality of Mirpur. It has been corroborated by P.W.2 Syed Shahidul Huq Mama. Admittedly, in 1971 the Alubdi village was under Mirpur Police Station and we have found from evidence of P.W.5 Khandoker Abul Ahsan that the accused Abdul Quader Molla was also a resident of this locality (Duaripara, Mirpur). Therefore, we may legitimately presume that the P.W.6 had enough reason and occasion to know the accused Quader Molla since prior to the incident of Alubdi and thus he could recognize him even at the crime site accompanying the Pakistani army to the accomplishment of the crimes alleged.

314. Another live witness P.W.9 Amir Hossain Molla testified that Abdul Quader Molla had directly participated in the killing of around 400 people at Alubdi of Pallabi in Dhaka on April 24, 1971during the Liberation War. It is seen that the above version of P.W.9 has been corroborated by P.W.5 Shafiuddin Molla, another live witness of the incident who has also stated that Abdul Quader Molla directly took part in the killing of 360-370 Bangalees in Alubdi.

315. Freedom fighter P.W.9 Amir Hossain Molla, (66), used to reside at Duaripara the neighboring locality of Alubdi, at the relevant time. P.W.9 stated that Abdul Quader Molla along with 70-80 members of Islami Chatra Sangha, the then student wing of Jamat E

72

The Chief Prosecutor Vs. Abdul Quader Molla

Islami, had trained non-Bangalee Biharis to “protect Pakistan” ahead of the Liberation War. This unshaken piece of evidence sufficiently indicates that P.W.9 knew the accused Abdul Quader Molla even since prior to the event alleged.

316. In narrating the horrific event, P.W.9 stated that around the time of Fajr prayers on April 24, 1971, a helicopter landed on the bank of the Turag river on the west side of his village. From the east, 100-150 Biharis and Bangalees led by Abdul Quader Molla entered the village and opened fire indiscriminately causing killing of many people. Thereafter, they picked 64-65 villagers from their homes and lined them up in the north side of the village and 300-350 people who had come to the village for harvesting paddy were also lined up on the same place and then they opened fire on them.

317. P.W. 9 further stated he saw Abdul Quader Molla standing there (crime site) having rifle in his hand and there was also a rifle in Aktar Goonda's (Quader's associate) hand. They along with Panjabi people (Pakistan army) opened fire, said the P.W.9, adding, approximately 400 people were killed there. On cross-examination P.W.9 stated that he knew Aktar goonda who was sent to jail after 31 January 1972. He lost his 21 relatives who were killed during the event. P.W.9 has re-affirmed, in his cross-examination that he and his father witnessed the event remaining in hiding at the west-north side of the village Alubdi.

Evaluation of Evidence and Finding 318. Mr. Abdus Sobhan Tarafder , an associate of Mr. Abdur Razzak, the learned senior counsel for the defence argued that P.W.6 and P.W.9 had not been at the crime village at the

2 LNJ (2013)

relevant time and as such they had no opportunity to see the event. Their version as to seeing the accused accompanying the gang of perpetrators is not believable as they made inconsistent statement. P.W.6 just in the early morning when the attack was launched was sent to Birulia village, Savar by his uncle Nabiulla, as stated by D.W.5 Altab Uddin Molla, the younger brother of P.W.6. P.W.9 is not a credible witness as he is closely affiliated to the party in power and had faced numerous civil and criminal cases.

319. Conversely, the learned prosecutor argued that both the witnesses are live witnesses and they have made corroborating testimony as to the commission of event and involvement of accused thereto. Mere discrepancies cannot ipso facto make the sworn testimony untrue in its entirety. Involvement with civil and criminal case does not indicate one’s ill character and merely for this reason his sworn testimony cannot go on air. Besides, defence has made a futile attempt to exclude the culpability of accused with the commission of the event of massacre by examining the younger brother of P.W.6-- Altab Uddin Molla (D.W.5) who was merely a boy of 7 years and he had not been at the crime village at the relevant time.

320. The incident took place only about one month after the ‘crack down’ in the night of 25 march 1971 and thus the Pakistani troops who were here coming thousand of miles far from Pakistan naturally did not have any idea and knowledge about the location of any particular place and when, how and which group of population would be targeted of their attack, in execution of the policy and plan of the Pakistani government and armed forces.

Logically only the local pro-Pakistani people, at that time, were considered as right persons to

2 LNJ (2013)

The Chief Prosecutor Vs. Abdul Quader Molla

assist, guide and to collaborate them to implement the operation by committing atrocity. We may take this fact of common knowledge, considering the context of war of liberation 1971 into notice.

321. It is thus validly inferred that the Pakistani troops had to take effective assistance and collaboration of the local people who were perfectly pro-Pakistani and affiliated with the politics of Jamat E Islami. Admittedly, accused Abdul Quader Molla was a leader of Islami Chatra Sangha, the student wing of the JEI. It has been established even from the Exhibit-2 and 4, the two books one of which (Exhibit-4: Jibone Ja Dekhlam) is written by Ghulam Azam who contested 1970 election from Mirpur locality as a candidate of JEI. 322. Context, activities and political affiliation of the accused, just prior to 1971 war of liberation, as has already been discussed reasonably and unambiguously inspire us to believe the testimony of P.W.6 in respect of presence of the accused at the crime site of Alubdi and the fact that he himself also fired from the rifle in his hand while principally the Pakistani army perpetrated the mass killing of civilians.

323. It is to be noted that defence adduced and examined Altab Uddin Molla, the younger brother of P.W.6 as D.W.5. As it appears, D.W.5 has testified mainly to exclude complicity of the accused with event of massacre (as listed in charge no.5). At the relevant time he was only about 7 years old. He does not dispute the commission of the massacre. Although the burden squarely lies upon the prosecution to prove involvement or complicity of the accused with the crime committed we consider it relevant to have look

73

to what has been testified by the D.W.5 to determine the weight of testimony of P.W.6.

324. D.W.5 Altab Uddin Molla has corroborated that his family members took refuge to village Birulia under Savar police station after the gang of 4/5 thousand Bihari lead by the Pakistani army along with Aktar Goonda, Doma, Gul Mohammad had attacked their village Alubdi in the night of 25 March.

D.W.5 also stated that his brother Shafiuddin Molla (P.W.6) had been at village Alubdi at the time of the event and in the morning of 24 April when the Pakistani army’s helicopter had landed at their village his uncle Nabiullah Molla had sent him (P.W.6) to Birulia, Savar.

How D.W.5 became aware of this fact? It remains unexplained.

325. The Tribunal notes it with surprise that how D.W.5 came to know that his uncle Nabiullah had sent his brother Shafiuddin Molla to Birulia, Savar, particularly when it is admitted that Nabiullah Molla was also killed in conjunction of the massacre? D.W.5 remained silent in this regard. Admittedly D.W.5 since prior to the alleged event had been at village Birulia, Savar with his family. If it is so, he is not a competent person to say whether accused Abdul Qauder Molla accompanied the perpetrators at the crime site.

326. It appears too that D.W.5 has stated that accused Abdul Qauder Molla was not at the crime site and he did not see him there. D.W.5 in next breath stated that he had not heard the name of Abdul Qauder Molla prior to initiation of this case. If it so, he is not at all able to say whether accused Abdul Quader Molla accompanied the perpetrators to the crime site and the version that he did not see the accused at the crime site is patently an untrue version

74

The Chief Prosecutor Vs. Abdul Quader Molla

aiming to exclude involvement of the accused with the commission of massacre alleged.

327. Drawing attention to the testimony defence suggested to P.W.9 that he did not state to IO that Abdul Quader Molla had accompanied the perpetrators having rifle in hand and participated the commission of mass killing of 400 civilians by gun firing. P.W.9 denied it. The Investigation officer P.W.12 stated that this witness stated to him that “140150 persons including Asim, Aktar goonda, Newaj, Latif, Doma led by accused Abdul Quader Molla encircled the village Alubdi approaching from the east part of village.”

Besides, the Tribunal notes that minor discrepancies, if any, could be due to the fallibility of perception and memory and the operation of the passage of time and it does not corrode the credibility of testimony made here before the Tribunal. Hence it would be wrong and unjust to treat forgetfulness as being synonymous with giving false testimony.

328. We are not agreed with what has been submitted by the learned defence counsel in respect of credibility of P.W.9 on ground of his ‘character’. Merely involving in civil litigations and involving with a criminal prosecution cannot brand one’s character questionable and makes him incompetent to testify in a court of law. Chiefly we are to see whether and to what extent it affects the truthfulness of that witness’s testimony. Even we are not required to reject the testimony of a witness who has been convicted of a crime or has engaged in criminal conduct. We may however consider whether a witness's criminal conviction or conduct has affected the truthfulness of the witness’s testimony. But the defence could not satisfy as to how such conduct has affected the testimony P.W.9 has made before the Tribunal.

2 LNJ (2013)

329. There is no reasonable ground that could prompt us to hold that P.W.9 is an interested witness or is not credible as well. It is thus proved beyond reasonable doubt that the accused was present at the crime site, assisted the Pakistani troops and thereby participated, aided and substantially provided moral support to the commission of horrific mass killing of unarmed civilians of village Alubdi. Even we accept the only fact that the accused was merely present at the crime site to be true, he incurs criminal liability for encouraging and providing moral support to the commission of the crime.

330. Keeping the context of ‘operation search light’ in the night of 25 March 1971 followed by the war of Liberation and the fact of overall atrocious activities of the accused in the locality and also in 1970 general election in mind, a person of normal prudence would not hesitate to infer that the presence of accused with the Pakistani troops having rifle in hand, at the crime site, itself establishes his potential anti-liberation position in Mirpur locality and it conveys approval for those crimes which amounts to aiding and abetting .

331. Thus, his physical presence having rifle in hand is adequate indicia that he aided and assisted the Pakistani troops, the main perpetrators, to the commission of the crime at Alubdi village nearby Mirpur causing mass killing of unarmed civilians, as part of systematic attack. In the case of Furundziia, the ICTY held that“mere presence or inaction may be sufficient to constitute the actus reus of aiding and abetting'. Therefore, at a minimum, there must be some connection between the accused's presence or inaction and the commis-

2 LNJ (2013)

The Chief Prosecutor Vs. Abdul Quader Molla

sion of the offence [Synagogue case, cited in Furundzija, note 55, para.

20S.]” 332. On final evaluation of evidence and relevant facts and circumstances, we are convinced to arrive at decision that the prosecution has been able to prove it beyond reasonable doubt by lawful and credible evidence of live witnesses that the accused knowing the intent of the main perpetrators accompanied the gang and remained physically present at the crime site having rifle in hand.

Prosecution has been able to show that the accused Abdul Quader Molla, his Bihari accomplices and the Pakistani army, acting pursuant to a common design possessed the same criminal intention in accomplishment of the massacre.

333. It is validly inferred that the accused Abdul Quader Molla with full ‘awareness’ of the consequence of the attack accompanied the principals with intent to assist and encourage the execution of the ‘operation’. Such acts forming attack are sufficient to characterize the outcome of the attack causing mass killing of unarmed civilians as crimes against humanity.

334. Section 4(1) of the Act of 1973 contains provision as to liability of crimes. It reads as below: “When any crime as specified in section 3 is committed by several persons, each of such person is liable for that crime in the same manner as if it were done by him alone”.

335. It has been proved that the horrific event of mass killing of 300-350 unarmed civilians of Alubdi village was perpetrated by a gang of local Bihari hooligans and their accomplice accused Abdul Quader Molla and Pakistani

75

army. Accused Abdul Quader Molla physically accompanied the gang to the crime site having rifle in hand and therefore he is liable for the atrocious event of massacre in the same manner as if it was done by him alone.

Therefore, accused Abdul Quader Molla incurs criminal liability under section 4(1) of the Act of 1973 for the offence of mass killing as crimes against humanity as specified in section 3(2)(a) of the Act of 1973 which are punishable under section 20(2) read with section 3(1) of the said Act. Adjudication of Charge No.06 [Killing of Hazrat Ali and his family and Rape] 336. Summary Charge No.06: During the period of War of Liberation , on 26.3.1971 at about 06:00 pm the accused Abdul Quader Molla one of leaders of Islami Chatra Sangha and as well as prominent member of Al-Badar or member of group of individuals being accompanied by some biharis and Pakistani army went to the house of Hajrat Ali at 21, Kalapani Lane No. 5 at Mirpur Section-12 and entering inside the house forcibly, with intent to kill Bangalee civilians, his accomplices under his leadership and on his order killed Hazrat Ali by gun fire, his wife Amina was gunned down and then slaughtered to death, their two minor daughters named Khatija and Tahmina were also slaughtered to death, their son Babu aged 02 years was also killed by dashing him to the ground violently. During the same transaction of the attack 12 accomplices of the accused committed gang rape upon a minor Amela aged 11 years but another minor daughter Momena who remained into hiding, on seeing the atrocious acts, eventually escaped herself from the clutches of the perpetrators.

By such acts and conduct the accused had actively participated, facilitated, aided and

76

The Chief Prosecutor Vs. Abdul Quader Molla

substantially contributed to the attack directed upon the unarmed civilians, causing commission of the horrific murders and rape by launching planned attack directing the noncombatant civilians and thereby committed the offence of ‘murder’ as ‘crime against humanity', ‘rape’ as ‘crime against humanity’, 'aiding and abetting the commission of such crimes' or in the alternative the offence of 'complicity in committing such offences' as mentioned in section 3(2)(a)(g)(h) of the International Crimes(Tribunals) Act,1973 which are punishable under section 20(2) read with section 3(1) of the Act. Witness 337. Prosecution adduced and examined only one witness in support of this charge. It examined Momena Begum as P.W.3. She is the only survived member of victim family and daughter of Hazrat Ali. She witnessed the horrendous event of killing and rape. The event happened inside their house and thus naturally none else had occasion to see the event committed. P.W.3 Momena Begum testified in camera as permitted by the Tribunal. She made heartrending narration of the atrocious event that she witnessed with choked voice. At the relevant time she was 13 years old and newly wedded.

Discussion of Evidence 338. P.W.3 Momena Begum has testified that she is the only survived member of their family. The event took place on 26th March 1971. According to P.W.3 at the relevant time they had been living in the house no. 21 of no.

5 Kalapani lane of Mirpur 12. It remains unshaken and undisputed too.

339. P.W.3 while narrating the incident on witness box stated that on 26th March 1971 just

2 LNJ (2013)

immediate before the dusk her father hastily came back to home and was telling frightened that Qauder Molla would kill him. Aktar goonda and his Bihari accomplices and Pakistani army were chasing her father to kill him. Her father entering inside house closed the door and at that time her parents and brothers and sisters were inside the room. On being asked by her father she and her sister Amena kept themselves in hiding under the cot.

She heard that Quader Molla and biharis coming in front of the door started telling- “son of a bitch, open the door, otherwise we will throw bomb”. They threw a bomb as her father did not open the door and thereafter, her mother having a ‘dao’ in hand opened the door and instantly they gunned down her mother.

Her father attempted to hold her mother and then accused Quader Molla holding collar of wearing shirt of her father was telling- “ son of a pig, would you not do now Awami league?

Would you not follow Bangabandhu? Would you not utter the slogan ‘Joy Bangla’?” Then her father folded hands begged Quader Molla and Aktar goonda to spare him. But the accused Abdul Quader Molla dragged her father outside the room. His accomplices slaughtered her mother with a ‘dao’, also slaughtered her sisters Khodeja and Taslima with a ‘chapati’ (at this stage, P.W.3 on dock started crying shedding tears).

340. P.W.3 further stated, by memorizing the horrendous event that her two years old brother Babu started crying but he was also killed by dashing him to the ground violently. On hearing cry of Babu, her sister Amena started howling and then they dragged Amena from under the cot and tortured her by ragging her wearing clothes. Amena had raised cry to save her and at a stage her cry came to an end.

Thereafter, they also had dragged her out from under the cot by causing injury with some

2 LNJ (2013)

The Chief Prosecutor Vs. Abdul Quader Molla

sharpen object and then she raised cry and lost her sense. When she regained her sense she felt severe pain at abdomen and she could not walk and found her wearing pant in ragged condition. She somehow, there from, came to one house at ‘Fakirbari’ where its inmates found her in bleeding condition wearing ragged pant and then they made arrangement of her treatment by calling a doctor on the following day and then on being informed by them her father-in-law came there and brought her to his house where she was given necessary treatment.

341. P.W.3 further stated that in 1971 she could not forget the scene of killing of her parents, brother and sisters which she herself witnessed and being traumatized she was almost mentally imbalanced and now she is in fact dead although still alive. At the time of identifying the accused on dock P.W.3 carrying immense heartache stated that she wanted to ask the accused—‘where is my father’?

342. The above narration as to the commission of horrific event could not be dislodged by the defence in any manner. Rather, P.W.3, on cross-examination has re-affirmed that at the time of event they all were inside one room of their house. She could not see who killed her father but she, remaining in hiding under a cot, saw Quader Molla dragging her father out.

343. P.W.3 , in cross-examination, in reply to question elicited to her by defence stated that the Bangalee person accompanying the Biharis and Pakistani army who was speaking in Bangla and dragged her father out holding his shirt’s collar was Quader Molla and she saw it remaining in hiding under the cot. Thus, the presence of accused Abdul Qauder Molla at the crime site has been re-affirmed by P.W.3.

344. On cross-examination, P.W.3 has reaffirmed the horrific incident of killing and torture.

77

She stated that her mother was slaughtered inside the room when her father was forcibly dragged out and she did not see her father’s killing. Thereafter, Biharis slaughtered her sisters Khodeja and Taslima inside the room.

The Pakistani army and Biharis killed her brother by dashing him to the ground violently.

They dragged out her sister Amena and caused successive torture.

345. As regards father’s killing P.W.3 stated in cross-examination that after independence Akkas member informed her that Quader Molla had killed her father. She also stated that gang of 10-12 persons attacked their house and of them only one person wearing Pajama-Panjabi who was speaking in Bangla was Quader Molla.

Evaluation of Evidence and Finding 346. Defence does not deny an orgy of atrocities that took place on the date time and in the manner. But it refutes the charge that the accused was at the very centre of the web of these crimes as have been brought in charge number 6. It has been argued by the learned defence counsel that P.W.3 Momena Begum is not the daughter of victim Hazrat Ali Laskar.

Prosecution has failed to bring any corroborative evidence to substantiate the charge. There has been no evidence to show that accused Abdul Quader Molla has overt act to the commission of alleged crimes.

347. First, the argument that P.W.3 Momena Begum is not a daughter of victim Hazrat Ali Laskar is deprecated one. Without any evidence or putting suggestion to P.W.3 on the basis of any tangible evidence no such argument stands lawful and correct. Besides, on crossexamination, in reply to question put to her, P.W.3 stated that her father was running a tailoring shop at Mirpur 01 in front of Majar

78

The Chief Prosecutor Vs. Abdul Quader Molla

and she also used to work there prior to her marriage.

348. It appears that the charge does not allege that the accused himself personally committed the crime of murder of inmates of P.W.3. But ‘murder’ as a crime against humanity does not require the prosecution to establish that the accused personally committed the killing. The crimes alleged are not isolated crimes. We are not agreed with the argument advanced by the learned defence counsel Mr. Abdus Sobhan Tarafder that the accused cannot be held responsible for the offence of murder as listed in charge no.6 as the prosecution has failed to establish the overt act of the accused. The case in hand involves the offences enumerated in the Act of 1973 which are also considered as system crimes committed in violation of customary international law. Overt act of accused Abdul Quader Molla is immaterial as he has not been charged for committing any isolated crime. He is alleged to have accompanied the gang of perpetrators to the crime site. Jurisprudence evolved suggests that even a single act on part of accused may lawfully be characterized as the offence of crimes against humanity.

2 LNJ (2013)

killing her parents, sisters and minor brother committed at their own house. Miraculously she escaped. She is a traumatized witness and a survived victim. At the time of incident she was a girl of 13 years of age. One can say that how she can memorize the incident long 41 years after the incident took place? It is true that with the passage of time human memory becomes faded. But it is also the reality that human memory is quite capable of reserving some significant moment or incident in the hard disc of his or her memory which is considered as long term memory (LTM) and it is never erased from human memory.

351. We have found that the following version of P.W.3 remains unshaken: “the accused Quader Molla holding collar of wearing shirt of her father was telling- “son of a pig, would you do now Awami league? Would you not follow Bangabandhu? Would you not utter the slogan ‘Joi Bangla’?” Then her father folded hands begged Quader Molla and Aktar goonda (terrorist) to leave him. But the accused Abdul Quader Molla dragged her father outside the room and since then he could not be traced. His accomplices slaughtered her mother with a ‘dao’; slaughtered her sisters Khodeja and Taslima with a ‘chapati’.”

349. In the case in hand, we are just to adjudicate how the accused incurs responsibility for the accomplishment of the crime. What of his conducts or acts has made him responsible? It is to be noted that even a single or limited number of acts on the accused’s part would qualify an offence as crime against humanity. In addition, in certain circumstances, a single act of the accused has comprised a crime against humanity when it occurred within the necessary context.

352. It is need less to say that the horrific event that the P.W.3 herself experienced is inevitably still retained in her memory. There has been no earthly reason to disbelieve this witness.

Rather, she seems to be a natural live witness who sustained severe mental trauma experiencing the horrific killing of her parents, sisters and minor brother in front of herself.

350. It has been proved beyond reasonable doubt that P.W.3 had witnessed the incident of

353. We do not find any reason to view that P.W.3 had no reason or scope to know the

2 LNJ (2013)

The Chief Prosecutor Vs. Abdul Quader Molla

accused Quader Molla, particularly when statement of P.W.3 demonstrates that according to her father, Abdul Quader Molla was chasing him and her father begged life from Abdul Quader Molla and Aktar goonda. It is found that on the following day of ‘crack down’ in Dhaka the incident of brutal killing of parents and other inmates of P.W.3 Momena took place, in violation of customary international law.

354. Already it has been found that the crimes for which the accused has been charged were not isolated in pattern and the same were the outcome of organized and systematic attack directed against the civilian population. Now, let us find what were the conducts on part of the accused prior to the commission of the crime and whether he accompanied the principal perpetrators who were local notorious Bihari and hooligans.

355. The incident of killing of parents, two sisters and one minor brother on the day time and in the manner remains unshaken. It is a fact of common knowledge that Mirpur is a locality of the then Dhaka city having mostly bihari population and accused Abdul Quader Molla used to maintain close and culpable affiliation with the local bihari goonda and pro-Pakistani people and already we have found from evidence of P.W.2 that Abdul Quader Molla was closely associated with the Jamat E Islami (JEI) politics and was a potential leader of ICS. Admittedly, at the relevant time he was a leader of ICS of Shahidullah Hall, Dhaka University.

356. Evidence of P.W.3 amply demonstrates that Abdul Quader Molla by accompanying the gang consisting of Biharis, local Aktar goonda and Pakistani army to the crime site, in other words, substantially facilitated and aided the

79

commission of the horrendous killings. Why the accused, being a Bangalee civilian accompanied the local Bihari hooligans? Why he used to maintain culpable association with them even since prior to 25 march 1971?

357. It is to be noted that now it is settled that even mere presence at the scene of the crime may, under certain circumstances, be sufficient to qualify as complicity. From the evidence of P.W. 3, a live witness, it is found that the accused by his presence in the crime site and by his culpable acts substantially encouraged and facilitated the main perpetrators in committing the crime and also he shared the intent similar to that of the main perpetrators and thus obviously he knew the consequence of his acts which provided moral support and assistance to the principal perpetrators.

Therefore, the accused cannot be relieved from criminal responsibility. In the case of Prosecutor Vs. Charles Ghankay Taylor : Trial Chamber II SCSL: Judgment 26 April 2012 Paragraph 166 it has been observed that“The essential mental element required for aiding and abetting is that the accused knew that his acts would assist the commission of the crime by the perpetrator or that he was aware of the substantial likelihood that his acts would assist the commission of a crime by the perpetrator. In cases of specific intent crimes, such as acts of terrorism, the accused must also be aware of the specific intent of the perpetrator.”

358. Acts and conduct of accused Abdul Quader Molla at the crime site adequately suggest inferring his intent and knowledge. It is proved that he at the launch of the event dragged Hazrat Ali Laskar out of his house and

80

The Chief Prosecutor Vs. Abdul Quader Molla

before it the gang gunned down his wife. It is patent that the accused was sufficiently aware of likelihood that his acts would assist the principals in committing crimes. Thus, the accused is found to have actively and substantially encouraged and abetted the gang of perpetrators in committing the crime of killing of family inmates of Hazrat Ali Laskar.

359. The Tribunal notes that accused Abdul Quader Molla had physically participated in the attack targeting the father and family members of the P.W.3 as her father belonged to Awami League politics and was a pro-liberation civilian. Testimony of P.W3 demonstrates evidently that the accused, by his acts of ‘accompanying’ the gang of Bihari and local Aktar goonda and also by an act of forcibly dragging Hazrat Ali Laskar out of house, Abdul Quader Molla’s presence in the crime site made him criminally linked with the commission of the offence of killing of Bangalee civilians. Thus, it is lawfully presumed that the accused had actus reus in providing moral support and aid to the commission of offence. The actus reus of abetting requires assistance, encouragement or moral support which has a substantial effect on the perpetration of the crimes.

360. Now the question has been raised by the defence that the principal offenders have not been identified and brought to the process of justice and thus the accused cannot be held responsible as aider and abettor. It has been held by the Appeal Chamber of ICTY, in the case of Kristic that – “A defendant may be convicted for having aided and abetted a crime which requires specific intent even where the principal perpetrators have not been tried or identified ( April 19, 2004 para 143 of the judgement) .”

2 LNJ (2013)

361. No person of normal human prudence will come to a conclusion that at the time of incident of part of systematic attack, the accused who accompanied the principal perpetrators had a different or innocent intent.

Rather, the evidence of P.W.3 demonstrates that the accused and the principals made the attack with common intent to accomplish their explicit and similar intent of killing.

362. Mr. Abdur Razzak the learned senior counsel for defence argued by citing the decision of Appeal Chamber: ICTR in the case of Sylvetre Gacumbitsh [Case No. ICTR-200164-A] that according to causation standard for aiding and abetting that the acts must have a ‘substantial effect’ on the commission of the crime. The learned counsel also drew attention to the following paragraph [Page-199-Para 688 of Prosecutor v. DU[KO TADI] ICTY Trial Chamber: Case No. IT-94-I-]: “The ILC Draft Code draws on these cases from the Nuremberg war crimes trials and other customary law, and concludes that an accused may be found culpable if it is proved that he “intentionally commits such a crime” or, inter alia, if he knowingly aids, abets or otherwise assists, directly and substantially, in the commission of such a crime. “ 363. Presence of an accused alone in the crime site may not always be sufficient to infer his contribution and assistance of the accused in the commission of crime committed by the principals. But we have found too in the case of Prosecutor v. Tadic [ICTY Trial Chamber: Case No. IT-94-I-T] wherein it has been observed as below: “………….However, if the presence can be shown or inferred, by

2 LNJ (2013)

The Chief Prosecutor Vs. Abdul Quader Molla

circumstantial or other evidence, to be knowing and to have a direct and substantial effect on the commission of the illegal act, then it is sufficient on which to base a finding of participation and assign the criminal culpability that accompanies it .”

364. In the case in hand, evidence of P,W.3 inescapably shows that the accused actively and knowing the consequence of his acts accompanied the gang of perpetrators to the crime site and by his illegal act of forcibly dragging Hazrat Ali Laskar out of house he substantially facilitated the commission of crimes committed by the principals. Therefore it cannot be said at all that the accused’s presence at the crime site and accompanying the principals were devoid of guilty intent.

365. Accompanying the perpetrators while attacking the inmates of the P.W.3 is a significant indicia that the accused provided substantial assistance and moral support for accomplishment of the crime, although his acts had not actually caused the commission of the crime of killing in the crime site. In this regard, we may rely upon the decision of the Trial Chamber of ICTR in the case of Kamubanda [ January 22, 2004, para 597] which runs as below: “Such acts of assistance……. Need not have actually caused the commission of the crime by the actual perpetrator, but must have had a substantial effect on the commission of the crime by the actual perpetrator”.

366. Thus, we find that the accused Abdul Quader Molla physically and having ‘awareness’ as to his acts participated and substantially abetted and encouraged to the

81

commission of the crime. The manner time and pattern of conduct of the accused Abdul Quader Molla at the crime site and also prior to the commission of the crime is the best indication of his conscious option to commit a crime. Intent, coupled with affirmative action, is evidence of the highest degree of imputative responsibility. Acts on part of the accused at the crime site are thus qualified as crimes against humanity as the same formed part of attack directing the unarmed civilian population. His acts were of course culpable in nature which contributed to the commission of murder of Hazrat Ali Laskar and also to the commission of murder and rape committed in conjunction of the event at the crime site.

367. The testimony of a single witness on a material fact does not, as a matter of law, require corroboration. In such situations, the Tribunal has carefully scrutinized the evidence of P.W.3 the live witness before relying upon it to a decisive extent. Since the horrific event was committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passerby will be witnesses. P.W.3 is the only survived member of victim family and thus her evidence cannot be brushed aside or viewed with suspicion. Besides, it is to be noted that the testimony of a single witness on a material fact does not, as a matter of law, require corroboration. The established jurisprudence is clear that corroboration is not a legal requirement for a finding to be made. “Corroboration of evidence is not necessarily required and a Chamber may rely on a single witness’ testimony as proof of a material fact. As such, a sole witness’ testimony could suffice to justify a conviction if the Chamber is convinced beyond all reasonable doubt.” [ Nchamihigo, (ICTR Trial Chamber), November 12, 2008, para. 14].

82

The Chief Prosecutor Vs. Abdul Quader Molla

368. Indeed, within a single attack, there may exist a combination of the enumerated crimes, for example murder, rape etc. In view of discussion as made above and taking the settled jurisprudence into account eventually we are persuaded that the acts of accused Abdul Quader Molla , as has been testified by the P.W.3, in the course of implementation of the actual crime of killings and rape, render him criminally responsible for the commission of the crime that has been established to have taken place as a part of systematic attack and as such the accused Abdul Quader Molla is found to have incurred criminal liability under section 4(1) of the Act for the offence as mentioned in section 3(2)(a) of the Act of 1973 which are punishable under section 20(2) read with section 3(1) of the said Act. XX. Contextual requirement to qualify the offences proved as crimes against humanity 369. Defence argued that crimes as narrated in charge 1 and 3 were isolated in nature apart from the fact that accused had no involvement with the commission of any of alleged crimes, in any manner.

370. From the segment of our discussion on adjudication of charges we have found the events of atrocities constituting crimes against humanity were perpetrated directing the unarmed civilians belonging to pro-liberation ideology. The offences narrated in charge nos.

1,2,3,5 and 6 took place between 26th March 1971 to 24th April 1971 i.e within the period of one month of ‘operation search light’ on 25 March 1971. Only the event narrated in charge no.4 allegedly took place on 25.11.1971.

371. Admittedly. Accused was the President of Islami Chatra Sangha (ICS), Shahidullah Hall Unit, University of Dhaka, at the relevant

2 LNJ (2013)

time.We have also found from the Exhibit-2 a book titled ‘Sunset at Midday’ written by Mohi Uddin Chowdhury , a leader of Peace committee , Noakhali district in 1971 who left Bangladesh for Pakistan in May 1972 [(Publisher’s note): Qirtas Publications, 1998, Karachi, Pakistan] , wherein the paragraph two at page 97 speaks that “To face the situation Razakar Force, consisting of Pro-Pakistani elements was formed. This was the first experiment in East Pakistan, which was a successful experiment. Following this strategy Razakar Force was being organized through-hout East Pakistan. This force was, later on Named Al-Badr and Al-Shams and Al-Mujahid. The workers belonging to purely Islami Chatra Sangha were called Al-Badar, the general patriotic public belonging to Jamaat-e-Islami, Muslim League, Nizam-e-Islami etc were called Al-Shams and the Urduspeaking generally known as Bihari were called al-Mujahid.”

372. But in absence of any other evidence it would be rather confusing to infer that the accused acted during the period of 26th March 1971 to 24th April 1971 as a member of AlBadar to the commission of offences narrated in charge nos. 1,2,3,5 and 6. Rather, it is found that the accused acted and participated by accompanying the principals as an ‘individual’ and a member of ‘group of individuals’ to the actual commission of crimes alleged.

373. However, We have also found it proved from evidence as discussed above that the accused Abdul Quader Molla physically accompanied the principals and acted with knowledge and common intent or had

2 LNJ (2013)

The Chief Prosecutor Vs. Abdul Quader Molla

complicity to the commission of those atrocities and he (accused) committed criminal acts in the capacity of a member of ‘group of individuals’ (relating to charge nos. 1,2,3, and 6) and in the capacity of an ‘armed member’ of ‘group of individuals’ (relating to charge no.5) Under what context the accused committed such acts forming part of attack directed against civilian population? We need to have look to the contextual backdrop of perpetration of such crimes in furtherance of ‘operation search light ‘on 25 March 1971.

374. It is essential to be established that the crimes for which the accused has been found criminally liable and guilty, as discussed above, were not isolated in nature and the same were committed under a different context and pattern in implementation of organizational policy and plan, although policy or plan are not considered as elements of the offence of crime against humanity which has already been discussed and resolved in the preceding paragraphs.

375. Thus, crime must not, however, be an isolated act. A crime would be regarded as an “isolated act” when it is so far removed from that attack. The expression ‘directed against civilian population’ is an expression which specifies that in the context of a crime against humanity the civilian population is the primary object of the attack.

376. In determining the fact as to whether the atrocious acts which are already proved to have been committed were directed against Bengali civilian population constituting the crimes against humanity in 1971 during the War of Liberation, it is to be considered that the criminal acts committed in violation of customary international law constituting the offences enumerated in section 3(2)(a) of the

83

Act of 1973 were connected to some policy of the government or an organization. It is to be noted too that such policy and plan are not the required elements to constitute the offence of crimes against humanity. These may be taken into consideration as factors for the purpose of deciding the context upon which the offences were committed.

377. As regards elements to qualify the ‘attack’ as a ‘systematic character’ the Trial Chamber of ICTY in the case of Blaskic [(Trial Chamber) , March 3, 2000, para 203] has observed as below: “The systematic character refers to four elements which………may be expressed as follows: [1] the existence of a political objective, a plan pursuant to which the attack is perpetrated or an ideology, in the broad sense of the word, that is, to destroy, persecute or weaken a community; [2] the perpetration of a criminal act on a very large scale against a group of civilians or the repeated and continuous commission of inhuman acts linked to one another; [3] the perpetration and use of significant public or private resources, whether military or other; [4] the implementation of high-level political and/or military authorities in the definition and establishment of the methodical plan’” Context prevailing in 1971 in the territory of Bangladesh 378. It is indeed a history now that the Pakistani army with the aid of its auxiliary forces, pro-Pakistan political organizations implemented the commission of atrocities in 1971 in the territory of Bangladesh in furtherance of following policies:

84

The Chief Prosecutor Vs. Abdul Quader Molla

•

Policy was to target the selfdetermined Bangladeshi civilian population

•

High level political or military authorities, resources military or other were involved to implement the policy

•

Auxiliary forces were established in aiding the implementation of the policy

•

The regular and continuous horrific pattern of atrocities perpetrated against the targeted non combatant civilian population.

379. The above facts in relation to policies are not only widely known but also beyond reasonable dispute. The context itself reflected from above policies is sufficient to prove that the offences of crimes against humanity as specified in section 3(2)(a) of the Act of 1973 were the inevitable effect of part of systematic attack directed against civilian population. This view finds support from the observation made by the Trial Chamber of ICTY in the case of Blaskic as mentioned above.

380. It is quite coherent from the facts of common knowledge involving the backdrop of our war of liberation for the cause of self determination that the Pakistani armed force, in execution of government’s plan and policy in collaboration with the local anti liberation section belonging to JEI and its student wing ICS, Muslim League and other pro-Pakistan political parties namely Pakistan Democratic Party(PDP), Nejam E Islami etc. and auxiliary forces, had to deploy public and private resources. The target of such policy and plan was the unarmed civilian Bangalee population,

2 LNJ (2013)

pro-liberation people, and Hindu community and pursuant to such plan and policy, atrocities were committed to them as a ‘part of a regular pattern basis’ through out the long nine months of war of liberation. It may be legitimately inferred from the phrase “committed against any civilian population” as contained in the Act of 1973 that the acts of the accused comprise part of a pattern of ‘systematic’ crimes directed against civilian population.

381. The basis for planning of the ‘operation search light’ master plan, which was carried out with brute force by Pakistan army to annihilate the Bengalis reads as below: OPERATION SEARCH LIGHT BASIS FOR PLANNING

1. A.L [Awami League action and reactions to be treated as rebellion and those who support or defy M.L[Martial Law] action be dealt with as hostile elements.

2. As A.L has widespread support even amongst the E.P [East Pakistan] elements in the Army the operation has to be launched with great cunningness, surprise, deception and speed combined with shock action.

[Source: ‘Songram Theke Swadhinata’: Published in December 2010’ Published By ; Ministry of Liberation War Affairs, Bangladesh; Page 182] 382. Anthony Mascarenhas in a report titled ‘Genocide’ published in The Sunday Times , June 13, 1971 found as below: “SO THE ARMY is not going to pull out.

The Government’s policy for East Bengal was spelled out to me in the Eastern

2 LNJ (2013)

The Chief Prosecutor Vs. Abdul Quader Molla

Command headquarters at Dacca. It has three elements:(1) The Bengalis have proved themselves “unreliable” and must be ruled by West Pakistanis; (2) The Bengalis will have to be reeducated along proper Islamic lines. The “Islamisation of the masses” – this is the official jargon – is intended to eliminate secessionist tendencies and provide a strong religious bond with West Pakistan; (3) When the Hindus have been eliminated by death and flight, their property will be used as a golden carrot to win over the under-privileged Muslim.”

[Source: http://www.docstrangelove.com/uploads/1 971/foreign/19710613_tst_genocide_center _page.pdf : See also: Bangladesh Documents, page 371: Ministry of External Affairs, New Delhi] 383. Therefore, the crimes for which the accused Abdul Quader Molla has been found guilty were not isolated crimes, rather these were part of organized and planned attack intended to commit the offence of crimes against humanity as enumerated in section 3(2) of the Act, in furtherance of policy and plan.

384. From the backdrop and context it is thus quite evident that the existence of factors, as discussed above, lends assurance that the atrocious criminal acts ‘directed against civilian population’ formed part of ‘systematic attack’. Section 3(2) (a) of the Act of 1973 enumerates which acts are categorized as the offence of crimes against humanity. Any of such acts is committed ‘against any civilian population’ shall fall within the offence of

85

crimes against humanity. The notion of ‘attack’ thus embodies the notion of acting purposefully to the detriment of the interest or well being of a civilian population and the ‘population’ need not be the entire population of a state, city, or town or village.

385. Thus, the phrase ‘acts committed against any civilian population’ as occurred in section 3(2)(a) clearly signifies that the acts forming attack must be directed against the target population to the accomplishment of the crimes against humanity and the accused need only know his acts are part thereof .

386. On the other hand, defence has not been able to establish even a hint that the murder was not a part of planned and systematic attack and the crimes for which the accused has been charged and found criminally liable were isolated crimes. Therefore, the facts and circumstances inevitably have proved the elements to constitute the offences of murder, rape, abduction, confinement and torture as crimes against humanity.

XXI. Some other issues agitated by the defence (i) Investigation procedure 387. On Investigation procedure, Mr. Abdus Sobhan Tarafder, the learned defence counsel, at the very outset, has submitted that the basis of institution of the case is not clear. The Act does not provide provision as to how a case is to be instituted under the Act. But the Rule 2(6) of the ROP defines; ‘complaint’ on the basis of which investigation is to be done. However the IO has not disclosed the basis of initiating investigation. The IO has considered the compliant petitions of two cases of Pallabi police station and Keraniganj police station.

There has been no provision of transferring

86

The Chief Prosecutor Vs. Abdul Quader Molla

these two cases to the ICT by the Magistrate Court. Thus investigation into information obtained from the said complaint petition under the Act done by the P.W.12 is not founded on any legal basis and as such it is flawed and thereby submission of report on conclusion of investigation becomes doubted and flawed too.

According to the IO the investigation was done by a ‘team’ which is not permitted by the Act and the ROP. 388. Under Rule 2(6) of the ROP a ‘compliant’ is defined as “any information oral or in writing obtained by the Investigation Agency including its own knowledge relating to the commission of a crime under section 3(2) of the Act”. That is to say, the Investigation Agency is authorized to initiate investigation predominantly on information it obtains. It might have obtained information even from the compliant petitions of Pallabi and Keraniganj police stations cases. But that does not mean that those compliant petitions were the sole basis of initiating investigation into the alleged criminal acts of the accused allegedly committed during the war of liberation in 1971.

For the reason of absence of any legal sanction of transferring those two cases to ICT the same, after receiving by the Registry, were in fact simply sent to the Investigation Agency of the ICT as the information relating to allegations brought therein falls within the jurisdiction of the Act of 1973, as observed by the Magistrate Court.

389. Rule 5 speaks of procedure of maintaining ‘complaint register’ and not the procedure of initiating investigation. Rather Section 8 and Rule 4 contemplate the procedure of holding investigation and it appears that the IO (P.W.12) accordingly has done the task of investigation. Investigating into the criminal acts allegedly committed by the accused was

2 LNJ (2013)

done not merely on the basis of above mentioned two compliant petitions lodged before the Magistrate Courts but also on the basis of necessary information which were required to be obtained and in doing so, working as ‘team’ does not appear to be materially fatal and has caused any prejudice to the accused. (ii) Application praying direction to Mirpur Zallad Khana for production of statement of four witnesses for showing inconsistencies with that made before the Tribunal (filed at the stage of summing up of case by the defence) 390. After conclusion of trial and at the stage of summing up case defence filed an application together with ‘photographed copy’ of some documents allegedly the statement of P.W.3 Momena Begum, P.W.4 Kazi Rosy , P.W.5 Khandoker Abu Taleb which are claimed to have obtained from the museum of Mirpur Jallad Khana praying direction to the museum authority for production of the originals archived therein for showing contradiction and inconsistencies between the earlier narration and the testimony made in court in relation to fact described in charges.

Admittedly, the same have been procured pursuant to a report published in a local daily ‘The Daily Naya Diganta’ on 13 December 2012.

391. The learned defence counsel has submitted that the above statement needs to be considered for assessing credibility of testimony of the P.W.s relating to the martial fact. Because narration made therein earlier is inconsistent with what has been testified before the Tribunal. The Tribunal is authorized to make comparison of sworn testimony of witnesses with their earlier statement and after

2 LNJ (2013)

The Chief Prosecutor Vs. Abdul Quader Molla

such comparison it would reveal that the witnesses have made untrue version relating to pertinent fact.

392. First, the ‘photographed copy’ of alleged statement submitted before this Tribunal is not authenticated. Defence failed to satisfy how it obtained the same and when. Second, ‘photographed copy of statement’ does not form part of documents submitted by the defence under section 9(5) of the Act and thus the same cannot be taken into account. Third, the alleged statements were not made under solemn declaration and were not taken in course of any judicial proceedings. In the circumstances, the value attached to the said statements is, in our view, considerably less than direct sworn testimony before the Tribunal, the truth of which has been subjected to the test of cross-examination. Without going through the test said statement cannot be taken into consideration for determining inconsistencies of statement of witnesses with their earlier statement.

393. We are to consider whether a witness testified to a fact here at trial that the witness omitted to state, at a prior time, when it would have been reasonable and logical for the witness to have stated the fact. In determining whether it would have been reasonable and logical for the witness to have stated the omitted fact, we may consider whether the witness's attention was called to the matter and whether the witness was specifically asked about it. The contents of a prior alleged inconsistent statement are not proof of what happened.

394. Besides, Inaccuracies or inconsistencies between the content of testimony made under solemn declaration to the Tribunal and their earlier statement made to any person, non-

87

judicial body or organisation alone is not a ground for believing that the witnesses have given false testimony. Additionally, false testimony requires the necessary mens rea and not a mere wrongful statement. We do not find any indication that the witnesses with mens rea have deposed before the Tribunal by making exaggeration.

395. For the reasons above, the Tribunal refrains from taking the account made to a nonjudicial body into consideration for the purpose of determining credibility of testimony of witnesses made before the tribunal.

XXII. Plea of Alibi 396. No specific defence case could be attributed from the trend of cross-examination of prosecution witnesses by the defence. Rather we have found that contradictory suggestions have been put to prosecution witnesses, in order to prove the plea of alibi. The evidence adduced at trial demonstrated that for the most part, the accused did not dispute the facts alleged. He disputes by examining himself as D.W.1 that (i) since mid-March 1971 to November-December 1972, he was not in the locality of Mirpur, Dhaka (ii) he used to stay in Shahidullah hall of the University of Dhaka and on 12 March 1971 leaving Dhaka he went to his native home at Amirabad in Faridpur where he stayed till November-December 1972 (iii) he was not associated with the election campaign in 1970 and (iv) he had no link with the Jamat-e-Islami and Bihari hooligans of Mirpur locality namely Aktar goonda, Nehal goonda, Hakka goonda, etc. However, the defence case for the accused amounts to a complete denial of the responsibility of the accused for the crimes alleged against him and defence also took the specific plea of alibi in

88

The Chief Prosecutor Vs. Abdul Quader Molla

support of which it examined as many as 06 witnesses.

397. The accused has adduced and examined 06 witnesses including the accused himself, understandably to prove the plea of alibi and the assertion that accused was not at all concerned with the crimes for which he has been charged. ‘I myself was not concerned with the commission of crimes’—it is a negative assertion and thus need not be proved by evidence. Such assertion relates to ‘innocence’ which shall have to be adjudicated on weighing prosecution evidence. However, defence shall have right to take plea of alibi and to adduce evidence to substantiate it, although adjudication of guilt or innocence cannot be based solely either on success or failure of such plea. Of six(06) witnesses examined by the defence 04 have been examined to establish the plea of alibi and 02 i.e D.W.4 and D.W.5 have been examined, as perceived, to exclude complicity of accused with the crimes as listed in charge nos. 3 and 5.

We have already discussed the testimony of D.W.4 and D.W.5 as relevant to find out the truth. Now we will remain confined to the adjudication of the plea of alibi only.

XXIII. Finding on the Plea of alibi on evaluation of Evidence adduced by the defence 398. D.W.1 Abdul Quader Molla (accused) claims that he had stayed at his native village Amirabad, Faridpur since middle of March 1971 to November-December 1972 and he used to run business at a shop of Peer Saheb at Chowddarshi Bazar, during the entire time of his staying there. Presumably, running business is claimed to make the plea of alibi strengthened.

2 LNJ (2013)

399. But D.W.3 Moslem Uddin Ahmed a resident of village ‘Baish Rashi’ under sadarpur police station, Fairdpur stated that he saw Abdul Quader Molla (D.W.1) running business at Chowdda Rashi Bazar for a period of total one year i.e up to March 1972. While according to accused, he used to run business till November-December 1972.

400. Above contradictory version of D.W.1 and D.W.3 thus patently makes the claim of staying of accused at own native village and running business there becomes untrue causing reasonable taint to the plea of alibi .

401. D.W1. Abdul Quader Molla claims that in November-December 1972 he was brought back to Shahidullah Hall of university of Dhaka by Shajahan Talukder, the then Sadarpur thana Awami League President. But it has not been corroborated by any other evidence. Why he (accused) could not be able to come Dhaka even one year after the independence alone? Besides, this claim seems to be gravely unconvinced if the testimony of D.W.3 is considered simultaneously.

402. D.W.1 Abdul Quader Molla claims that at the end of July 1971 he came to Shahidullah Hall, Dhaka University and had stayed there for more than three weeks for the purpose of appearing in practical examination and again he returned back to his native village Amirabad, Fairdpur. D.W.2 and D.W 3 are from the village Amirabad, Faridpur. But none of them has corroborated D.W.1 on this fact.

Additionally, accused could allegedly come to Dhaka University Hall alone even during the war of liberation but he had to come in December 1972 with the help of alleged local Awami League leader. Why? In absence of any explanation the above story does not inspire any credence at all.

2 LNJ (2013)

The Chief Prosecutor Vs. Abdul Quader Molla

403. Besides, D.W. 6 who claims to have maintained closeness with the accused when he was a resident student of Shahidullah Hall, Dhaka University stated that accused leaving Hall on 12 March 1971 had moved to his native village in Faridpur. D.W.6 was in job of Imam of the mosque at Shahidullah Hall where the accused too used to say prayer regularly.

According to D.W.6 he remained at Hall throughout the period of war of liberation in 1971 and continued performing the job of Imam of the Hall mosque. If it is so, D.W.6 would have corroborated the fact of accused’s coming to Hall at the end of July 1971.

Accused had stayed for more than three weeks in the Hall but D.W.6 was unaware of it.

Normal human prudence never suggests believing it. Thus the story of accused’s coming to Dhaka from Amirabad, Faridpur at the end of July 1971 becomes fallacious.

Consequently, the story of remaining at native village Amirabad, Faridpur does not carry any credence too. At the same time cumulative evaluation of their evidence, rather, has clearly corroded the plea of alibi.

404. Defence case is meant to confront the prosecution case for removing or shaking the truthfulness of complicity of accused with the commission of offence with which he is charged. A person accused of a criminal charge is presumed to be innocent until he is proven guilty. Therefore, the defence is not obligated to plead any case of his own to prove his innocence until he is found guilty through trial and the burden squarely lies upon the prosecution to prove the accused guilty of the charges. However, defence suggested specific defence case to P.W.4 Kazi Rosy that not the accused Abdul Quader Molla but one Qauder Molla who was a butcher by profession had committed the atrocities in 1971. P.W.4 denied it. However, defence, to substantiate this

89

specific defence case has not adduced any evidence. Even the accused as D.W.1 does not aver so. Thus this suggestion too, in other words, offers an admission that accused Abdul Quader Molla was a co-perpetrator of the crime alleged in charge no.2.

405. However, despite the above legal position, in course of trial the defence shall have right to put his defence case or plea of alibi, while cross-examining the prosecution witnesses. But the Tribunal notes that no specific defence case can be attributed from the trend of crossexamination of prosecution excepting the plea of alibi. Even it has not been suggested as defence case that to any of prosecution witnesses that during the war of liberation accused Abdul Quader Molla had been at his native village Amirabad under Sadarpur police station, Faridpur and used to run business at Chowddarashi Bazar till he returned back to Dhaka in November-December 1972, and that he came to Dhaka University hall at the end of July 1971 and had stayed for more than three weeks for appearing in practical examination.

That is to say, without eliciting or disclosing any specific defence case earlier suddenly the defence has come up with a story of his staying and running business at native village by examining witnesses.

406. As has been held by the Appeals Chamber in the Celibici Case, the submission of an alibi by the Defence does not constitute a defence in its proper sense. It has been observed in the judgment that “It is a common misuse of the word to describe an alibi as a “Defence”. If a defendant raises an alibi, he is merely denying that he was in a position to commit the crime with which he is charged. That is not a Defence in its true sense at all. By

90

The Chief Prosecutor Vs. Abdul Quader Molla

raising this issue, the defendant does no more [than] require the Prosecution to eliminate the reasonable possibility that the alibi is true.�

407. However, in order to establish the plea of alibi, defence has come up with another story.

D.W.1 Abdul Quader Molla stated that on 23 March 1971 in the locality of his native village one Mafizur Rahman started organizing training for freedom fighters locally and accordingly he and 30-40 others received training till the Pakistani army entered into Faridpur on 30 April 1971.

408. But the above defence cases do not appear to have confronted the prosecution case for excluding complicity of the accused. Besides, how far the claim of receiving training at own native village for joining freedom fight is believable? Admittedly, the accused was the president of Islami Chatra Sangha, Shahidulla Hall Unit, Dhaka University and prior to it he was the president of this student wing of Jamat E Islami (JEI) when he was student of Faridpur Rajendra College. We do not find any rationale to believe that being a potential leader of the student wing of a regimented political organisation Jamat E Islami accused Abdul Quader Molla was inspired to receive such training to join as freedom fighter.

409. Though the burden on the prosecution is not lessened because of plea of alibi taken by the accused and such a plea is to be considered only when the prosecution has discharged the onus placed on it, once it is done, it is then for the accused to prove alibi with absolute certainty so as to exclude the possibility of his presence at the spot at the time of commission of the offence (AIR 1997 SC 322, Rajesh Kumar v Dharambir and others). It was held in Mohan Lal Vs. State of H.P. that plea of alibi must be proved with absolute certainty.

2 LNJ (2013)

410. But it appears that the defence has failed to prove the plea of alibi with certainty to exclude the possibility of presence of the accused at the crime sites. On contrary, prosecution by adducing credible and relevant evidence has been successful in discharging its onus to prove complicity of the accused with the crimes committed. Besides, we have found from evidence of P.W.9 that in the month of March 1971, accused Abdul Quader Molla provided training to local Biharis of Mirpur being accompanied by 70-80 members belonging to Islami Chatra Sangha. In remains unshaken in cross-examination.

411. P.W.9 further stated that even after 16 December 1971 when the locality of Mirpur remained occupied, 7-8 hundred members of Al-Badar force led by accused Abdul Quader Molla and some Panjabi coming from Mohammadpur Physical Institute assembled with Biharis in Mirpur, hoisted Pakistani flag and intended to convert Bangladesh to Pakistan. Defence neither denied nor contradicted this version.

412. We have also found from testimony of P.W.1 Mozaffar Ahmed Khan that during the war of liberation in the month of November 1971 he came to Mohammadpur, Dhaka in disguise and on the way of his return to home he found accused Abdul Quader Molla being accompanied by his accomplices standing in front of Mohammadpur Physical Training Center which was known as the ‘torture cell’ of Al-Badar having rifle in hand. Tribunal notes that this version has been re-affirmed in crossexamination.

413. We have found that defence put contradictory suggestions to prosecution witnesses, in order to prove the plea of alibi which are: (a) Suggested to P.W.2 Syed Shahidul Huq Mama: since 07 March to 31

2 LNJ (2013)

The Chief Prosecutor Vs. Abdul Quader Molla

January 1972 Abdul Quader Molla had not been in Dhaka (b) Suggested to P.W.3 Momena Begum: at the relevant time Abdul Quader Molla did not reside in Mirpur (c) Suggested to P.W.4 Kazi Rosy: since first part of 1971 to March 1972 Abdul Quader Molla had not been in Dhaka city (d) Suggested to P.W.5 Khandokar Abul Ahsan: Abdul Quader Molla had not been in Dhaka city during 1971 and first part of 1972.

414. The plea of alibi is to be proved by the defence, true. But the above contradictory suggestions put to prosecution witnesses do not appear to be compatible in composing the plea of alibi believable with absolute certainty.

415. The above relevant facts as well sufficiently and beyond reasonable doubt prove that (i) accused Abdul Quader Molla who was admittedly a potential leader of Islami Chatra Sangha (ICS), the student wing of jamat E Islami (JEI) became an armed member of AlBadar and (ii) he had been staying in Dhaka during the war of liberation in 1971.

416. Exhibit-2 a book titled ‘Sunset at Midday’ wherein the seventh line of paragraph two at page 97 that “The workers belonging to purely Islami Chatra Sangha were called Al-Badar”.

Fox Butterfield wrote in the New York Times, January 3, 1972 that—“ Al Badar is believed to have been the action section of Jamat-e-Islami, carefully organised after the Pakistani crackdown last March.” Therefore, story of receiving training by accused Abdul Quader Molla at own native village, in the month of March 1971, to join freedom fight is nothing but a cock and bull story.

417. The accused while examining himself as D.W.1 appears to have suppressed deliberately that he was associated with ICS while he was

91

student of Dhaka University. We have found from Exhibit-4 (Jibone Ja Dekhlam-Vol-5, page 153) a book written by Professor Ghulam Azam that the accused was a leader of ICS of Dhaka University. Thus, the plea of alibi and statement of D.W.1 in this regard does not inspire any amount of credence and appears to be a futile effort with intent to evade the charges brought against him.

418. In view of reasons enumerated above we are thus persuaded to conclude that the accused herein has miserably failed to bring on record any credible facts or circumstances which would make the plea of his absence even probable, let alone, being proved beyond reasonable doubt. But it could not be proved with absolute certainty so as to completely exclude the possibility of the presence of the accused in the locality of Mirpur, Dhaka at the relevant time.

XXIV. Conclusion 419. Despite lapse of long 40 years time the testimony of P.W.s of whom three are live witnesses to the incidents of atrocities narrated in the charges does not appear to have been suffered from any material infirmity. Besides, no significant inconsistencies between their testimony made before the Tribunal and their earlier statement made to the Investigation Officer could be found.

420. Now, another question comes forward as to whether the accused can be brought within the jurisdiction of the Tribunal if we consider that the prosecution has not been able to prove that the accused committed the crimes proved as a member of Al-Badar force? The answer is ‘yes’. Section 3(1) provides jurisdiction of trying and punishing even any ‘individual’ or ‘group of individuals’ who commits or has

92

The Chief Prosecutor Vs. Abdul Quader Molla

committed, in the territory of Bangladesh any of crimes mentioned in section 3(2) of the Act. We have resolved the issue on the phrase ‘individual’ or ‘group of individuals’, as contained in section 3(1) of the Act of 1973, by way of amending the statute in 2009 together with the relevant Article of our Constitution.

On this score as well, the accused cannot be relieved from being prosecuted and tried under the Act of 1973.

421. According to Section 3(1) of the Act of 1973 it is manifested that even any person (individual or a member of group of individuals) is liable to be prosecuted if he is found to have committed the offences specified in section 3(2) of the Act. That is to say, accused Abdul Quader Molla, even in the capacity of an ‘individual’ or member of ‘group of individuals’ comes within the jurisdiction of the Tribunal if he is alleged to have committed crimes specified in section 3(1) of the Act. 422. We are convinced from the evidence, oral and documentary, led by the prosecution that the accused, at the relevant time of commission of alleged crimes proved, acted as an atrocious member of ‘group of individuals’ in perpetrating the crimes. Accused's culpable association and conduct---antecedent, contemporaneous and subsequent, as have been found---all point to his guilt and are well consistent with his 'complicity' and 'participation' in the commission of crimes proved. As a result, we conclude that the accused Abdul Quader Molla had ‘complicity’ to the commission of the offences in relation to charge nos. 1, 2 and 3 for which he has been charged in the capacity of an ‘individual’ and a member of atrocious ‘group of individuals’.

423. According to section 4(1) of the Act of 1973 an individual incurs criminal liability for the direct commission of a crime, whether as

2 LNJ (2013)

an individual or jointly. In the case in hand, in dealing with the charge nos. 5 and 6 we have found that the accused Abdul Quader Molla himself had participated and accompanied the armed gang of perpetrators to the accomplishment of crimes and as such he is held criminally responsible under section 4(1) of the Act of 1973 for the commission of crimes proved as listed in charge nos. 5 and 6.

424. C.L. Sulzberger wrote in the New York Times, June 16, 1971 describing the horrific nature and untold extent of atrocities committed in the territory of Bangladesh. It shakes the conscious of mankind. It imprints colossal pains to the Bangalee nation. C.L. Sulzberger wrote that“Hiroshima and Nagasaki are vividly remembered by the mind’s eye primarily because of the novel means that brought holocaust to those cities.

Statistically comparable disasters in Hamburg and Dresden are more easily forgotten; they were produced by what we already then conceived of as “conventional” methods.

Against this background one must view the appalling catastrophe of East Pakistan whose scale is so immense that it exceeds the dolorimeter capacity by which human sympathy is measured. No one can hope to count the dead, wounded, missing, homeless or stricken whose number grows each day. “ [Source: Bangladesh Documents: Volume, page 442: Ministry of External Affairs, New Delhi] 425. The above observation made on 16 June 1971 gives an impression as to the scale and

2 LNJ (2013)

The Chief Prosecutor Vs. Abdul Quader Molla

dreadful nature of atrocities which were carried out through out the war of liberation in 1971.

The offences for which the accused Abdul Quader Molla has been found responsible are the part of such atrocities committed in context of the war of liberation,1971 in collaboration of anti-liberation and antagonistic political organisations namely Jamat E Islami, Muslim League, Nejam E Islami, group of pro-Pakistan people and the occupation Pakistani army with intent to annihilate the Bengali nation by resisting in achieving its independence.

426. Therefore, it must be borne in mind too that no guilty man should be allowed to go unpunished, merely for any faint doubt, particularly in a case involving prosecution of crimes against humanity and genocide committed in 1971 in violation of customary international law during the War of Liberation.

Because, wrong acquittal has its chain reactions, the law breakers would continue to break the law with impunity.

427. ‘No innocent person be convicted, let hundreds guilty be acquitted’—the principle has been changed in the present time. In this regard it has been observed by the Indian Supreme Court that “A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties.” [Per Viscount Simon in Stirland vs. Director of Public Prosecution: 1944 AC (PC) 315: quoted in State of U.P Vs. Anil Singh : AIR 1988 SC 1998] XXIV. VERDICT ON CONVICTION 428. For the reasons set out in this Judgement and having considered all evidence, materials

93

on record and arguments advanced by the learned counsels in course of summing up of their respective cases , the Tribunal unanimously finds the accused Abdul Quader Molla Charge No.1: GUILTY of the offence of ‘complicity’ to commit murder as ‘crimes against humanity’ as specified in section 3(2)(a)(h) of the Act of 1973 and he be convicted and sentenced under section 20(2) of the said Act. Charge No.2: GUILTY of the offence of ‘complicity’ to commit murder as ‘crimes against humanity’ as specified in section 3(2)(a)(h) of the Act of 1973 and he be convicted and sentenced under section 20(2) of the said Act. Charge No.3: GUILTY of the offence of ‘complicity’ to commit murder as ‘crimes against humanity’ as specified in section 3(2)(a)(h) of the Act of 1973 and he be convicted and sentenced under section 20(2) of the said Act. Charge No.4: NOT GUILTY of the offence of ‘abetting’ or in the alternative ‘complicity’ to commit murders as ‘crimes against humanity’as specified in section 3(2)(a)(g)(h) of the Act of 1973 and he be acquitted thereof accordingly.

Charge No.5: GUILTY of the offence of murders as ‘crimes against humanity’ as specified in section 3(2)(a) of the Act of 1973 and he be convicted and sentenced under section 20(2) of the said Act. Charge No.6: GUILTY of the offences of murder and rape as ‘crimes against humanity’as specified in section 3(2)(a) of the Act 1973 he be convicted and sentenced under section 20(2) of the said Act.

94

The Chief Prosecutor Vs. Abdul Quader Molla

XXV. VERDICT ON SENTENCE 429. We have taken due notice of the intrinsic magnitude of the offence of murders as ‘crimes against humanity’ being offences which are predominantly shocking to the conscience of mankind. We have carefully considered the mode of participation of the accused to the commission of crimes proved and the proportionate to the gravity of offences. The principle of proportionality implies that sentences must reflect the predominant standard of proportionality between the gravity of the offence and the degree of responsibility of the offender. In assessing the gravity of the offence, we have taken the form and degree of the Accused’s participation in the crimes into account.

430. We are of agreed view that justice be met if for the crimes as listed in charge nos. 5 and 6 the accused Abdul Quader Molla who has been found guilty beyond reasonable doubt is condemned to a single sentence of ‘imprisonment for life’ And for the crimes as listed in charge nos. 1, 2 and 3 to a single sentence of ‘imprisonment for fifteen (15) years’ under section 20(2) of the Act of 1973.

Accordingly, we do hereby render the following unanimous ORDER on SENTENCE. Hence, it is ORDERED That the accused Abdul Quader Molla son of late Sanaullah Molla of village Amirabad Police Station Sadarpur District-Faridpur at present Flat No. 8/A, Green Valley Apartment, 493, Boro Moghbazar PS. Ramna, Dhaka is found guilty of the offences of ‘crimes against

2 LNJ (2013)

humanity’ enumerated in section 3(2) of the International Crimes (Tribunals) Act, 1973 as listed in charge no.s 1, 2, 3, 5 and 6 and he be convicted and condemned to a single sentence of ‘ imprisonment for life’ for charge nos. 5 and 6 And also for the crimes as listed in charge nos. 1, 2 and 3 to a single sentence of ‘imprisonment for fifteen (15) years’ under section 20(2) of the Act of 1973. The accused Abdul Quader Molla is however found not guilty of offence of crimes against humanity as listed in charge no.4 and he be acquitted thereof.

However, as the convict Abdul Quader Molla is sentenced to ‘imprisonment for life’, the sentence of ‘imprisonment for 15 years’ will naturally get merged into the sentence of ‘imprisonment for life’. This sentence shall be carried out under section 20(3) of the Act of 1973.

The sentence so awarded shall commence forthwith from the date of this judgment as required under Rule 46(2) of the Rules of Procedure, 2012 (ROP) of the Tribunal-2(ICT2) and the convict be sent to the prison with a conviction warrant to serve out the sentence accordingly.

Let copy of the judgment be sent to the District Magistrate, Dhaka for information and causing necessary action.

Let certified copy of the judgment be furnished to the prosecution and the convict at once.

Ed.

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

International Crimes Tribunal-2 (ICT-2) [Tribunal constituted under section 6 (1) of The Act No. XIX of 1973] Old High Court Building, Dhaka, Bangladesh.

Obaidul Hassan, Chairman Md. Mozibur Rahman Miah, Member Md. Shahinur Islam, Member

Judgment 21.01.2013

} }

The Chief Prosecutor

}

-Versus-

}

Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu (Absconded)

}

Delay cannot obstruct bringing prosecution under the Act of 1973, In the absence of any statutory limitation, the delay itself cannot preclude prosecution from adjudicating the culpability of the perpetrators of war crimes, crimes against humanity and genocide etc.

From the point of morality and sound legal dogma, time bar should not apply to the prosecution of human rights crimes. Neither the Genocide Convention of 1948, nor the Geneva Conventions of 1949 contain any provisions on statutory limitations to war crimes and crimes against humanity. Article I of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity adopted and opened for signature, ratification and accession by General Assembly resolution 2391 (XXIII) of 26 November 1968 provides protection against even any statutory limitation in prosecuting crimes against humanity, genocide etc. Thus, criminal prosecutions are always open and not barred by time limitation. ‌(43).

ICT-BD Case No. 05 of 2012.

[Charges: crimes against Humanity and Genocide as specified in section 3(2)(a) and 3(2)(c)(i) of the Act No. XIX of 1973]

95

Still the Nazi war criminals of the Second World War are being prosecuted. Trials of genocides committed during the 1973 Chilean revolution and the Poll Pot regime of Cambodia in the 1970s are now ongoing. The sovereign immunity of Slobodan Milosevic of Serbia, Charles Taylor of Liberia, and Augusta Pinochet of Chile (with the Chilean Senate's life-long immunity) as the head of state could not protect them from being detained and prosecuted for committing genocides, crimes against humanity, and war crimes. In view of above settled position and in the absence of any statutory limitation, as a procedural bar, only the delay itself does not preclude prosecutorial action to adjudicate the culpability of the perpetrator of core international crimes.

Indubitably, a prompt and indisputable justice process cannot be motorized solely by the painful memories and aspirations of the victims. It requires strong public and political will together with favorable and stable political situation. Mere state inaction, for whatever reasons, does not render the delayed prosecution readily frustrated and barred by any law. ‌(45) International Crimes (Tribunals) Act (X I X of 1973) Section 10A (1) When the accused remained absconded in spite of reasonable steps taken to inform him of the preceding through media publication the accused can be tried in absentia.

The Act of 1973 provides provision of holding trial in abesntia, if the appearance of the accused could not be ensured for the reason of his absconsion [Section 10A (1) of the Act]. In the international context, the issue of trials in absentia arose with the first modern international criminal tribunal, the International Military Tribunal (IMT) at Nuremberg, which

96

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

was established to try war criminals operating under the European Axis Powers during World War II. Article 12 of the Charter of the International Military Tribunal allowed for trials in absentia whenever the Tribunal found it necessary to do so in the interest of justice.

Famously, Martin Barman, who served as the Nazi Party secretary, was indicted, tried, and sentenced to death, all in absentia, despite doubts as to whether he had even been informed of the proceedings. …(49).

In the case in our hand, at pre-trial stage, for the purpose of effective investigation this Tribunal ordered for his arrest by issuing warrant and as it appears from the execution report, the accused knowing it preferred to remain absconded, instead of facing proceedings and trial. The accused has not intended to take part in the trial, rather wished to escape prosecution. The jurisprudence of both the ICCPR and the ECHR confirms that a trial in absentia will not violate a person's right to be present when he has expressly declined to exercise this right. The circumstance and the time and way the accused had gone to absconsion and left country led us to lawful inference that the accused has expressly declined to exercise his right to be present in trial. …(53).

That is to say, despite all reasonable steps taken to inform him of the proceedings including media publication, the accused Abul Kalam Azad @ Bachchu seems to be unwilling to face the trial, as he remained absconded and fled away even from country. It is a patent indicium that the accused, by his conduct, has waived his right to be present, and as such on this score too trial in his absence is quite permissible. …(54).

International Crimes (Tribunals) Act [ X I X of 1973]

2 LNJ (2013)

Section 3 [1].

Constitution of Bangladesh,1972 Articles 47[3] and 47A [2].

The subsequent amendment as brought in 2009 Act of 1973 by inserting the phrases ‘individual’ and groups of individuals in section 3(1) of the Act carries prospective effect the present accused cannot be prosecuted in the capacity of an individual for the offences, underlying in the Act as has been submitted on behalf of the accused. The words ‘individual’ or ‘group of individuals’ have been incorporated in section 3 of the Act of 1973 as well as in Article 47(3) of the Constitution by amendments in 2009 and 2011 respectively. The right to move the Supreme Court for calling any law relating to internationally recognised crimes in question by the person charged with crimes against humanity and genocide has been taken away by the provision of Article 47A(2) of the Constitution.

Hence the accused has no right to call in question any provision of the Act of 1973. …(55 and 59).

Con Tripartite Agreement and immunity to 195 Pakistan war Criminals be brought to justice?

Any agreement or treaty it seems to be conflicting and derogatory to jus cogens (Compelling Laws) norms does not ereate any hurdle to internationally recognized state obligation the tripartite agreement is not at all a barrier to prosecute even a local civilian perpetrator under the Act of 1973.

Whether the accused can be prosecuted without hot prosecuting his accomplishes If the accused is found guilty and criminally liable beyond reasonable doubt for his culpable acts, inaction in prosecuting his accomplices cannot be the reason for holding the former innocent or relieved

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

from liability. In this regard we may recall the provision as contained in section 4(1) of the Act of 1973. …(71).

International Crimes (Tribunal) Act (XIX of 1973) Section 19 (3) If the specific offences of 'Crimes against Humanity' which were committed during 1971 are tried under 1973 Act, it is obvious that they were committed in the ‘context’ of the 1971 war. This context itself is sufficient to prove the existence of a ‘systematic attack' on Bangladeshi self-determined population in 1971. The Tribunal, as per section 19(3) of the 1973 Act, shall not require proof of facts of common knowledge; it shall take judicial notice of such fact. The specific offences committed as 'Crimes against Humanity' during 1971 war, were very much a part of a ‘systematic attack’ of the ongoing atrocious activities.

Adjudication of Charge No. 7 International Crimes (Tribunal) Act (XIX of 1973) Sections 3(2)(c)(i) and 4 (i) Charge No. 7 relates to the crime of ‘genocide’ as specified in section 3(2)(c)(i) of the Act while the remaining 07 charges relate to the criminal acts constituting the offences of ‘crimes against humanity’ as specified in section 3(2) (a) of the Act. For the sake of convenience of discussion we consider it expedient to adjudicate the charge no.7 first as the nature of crimes related to it differs from that as described in the latter ones. (i) Adjudication of Charge No 07 Summary Charge: On May 17 1971 in the early morning, accused Abul Kamal A3 ad @

97

Bachchu (absconded) a member of Razakar Force and subsequently the local commander of Al-Badar Bahini or as a member of group of individuals, being accompanied by his 30/35 armed accomplices is alleged to have caused indiscriminate destruction and killing of (1) Sharat Chandra Poddar, (2) Suresh Poddar, (3) Shyama Pada Saha, (4) Jatindra Mohan Saha, (5) Nil Ratan Samadder, (6) Subol Koyal and (7) Mallik Chakravarti, the members of Hindu community, by gun shot. It is also alleged that in conjunction of the incident, the accused and his accomplices gunned down (8) Haripada Saha residents of crime village Hasamdia and (9) Probir Kumar Saha @ Puitta to death by abducting them to the river bank of ‘Maindia bazar’ and thereby the accused has been charged for the physical participation and also for substantially contributing to the actual commission of offence of ‘genocide’ for ‘killing the members of Hindu community’, with intent to destroy the Hindu religious group, either whole or in part as specified in section 3(2) (c)(i) of the Act which are punishable under section 20(2) read with section 3(1) of the Act. P.W.17 does not claim to have witnessed the accused killing his father and brother. But he has stated that he learnt instantly after the incident from Surja Kumar Das, a bulletinjured victim that accused Abul Kalam Azda @ Bachchu accompanied the army during the killing. Thus it is inferred that the accused substantially contributed and encouraged the gang of perpetrators in accomplishment of the crimes.

Defence did not put any question to P.W.17 with a view to dislodge the fact of his learning the first part of the attack at village Hasamdia from him by the P.W.16. Additionally, we do not find any reasonable ground to discard the

98

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

hearsay evidence as to learning the incident of killing of 7/8 persons at Hasamdia Hindu para.

Rather, P.W.16 and P.W.17 seem to be natural witnesses, particularly in absence of any reason whatsoever of being interested to tell a lie.

The hearsay evidence of P.W.17 so far it relates to the fact of his learning as to involvement of accused with killing of his father and other killings and destructive acts carries reasonable probative value.

Defence could not however controvert the commission of the event of crimes, by crossexamining P.W.19. Rather, his evidence has rendered corroboration to what has been testified by the P.W.16, P.W.17 on the acts of killing, destruction, looting and involvement of accused therewith. P.W.19, a live witness, is the son of one of victims of the horrific atrocities who had opportunity to witness the incident of killing his father Shayamapada Saha by remaining in hiding in a bamboo bush.

It remains undisputed. Additionally, P.W.19 knew the accused from earlier as he (accused) was a resident of their neighboring village Kahrdia. P.W. 19 is a natural and live witness and there is no reason to exclude what he has testified.

Perpetration of the horrific event including murder of numerous civilians targeting the Hindu group including the father of P.W.19 on the date time and manner as narrated by a live witness P.W.19 has been proved. At the same time we have found from evidence of P.W.19 that the accused accompanied the gang of perpetrators and how he had directly participated to the commission of destructive crimes.

All these facts remain totally undisputed in cross-examination of P.W.19.

Generally, considering the horrendous nature of crimes the event could not be expected to have been witnessed by numerous persons.

2 LNJ (2013)

Incidentally some one might have opportunity of seeing it remaining in hiding at a place adjacent to the crime site. Apart from them, other person cannot be perceived to have seen the event of massacre. So, the perpetration of crime and acts and conduct of perpetrators could have been learnt from an injured victim or person who had incidental opportunity of seeing the event. It is quite natural and thus the testimony of P.W.17 and P.W.20 though hearsay inspires credence, particularly when such hearsay testimony gets fair corroboration from live witness’s (P.W.16 and P.W.19) account.

It has also been established from evidence of P.W.16. P.W.17, P.W.19 and P.W 20 that few days after the horrendous crimes almost all the members of the Hindu community residing at the crime village including the relatives of victims and sufferers became compelled to deport to India leaving their properties, houses etc. and they returned back only after achieving the victory on 16 December. That is to say, the cumulative effect of the atrocities including killing, destruction and looting of properties, mental harms compelling the Hindu community of the crime village inevitably imprints an unmistakable notion that the aim and intent of the perpetrators was to destroy the ‘Hindu group or community’, in part. This notion is qualified as ‘genocidal intent’ as required to constitute the offence of ‘genocide’.

It remains totally uncontroversial.

We have found from evidence of P.W.16, P.W 17, P.W 19 and P.W. 20 that at the time of commission of crimes narrated in charge no.7 Pakistani army and some armed civilian accomplices were also with the accused Abul Kalam Azad @ Bachchu. It is also found that the accused had rendered, apart from his physical participation as found from testimony of P.W.16 and P.W.19, assistance, encourage-

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

ment and moral support which had substantial effect on the perpetration of the massive crimes as has been listed in charge no.7. It is proved that the accused accompanied the armed perpetrators and he was physically present at the crime scenes and thus he is deemed to have rendered ‘tacit approval’ to the accomplishment of the event of massacre. Besides, in conjunction of the commission of the event of massacre, accused Abul Kalam Azada @ Bachchu himself too actively and directly participated to the commission of the acts of killings.

It has been established that accused Abul Kalam Azad @ Bachchu was a potential associate of Pakistani army and also was a significant armed member of volunteer Razakar force which was organized after the Pakistani army struck Faridpur on 21 April 1971. This being the status that the accused was holding at relevant time, his presence at the crime site as an active accomplice of the principals inevitably prompts us to infer that, in addition to his direct participation of killing at the time of commission of the event of massacre, he substantially provided practical assistance, encouragement and moral support to the principals i.e co-perpetrators in perpetration of the offence of genocide that resulted in mass killing of individuals belonging to ‘Hindu Community’ which is a ‘distinct religious group’ and mass destruction and thereby he incurs liability under section 4(1) of the Act for the offence of genocide as specified in section 3(2)(c) (i) of the Act of 1973. …(112, 113, 133-135, 139, 140, 144, 147, 167 and 170) Adjudication of charge No. 01 (Abduction confinement and torture of Ranjit Nath @ Babu Nath) International Crimes (Tribunals) Act (XIX of 1973)

99

Sections 3(1), 3(2)(a) and 20(2) Abul Kalam Azad @ Bachchu(absconded) a member of Razaker Force and subsequently the local commander of Al-Badar Bahini and or as a member of group of individuals being accompanied by accomplices is alleged to have abducted , tortured and confined Ranjit Nath @ Babu Nath , during the first week of June ,1971 as narrated in the charge No. 01 and thereby he has been charged for the physical participation and also for substantially contributing to the actual commission of offence of ‘abduction, confinement and torture as crime against humanity’ by directing attack against the Hindu civilian population as specified in section 3(2) (a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act. From the evidence of P.W.5, the victim of the offence of abduction, confinement and torture and P.W.15, it is proved that after apprehending him(P.W.5) he was brought to the Pakistan army camp at Faridpur circuit house where he found accused Abul Kalam Azad @ Bachchu holding a meeting with Major Koraishi.

Mujahid , Afzal and others and there from, on direction of Mujahid the accused Abul Kalam Azad @ Bachchu and his associates blindfoldded him (P.W.5 Ranjit) and took him to Faridpur Zilla School ground and put him under a palm tree and had beaten him up for one hour and then he was kept confined in a house inside the Bihari colony and around midnight he (P.W.5 Ranjit) escaped breaking through a window. Defence could not dislodge this incriminating version in any manner.

The context itself as reflected from policies adopted by the Pakistani army and its local proPakistan political organization, chiefly the Jamat E Islami (JEI) and ‘auxiliary forces’ is

100

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

sufficient to prove the existence of the notion of ‘systematic attack’ on Bangladeshi selfdetermined population in 1971, during the War of Liberation. This context unerringly prompts us in arriving at decision that the atrocities committed upon P.W.5 Ranjit Kumar Nath was a part of systematic attack constituting the offences of crimes against humanity as specified in section 3(2)(a) of the Act of 1973.

Accused Abul Kalam Azad @ Bachchu is thus criminally liable under section 4(1) of the Act of 1973 for physical participation and also for providing substantial contribution to the commission of offence of abduction, confinement and torture as crime against humanity as specified in section 3(2)(a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act. Adjudication of charge No. 02 (Abduction confinement and Torture on Abu Yusuf Pakhi) International Crimes (Tribunals) Act (XIX of 1973) Sections 3(2) (a) and 4 (1) Abul Kalam Azad @ Bachchu(absconded) a member of Razaker Force and subsequently the local commander of Al-Badar Bahini and or as a member of group of individuals being accompanied by accomplices is alleged to have abducted , tortured and confined Abu Yusuf Pakhi , on 26 July 1971 during the war of liberation, as narrated in the charge no.02 and thereby he has been charged for the physical participation and also for substantially contributing to the actual commission of offence of ‘abduction, confinement and torture as crime against humanity’ by directing attack against the Hindu civilian population as specified in section 3(2) (a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act.

2 LNJ (2013)

P.W.18 in narrating the fact of his abduction has stated that on April 22, 1971, Kamaruzzaman Jasu, cousin of Azad (accused), picked him (P.W.18) and his brother from the intersection of Bhanga Road and handed them to the army. And then they were produced before Pakistani Major Akram Koreshi at Faridpur Circuit House where he saw Pakistani army shooting a few people to death on the east side of the Circuit House. They were then brought to Major Akram Koraishi of the camp and his brother (who was apprehended with P.W.18) had talk with Major Koraishi in English and then they were released from the camp by another Pakistan army’s Baluch Major and then he joined the war of liberation, P.W.18 Yusuf (172, 183—187). added. This fact, as stated…by P.W.18, is not related to the charge no. 2.

We thus unerringly believe that P.W.18 was subjected to torture and degrading treatment at the camp. It is quite impractical to think that it was really possible to see such event by any one else. P.W.7 Md. Amir Hossain who was one of detainees of the camp had occasion only to see P.W.18 detained there. But P.W.7 has not stated that he saw the accused causing torture to P.W.18 or encouraging or facilitating in any manner to the accomplishment of the offence of torture upon P.W.18 by the principals.

P.W.18 the victim does not claim that at the time of causing torture to him too accused remained present with the Pakistani army and thereby encouraged or facilitated the commission of the offence of torture to him.

Indubitably it has been proved that P.W.18 was a victim of torture during his confinement of the Pakistani army camp at

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

Faridpur Stadium and perpetrators were Pakistani army of the crime camp. But for holding the accused criminally liable for the crimes alleged it has to be established that he participated or substantially contributed or facilitated to the commission of the offence of confinement and causing torture.

The mere fact that the accused had close association with the Pakistani army of the ‘army camp’ and he used to make visit to it does not ipso facto prove his liability.

From the testimony of both P.W.18 and P.W.7 it could not be found that torture, causing mental or physical harm, was done to P.W.18 by the accused himself or the accused substantially contributed or facilitated to cause any kind of torture to him. On the strength of proved fact that the accused Abul Kalam Azad @ Bachchu almost all the time used to accompany the Major of the camp by his visit and used to avail the vehicle of Major, at best it can be held that the accused used to maintain close link and association with the army of the ‘crime camp’ and encouraged and provided moral support for committing offences directing to other persons brought to the camp.

The victim P.W.18 stated that after remaining confined at the army camp at circuit house, prior to the event narrated in charge no.2, he was eventually released there from by another Pakistan army’s Baluch Major. Thus, it may be justifiably inferred that the accused had no role and control in keeping P.W.18 confined at an ‘army camp’ and to influence his release there from.

On careful evaluation of evidence adduced in support of the charge no.2, persuaded that the offence of abducting, keeping

101

confined at the army camp and causing torture to P.W.18 has been believably proved. But prosecution, as we have found, has been failed to establish it beyond reasonable doubt that the accused Abul Kalam Azad @ Bachchu by his act or conduct contributed or facilitated to the commission of the offence of abduction, confinement and torture as crimes against humanity as specified in section 3(2) (a) of the Act and therefore, he is not found to have incurred criminally liability under section 4(1) of the Act for the offences as listed in the charge no. 2.

Adjudication of charge No. 03 (Sudhangni Mohon Roy Killing) International Crimes (Tribunals) Act (XIX of 1973) Sections 3(1), 3(2)(a), 4(1) and 20 (2) Abul Kalam Azad @ Bachchu (absconded), a member of Razaker Force and subsequently the local commander of AlBadar Bahini and or as a member of group of individuals being accompanied by 10/12 armed Razakers attacked the village Kolaron (Kvjvib) under police station Boalmari district Faridpur, and then the accused is alleged to have killed Sudhangsu Mohon Roy of village Kolaron on 14 May 1971 at about 15:00 hrs. during the War of Liberation and thereby he has been charged for the physical participation and also for substantially contributing to the actual commission of offence of ‘murder as crime against humanity’ by directing attack against the Hindu civilian population as specified in section 3(2) (a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act. We have found from the corroborative and unimpeachable evidence of P.W.1 and P.W.3

…(18

102

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

that at the time of commission of the crime alleged the accused having fire arms with him led the armed gang of 10-12 accomplices. It may be validly inferred too that the accused on having training received rifle for the purpose of accomplishment of attack in furtherance of policy of Pakistani army and the pro-Pakistani political organization collaborating them in 1971.

Both the P.W.1 and P.W.3 are the live witnesses and we do not see any reasonable ground to discard their testimony made before us.

Defence could not impeach credibility of P.W.1 and P.W.3. They are natural and live witnesses. Their version as to the commission of crime and physical complicity of the accused with it is quite corroborative to each other.

The killing of Sudhangshu Mohan Roy and the criminal acts committed in conjunction of the event by the accused and his accomplices were not isolated for which the accused Abul Kalam Azad @ Bachchu is found criminally responsible under section 4(1) of the Act of 1973. The criminal acts on part of the accused and his accomplices was certainly a part of attack against civilian population which qualifies the offence alleged as murder as crime against humanity as specified in section 3(2) (a) of the Act of 1973 which are punishable under section 20(2) read with section 3(1) of the Act. Adjudication of charge No. 04 [Madhab Chandra Killing] International Crimes (Tribunals) Act (XIX of 1973) Sections 3(1), 3(2)(a), 4(1) and 20 (2) Abul Kalam Azad @ Bachchu (absconded), a member of Razaker Force and subsequently the local commander of Al-Badar Bahini

2 LNJ (2013)

or as a member of group of individuals being accompanied by 10/12 armed Razakers is alleged to have killed Madhab Chandra Biswas at village ‘Purura Nampara‘ under police station Nagarkanda district Faridpur by dragging him out of his house , on 16 May 1971 at about 15:00 , during the War of Liberation and thereby he has been charged for the physical participation and also for substantially contributing to the actual commission of the offence of ‘murder as crime against humanity’ by directing attack targeting the civilian Hindu population as specified in section 3(2) (a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act. Prosecution, in support of this charge, has adduced and examined as many as three witnesses as P.W.6, P.W.8 and P.W.10. They are live witnesses, who by deposing on dock have incriminated the accused with the commission of the offence of killing Madhab Chandra Biswas and Gyanendra. All the witnesses are from the crime village. Of them P.W.6 Bhakta Ranjan Biswas is the son of victim Madhab Chandra Biswas. The alleged offence of murder took place in broad day light and by dragging the victim out of his house. P.W.6 Bhakta Ranjan Biswas, 65 year old and son of victim Madhab Chandra Biswas has testified about his experience of killing his233, father, …(214, 234 the andevent 236) as narrated in charge no.04. In narrating the event he stated that he had seen the incidents [killings] and his neighbours Prafulla Kumar Mandol (P.W.8), Tusto Kumar Mondol (P.W.10), Sunil Kumar Mondal and many others witnessed it too.

Concatenation of incriminating facts narrated by the P.W.6, P.W.8 and P.W.10

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

coupled with relevant facts are suffice to prove the commission of the event of the offence of murder of Madhab Chandra Biswas and Gyannedra Mondol as crimes against humanity and mode of participation of the accused therewith. We have found that it has been established beyond reasonable doubt from the evidence of P.W.6 and P.W.8 and P.W.10 the residents of the crime village and live witnesses that on the date , time and in the manner an armed gang of Razakars led by accused Abul Kalam Azad @ Bachchu had launched attack to the house of Madhab Chandra Biswas who was a supporter of Awami League and after looting the ornaments and households etc., they dragged Madhab Chandra Biswas out of his house and took him to east bank of a pond of P.W.10 where accused Abul Kalam Azad @ Bachchu himself gunned down him to death and afterwards the accused also killed Gyanendra Mondol at the same spot. Attack targeting the Hindu village and killing of Awami League supporter indicates that the criminal acts of looting and murders were part of ‘systematic attack’ in furtherance of policy and plan directed against civilian population.

Thus, the criminal acts to the accomplishhment of murder are characterized as the offence of crimes against humanity as specified in section 3(2) (a) of the Act as it was directed against civilian population. The accused, as has been proved, had directly participated to the commission of offence of murder as described in the charge No. 4 and thus he incurs individual criminal liability under section 4(1) of the Act and he is found guilty for perpetration of the offence as listed in charge no. 04 which is punishable under section 20(2) read with section 3(1) of the Act.

103

Adjudication of charge No. 05 [Committing Rape upon Devi Rani and Shova Rani] International Crimes (Tribunals) Act (XIX of 1973) Sections 3(1), 3(2)(a), 4(1) and 20 (2) Abul Kalam Azad @ Bachchu (absconded), a member of Razaker Force and subsequently the local commander of AlBadar Bahini and or as a member of group of individuals being accompanied by 10/12 armed Razakers is alleged to have attacked the house of Sudhir Biswas @ Gosai Pada Biswas of village ‘Natibodia’ (bvwUew`qv ) under police station Boalmari district Faridpur on 08 June 1971 at about 12:00 hrs , during the War of Liberation and then allegedly committed rape upon Devi Rani and Shova Rani and thereby he has been charged for the physical participation and also for substantially contributing to the actual commission of offence of ‘rape as crime against humanity’ by directing attack targeting the Hindu civilian population as specified in section 3(2) (a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act. Prosecution adduced and examined two witnesses as P.W.13 and P.W. 14 in support of this charge. P.W.13, Surabala Biswas, now 70-71 years old is the wife of brother of victims’ husbands. P.W.14, Binod Chandra Biswas is the brother of P.W.13’s husband.

They have narrated the criminal acts perpetrated by accused Abul Kalam Azad @ Bachchu and his accomplices.

The matters which appear to have been proved from corroborative evidence of P.W.13 and P.W.14 are that on the date, time and in the manner accused Abul Kalam …(237, 238, 255 and 256) Azad @ Bachchu and his 10-12 accomplices

104

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

attacked their village which was predominantly Hindu populated with frequent gun firing and with this the male members of their family remained in hiding inside a jute field adjacent to their house and then the gang attacking their house kept the female members encircled and from them Shova Rani and Devi Rani were segregated and the accused and some of his accomplices dragged them to the dwelling hut of Shova Rani and detained them for one and half hour (as deposed by P.W.13). The other female members were kept guarded by some of accomplices of accused Bachchu. The charge relates to commit rape upon Shova Rani and Devi Rani.

None of two witnesses has claimed to have witnessed the alleged rape or sexual abuse upon the victims. The offence of alleged rape is not an isolated crime. The context also is to be viewed together with the criminal acts done. The offence of committing rape particularly if it happened as a part of systematic attack in furtherance of policy and plan is not expected to have taken place in presence of anybody else. Besides, offence of rape or sexual abuse happens in sly. The situation as revealed also speaks sufficiently that it was not possible to see what was happening inside the room of Shova Rani.

Thus the criminal acts of accused and his accomplices done to Shova Rani and Devi Rani have to be perceived from the entire facts and circumstance.

The context speaks that it was not possible for civilians to resist the armed perpetrators led by the accused who were actually meant to execute the policy and plan of the Pakistani army and the pro-Pakistan political organization which had acted as its key auxiliary organisation. The pattern of

2 LNJ (2013)

the attack and acts indicates that the gang targeted the house of the victims belonging to Hindu community, a part of civilian population and the accused and his coperpetrators finding no male inmates at the crime site, approached to cause harm to female members of the family in furtherance of which accused Abul Kalam Azad @ Bachchu and some of his accomplices dragged the victims to Shova Rani’s room where they were kept detained and at that time the other female members were kept guarded by other accomplices outside the room. We thus inescapably consider it just to pen our view that the victims were sexually ravished and the accused cannot be exonerated from criminal liability of committing the offence of rape as crime against humanity as specified in section 3(2) (a) of the Act. The accused Abul Kalam Azad @ Bachchu, as has been proved, had directly participated to the commission of the offence of rape as described in the charge No.5 and thus he incurs individual criminal liability under section 4(1) of the Act and is found guilty for perpetration of the offence listed in charge No. 05 which is punishable under section 20(2) read with section 3(1) of the Act. ‌(257, 258, 268, 269, 273 and 274) Adjudication of charge No.06 [Killing of Chitta Ranjan Das] International Crimes (Tribunals) Act (XIX of 1973) Sections 3(1), 3(2)(a), 4(1) and 20(2) On 03 June 1971, during the War of Liberation you, Moulana Abul Kalam Azad @ Bachchu a member of Razaker Force and subsequently the local commander of AlBadar Bahini and or as a member of group of individuals being accompanied by 10/12

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

armed Razakers launched an attack targeting the Hindu community of village ‘Fulbaria’ under police station Nagarkanda district Faridpur and started looting the house of civilians. In the course of the event, you and your 7/8 accomplices entering inside the house of Chitta Ranjan Das dragged him out and then you, by the rifle with you, gunned down him to death and thereby the accused has been charged for the physical participation and also for substantially contributing to the actual commission of offence of ‘murder as crime against humanity’ by directing attack targeting the Hindu civilian population as specified in section 3(2) (a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act. Three witnesses have been adduced and examined in support of this charge. All the three witnesses i.e P.W.2 Jotsna Rani Das, P.W.4 Dhala Matabbar and P.W.9 Nagen Chandra Mondol are the live witnesses. Of them P.W.2 is the wife of victim of the offence of murder. P.W.4 and P.W 9 are from the crime village and claim to have witnessed the accused accompanying the armed gang of Razakars at the crime site and have corroborated the version of P.W.2, as regard commission of the event of crime and participation of the accused therewith.

We have found from first part of testimony of P.W.4 that on seeing the event of killing Chitta Ranjan Das he (P.W.4) became frightened and had left the crime site. Thus, it was naturally not possible to witness the killing of Badal Debnath that took place after the event of killing Chitta Ranjan Das. P.W.2 Jotsna Rani Das, the eye witness of the event of killing her husband including the killing of Badal Debnath has stated that,

105

Bachchu Razakar and his accomplices dragging the dead body of her husband and Badal Debnath tying their legs with a rope threw to Kumar River. Thus, the hearsay version of P.W.4 so far it relates to killing of Badal Debnath and throwing the dead body of Chitta Ranjan Das to Kumar River carries much probative value which adds corroboration to what has been stated by P.W.2.

Testimony of P.W.9, a live witness has sufficiently and believably corroborated P.W.2 the wife of victim Chitta Ranjan Das and has narrated the event incriminating the accused with the commission of the offence of alleged murder. As regard reason of recognizing the accused P.W.9 stated that he knew accused Abul Kalam Azad @ Bachchu as during 1970-71 he (P.W.9) used to purchase straw for his own ‘pan baroj’ from the house of accused’s uncle.

Having regard to the evidence of P.W.2, P.W.4 and P.W9 we are thus convinced in arriving at decision that the atrocious event of attack launched directing the crime village Phulbaria by the gang of armed Razakars led by accused Abul Kalam Azad @ Bachchu on the date time and in the manner has been proved beyond reasonable doubt.

The accused Abul Kalam Azad @ Bachchu being accompanied by his armed accomplices, as has been proved, had directly participated to the commission of the offence of murder and the gang of co-perpetrators led by the accused indubitably had committed the criminal acts as part of the attack directing the civilians belonging to Hindu community and thereby the accused Abul Kalam Azad @ Bachchu is found to

106

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

have incurred individual criminal liability under section 4(1) of the Act and found guilty for committing the offence of murder as crime against humanity as specified in section 3(2) (a) of the Act which is punishable under section 20(2) read with section 3(1) of the Act .

Adjudication of charge No.08 [Anjalli Das abduction and torture] International Crimes (Tribunals) Act (XIX of 1973) Sections 3(1), 3(2)(a), 4(1) and 20 (2) Abul Kalam Azad @ Bachchu (absconded), a member of Razaker Force and subsequently the local commander of AlBadar Bahini and or as a member of group of individuals, being accompanied by 7/8 armed Razakers entering inside the house of Guru Das, a civilian village dweller of village ‘Ujirpur Bazarpara’ (DwRicyi evRvicvov) under police station Saltha district Faridpur is alleged to have abducted Anjali Das (18) Rani of the crime village on 18 May 1971 at about 10:00 hrs, during the War of Liberation and kept her confined and tortured and thereby the accused has been charged for the physical participation and also for substantially contributing to the actual commission of offence of ‘abduction, confinement and torture as crimes against humanity’ by directing attack targeting the Hindu civilian population as specified in section 3(2) (a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act. Prosecution examined three witnesses in support of this charge. P.W.11 Deb Kumar Das is the brother of victim Anjali Das and P.W.12 was a neighbour of victim at the relevant time. P.W.16 is a hearsay witness and not from the crime village Ujirpur,

2 LNJ (2013)

Faridpur. They have testified as to who and how abducted Anjali Das and finally what happened to her.

From evidence of P.W.11 and P.W. 12 we have found it proved that on the date time and in the manner accused Abul Kalam Azad @ Bachchu being accompanied by armed accomplices launched attack to the house of Anjali Das and defying oral confrontation they forcibly took away Anjali Das with them. That is to say, the accused is found to have directly participated to the act of abduction alleged. It remains unshaken too.

It is also proved that with the intervention of local Muslim elites eventually 7-8 days after abduction the victim was released. Where she was kept confined? P.W.12 stated in cross-examination that later on he heard that the victim was kept confined at the house of Chan Kazi. According to P.W.11, request was made to said Chan Kazi by the local Muslim elites for releasing Anjali Das. Who is this Chan Kazi? Admittedly he is the father-in-law of the accused. It sufficiently indicates that the accused had substantially contributed and facilitated to the act of confinement of the victim Anjali Das with full knowledge.

Since it is proved that Anjali Das was forcibly abducted and taken away by the accused and his cohorts from their house defying oral resistance, it may be lawfully presumed that the accused substantially contributed in keeping the victim confined at a place selected by him. At the same time it may also be validly presumed that the purpose of keeping the victim under such confinement for 7-8 days was not of course anything lawful and certainly mental and physical harm including sexual abuse was

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

caused to her that resulted in her severe sickness as stated by P.W.12.

The fact that on the very day of her release victim Anjali Das committed suicide as Mohammad Kazi and his accomplices attacked their house to abduct her again is proved. Obviously such second attempt of abducting the traumatized victim Anjali Das made her panicked and frightened which eventually forced her to commit suicide.

Who is this Mohammad Kazi? As it is found, he was the brother-in-law of the accused. That is to say, the second attempt to take away the victim forcibly was not done without the knowledge of the accused.

Rather, the accused may be presumed to have substantially contributed and abetted in launching such second attack.

We have found that accused Abul Kalam Azad @ Bachchu was a potential armed member of Razakar force. He is found to have launched attack being accompanied by his armed cohorts with intent to commit criminal acts constituting the offence of crimes against humanity. The accused, in furtherance of policy and plan of the Pakistani army and the organization collaborating it launched such attack directing the Hindu community, a part of civilian population and the criminal acts were done in context of the war of liberation in 1971. Therefore, the accused Abul Kalam Azad @ Bachchu is found to have incurred criminal liability under section 4(1) of the Act and found guilty for committing the offence of abduction, confinement and torture as crimes against humanity as specified in section 3(2) (a) of the Act which is punishable under section 20(2) read with section 3(1) of the Act . …(389, 390, 302-306) International Crimes (Tribunals) Act (XIX of 1973) Section 3(2)(a)

107

Crimes against humanity- Proof of in determining the fact as to whether the atrocious acts which are already proved to have been committed were directed against Bengali civilian population constituting the crimes against humanity in 1971 during the War of Liberation it is to be considered that the criminal acts committed in violation of customary international law constituting the offences enumerated in section 3(2)(a) of the Act of 1973 were connected to some policy of the government or an organization. It is to be noted too that such policy and plan are not the required elements to constitute the offence of crimes against humanity. These may be taken into consideration as factors for the purpose of deciding the context upon which the offences were committed. It is indeed a history now that the Pakistani army with the aid of its auxiliary forces, pro-Pakistan political organizations implemented the commission of atrocities in 1971 in the territory of Bangladesh in furtherance of following policies: •

Policy was to target the selfdetermined Bangladeshi civilian population

•

High level political or military authorities, resources military or other were involved to implement the policy

•

Auxiliary forces were established in aiding the implementation of the policy

•

The regular and continuous horrific pattern of atrocities perpetrated against the targeted non combatant civilian population.

The above facts in relation to policies are not only widely known but also beyond

108

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

reasonable dispute. The context itself reflected from above policies is sufficient to prove that the offences of crimes against humanity as specified in section 3(2)(a) of the Act of 1973 were the inevitable effect of part of systematic attack directed against civilian population. This view finds support from the observation made by the Trial Chamber of ICTY in the case of Blaskic as mentioned above. It is quite coherent from the facts of common knowledge involving the backdrop of our war of liberation for the cause of self determination that the Pakistani armed force, in execution of government’s plan and policy in collaboration with the local anti liberation section belonging to JEI and its student wing ICS and auxiliary forces, had to deploy public and private resources and target of such policy and plan was the unarmed civilian Bangalee population, proliberation people, Hindu community and pursuant to such plan and policy atrocities were committed to them as a ‘part of a regular pattern basis’ through out the long nine months of war of liberation. It may be legitimately inferred from the phrase “directed against any civilian population” as contained in the Act of 1973 that the acts of the accused comprise part of a pattern of ‘systematic’ crimes directed against civilian population. Therefore, the crimes for which the accused has been charged and found guilty were not isolated crimes, rather these were part of organized and planned attack intended to commit the offence of crimes against humanity as enumerated in section 3(2) of the Act, in furtherance of policy and plan.

International Crimes (Tribunals) Act (XIX of 1973) Section 3(2)(c) (i), Section 3(2) (c)(i) of the Act of 1973 defines ‘Genocide’ as an act committed with intent to destroy, in whole or in part, a national,

2 LNJ (2013)

ethnic, racial, religious or political group, such as, killing members of the group. From the charge no.7 framed we find that the criminal acts narrated therein were directed against the Hindu community which falls within the meaning of ‘religious group’ or a particular ‘members of the group’, with intent to destroy it, either whole or in part.

From testimony of most of witnesses it has been established that almost instantly after accomplishment of crimes targeting the Hindu community, the members of this community who were residents of the crime villages deported to India, in fear of further fatality and harms. This amply indicates the ‘genocidal intent’ of causing massive destruction and killing of civilians belonging to the Hindu community, as has been narrated in charge no. 7.

In the case in hand, it is abundantly clear that the accused absconded to evade the process of justice. Had the accused was not involved in the crime he would have certainly prepared to face the trial. But not only he has absconded instantly after issuance of warrant of arrest by this Tribunal but he has even left the country as reported by the enforcement or executing authority. The accused cannot be considered merely as an absentee accused. He is an absconded accused. Evading trial for the offences of which he has been charged with signifies his culpability too. The accused deliberately waived his right to be present at trial. This conduct adds further to his culpability. …(312, 314, 315, 316 and 318) VERDICT OF SENTENCE We have taken due notice of the intrinsic gravity of the offence of ‘genocide’ and murders as ‘crimes against humanity’ being offences which are particularly shocking to the conscience of mankind. We are of agreed

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

view that justice be meet with if a single ‘sentence of death’ under section 20(2) of the Act of 1973 is awarded to accused Abul Kalam Azad @ Bachchu for convictions relating to the offences of murder as ‘crimes against humanity’ (listed in charge Nos. 3, 4 and 6) and for the offence of ‘genocide’ (listed in charge no.7) of which he has been found guilty beyond reasonable doubt.

However, we are of further view that considering the proportionate to the gravity of offences the accused Abul Kalam Azad @ Bachchu deserves imprisonment i.e. lesser punishment for convictions relating to the remaining offences as crimes against humanity (listed in charge Nos. 1, 5 and 8).

Accordingly, we do hereby render the following ORDER on SENTENCE. Hence, it is ORDERED That the accused Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu son of late Abdus Salam Mia & late Magfura Khatun of village-Barakhardia (Choi ani), Police Station- Saltha, District-Faridpur at present sector no. 07, road no. 33, house no.

06, Police Station–Uttara, DMP, Dhaka and ‘Azad Villa’, 279/6 Chan Para, Uttarkhan, Dhaka is found guilty of the offences of ‘crimes against humanity’ (listed in charge no.s 3,4 and 6) and for the offence of ‘genocide’(listed in charge no.7) and he be convicted and sentenced to death and be hanged by the neck till he is dead under section 20(2) of the International Crimes (Tribunals) Act, 1973.

No separate sentence of imprisonment is being awarded to the accused Moulana Abul Kalam Azad @ Abul Kalam Azad @

109

Bachchu for convictions relating to the offences of crimes against humanity as listed in charge nos. 1, 5 and 8 of which too he has been found guilty as the ‘sentence of death’ has been awarded to him in respect of four other charges as mentioned above.

The accused Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu is however found not guilty of offence of crimes against humanity as listed in charge no.2 and he be acquitted thereof.

Since the convicted accused has been absconding the ‘sentence of death’ as awarded above shall be executed after causing his arrest or when he surrenders before the Tribunal, whichever is earlier.

The sentence of death awarded as above under section 20(2) of the International Crimes (Tribunals) Act, 1973 [The Act No. XIX of 1973] shall be carried out and executed in accordance with the order of the government as required under section 20(3) of the said Act. …(333 and 334).

For the Prosecution: Mr. Golam Prosecutor

Arief

Tipoo,

Chief

Mr. Syed Haider Ali, Prosecutor Mr. Shahidur Rahman, Prosecutor For the Accused (Absconded): Mr. Abdus Shukur Khan, State Defence Counsel Advocate, Bangladesh Supreme Court JUDGMENT [Under section 20(1) of the Act XIX of 1973] I. Opening words In the judicial history of Bangladesh, it is indeed the historic occasion that today this

110

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

Tribunal (ICT-2), a lawfully constituted domestic judicial forum, after dealing with the matter of prosecution and trial of internationally recognized crimes i.e. crimes against humanity, genocide which were perpetrated in 1971 in the territory of Bangladesh, during the War of Liberation is going to deliver its first verdict. At all stages of proceedings the prosecution and the defence have made laudable efforts extending their precious arguments on academic and legal aspects including citation of the evolved jurisprudence.

It inevitably has inspired us to address the legal issues closely involved in the case, together with the factual aspects as well. We take the privilege to appreciate their significant endeavor.

In delivering the verdict we have deemed it necessary in highlighting some issues, in addition to legal and factual aspects, relating to historical and contextual background, characterizeation of crimes, commencement of proceedings, procedural history reflecting the entire proceedings, charges framed, in brief, and the laws applicable to the case for the purpose of determining culpability of the accused. Next, together with the factual aspects we have made effort to address the legal issues involved and then discuss and evaluate evidence adduced in relation to charges independently and finally have penned our finding on culpability of accused.

Now, having regard to section 10(1) (j), section 20(1) and section 20(2) of the International Crimes (Tribunals) Act, 1973[Act No. XIX of 1973] this ‘Tribunal’ known as International Crimes Tribunal-2 (ICT-2) hereby renders and pronouncing the following judgment.

II. Commencement of proceedings 1. The Chief Prosecutor, on the basis of the report and documents submitted therewith by

2 LNJ (2013)

the Investigation Agency, after completion of investigation, submitted the ‘Formal Charge’ on 02.9.2012 under section 9(1) of the Act of 1973[hereinafter referred to as the ‘Act of 1973’] before this Tribunal alleging that the accused Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu as a significant member of Razaker, the auxiliary force and also as an ‘individual’, had committed the offences of crimes against humanity, genocide including the offence of providing contribution and moral support to the accomplishment of such crimes in different places of Faridpur district during the period of War of Liberation in 1971 and thereby proceedings commenced.

2. Thereafter, the Tribunal, under Rule 29(1) of the Rules of Procedure[hereinafter referred to as ‘ROP’], took cognizance of offences as mentioned in section 3(2) (a)(b)(g)(h) of the Act of 1973 and issued warrant of arrest for causing appearance of the accused as required under Rule 30 of the ROP. But the warrant could not be executed as the accused remained absconded. Thereafter, in compliance of legal requirement for holding trial in absentia by appointing state defence counsel to defend the absconded accused, the Tribunal on hearing both sides on charge framing matter framed 08 charges against the accused Abul Kalam Azad @ Bachchu by its order dated 04 November 2012 and thus the trial commenced.

III. Historical Background 3. Atrocious and horrendous crimes were committed during the nine-month-long war of liberation, which resulted in the birth of Bangladesh, an independent state. Some three million people were killed, nearly quarter million women were raped and over 10 million people were forced to flee to India to escape

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

brutal persecution at home, during the ninemonth battle and struggle of Bangalee nation.

The perpetrators of the crimes could not be brought to book, and this left a deep wound on the country's political psyche and the whole nation. The impunity they enjoyed held back political stability, saw the ascend of militancy, and destroyed the nation's Constitution.

4. A well-known researcher on genocide, R.J. Rummel, in his book Statistics of Democide: Genocide and Mass Murder Since 1900, states: “In East Pakistan [General Agha Mohammed Yahya Khan and his top generals] also planned to murder its Bengali intellectual, cultural, and political elite. They also planned to indiscriminately murder hundreds of thousands of its Hindus and drive the rest into India. And they planned to destroy its economic base to insure that it would be subordinate to West Pakistan for at least a generation to come.”

5. Women were tortured, raped and killed.

With the help of its local collaborators, the Pakistan military kept numerous Bengali women as sex slaves inside their camps and cantonments. Susan Brownmiller, who conducted a detailed study, has estimated the number of raped women at over 400,000.

[Source: http://bangladeshwatchdog1.wordpress.com/razakars/]

6. In August, 1947, the partition of British India based on two-nation theory, gave birth to two new states, one a secular state named India and the other the Islamic Republic of Pakistan.

The western zone was eventually named West Pakistan and the eastern zone was named East Pakistan, which is now Bangladesh.

7. In 1952 the Pakistani authorities attemptted to impose ‘Urdu’ as the only State language of Pakistan ignoring Bangla, the language of the majority population of Pakistan. The people

111

of the then East Pakistan started movement to get Bangla recognized as a state language thus marking the beginning of language movement that eventually turned to the movement for greater autonomy and self-determination and eventually independence.

8. In the general election of 1970, the Awami League under the leadership of Bangabandhu Sheikh Mujibur Rahman became the majority party of Pakistan. Despite this overwhelming majority, Pakistan Government did not hand over power to the leader of the majority party as democratic norms required.

As a result, movement started in this part of Pakistan and Bangabandhu Sheikh Mujibur Rahman in his historic speech of 7th March, 1971, called on the people of Bangladesh to strive for independence if people’s verdict is not respected and power is not handed over to the leader of the majority party. In the early hour of 26th March, following the onslaught of “Operation Search Light” by the Pakistani Military on 25th March, Bangabandhu declared Bangladesh independent immediately before he was arrested by the Pakistani authorities.

9. The massacres started with program called “Operation Searchlight,” which was designed to disarm and liquidate Bengali policemen, soldiers and military officers, to arrest and kill nationalist Bengali politicians, soldiers and military officers, to arrest and kill and round up professionals, intellectuals, and students (Siddiq 1997 and Safiullah 1989).

Actions in concert with its local collaborator militias, Razakar, Al-badar and Jamat E Islami (JEI) were intended to stamp out Bengali national liberation movement and to crush the national feelings and aspirations of the Bengalis.

10. In the War of Liberation that ensued, all people of East Pakistan wholeheartedly supported and participated in the call to free

112

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

Bangladesh but a small number of Bangalees, Biharis, other pro-Pakistanis, as well as members of a number of different religionbased political parties, particularly Jamat E Islami (JEI) and its student wing Islami Chatra Sangha (ICS) joined and/or collaborated with the Pakistan military to actively oppose the creation of independent Bangladesh and most of them committed and facilitated the commission of atrocities in violation of customary international law in the territory of Bangladesh. As a result, 3 million (thirty lac) people were killed, near about quarter million women were raped, about 10 million (one crore) people deported to India as refugees and million others were internally displaced. It also experienced unprecedented destruction of properties all over Bangladesh.

11. The Pakistan government and the military setup number of auxiliary forces such as the Razakars, the Al-Badar, the Al-Shams, the Peace Committee etc, essentially to collaborate with the military in identifying and eliminating all those who were perceived to be sympathized with the liberation of Bangladesh, individuals belonging to minority religious groups especially the Hindus, political groups belonging to Awami League and other proIndependence political parties, Bangalee intellecttuals and civilian population of Bangladesh.

Jamat E Islami (JEI), as an organization, substantially contributed in creating these paramilitias forces (auxiliary force) for combating the unarmed Bangalee civilians, in the name of protecting Pakistan. Undeniably the road to freedom for the people of Bangladesh was arduous and torturous, smeared with blood, toil and sacrifices. In the contemporary world history, perhaps no nation paid as dearly as the Bangalees did for their emancipation.

IV. Brief account of the accused 12. Accused Moulana Abul Kalam Azad @ Bachchu son of late Abdus Salam Mia & late Magfura Khatun of village-Barakhardia (Choi

2 LNJ (2013)

ani), Police Station- Saltha, District-Faridpur at present sector no. 07, road no. 33, house no.

06, Police Station–Uttara, DMP, Dhaka and ‘Azad Villa’, 279/6 Chan Para, Uttarkhan, Dhaka was born on 05.03.1947 in village ‘Barakhardia’. He studied in Faridpur Rajendra College and was a close associate of Ali Ahsan Mohammad Mujahid, the then President of East Pakistan Islami Chatra Sangha (ICS). Till formal formation of Razaker force, Moulana Abul Kalam Azad @ Bachchu actively aided the Pakistani army as an armed member of volunteer Razakar Force formed in Faridpur in committing criminal acts alleged.

He, during the war of liberation in 1971, assisted the Pakistani occupation force initially in the capacity of ‘Razaker’ and subsequently as chief of Al-Badar bahini of Faridpur. At one time, Moulana Abul Kalam Azad @ Bachchu was ‘rokan’ of jamat-E-Islami and now he is not associated with any political party. He is the chairman of ‘Masjid Council, a non government organization [NGO]. He could speak in Urdu well as he studied in ‘madrasa’.

On 21 April, 1971 he being united with the local anti liberation circle welcomed the Pakistani army in Faridpur district. He was a close associate of Pakistani army and actively and substantially assisted them as a potential member of Razakar (Volunteer) force in committing atrocities targeting the civilians and Hindu community and pro-liberation Bangalee people. In Faridpur, he was in charge of Razaker bahini which was equipped with rifles.

V. Introductory Words 13. International Crimes (Tribunals) Act, 1973 (the Act XIX of 1973)[hereinafter referred to as ‘the Act of 197’] is an ex-post facto domestic legislation enacted in 1973 and after significant updating the ICTA 1973 through amendment in 2009, the present government has constituted the Tribunal ( 1st

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

Tribunal) on 25 March 2010 . The 2nd Tribunal has been set up on 22 March 2012. The degree of fairness as has been contemplated in the Act and the Rules of Procedure (ROP) formulated by the Tribunals under the powers conferred in section 22 of the principal Act are to be assessed with reference to the national needs such as, the long denial of justice to the victims of the atrocities committed during 1971 independence war and the nation as a whole.

14. There should be no ambiguity that even under retrospective legislation (Act XIX enacted in 1973) initiation to prosecute crimes against humanity, genocide and system crimes committed in violation of customary international law is quite permitted. It is to be noted that the ICTY, ICTR and SCSL the judicial bodies backed by the UN have been constituted under their respective retrospective Statutes. Only the ICC is founded on prospective Statute.

15. Bangladesh Government is a signatory to and has ratified the ICCPR, along with its Optional Protocol. It is necessary to state that the provisions of the ICTA 1973 [(International Crimes (Tribunals) Act,1973] and the Rules framed there under offer adequate compatibility with the rights of the accused enshrined under Article 14 of the ICCPR. The 1973 Act of Bangladesh has the merit and mechanism of ensuring the standard of safeguards needed universally to be provided to the person accused of crimes against humanity.

16. As state party of UDHR and Geneva Convention Bangladesh cannot evade obligation to ensure and provide justice to victims of those offences and their relatives who still suffer the pains sustained by the victims and as such an ‘executive act’ (tripartite agreement) can no way derogate this internationally recognized obligation. Thus,

113

any agreement or treaty if seems to be conflicting and derogatory to jus cogens (compelling laws) norms does not create any hurdle to internationally recognized state obligation.

VI. Jurisdiction of the Tribunal 17. The Act of 1973 is meant to prosecute and punish not only the armed forces but also the perpetrators who belonged to ‘auxiliary forces’, or who committed the offence as an ‘individual’ or a ‘group of individuals’ and nowhere the Act says that without prosecuting the armed forces (Pakistani) the person or persons having any other capacity specified in section 3(1) of the Act cannot be prosecuted.

Rather, it is manifested from section 3(1) of the Act of 1973 that even any person (individual or group of individuals), if he is prima facie found individually criminally responsible for the offence(s), can be brought to justice under the Act of 1973. Thus, the Tribunals set up under the Act of 1972 are absolutely domestic Tribunal but meant to try internationally recognised crimes committed in violation of customary international law.

VII. Procedural History 18. At pre-trial stage, the Investigation Agency constituted under section 8(1) of the Act of 1973, through the Chief Prosecutor prayed for causing arrest of the accused Abul Kalam Azad @ Bachchu by filing an application on 25 March 2012, for effective and proper investigation [Rule 9(1) of the ROP]. The Tribunal directed to submit a progress report about the task of investigation and fixed 03 April 2012 for hearing and disposal of the application. On having the progress report as mentioned the Tribunal on hearing application issued warrant of arrest against the accused. But the enforcement

114

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

agency of the Dhaka Metropolitan Police could not execute it as the accused Abul Kalam Azad @ Bachchu, on sensing the matter of issuance of warrant of arrest had absconded.

19. However, finally, the Chief Prosecutor, on the basis of the report and documents submitted therewith by the Investigation Agency, after completion of investigation, submitted the ‘Formal Charge’ on 02.09.2012 under section 9(1) of the Act of 1973 before this Tribunal alleging that the accused as a potential member of Razaker force in Faridpur, the auxiliary force and also as an ‘individual’ had committed the offences of crimes against humanity, genocide including the offence of providing substantial contribution, assistance and moral support to the Pakistani army to the accomplishment of such horrific crimes in different places of Faridpur district during the period of War of Liberation in 1971 and thereby proceedings commenced.

Thereafter, the Tribunal, under Rule 29(1) of the Rules of procedure, took cognizance of offences as mentioned in section 3(2) (a)(b)(g)(h) of the Act of 1973 and issued warrant of arrest for causing appearance of the accused as required under Rule 30 of the ROP. 20. Dhaka Metropolitan Police (DMP) submitted the execution report before the Tribunal stating that the accused Abul Kalam Azad @ Bachchu could not be arrested as he has already absconded and he is learnt to have left the country instantly before the earlier warrant for arrest issued by this Tribunal. In this circumstance, the Tribunal, as required under Rule 31 of the ROP, ordered to publish a notice in two daily news papers, one in Bangla and another in English asking the accused to appear before this Tribunal within ten (10) days from the date of publication of such notice. Accordingly, the notice has been

2 LNJ (2013)

published on 25 October issue of ‘The Daily Janakantha’ (Bengali daily) and ‘The Daily Star’ (English daily). But despite publication of such notice the accused has not appeared before this Tribunal.

21. On 07 October , the Tribunal has observed in its order that there have been reasons to believe that the accused has absconded or has concealed himself so that he cannot be arrested and produced before the Tribunal and there is no immediate prospect for arresting him, and as such it ordered that the trial against the accused shall be held in his abesntia under section 10A(1) of the International Crimes (Tribunals) Act 1973 (as amended up-to-date) together with the Rule 32 of the ROP and accordingly it appointed Mr. Abdus Shukur Khan, Advocate, Bangladesh Supreme Court, as state defence counsel to defend the absconded accused who will have remuneration to be determined by the Tribunal [Section 10A(2) of the Act] . Tribunal also directed the prosecution to submit copy of formal charge and the documents which it intends to rely upon by 11 October for supplying the same to the appointed state defence counsel. On 11 October, the state defence counsel informed the Tribunal that he received the copy of formal charge, statement of witnesses and documents submitted therewith from the office of the Registrar.

Thereafter, the Tribunal fixed 21 October for hearing the charge matter. After hearing both sides, the Tribunal framed eight (08) independent charges including the charge of crimes against humanity and genocide against the accused Abul Kalam Azad @ Bachchu by its order dated 04 November 2012.

VIII. Applicable laws 22. The proceedings before the Tribunal shall be guided by the International Crimes (Tribunals) Act 1973, the Rules of Procedure

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

2012 (ROP) formulated by the Tribunal under the powers given in section 22 of the Act. Section 23 of the Act of 1973 prohibits the applicability of the Code of Criminal Procedure, 1898 and the Evidence Act 1872.

Tribunal is authorized to take into its judicial notice of fact of common knowledge which is not needed to be proved by adducing evidence [Section 19(4) of the Act]. The Tribunal may admit any evidence [Section 19(1) of the Act].

The Tribunal shall have discretion to consider hearsay evidence too by weighing its probative value [Rule 56(2)]. The defence shall have liberty to cross-examine prosecution witness on his credibility and to take contradiction of the evidence given by him [Rule 53(ii)]. Crossexamination is significant in confronting evidence, even in case of holding absentia trial.

The Act provides right of accused to crossexamine the prosecution witnesses.

The Tribunal may receive in evidence statement of witness recorded by Magistrate or Investigation Officer only when the witness who has subsequently died or whose attendance cannot be procured without an amount of delay or expense which the Tribunal considers unreasonable [Section 19(2) of the Act]. But in the case in hand no such statement of witness has been received, although the prosecution by filing an application has prayed to receive statement of four witnesses made to the Investigation Officer. The defence shall have right to cross-examine prosecution witnesses.

Accordingly the state defence counsel duly cross-examined all the prosecution witnesses.

23. The Act provides provision of holding trial in abesntia [section 10A] after due compliance of necessary legal requirement as contemplated in the Act and the ROP. 24. Both the Act and the Rules (ROP) have adequately ensured the universally recognised

115

rights of the defence. Additionally, the Tribunal, in exercise of its discretion and inherent powers as contained in Rule 46A of the ROP, has adopted numerous practices for ensuring fair trial by providing all possible rights of the accused. The Tribunal however is not precluded even from seeking guidance from international reference and relevant jurisprudence, if needed to resolve any crucial and relevant issue revealed in course of proceedings.

IX. Right to Disclosure 25. Article 9(2) ICCPR contains-“Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.” This provision seems to have been reflected compatibly in the Rule (3) of ICTBD ROP that provides-“At the time of executing the warrant of arrest under sub-rule (2) or later on, copy of allegations is to be served upon such person.” But it could not be complied with, in the instant case, as the accused Abul Kalam Azda @ Bachchu remained absconded and finally, pursuant to execution report of the warrant of arrest, he fled away from country.

26. Further, Rule 18 (4) of ICT-BD ROP provides “The Chief prosecutor shall file extra copies of formal charge and copies of other documents for supplying the same to the accused(s) which the prosecution intends to rely upon in support of such charges so that the accused can prepare his defence.” For the reason of absconsion of accused the Tribunal, after necessary procedural formalities as required under the ROP, ordered for holding absentia trial by appointing Mr. Abdus Shukur Khan, Advocate, Bangladesh Supreme Court as state defence counsel to defend the absconded

116

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

accused and it also ordered to submit copies of the formal charge, statement of witnesses and documents which the prosecution intends to rely upon for supplying the same to the state defence counsel for preparation of defence.

Thus, this Tribunal has the ability to hold trials in absentia in such a way as to refrain from violating human rights norms guaranteed by the International Covenant on Civil and Political Rights (ICCPR) and other agreements.

27. Therefore, right to disclosure and adequate opportunity to prepare defence have been adequately ensured so that the appointed state defence counsel can have due opportunity to defend the interest of absconded accused Abul Kalam Azad @ Bachchu keeping consonance with the Article 9(2) and 14(3)(a) ICCPR. X. Witnesses adduced by parties 28. Prosecution adduced and examined in all 22 witnesses of whom P.W.21 is a seizure witness and P.W.22 is the Investigation Officer. It took 13 working days to complete examination and cross-examination of 22 P.W.s. After closing of P.W.s, the learned state defence counsel informed the Tribunal once again that he would not adduce and examine any witness in support of defence as he could not have been able to submit the list of witnesses, documents as required under section 9(5) of the Act as he failed to have instruction from relatives of the absconded accused, despite contact that he made to them.

Accordingly the Tribunal fixed next date for summing up of prosecution case as required under section 10(1)(i) of the Act of 1973.

Accordingly the learned Prosecutor Mr. Syed Haider Ali and Mr. Shahidur Rahman have summed up prosecution case and thereafter the

2 LNJ (2013)

learned state defence counsel also presented summing up of defence case by agitating several crucial legal issues.

XI. The way of adjudicating the charges 29. The evidence produced by the prosecution in support of its respective case is mainly testimonial. The Tribunal considered that most of prosecution witnesses directly experienced and witnessed the terrible events they have narrated and that such trauma could have an impact on their testimonies. However, despite this reality, their testimony seems to be invaluable to the Tribunal in its search for the truth on the horrendous and atrocious incidents that happened in 1971 war of liberation in different areas of Faridpur district directing the Bangalee Hindu community, after duly weighing value and credibility of such testimonies.

Despite the indisputable atrociousness of the crimes committed during the war of liberation in 1971 by the Pakistani armed force in collaboration with the local perpetrators like accused Abul Kalam Azad @ Bachchu, we require to examine the facts constituting offences alleged in a most dispassionate manner, keeping in mind that the accused is presumed innocent.

30. The incidents took place about 40/41 years back, in 1971 and as such memory of live witnesses may have been faded and as a result discrepancy may have occurred in their version made in court. Such discrepancy is usual. The case before us, as we have already said, depends mostly on narratives of live witnesses who claim to have witnessed the commission of crimes and sustained trauma as well, as sufferer. Their testimony is based on their explicit memories.

31. Therefore, in the case in hand, together with the testimony of prosecution witnesses of

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

whom most are live witnesses, we shall have to depend upon too (i) facts of common knowledge (ii) context of the attack directed against unarmed Hindu civilians (iii) documentary evidence, if any (iv) relevant facts (v) circumstantial evidence (vi) Political status of the accused at the relevant time (vii) link of the accused with the local Pakistani armed force and (viii) the jurisprudence evolved on these issues in the adhoc Tribunals, if it is considered essential to rely upon. In the prosecution of crimes against humanity, principally accused’s status, position, authority, activities, link with the state organization are pertinent issues. In determining culpability of the accused, all these factors have to be addressed and resolved as well.

XII. Burden of the Prosecution 32. The prosecution, in the light of the charges framed, is burdened to prove (a) the commission of crimes narrated in charges (b) mode of participation of the accused in committing the crimes for which he has been charged (c) What was the status and role of the accused at the relevant time and how he had maintained association with the Pakistani army (d) the context of carrying out alleged atrocious crimes directed against civilian population and a particular group of population. In determining culpability of the accused prosecution is to establish too that (1) the perpetrator must know of the broader context in which the act occurs and (2) the act must not have been carried out for purely personal motives of the perpetrator.

XIII. Backdrop and Context 33. The backdrop and context of commission of untold barbaric atrocities in 1971 war of liberation is the conflict between the Bangalee nation and the Pakistani government that

117

pushed the Bangalee nation for self determination and eventually for freedom and emancipation. War of Liberation started following the ‘operation search light’ in the night of 25 March 1971 and lasted till 16 December 1971 when the Pakistani occupation force surrendered. Ten millions (one crore) of total population took refuge in India under compelling situation and many of them were compelled to deport.

34. As we see in the case in hand, the crimes are alleged to have been committed between the period of May 1971 to July 1971 in furtherance of accomplishment of policy and plan of Pakistani army. Why? What was the role of the accused during this period? What were his activities? How he acted to the accomplishment of crimes alleged? What he did and for whom and in which capacity? Had he link, in any manner, with the Pakistani occupation force or local administration in implementing organizational policy or plan and if so, why?

35. Admittedly , during the period of War of Liberation in 1971 parallel forces e.g Razaker Bahini, Al-Shams, Al-Badar Bahini, , Peace Committee were formed as auxiliary forces of the Pakistani armed force who provided moral supports , assistance and substantially contributed and also physically participated to the commission of horrendous atrocities in the territory of Bangladesh. It is the fact of common knowledge that thousands of incidents happened through out the country as part of organized and planned attack. Target was the pro-liberation Bangalee civilian population, Hindu community, pro-liberation political group, freedom fighters and finally the ‘intellectuals’. We are to search for answers of all these crucial questions which will be of assistance in determining the culpability of the

118

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

accused for the offences for which he has been charged. The charges against the accused arose from some particular events allegedly constituting the offences of crimes against humanity and genocide, during the War of Liberation in 1971.

2 LNJ (2013)

tted during 1971 War of Liberation that may qualify the offences as crimes against humanity as specified in section 3(2)(a) and the offence of genocide as specified in section 3(2) (c)(i) of the Act of 1973.

XVI. Addressing legal issues agitated

XIV. Points to be determined 36. In determining culpability of the accused for the perpetration of offences with which he has been charged we are to adjudicate the fundamental issues such as (i) Whether the accused was a potential member of Razakar (Volunteer) force at the relevant time (ii) whether the accused was substantially associated with Pakistani army and their activities for facilitating commission of offences (iii) whether the accused physically participated in the commission of crimes alleged and (iv) whether the allegations against the accused constitute a serious case of ‘crimes against humanity’ and ‘genocide’ within the Tribunal’s jurisdiction.

XV. Discussion 37. The case, as it transpires, is founded on oral evidence and documentary evidence as well. The evidence adduced by the prosecution is to be evaluated together with the circumstances revealed, relevant facts and facts of common knowledge. It would be expedient to have a look to the facts of common knowledge of which Tribunal has jurisdiction to take judicial notice [Section 19(3) of the Act of 1973] and the reports published in foreign news papers in 1971.

38. Therefore, before we address the above decisive issues we prefer to make a portrayal related to factual aspects. Inevitably this portrayal would lend us a clear depiction as to pattern, extent and nature of atrocities commi-

39. Before we enter into the segment of our discussion on adjudication of charges we consider it convenient to address and resolve the legal issues agitated during summing up of cases of both parties.

Argument advanced by the State defence Counsel on legal aspect 40. Mr. Abdus Shukur Khan, Advocate, Bangladesh Supreme Court and the learned state defence counsel defending the absconded accused Abul Kalam Azad @ Bachchu, in course of summing up case has taken pain in raising some pertinent legal issues. He argued that 40 years delay in prosecuting the accused is not sufficiently explained and such delay creates doubt and fairness of prosecuting the accused; that trial in absence of accused is not valid, particularly in prosecution and trying an individual on allegation of committing internationally recognised crimes; that the phrase ‘individual’ and ‘group of individuals’ have been purposefully incorporated in the Act of 1973 by way of amendment in 2009 and such amendment does not have retrospective effect and as such the accused cannot be brought to jurisdiction of the Tribunal as an ‘individual’; that the Act of 1973 was enacted to prosecute , try and punish 195 listed Pakistani war criminals who have been exonerated on the strength of tripartite agreement of 1974 and as such without prosecuting those listed war criminals present accused cannot be brought to justice; that the accused could have been prosecuted and tried under the Collaborator

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

Order 1972 if he actually had committed any criminal acts constituting offences in concert with the Pakistani army; that if the accused was actually prosecuted , tried and punished under the Collaborators Order 1972, now prosecuting him for the same offences is barred by the doctrine of double jeopardy; that it is not claimed that the accused alone had committed the offences alleged and thus without bringing his accomplices to justice the accused alone cannot be prosecuted; that the crimes alleged are isolated in nature and not part of organized attack ; that the offences have not been adequately defined in the Act of 1973 and for characterizing the criminal acts alleged for constituting offence of crimes against humanity the Tribunal should borrow the elements as contained in the Rome Statute.

Reply of Prosecutor to argument extended by the Defence 41. In reply to these legal contentions, Mr. Syed Haider Ali, the leraned Prosecutor submitted that there is an historical context of delay in bringing the ‘individuals’ to the justice although the legislation enacted in 1973 was prevailing. Step was taken by forming prosecution team composed of four eminent senior counsels for prosecuting the perpetrators of offences specified in the Act of 1973. But after the dark history of assassination of Bangabandhu Sheikh Mujibur Rahman and his family on 15 August 1975 the process was halted and even the Collaborators Order 1972 was repealed on 31.12.1975. Democracy remained halted till 1991 and also till 2009 there was no favourable situation, strong political will and consensus to prosecute the offenders under the Act of 1973. This history of common knowledge itself is explanatory for delayed prosecution. Besides, there is no limitation in bringing criminal prosecution, particularly when it relates to ‘international

119

crimes’ committed in violation of customary international law. Mr. Prosecutor went on to submit that the tripartite agreement is not a clog in bringing prosecution under the Act of 1973 against ‘auxiliary force ‘ and ‘individual’ or ‘group of individuals’. Besides, the tripartite agreement did not give immunity to listed 195 war criminals belonging to Pakistani occupantion army. The agreement was not in consonance with the norms of compelling laws.

42. In respect of definition and elements of crimes against humanity, Mr. Prosecutor submitted that the phrase ‘ directed against civilian population’ as contained in section 3(2)(a) of the Act of 1973 itself patently signifies that acts constituting offences specified therein are perceived to have been committed as part of ‘systematic attack’. The context of war of liberation is enough to qualify the acts as the offences of crimes against humanity. The ICTY Statute does not contain the ‘systematic or widespread’ requirement. Subsequently, through judicial pronouncements it has been settled jurisprudence of ICTY that the offences of crimes against humanity must have been committed as part of ‘systematic or widespread attack’. Our Tribunal which is a domestic Tribunal constituted under our own legislation enacted in the sovereign parliament meant to prosecute, try and punish the perpetrators of ‘international crimes’ taking the context and pattern of atrocities into account may arrive at decision whether the acts constituting the offences can be qualified as crimes against humanity. The amendment of the Act of 1973 bringing the phrase ‘individual’ or ‘group of individuals’ have to be considered together with the preamble of the Statute and thus it is misconceived to say that merely for the reason of such subsequent amendment to the Act an ‘individual’ cannot be brought under

120

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

jurisdiction of the Tribunal. As regard trial in absentia, it has been submitted that section 10A of the Act of 1973 provides provision of holding trial in absentia. The accused Abul Kalam Azad @ Bachchu deliberately remained absconding since pre-trial stage to evade the process of justice and as has been reported he has left the country. It signifies that he deliberately did not intend to face the prosecution. Absconsion itself is an incriminating circumstance to be considered together with evidence for determining culpability of the accused. (i) Does Delay obstruct bringing prosecution under the Act of 1973?

43. From the point of morality and sound legal dogma, time bar should not apply to the prosecution of human rights crimes. Neither the Genocide Convention of 1948, nor the Geneva Conventions of 1949 contain any provisions on statutory limitations to war crimes and crimes against humanity. Article I of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity adopted and opened for signature, ratification and accession by General Assembly resolution 2391 (XXIII) of 26 November 1968 provides protection against even any statutory limitation in prosecuting crimes against humanity, genocide etc. Thus, criminal prosecutions are always open and not barred by time limitation.

44. Still the Nazi war criminals of the Second World War are being prosecuted. Trials of genocides committed during the 1973 Chilean revolution and the Pol Pot regime of Cambodia in the1970s are now ongoing. The sovereign immunity of Slobodan Milosevic of Serbia, Charles Taylor of Liberia, and Augusta Pinochet of Chile (with the Chilean Senate's

2 LNJ (2013)

life-long immunity) as the head of state could not protect them from being detained and prosecuted for committing genocides, crimes against humanity, and war crimes.

45. In view of above settled position and in the absence of any statutory limitation, as a procedural bar, only the delay itself does not preclude prosecutorial action to adjudicate the culpability of the perpetrator of core international crimes. Indubitably, a prompt and indisputable justice process cannot be motorized solely by the painful memories and aspirations of the victims. It requires strong public and political will together with favourable and stable political situation. Mere state inaction, for whatever reasons, does not render the delayed prosecution readily frustrated and barred by any law.

46. Prolonged impunity and the related denial of the truth will allow old wounds to fester and may increase post-traumatic stress suffered by the victims of human rights crimes. [Special Rapporteur on the Right to Restitution, Comp. & Rehab. for Victims of Gross Violations of Human Rights & Fundamental Freedoms, Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, 135, Common on Human Rights, Econ. & Soc. Council, U.N. Doc. E/CN.4/Sub.2/1993/8 (July 2, 1993) [hereinafter van Boven] (by Theo van Boven).]

47. In this respect, Cohen has observed that “after generations of denials, lies, cover-ups and evasions, there is a powerful, almost obsessive, desire to know exactly what happened.� [STANLEY COHEN, STATES OF DENIAL: KNOWING ABOUT ATROCITIES AND SUFFERING 225 (2001)]. In Bangladesh, the efforts initiated under a lawful

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

legislation to prosecute, try and punish the perpetrators of crimes committed in violation of customary international law is an indicia of valid and courageous endeavor to come out from the culture of impunity. Customary international law has finally progressed to a stage where States may not point to the passage of time to escape their duty to prosecute and punish perpetrators of genocide, crimes against humanity, and war crimes in their own courts.

48. Crimes against humanity and genocide, the gravest crime never get old and that the perpetrators will face justice. We should not forget it that the millions of victims who deserve that their tormenters are held accountable; the passage of time does not diminish the guilt. Considerations of material justice for the victims should prevail when prosecuting crimes of the extreme magnitude is on the process. Therefore, justice delayed is no longer justice denied, particularly when the perpetrators of core international crimes are brought to the process of justice. However, there can be no recognised theory to insist that such a ‘system crime’ can only be pursued within a given number of years. Therefore, delayed prosecution does not rest as a clog in trying the accused and creates no mystification about the atrocities committed in 1971 (ii) Validity of holding Absentia trial 49. The Act of 1973 provides provision of holding trial in abesntia, if the appearance of the accused could not be ensured for the reason of his absconsion [Section 10A (1) of the Act].

In the international context, the issue of trials in absentia arose with the first modern international criminal tribunal, the International Military Tribunal (IMT) at Nuremberg, which was established to try war criminals operating under the European Axis Powers during World War II. Article 12 of the Charter of the

121

International Military Tribunal allowed for trials in absentia whenever the Tribunal found it necessary to do so in the interest of justice.

Famously, Martin Bormann, who served as the Nazi Party secretary, was indicted, tried, and sentenced to death, all in absentia, despite doubts as to whether he had even been informed of the proceedings.

50. United Nations reversed its policy against trials in absentia with the Special Tribunal for Lebanon (STL or Lebanon Tribunal) in 2006.

The STL allows trials "to commence and to end………… without an accused ever having showed up in court. The STL (Special Tribunal for Lebanon) expressly allows for trials in the absence of the accused in article 22 of the STL Statute, entitled "Trials in absentia." Article 22(1), lists the situations where the STL can hold trials in the accused absence.

51. According to Professor William Schabas under section 22(1) (c) of the STL Statute, the accused may be tried in absentia when he refuses to appear after an initial appearance (absconded) or is otherwise unable to be found after all reasonable steps have been taken to inform him of the proceedings including media publication and communication with his known state of residence.

52. Accused Abul Kalam Azad @ Bachchu could have due opportunity of being properly informed of the proceedings in advance if the warrant of arrest could have been executed. But by remaining absconded and leaving country the accused has willfully declined to exercise his right to be present for facing trial and as such under this circumstance, trial in his absence would be permissible "in the interest of the proper administration of justice."

53. In the case in our hand, at pre-trial stage, for the purpose of effective investigation this

122

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

Tribunal ordered for his arrest by issuing warrant and as it appears from the execution report, the accused knowing it preferred to remain absconded, instead of facing proceedings and trial. The accused has not intended to take part in the trial, rather wished to escape prosecution. The jurisprudence of both the ICCPR and the ECHR confirms that a trial in absentia will not violate a person's right to be present when he has expressly declined to exercise this right. The circumstance and the time and way the accused had gone to absconsion and left country led us to lawful inference that the accused has expressly declined to exercise his right to be present in trial.

54. That is to say, despite all reasonable steps taken to inform him of the proceedings including media publication, the accused Abul Kalam Azad @ Bachchu seems to be unwilling to face the trial, as he remained absconded and fled away even from country. It is a patent indicium that the accused, by his conduct, has waived his right to be present, and as such on this score too trial in his absence is quite permissible. (iii) Incorporating ‘Individual or group of individuals’ to the Act by amendment 55. It is submitted by the learned counsel appearing on behalf of the accused (absconded) that since the subsequent amendment brought in 2009 of the Act of 1973 by inserting the phrases ‘individual’ and ‘group of individuals’ in section 3(1) carries ‘prospective effect’, in reality, the present accused cannot be prosecuted in the capacity of an ‘individual’ for the offences underlying in the Act which is admittedly ‘retrospective’. Since such amendment has not been expressly given retrospective effect interpretation stands that

2 LNJ (2013)

the amendment is prospective. Prosecution could not show that the accused belonged to Razakar force or subsequently Al-Badar Bahini and as such on this score too he cannot be prosecuted under the Act of 1973 by bringing him within the ambit of the phrase ‘individual’.

56. At the out set, before we resolve the issue, it is to be noted that it is rather admitted that even under retrospective legislation (Act enacted in 1973) initiation to prosecute crimes against humanity, genocide and system crimes committed in violation of customary international law is quite permitted, as we have already observed.

57. We are to perceive the intent of enacting the main Statute together with fortitude of section 3(1) of the Act. At the same time we cannot deviate from extending attention to the protection provided by the Article 47(3) of the Constitution to the Act of 1973 which was enacted to prosecute, try and punish the perpetrators of atrocities committed in 1971 War of Liberation.

58. The legislative modification that has been adopted by bringing amendment in 2009 has merely extended jurisdiction of the Tribunal for bringing the perpetrator to book if he is found involved with the commission of the criminal acts even in the capacity of an ‘individual’ or member of ‘group of individuals’. It is thus validly understood that the rationale behind this amendment is to avoid letting those who committed the most heinous atrocities go unpunished. This is the intent of bringing such amendment.

59. It may be further mentioned here that the words ‘individual’ or ‘group of individuals’ have been incorporated both in section 3 of the Act of 1973 and in Article 47(3) of the

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

Constitution by way of amendments in 2009 and 2011 respectively. The right to move the Supreme Court for calling any law relating to internationally recognised crimes in question by the person charged with crimes against humanity and genocide has been taken away by the provision of Article 47A(2) of the Constitution. Since the accused has been prosecuted for offences recognised as international crimes as mentioned in the Act of 1973 he does not have right to call in question any provision of the International Crimes (Tribunals) Act 1973 or any of amended provisions thereto.

60. Thus, we hold that the application of prospectiveness or retrospectivity as to amendment to section 3(1) of the Act of 1973 raised by the defence is of no consequence to him in consideration of his legal status and accordingly the defence objection is not sustainable in law, particularly in the light of Article 47(3) and Article 47A(2) of the Constitution. (iv) Tripartite Agreement and immunity to 195 Pakistani war criminals 61. It is not good enough to say that no individual or member of auxiliary force as stated in section 3(1) of the Act of 1973 can be brought to justice under the Act for the offence(s) enumerated therein for the reason that 195 Pakistani war criminals belonging to Pak armed force were allowed to evade justice on the strength of ‘tripartite agreement’ of 1974. Such agreement was an ‘executive act’ and it cannot create any clog to prosecute member of ‘auxiliary force’ or an ‘individual’ or member of ‘group of individuals’ as the agreement showing forgiveness or immunity to the persons committing offences in breach of customary international law was derogatory to

123

the existing law i.e the Act of 1973 enacted to prosecute those offences.

62. It is settled that the jus cogens principle refers to peremptory principles or norms from which no derogatory is permitted, and which may therefore operate a treaty or an agreement to the extent of inconsistency with any such principles or norms. We are thus inclined to pen our convincing view that the obligation imposed on the state by the UDHR (Universal Declaration of Human Rights) and the Act of 1973 is indispensable and inescapable and as such the ‘tripartite agreement’ which is mere an ‘executive act’ cannot liberate the state from the responsibility to bring the perpetrators of atrocities and system crimes into the process of justice.

63. As state party of Universal Declaration of Human Rights (UDHR) and Geneva Convention Bangladesh cannot evade obligation to ensure and provide justice to victims and sufferers of those offences and their relatives who still suffer the pains sustained by the victims and as such an ‘executive act’ (tripartite agreement) can no way derogate this internationally recognized obligation. Thus, any agreement or treaty if seems to be conflicting and derogatory to jus cogens (compelling laws) norms does not create any hurdle to internationally recognized state obligation.

64. Next, the Act of 1973 is meant to prosecute and punish not only the ‘armed forces’ but also the perpetrators who belonged to ‘auxiliary forces’, or who committed the offence as an ‘individual’ or member of ‘group of individuals’ and nowhere the Act says that without prosecuting the armed forces (Pakistani) the person or persons having any other capacity specified in section 3(1) of the

124

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

2 LNJ (2013)

Act cannot be prosecuted. Rather, it is manifested from section 3(1) of the Act of 1973 that even any person (individual or member of group of individuals), if he is prima facie found individually criminally responsible for the offence(s), can be brought to justice under the Act of 1973. Therefore, the argument that since the main responsible persons (Pakistan Army) have escaped the trial, on the strength of the tripartite agreement providing immunity to them, the next line collaborators or perpetrators cannot be tried is far-off to any canons of criminal jurisprudence. We are of the view that the ‘tripartite agreement’ is not at all a barrier to prosecute even a local civilian perpetrator under the Act of 1973.

said to be barred by the doctrine of double jeopardy.

(v) The accused could have been prosecuted and tried under the Collaborators Order 1972 and if prosecuted present prosecution for same offences is barred by the doctrine of Doctrine of Double Jeopardy

68. Thus, the doctrine of double jeopardy prohibits that the accused should not have been put in peril of conviction for the same criminal offence as that with which he is then prosecuted and punished. First, there is no paper or document before us to show that accused was prosecuted under the Collaborators Order 1972 and the fate of such prosecution.

65. An offence for which the accused could have been convicted on the initial indictment if actually brought against him under the Collaborators Order 1972 does not appear to be same for which the accused has been prosecuted under the Act of 1973. The Tribunal, in determining the issue of double jeopardy, is concerned with offences or crimes as clearly refer to the Act of 1973 and not the Collaborators Order 1972.

66. There has been no proof that the accused was prosecuted and tried under the Collaborators Order 1972. It is not correct to say that the accused could have been prosecuted if actually he had perpetrated any of crimes enumerated in the Act of 1973 for which he has been charged now. Next, if the accused was really prosecuted and tried under the Collaborators Order 1972 the present prosecution under the Act of 1973 cannot be

67. It is to be tested whether two criminal offences are the same for the purposes of double jeopardy jurisprudence, Lord Morris explained that-what has to be considered is whether the crime or offence charged in the later indictment is the same or is in effect or is substantially the same as the crime charged (or in respect of which there could have been a conviction) in a former indictment and that it is immaterial that the facts under examination or the witnesses being called in the later proceedings are the same as those on some earlier proceedings. [1964] A.C. 1254 at 1306 [H.L.(E.)].

69. The Collaborators Order 1972 was a different legislation aiming to prosecute the persons responsible for the offences enumerated in the schedule thereof. It will appear that the offences punishable under the Penal Code were scheduled in the Collaborators Order 1972. While the 1973 Act was enacted to prosecute and try the crimes against humanity, genocide and other system crimes committed in violation of customary international law. There is no scope to characterize the offences underlying in the Collaborators Order 1972 to be the same offences as specified in the Act of 1973.

70. In the case in hand, we have found that there are sufficient grounds to presume prima

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

facie that the accused was physically associated with the perpetration of the offences enumerated in the 1973 Act. Therefore, we are disinclined to accept the argument that merely for the reason that since the accused was not brought to justice under the Collaborators Order 1972 now he is immune from being prosecuted under the Act of 1973. (vi) Whether the accused can be prosecuted without prosecuting his accomplices 71. Another question has been agitated by the defence. According to the charges it will reveal that apart from the accused, some other armed Razakars and co-perpetrators accompanied the accused at the crime scene in committing the crimes. But excepting accused, none of his accomplices has been brought to justice. It is true. But that by itself does not make the horrendous episode of atrocities directing the civilian population belonging to Hindu community constituting crimes against humanity and genocide untrue or give any immunity to accused Abul Kalam Azad @ Bachchu. If the accused is found guilty and criminally liable beyond reasonable doubt for his culpable acts, inaction in prosecuting his accomplices cannot be the reason for holding the former innocent or relieved from liability.

In this regard we may recall the provision as contained in section 4(1) of the Act of 1973. (vii) Definition and Elements of Crime 72. The learned defence counsel has argued that the offences specified in section 3(2) are not well defined and the same lack of elements.

Section 3(2) of the ICTA 1973 does not explicitly contain the ‘widespread or systematic’ element for constituting the crimes against humanity. In this regard this Tribunal may borrow the elements and definition of crimes as contained in the Rome Statute.

125

73. We are not agreed with the above submission. Section 3(2)(a) of the Act is self contained and fairly compatible with the international jurisprudence. Before coming to a finding as to whether the attack directed against civilian population, in 1971, on political, racial, ethnic or religious grounds was ‘systematic’? Let us have a look to the jurisprudence evolved on this issue.

74. If we make a closer look to the contemporary standards of definition of 'Crimes against Humanity' in various Statutes, first this observation can be made that there is no 'consistency' among definitions. The definition of ‘Crimes against humanity’ as contemplated in Article 5 of the ICTY Statute 1993 neither requires the presence of 'Widespread and Systematic Attack' nor the presence of 'knowledge' thereto as conditions for establishing the liability for 'Crimes against Humanity'. True, the Rome Statute definition differs from that of both ICTY and ICTR Statutes.

75. Section 3(2) (a) of the International Crimes (Tribunals) Act, 1973 (as amended in 2009) defines the 'Crimes against Humanity' in the following manner: 'Crimes against Humanity: namely, murder, extermination, enslavement, deportation, imprisonment, abduction, confinement, torture, rape or other inhumane acts committed against any civilian population or persecutions on political, racial, ethnic or religious grounds, whether or not in violation of the domestic law of the country where perpetrated;' 76. It is now settled that the expression ‘directed against any civilian population’ is an expression which specifies that in the context of a crime against humanity the civilian

126

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

population is the primary object of the attack.

The definition of ‘Crimes against humanity’ as contemplated in Article 5 of the ICTY Statute 1993 neither requires the presence of 'Widespread and Systematic Attack' nor the presence of 'knowledge' thereto as conditions for establishing the liability for 'Crimes against Humanity'. It is the jurisprudence developed in ICTY that identified the ‘widespread’ or ‘systematic’ requirement.

77. True, the Rome Statute definition differs from that of both ICTY and ICTR Statutes.

But, the Rome Statute says, the definition etc. contained in the Statute is ‘for the purpose of the Statute’. So, use of the phrase “for the purpose of the Statute” in Article 10 of the Rome Statute means that the drafters were not only aware of, but recognized that these definitions were not the final and definitive interpretations, and that there are others. Thus, our Tribunal (ICT) which is a domestic judicial body constituted under a legislation enacted by our Parliament is not obliged by the provisions contained in the Rome Statute. The Rome Statute is not binding upon this Tribunal for resolving the issue of elements requirement to constitute the offence of crime against humanity.

78. If the specific offences of 'Crimes against Humanity' which were committed during 1971 are tried under 1973 Act, it is obvious that they were committed in the ‘context’ of the 1971 war. This context itself is sufficient to prove the existence of a ‘systematic attack' on Bangladeshi self-determined population in 1971. The Tribunal, as per section 19(3) of the 1973 Act, shall not require proof of facts of common knowledge; it shall take judicial notice of such fact. The specific offences committed as 'Crimes against Humanity' during 1971 war, were very much a part of a

2 LNJ (2013)

‘systematic attack’ of the ongoing atrocious activities.

79. The section 3(2)(a) of the Act states the 'acts' constituting the offences of crimes against humanity is required to have been ‘directed against any civilian population' or 'persecution on political, racial, ethnic or religious grounds'. To qualify as a crime against humanity, the acts enumerated in section 3(2)(a) of the Act must be committed against the ‘civilian population’ on national, political, ethnic, racial or religious grounds.

Thus, an “attack against a civilian population” means the perpetration against a civilian population of a series of acts of violence, or of the kind of mistreatment referred to in subsection (a) of section 3(2). Conducts constituting ‘Crimes’ directed against ‘civilian population’ thus refers to organized and systemic nature of the attack causing acts of violence to the number of victims belonging to civilian population. . Therefore, the claim as to the non-existence of a consistent international standard for the definition of ‘crimes against humanity’ as enumerated in the1973 Act is visibly baseless.

XVII. Relevant and Decisive Factual Aspects 80. For the purpose of adjudicating the charges, at the out set, the following decisive factual aspects need to be resolved. These aspects relate to the context and status of the accused at the relevant time of perpetration of crimes alleged. To qualify the criminal acts allegedly committed by the accused as the offences of crime against humanity these aspects are essentially needed to be resolved first. (i) When the Pakistani army rolled into Faridpur Town

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

81. This factual issue is crucially related to the events of crimes alleged. Because, from the charges framed against the accused it reveals that all the events of alleged atrocities were committed between the period of 14 May to 26 July 1971. The accused Abul Kalam Azad @ Bachchu allegedly in the capacity of Razakar and his accomplices perpetrated all these crimes and charge nos. 1 and 2 demonstrate that the accused used to maintain close and active association with the Pakistani army at different camps set up in Faridpur.

82. On prayer of prosecution, the Tribunal has permitted it to adduce attested photocopy of the East Pakistan Police Abstract of Intelligence [Vol XXV No. 17] dated April 24 1971 and the attested photocopy of the East Pakistan Police Abstract of Intelligence [Vol XXV No. 18] dated May 1 1971, as additional evidence under section 9(4) of the Act of 1973, as it considered those relevant for adjudication of the charges. The documents have been marked as Exhibit- 10 and 11.

83. It is quite evident from evidence of witnesses that the Pakistani army rolled into Faridpur town on 21 April 1971, in furtherance of ‘operation search light’ executed on 25 March 1971 in Dhaka and all the events of atrocities as listed in the charges took place since the entry of Pakistani army into Faridpur town and target of such horrific atrocious acts was mostly the Hindu community. Exhibit 10 and 11 add strength to an unerring inference on these pertinent relevant facts.

84. The East Pakistan Police Abstract of Intelligence [Vol XXV No. 17] dated April 24 1971(Exhibit-10) so far it relates to ‘Faridpur’ in serial 387 speaks as below: “387. Faridpur.—On 21st April, 1971, some deserters from East Bengal

127

Regiment along with some ‘Mukti Fauz’ numbering about 20/25 approached the Deputy Commissioner, Faridpur and the Superintendent of Police, Fairdpur, at the latter’s residence and demanded arms and ammunition and Police Force from them to resist the Pakistan Army who were coming to Faridpur on that day.

They refused to fulfill their demands.

At this the ‘Mukti Fauz’ and EBR deserters surrounded the residence of the Superintendent of Police when some police personnel who were present there took their position to encounter them. Then the ‘Mukti Fauz’ and EBR deserters left the place, and fled away from Faridpur town just before the arrival of the Army on 21st April 1971.”

85. Thus, it has been conclusively proved that the Pakistan Army rolled into Faridpur town on 21 April 1971 and there was an attempt to resist their entry on part of ‘Mukti Fauz’ and pro-liberation members of (East Bengal Regiment (EBR) (who were treated as deserters). We have also found from testimony of P.W.7, P.W. 15 and P.W. 18 that entry of Pakistan Army into Faridpur town on 21 April 1971 was almost unhindered as the attempted resistance on part of pro-liberation group of Bengali people became futile as they lacked war-arms to encounter. Additionally, Exhibit10 extends convincing reason to assume the above P.W.s quite credible as well.

86. Next, the East Pakistan Police Abstract of Intelligence [Vol XXV No. 18] dated May 1 1971 (Exhibit-11), so far it relates to ‘Faridpur’ in serial 431 says as follows: “431,Faridpur.—At the instance of the Pakistan democratic Party, Faridpur, a ‘Peace Committee” has

128

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

been formed on 27th April , 1971, with Mohammad Afzal Husain (PML), Advocate, Faridpur town, as convener and 38 others, as members.”

87. It is thus also established that within week the Pakistani army rolled into Faridpur, local peace committee was formed on 27 April with Mohammad Afzal Husain (PML), Advocate, Faridpur town, as convener and 38 others, as members. (ii) Formation of Razakar in Faridpur in 1971 88. In order to get a picture as to the role and status of the accused including his political affiliation during the War of Liberation in 1971, at the out set we need to concentrate to what has been testified by the prosecution witnesses. It would be fairly relevant and indispensable for adjudication of his culpability. It appears that P.W.7 and P.W.15 and P.W.18 have made the portrayal, in this regard.

89. P.W.7 Md. Amir Hossain (60) from village East Khabashpur police station Kotwali district Faridpur, a freedom fighter has testified that on 21 April 1971 the Pakistani troops started rolling towards Faridpur town and the pro-liberation people together with police, Ansar , VDP attempted to resist them at Goalanda Ghat but had failed as they were not equipped with war-weapons. Afterwards, they moved towards Faridpur town where at a place known as ‘Goalchamat’ they found Advocate Afzal Hossain, Alauddin Khan, Khokon, Abul Kalam Azad @ Bachchu (accused) and 300/400 biharis welcoming the Pakistani troops and they started celebrating and chanting.

90. As regard formation of Razakar force in Faridpur, P.W.15 Probodh Kumar Sarker stated that during the first part of the month of May

2 LNJ (2013)

1971 Razakar force was locally formed in Faridpur. P.W.15, in reply to question elicited in his cross-examination, replied that Abul Kalam Azad @ Bachchu received fire arms operating training possibly at Faridpur stadium.

First, it has been established from evidence of most of P.W.s that the Pakistani troops had set up camps at Faridpur stadium and Faridpur circuit house. Second, it is found that at the time of implementing attack directed against civilians, accused Abul Kalam Azad @ Bachchu used to carry a rifle with him. Thirdly, the victims and sufferers of atrocities which were committed during the period of 14 May to 26 July 1971 have unequivocally testified that at that time the accused was known as a Razakar and such testimony could not have been impeached by the defence.

91. P.W.5 Ranjit Kumar Nath, a freedom fighter and a victim of atrocious torture has also stated in cross-examination that accused Bachchu was also involved with the process of formation of Razakar force and subsequently he was the head of Faridpur Al-Badar force.

This version remained unshaken.

92. P.W.8 Profulla Kumar Mondol (63). He knew accused Abul Kalam Azad @ Bachchu as he saw him attending meetings in support of Jamat E Islami and he (accused) was a student, junior to him, at Faridpur Rajendra College.

This is why P.W.8 knew accused Abul Kalam Azad @ Bachchu. Defence failed to refute its credibility. From this version of P.W.8 it is evident that the accused was affiliated to Jamat E Islami politics.

93. However, P.W.8 who is a natural witness has also stated in his cross-examination, in reply to question put to him by the defence, that he learnt that Razakar force was formed ten-twelve days after the Pakistani troops

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

129

entered in Faridpur and accused was its commander. Similarly P.W.10 Tushta Kumar Mondol (54) testified the event of crime of killing as listed in charge no.4 incriminating the accused. He however also stated that at that time accused Abul Kalam Azad @ Bachchu was the Razakar Commander. This version as well remained unshaken in his crossexamination.

necessary documents (old evidence) which were kept archived till 1975 in the office of the Deputy Commissioner, Faridpur, during his investigation. Undeniably, state support and co-operation and strong political will are required for the prosecution of perpetrators of internationally recognised system crimes by way of access direct evidence, such as archives or confidential information.

94. From a report containing information (Exhibit-7: page 150 of the volume of prosecution’s document) about the accused as transmitted to the Special Superintendent of Police, City Special Branch, Dhaka by the Police Super, Faridpur vide its MEMO No. 1782 dated 12.4.2010 goes to show that initially accused Abul Kalam Azad @ Bachchu was a Razakar and was also the head of Faridpur Al-Badar force.

98. The history says, after the gloomy episode of assassination of the father of nation and his family happened on 15 August 1975 the persons and parties in state power started allowing individuals and political organizations which played visibly a notorious and antagonistic role resisting the war of Liberation in 1971 of being rehabilitated and recognized in all spheres of state. Even some of potential individuals actively affiliated with the politics of Jamat E Islami (JEI) in 1971 and its student wing Islami Chatra Sangha (ICS) got fair opportunity of sharing state power and even the privilege of hoisting our pride and heard earned national flag in their houses and vehicles.

Unfortunately, the nation carrying enormous pains had to play the role of mere spectator.

Because, the situation was not favourable for raising voice for prosecuting the perpetrators of serious crimes committed in violation of customary international law in 1971. Thus, the likelihood that by using the passage of time and situation favourable to them the beneficiary quarter has destroyed the relevant documents that might be enough to establish their culpability cannot be brushed aside.

95. It is also found in a report titled “Pakistani Regime Is Preparing For Long Guerrilla War in East” published in the New York Times , July 30 1971 issue (By MALCOLM W. BROWNE) that“After brief training the recruit is given a rifle………………..The Government says it has already recruited more than 22,000 Razakars of a planned force of 35,000.”

96. The above report together with the East Pakistan Police Abstract of Intelligence [Vol XXV No. 17] dated April 24 1971(Exhibit-10) has adequately proved that the then Pakistan Government organized the Razakar force in Faridpur instantly after the Pakistani troop rolled into Faridpur in furtherance of ‘operation search light’ on 25 March 1971 to encounter the Bengali nation who started fight for freedom.

97. The Investigation Officer P.W.22 has explained why he could not collect sufficient

99. However, despite the above challenge, eventually we have got two matters proved.

One is entry of Pakistani troops into Faridpur on 21 April 1971 and another is the present accused Abul Kalam Azad @ Bachchu was provided training with a rifle having which

130

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

with him he allegedly participated the commission of crimes being accompanied by his accomplices and these two facts lend assurance that he was recruited by the Pakistani troops as a potential armed Razakar and at the relevant time he perpetrated crimes in such capacity and subsequently he became the head of Faridpur Al-Badar force. That is to say, at the time of perpetration of alleged horrific crimes alleged his status was a potential Razakar who was also a close affiliate of Pakistani army in Faridpur. (iv) Conduct of accused relevant to prove his status and association with Pakistani army 100. P.W.7 has stated that the Pakistani troops established their camps at Faridpur stadium, Police line, Ambika memorial hall, Faridpur Rajendra College with the aid of those people i.e. Advocate Afzal Hossain, Alauddin Khan, Khokon, Abul Kalam Azad @ Bachchu (accused). This version remained unshaken.

101. P.W.7 has testified that on the same day i.e on 21 April 1971, accused Bachchu Razaker with the assistance of Pakistani troops and local biharis looted the business concern of Badrilal Ramkrishna Agarwal situated at Chwak Bazar area and had set up his own office on the first floor of the building for administering anti-liberation activities there from.

Later on, Bachchu Razaker had occupied the house of one Hiralal Mukhtar situated at Kabi Jasimuddin road where he had set up a training center for Al-badar. Defence could not shake all these pertinent versions.

102. Thus it is proved that the accused aided and substantially contributed in setting up army camps in Faridpur town wherefrom they used to operate their atrocious activities. Next, prosecution has been able to prove the role and

2 LNJ (2013)

conduct of accused who started his atrocious activities from the beginning of entry of Pakistani troops in Faridpur. This is of course a key relevant fact in determining his culpable role and status during the period of commission of offences of which he has been charged. Such conduct and activities of accused amply proves that he was a close accomplice of Pakistani army.

103. P.W.7 stated too that on 27.7.1971 some 7/8 armed Razakars including some biharis apprehended him from a place known as Jessore road at Goalchamat pretending him a freedom fighter and handed him over to Major Koraishi at Faridpur stadium camp. He was kept there confined in a room of the gallery’s ground floor where he found some more detainees. This version could not be dislodged in his cross-examination. That is to say the fact of remaining of P.W.7 confined at the camp is proved.

104. We have found from testimony of P.W7 that at the camp he found Ishaque, Anwar and Mansur of Maheshpur, EPR Hanif Mohammad of Bhanga, Subedar Golam Mostafa and badiuzzaman of Madaripur, Anukul of Khabashpur, Kabir, son of head master of Faridpur high school detained there . P.W.7 stated that he was kept confined there for long one month and during the period of his confinement he also saw bringing Khalil, Badal, Kislu, owner of Khondoker hotel and Abu Ysuf Pakhi (P.W.18) to the confinement cell.

105. P.W.7 denied that he did not state it to the Investigation Officer, while the defence drew it to his attention, to contradict his version that he made earlier to the IO. True, the P.W.7 did not state it to the IO, as it appears. But merely for this reason the version that he has made on

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

dock narrating the fact of his confinement does not go on air. Mere omission in narrating a piece of fact earlier stated does not make the entire evidence of P.W.7 deposed in court untrue, particularly when the fact of his confinement in the camp of Faridpur stadium remains undisputed and unshaken.

106. P.W.7 also stated that during his confinement in the camp he saw accused Abul Kalam Azad @ Bachchu always accompanying Major Koraishi and he thought that he (accused) would initiate for his release as he was his class mate but he instead of doing it had told Major Koraishi –“he is a freedom fighter, finish him” and with this the Pakistani army had tortured him mercilessly. He could also hear screaming of women from a nearby torture cell. Defence could not impeach this pertinent version relating to the fact of affiliation of the accused with Pakistani army at the camps.

107. It is thus blatantly proved that accused Abul Kalam Azad @ Bachchu was a potential accomplice of Pakistani army which presumably being induced and encouraged by him used to initiate and commit atrocities. (v)Whether the accused can be prosecuted as a member of ‘auxiliary force’?

108. It is a fact of common knowledge as well that the Pakistani occupation army organized Razakar, Al-Badar for the purpose of their operational support in implementing its atrocious activities in furtherance of policy and organized plan.

109. Together with the Al-Badr and Al-Shams paramilitary forces, the Razakar were under Pakistani Army command. The Razakar force was composed of mostly pro-Pakistani Bengalis. Razakars were actively associated

131

with many of the atrocities committed by the Pakistan Army during the 9-month war of liberation in 1971.On September 7, 1971, Pakistan Defence Ministry through an official order (No:4/8/52/543 P. S.= 1 /Ko/ 3659 D-Ko) elevated members of the Razakar Bahini to the status of auxiliary force of the Pakistan Armed Forces, it is true. But even before such elevation, accused as a member of volunteer Razakar force acted and conducted actively along with and in association with the Pakistani army in committing atrocities. It has been proved. This is enough for an unerring inference that the accused had acted as a member of a militia force under control of Pakistani army for their operational and other purposes and therefore, we are of view that at the time of committing crimes for which he has been charged with the accused was a member of ‘auxiliary force’ as defined in section 2(a) of the Act of 1973 110. How the P.W.7 knew the accused Abul Kalam Azad @ Bachchu? It is a vital question to be resolved for weighing credibility of evidence of P.W.7. It is found that in reply to question put to him by the defence during cross-examination P.W.7 replied that accused Abul Kalam Azad @ Bachchu was his class mate when he was a student of arts group in Faridpur Rajendra College. It could not be refuted in any manner. Therefore, the testimony of P.W.7 that he saw the accused and his accomplices welcoming the Pakistani troops on 21 April 1971 at a place known as Goalchamat, Faridpur and later on he saw the accused at the army camp where he (P.W.7) was kept confined inspires full credence.

111. The above relevant proved that at the time alleged horrific crimes accused was that he was and a close affiliate of Faridpur.

facts have clearly of perpetration of alleged status of a potential Razakar Pakistani army in

132

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

XVIII. Adjudication of Charges 112. Charge no.7 relates to the crime of ‘genocide’ as specified in section 3(2)(c)(i) of the Act while the remaining 07 charges relate to the criminal acts constituting the offences of ‘crimes against humanity’ as specified in section 3(2) (a) of the Act. For the sake of convenience of discussion we consider it expedient to adjudicate the charge no.7 first as the nature of crimes related to it differs from that as described in the latter ones. (i) Adjudication of Charge No 07 113. Summary Charge: On May 17 1971 in the early morning, accused Abul Kalam Azad @ Bachchu (absconded) a member of Razakar Force and subsequently the local commander of Al-Badar Bahini or as a member of group of individuals, being accompanied by his 30/35 armed accomplices is alleged to have caused indiscriminate destruction and killing of (1) Sharat Chandra Poddar, (2) Suresh Poddar, (3) Shyama Pada Saha, (4) Jatindra Mohan Saha, (5) Nil Ratan Samadder , (6) Subol Koyal and (7) Mallik Chakravarti, the members of Hindu community, by gun shot. It is also alleged that in conjunction of the incident, the accused and his accomplices gunned down (8) Haripada Saha residents of crime village Hasamdia and (9) Probir Kumar Saha @ Puitta to death by abducting them to the river bank of ‘Maindia bazar’ and thereby the accused has been charged for the physical participation and also for substantially contributing to the actual commission of offence of ‘genocide’ for ‘killing the members of Hindu community’, with intent to destroy the Hindu religious group, either whole or in part as specified in section 3(2) (c)(i) of the Act which are punishable under section 20(2) read with section 3(1) of the Act. Witnesses

2 LNJ (2013)

114. Prosecution adduced and examined in all 04 witnesses as P.W.16, P.W.17, P.W.19 and P.W.20 in support of the charge no.7 which relates to the offence of genocide as specified in section 3(2) (c)(i) of the Act. Of them P.W.16 and P.W.19 are the live witnesses. The alleged event of massacre relates to two crime sites. One is Hasamdia village under police station Boalmari district Faridpur and another one is Moindia Bazar under the same police station. The massacre alleged continued till noon from early part of morning. P.W.16 claims to have witnessed the second part of the event that took place at Moindia Bazar. P.W.19 the son of victim Shyamapada Saha a resident of the crime village Hasamdia had opportunity to witness the destructive incident remaining in hiding inside a bamboo bush adjacent to his house, as he has claimed. P.W.17 and P.W.20 are hearsay witnesses. Now let us see what the P.W.s have stated.

Discussion of Evidence 115. P.W.16 Abdul Mannan (56), Union Parishad member from Moindia Sreenagar village under police station Boalmari district Faridpur has claimed to have witnessed the killing of Haripada and Puitta and the acts of looting and carrying out arson at Moindia Bazar under Boalmari police station. P.W.16 has testified that on 02nd Jaistha in 1971 at about 06:00 in the morning he had heard sounds of shooting from Hasamdia ‘uttar para’ (the first crime site) also known as ‘Hindu Para’ and then he approached to Moindia Bazar where there were a mosque and a bush on the west side of the Bazar and nearer to ‘Kumar’ river. After going there, he saw Bachchu Razakar (accused) being accompanied by Pakistani army bringing two apprehended persons who were Haripada and Puitta towards the Bazar (market). At that time it was about

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

08:00 hrs. Thereafter, he (P.W.16) found more Razakars and Pakistani army arrived at the market by two big boats and started looting the shops of the market and it continued till 11:00 hrs. Such looting took place under the leadership of Bachchu Razakr (accused) and in presence of Pakistani army and other Razakars.

Afterwards, they had burned the shops at market, P.W.16 added. After the criminal acts of looting and burning shops at Bazar and before they left the crime site with the looted goods, he saw that Bachchu Razakar (accused) himself gunned down Haripada and Puitta to death beside the mosque on the edge of the river.

116. In his cross-examination the above version as to commission of destructive criminal acts of looting, burning and killing remained totally unshaken. Defence simply suggested that accused did not accompany the perpetrators and he was not a member of Razakar force and not the accused but the Pakistani army had killed Haripada and Puitta.

117. How P.W.16 knew accused Abul Kalam Azad @ Bachchu and had he opportunity of seeing the accused committing criminal acts to the accomplishment of the offence of looting, burning and killing? In this regard, P.W.16 in reply to question elicited in his crossexamination stated that the house of Abul Kalam Azad @ Bachchu was about one kilometer far from his (P.W.16) house. He (accused) had studied at Madrasa and he (accused) in 1971 used to attend meetings of Jamat E Islami at Moindia Bazar. Earlier he (P.W.16) knew him (accused) as Bachchu Mia and through out 1971 he (accused) became known as ‘Bachchu Rzakar’ as he had participated in many killings. Even prior to 1971 accused used to attend meetings in

133

support of electoral symbol ‘scale’. He (accused) also had studied in Faridpur Rajendra College. Association with political meetings held locally and his role in local politics was the reason to make the accused known to public of the locality. Therefore, the P.W.16 could naturally recognize the accused when he did criminal acts to the commission of killing of Haripada and Puitta at Moindia Bazar(second crime site). We do not find reason to disbelieve what he has stated on dock.

118. P.W.16 further stated in his crossexamination that they saw 20-25 armed Razakars led by Abul Kalam Azad @ Bachchu moving around the locality of Hasamdia, Moindia and Ujirpur. Why the accused used to move in such a manner having arms with him?

This pertinent relevant fact inescapably is a link between his criminal acts and the accomplishment of crimes directed against civilian population, in 1971. This version has rather confirmed again that the accused was an armed member of a group of Razakars.

119. As regard first part of the massacre that took place at Hasamdia village in the early morning, P.W.16 stated what he learnt. He stated that at 15:00 hrs on the same day he had learnt that the gang led by Bachchu Razakar had killed Shyamapada Saha (father of P.W.19), Sharot Poddar (father of P.W.17) and his son Joggeswar Saha, Subol Koyal, Mallik Thakur and 2-3 others at the village Hasamdia.

Later on he moved to Hasamdia village(first crime site) wherein he saw the dead bodies of victims and had learnt from Sushil (P.W.17) , Mansur Fakir, Jalil Molla and many others that Bachchu Razakar and his accomplices perpetrated the event of massacre and killings.

Of the persons from whom he had learnt the

134

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

incident only Sushil (P.W.17) is still alive, P.W.16 added.

120. Thus, P.W.16 is a hearsay witness in respect of the first part of the massacre that took place at Hasamdia village. But in his cross-examination, defence has not denied that P.W.16 had learnt the incident of Hasamdia village from the persons he stated in his examination-in-chief.

Defence simply suggested that accused Abul Kalam Azad@ Bachchu did not accompanied the gang to the crime site and had not killed 7/8 civilians belonging to Hindu community. Therefore, taking the total evidence of P.W.16 into account we are of view that his hearsay testimony so far it relates to the first part of the massacre that took place at village Hasamdia carries sufficient probative value.

121. P.W.17 Sushil Kumar Podder (84), the son of victim Sharot Chandra Poddar and a resident of Hasamdia, the first crime village has testified that at about 06:00 hrs on May 17, 1971 corresponding to second day of Bangla month Jaistha on hearing that military had entered into their village he asked his parents to remain in hiding wherever they liked. Their village was predominantly Hindu populated.

With this they along with family inmates remained in hiding inside a ‘pan baroj’ adjacent to their house and he (P.W.17) and his brother Suresh remained stood inside a mango orchard. At a stage, his brother Suresh leaving him there had attempted to see as to what was happening, by moving forward. P.W.17 saw that the military gunned down his brother Suresh to death when he had moved 40-50 yards from the mango orchard. P.W.17 further stated that after the firing had stopped he heard sound of burning houses and saw smoke. After the Pakistani army and Razakars had left the crime site, he on the way back to his house had

2 LNJ (2013)

heard that the Pakistani army and their 10-15 armed civilian accomplices had killed his father Sharot Chandra Poddar, his brother Suresh Chandra Poddar, Sachin Saha. He also heard that the perpetrators had also killed Jatindra Mohan Saha, Shyamapada Saha, Surja Kumar Das, Nil Ratan Samadder, Nepal Chandra Paul, P.W.17 added. Later on, he (P.W.17) found burnt and bullet injured dead body of Jatindra Mohan Saha having his hands and legs tied up condition at the courtyard of his (P.W.17) house. Moving a bit forward P.W.17 also found bullet injured Surja Kumar Das who appealed for giving him water. He (Surja Kumar Das) had told him that Bachchu Razakar accompanied the Pakistani army to the accomplishment of the events. Thereafter, they leaving the country deported to India and returned back after the independence.

122. P.W.17 has narrated the heart wrenching event of massacre to the accomplishment of which accused Abul Kalam Azad @ Bachhu accompanied the Pakistani army and Razakars.

In cross-examination, in reply to question put to him P.W.17 stated that he himself could not see Bachchu but he had heard from Surja Kumar Das that accused Abul Kalam Azad @ Bachhu accompanied the Pakistani troops at the crime site. Surja Kumar Das also deported to India and he died 4-5 years after his coming back to home after independence.

123. P.W.19 Satya Ranjan Saha, son of Late Shyamapada Saha, one of victims has testified the events of killings narrated in charge no. 7.

He is a live witness. At the relevant time P.W. 19 was 20 years of age. In narrating the incident, in detail, P.W.19 stated that on 02nd Jaistha, in 1971 at about 06:30 hrs, on hearing firing and uproar from the house of Sharot Poddar, inmates of their family being frightened started fleeing and he himself had

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

put him out of sight inside a clump of bamboos wherefrom he saw that Bachchu (accused) and Pakistani army shoot his father to death. The gang then looted their house. Bachchu attacked their house, being accompanied by 25/30 Razakars and Pakistani army. On their way back, they had burnt houses of their neighbours Sharot Poddar, Rasik Saha, Nil Ratan and other residents and they killed 8/10 civilian residents of their village including Sharot Poddar, Suresh Poddar, Sachin, Jatindra Saha, Goutam and his father Nil Ratan and he (P.W.19) found their dead bodies there later on, after the gang left the crime scene, P.W.19 added.

124. In respect of the second part of the event that took place at Moindia Bazar P.W.19 also stated that he had heard from many people of Moindia Bazaar that the gang of Bachchu (accused) and his accomplices Razakars and Pakistani army, on their way back from their village (Hasamdia) , looted 50/60 shops of the Bazaar and brunt the same including their own shop. They, in conjunction of this event, killed Haripada Saha and Puitta and the local people buried their dead bodies by the bank of river.

After this dreadful event they and almost all the residents of their village deported to India, P.W. 19 added.

125. P.W.19 stated in his cross-examination that he knew the accused Bachchu from his boyhood as he (accused) used to reside at their neighboring village and he (accused) had studied in a school at Khardia. Thus the reason how P.W.19 could recognize the accused at the first crime site (Hasamdia) committing the criminal acts by accompanying Razakars and Pakistani army has become rather established.

Thus, the claim of witnessing the accused committing the offence of killing his father is quite credible.

135

126. P.W.20 Asit Baran Saha is a hearsay witness about the horrific incident as listed in charge no.7. He was a resident of village Sree Nagar Madhya Para under police station Boalmari district Faridpur. At the relevant time he was about 20 years old. According to him he had learnt the massacre and mass killing committed at Hasamdia Hindu village committed by 12/13 Razakers led by Bachchu (accused) and Pakistani army.

127. P.W.20 also stated that afterwards, the gang of Bachchu (accused) came to Moindia Bazar and being frightened they remained in hiding and later on he saw the committed acts of destruction, looting and burning 50/60 shops of Moindia Bazar. He found dead body of Haripada Saha and Puitta on the bank of river.

He had learnt that Bachchu Razakar (accused) and his accomplices killed them. 25 days after the incident they being frightened deported to India.

Evaluation of Evidence and Finding 128. The learned prosecutor drawing attention to the incriminating evidence of four P.Ws examined in support of this charge has submitted that commission of the atrocious event has been proved and it could not be impeached by the defence. Prosecution has been able to establish the fact that accused Abul Klama Azad @ Bachchu accompanied the armed gang of Razakars and Pakistani army to the accomplishment of massacre and the accused substantially participated to its commission with intent to destroy Hindu group of crime village. The accused himself physically participated to the act of killing father of P.W.17 and father of P.W.19. The fact that instantly after the horrific events of massacre , destruction , looting and killings, civilians belonging to Hindu community of the

136

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

crime locality deported to India indicates the destructive pattern of the crimes and intent of the perpetrators to commit thereof. Thus the event as described in charge no.7 can lawfully be characterized as an offence of ‘genocide’ as specified in section 3(2)(c)(i) of the Act of 1973.

129. In respect of this charge, the learned state defence counsel has argued that considering the horrific nature of the event it is not believable that it was possible for any one of seeing the event even remaining in hiding and thus evidence of P.W.16 and P.W.19 as to recognition of accused accompanying the perpetrators to the crime sites inspires no credibility.

130. From the evidence of 04 P.Ws examined in support of charge no.7 together with argument advanced by the learned state defence counsel one thing is quite patent that perpetration of the event of massacre and killings of members of Hindu community of the crime village is not disputed. Defence has merely attempted to exclude the fact that accused accompanied the gang of perpetrators and was present at the crime sites.

131. P.W.16 claimed to have seen the second part of the attack causing killing of Haripada and Puitta at Moindia Bazar. But he is hearsay witness in respect of the first part of the attack that resulted into killing of 7/8 more Hindu people at Hasamdia Hindu Para. According to him after the perpetrators left the crime scene (Moindia Bazar) he had gone there and found dead bodies of the persons killed there and had heard from Sushil (P.W.17), Mansur Fakir, Jalil Molla and many other people as to who killed them. Of them Shushil Kumar Poddar has testified as P.W.17 who is a son of one of victims of the killing.

2 LNJ (2013)

132. It thus reveals from testimony of P.W 16 that in conjunction of the attack targeting Hasamdia Uttar para known as ‘Hindu para’ in the morning the gang led by accused Bachchu also killed 7/8 members of the local Hindu community and the pattern the armed gang led by the accused Bachchu launched the attack reflects that they carried out the attack with knowledge of the consequence and intention of the perpetrators was to destroy the local Hindu community, even in part, in accomplishment of policy and organised plan of the Pakistani army and their local collaborators and accomplices.

133. P.W.17 does not claim to have witnessed the accused killing his father and brother. But he has stated that he learnt instantly after the incident from Surja Kumar Das, a bulletinjured victim that accused Abul Kalam Azda @ Bachchu accompanied the army during the killing. Thus it is inferred that the accused substantially contributed and encouraged the gang of perpetrators in accomplishment of the crimes.

134. Defence did not put any question to P.W.17 with a view to dislodge the fact of his learning the first part of the attack at village Hasamdia from him by the P.W.16.

Additionally, we do not find any reasonable ground to discard the hearsay evidence as to learning the incident of killing of 7/8 persons at Hasamdia Hindu para. Rather, P.W.16 and P.W.17 seem to be natural witnesses, particularly in absence of any reason whatsoever of being interested to tell a lie.

135. P.W.17 narrated the incident but could not say it categorically as to specific act or conduct of accused with the commission of crimes. But his hearsay evidence lends corroboration at least to the fact that the

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

accused accompanied the Pakistani army and was present at the first crime site in perpetrating atrocities and his presence there i.e presence and accompanying the principals at the crime site adequately indicates that he rendered practical assistance, encouragement and support to the Pakistani army and Razakars to the accomplishment of crimes. Therefore, the hearsay evidence of P.W.17 so far it relates to the fact of his learning as to involvement of accused with killing of his father and other killings and destructive acts carries reasonable probative value.

136. Learning a fact related to the commission of alleged massacre from an injured victim (Surja Kumar Das) instantly after the perpetrators had left the crime site inspires credence and carries sufficient probative value.

It will appear that the defence failed to dislodge the commission of the alleged event of massacre and killing as stated by the P.W.17.

Thus, the mere suggestion put to P.W.17 that accused Abul Kalam Azad @ Bachchu did not accompany the Pakistani troops and he was not present at the crime site does not make the event and presence of the accused at the crime site(Hasamdia village) tarnished in any manner.

137. P.W.17 also stated that afterwards, the gang of Pakistani army and Bachchu (accused) and his accomplices on their way towards Moindia Bazar(second crime site) looted and burned the house of Dr. Nani Gopal and then they also looted and had burned the shops of Moindia Bazar and killed Haripada and Puitta there. It remains unshaken in crossexamination. Additionally, considering the context and havoc of the massacre it was not natural and possible for mass people to witness the event. It is lawfully presumed that most of

137

the civilians around the crime site preferred to remain in hiding and some could not. Despite the atrocious pattern of the event some persons might have opportunity to remain in hiding and thus had opportunity to see the event and criminal acts including the presence of the accused as a co-perpetrator accompanying the principals at crime sites. It is quite natural.

Therefore, hearsay evidence of P.W.17 as to learning the fact of presence of accused Abul Kalam Azad @ Bachchu deserves legitimate consideration.

138. It is to be noted that now it is settled that mere presence at the scene of the crime may, under certain circumstances, be sufficient to qualify as complicity (as, for instance, when such presence may be shown to provide encouragement and moral support to the principal offender). So acts of encouragement or assistance such as providing help in identification members of the targeted group by accompanying the principals to killing sites could have been lawfully inferred from the fact of presence of the accused under the circumstances depicted from evidence.

139. Defence could not however controvert the commission of the event of crimes, by crossexamining P.W.19. Rather, his evidence has rendered corroboration to what has been testified by the P.W.16, P.W.17 on the acts of killing, destruction, looting and involvement of accused therewith. P.W.19, a live witness, is the son of one of victims of the horrific atrocities who had opportunity to witness the incident of killing his father Shayamapada Saha by remaining in hiding in a bamboo bush.

It remains undisputed. Additionally, P.W.19 knew the accused from earlier as he (accused) was a resident of their neighboring village Kahrdia. P.W. 19 is a natural and live witness

138

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

and there is no reason to exclude what he has testified.

140. Perpetration of the horrific event including murder of numerous civilians targeting the Hindu group including the father of P.W.19 on the date time and manner as narrated by a live witness P.W.19 has been proved. At the same time we have found from evidence of P.W.19 that the accused accompanied the gang of perpetrators and how he had directly participated to the commission of destructive crimes. All these facts remain totally undisputed in cross-examination of P.W.19.

141. How P.W.20 could recognize the accused accompanying the armed gang and Pakistani army at Moindia Bazar , the second crime site ?

In reply to question put to him P.W.19 has stated in his cross-examination that he knew Abul Kalam Azad @ Bachchu from boyhood who used to reside about one and half to two kilometers far from their village and had studied at Sreenagar high school. Bachchu (accused) became known as Razakar after the Pakistani army rolled into Faridpur and he had learnt too that prior to the event of massacre he has described accused Abul Kalam Azad @ Bachchu gunned down Shudhangshu Mohon Roy to death at their Kolaron village home and since then he(P.W.20) became aware that Bachchu was a member of Razakars. The relevant fact as have been depicted from crossexamination of P.W.20 lends adequate and valid assurance as to conduct and acts of the accused together with the fact of his incriminating association with Pakistani army as a member of armed Razakars.

142. It is found from his evidence of P.W.20 that he had learnt the first part of the event of massacre that took place at village Hasamdia.

2 LNJ (2013)

But he saw accused Abul Kalam Azad @ Bachchu, his accomplice Razakars and Pakistani army coming to Moindia Bazar, the second crime site. In cross-examination, P.W.20 stated that at the time of event he had been at Moindia Bazar and in the evening of the day of event he visited the first crime village Hasamdia and witnessed the horrific extent and nature of destructive atrocities done there.

143. It is now settled, by the verdicts of adhoc tribunals (ICTY, ICTR) constituted by the United Nations to try internationally recognised crimes committed in violation of international humanitarian law and customary international law that even a single piece of evidence that is relevant will be relied upon to determine culpability of the accused.

Additionally, we reiterate that the Tribunal(ICT-2) is not bound by the strict rules of evidence and that in any case, probative value of testimony of even a single witness is to be weighed and accordingly, acceptance of and reliance upon uncorroborated evidence, per se, does not constitute an error in law, in finding an accused guilty under the Act of 1973. However, in the case in hand, we have found that the prosecution has been able to prove culpability of the accused by the evidence of P.W.16, P.W.17, P.W.19 and P.W.20 of whom P.W.16 and P.W.19 are the live witnesses.

144. Generally, considering the horrendous nature of crimes the event could not be expected to have been witnessed by numerous persons. Incidentally some one might have opportunity of seeing it remaining in hiding at a place adjacent to the crime site. Apart from them, other person cannot be perceived to have seen the event of massacre. So, the perpetration of crime and acts and conduct of perpetrators

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

could have been learnt from an injured victim or person who had incidental opportunity of seeing the event. It is quite natural and thus the testimony of P.W.17 and P.W.20 though hearsay inspires credence, particularly when such hearsay testimony gets fair corroboration from live witness’s (P.W.16 and P.W.19) account.

145. The way and the pattern of perpetrating the crimes alleged adequately demonstrate that the accused, apart from his own physical participation, substantially encouraged and provided moral support and aided the principals to the accomplishment of crimes.

Pattern of the criminal acts, as narrated by P.W.19, speaks adequately that accused Abul Kalam Azad @ Bachchu accompanied the Pakistani army in committing atrocities by launching attack targeting the Hindu group of civilians of their village and later on, as has been testified, all the Hindu residents of their village deported to India. That is to say, the massive atrocities and mass scale killing and destruction compelled the members of Hindu community of the crime village to deport.

Displacement from own residing place does not conform to the internationally recognised principle of human rights.

146. The portrayal that has been depicted from the evidence of P.W.19 inspires us in arriving at an unerring finding that on the date, time and in the manner the horrific atrocity of attack was launched targeting the unarmed Hindu community of Hasamdia village which was also known as ‘Hindu Para’ and then Moindia Bazar, the second crime site with intent to destroy the community, even in part and in conjunction of the attack in all about 10 members of the Hindu community were killed and the perpetrators led by accused Azad committed substantial scale of looting,

139

destruction of properties and burning the houses and shops belonging to the Hindu civilians of the crime locality.

147. It has also been established from evidence of P.W.16. P.W.17, P.W.19 and P.W 20 that few days after the horrendous crimes almost all the members of the Hindu community residing at the crime village including the relatives of victims and sufferers became compelled to deport to India leaving their properties, houses etc. and they returned back only after achieving the victory on 16 December. That is to say, the cumulative effect of the atrocities including killing, destruction and looting of properties, mental harms compelling the Hindu community of the crime village inevitably imprints an unmistakable notion that the aim and intent of the perpetrators was to destroy the ‘Hindu group or community’, in part. This notion is qualified as ‘genocidal intent’ as required to constitute the offence of ‘genocide’.

It remains totally uncontroversial.

148. Targeting the group of Hindu community residing at the crime villages itself is rather emblematic of the overall Hindu community of the country. Thus, targeting part of the community qualifies as substantial, for the purpose of inferring the ‘genocidal intent’. If a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial.

149. The accused and his co-perpetrators, as evidence shows, targeted a significant section of Hindu community of the crime locality and in conjunction of the event they committed destruction of properties, looting, burning houses and shops together with killing of members of Hindu religion. The pattern of perpetration of crimes alleged in charge no.7

140

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

adequately indicates the ‘intent’ of the perpetrators. The intent to destroy a group may, in principle, be established if the destruction is related to a significant section of the group. In the case of Jelisic, (Trial Chamber: ICTY), December 14, 1999, para. 83 it has been observed that “It is accepted that genocide may be perpetrated in a limited geographic zone.” The geographical zone in which an attempt to eliminate the group is made may be “limited to the size of a region or . . . a municipality.”

150. It is now settled jurisprudence that the victims of genocide must be targeted by reason of their membership in a ‘group or community’. The intent to destroy a ‘group’ as such, in whole or in part, presupposes that the victims were chosen by reason of their membership in the group whose destruction was sought. In the case in hand, it is patent that the local Hindu community was chosen by the accused Abul Kalam Azad @ Bachchu and his co-perpetrators for no other reason, but with intent to destroy it even in part. The physical destruction may target only a part of the geographically limited part of the larger group because the perpetrators of the genocide regard the intended destruction as sufficient to ‘annihilate the group’ as a distinct entity in the geographic area at issue.

151. The basic principle of the concept of ‘genocide’ is: indiscriminate and systematic destruction of members of a group because they belong to that group. Thus, merely the number of individuals of Hindu group killed cannot be the only objective for an inference as to constitution of genocide. Destruction as transpired from the evidence of P.W.16,

2 LNJ (2013)

P.W.17, P.W.19 and P.W.20 was patently indiscriminate targeting the members of a ‘group’ i.e Hindu community because they belong to Hindu religion.

152. In the case in hand, from the evidence before us relating to charge no.7 it is proved that barbarity of combined acts aiming to cause organized destruction was against the members of collectivity i.e ‘Hindu religious group’ which exceeded the concept of human rights.

The attacks were carried out against individuals of a collectivity i.e Hindu religious group. The intent of the author of the crime was not only to harm an individual, but also to cause massive damage to the collectivity to which the later belongs. Offenses of such gravest nature bring harm not only to human rights, but also and most especially they undermine the fundamental basis of the social order of a particular group of civilian population.

153. Evidence, without a doubt, shows that the accused and his accomplices intended to destroy a substantial part of the local Hindu community. Considering the pattern of destructive atrocities together with the killing of about 10 members of Hindu community, number of persons killed becomes immaterial in arriving at a decision as to ‘genocidal intent’. It is now settled jurisprudence that the number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group. The alleged attack was perpetrated at a segment of the crime village which was dominantly Hindu populated and thus targeting and killing about 10 Hindu individuals is to be evaluated for inferring ‘genocidal intent’.

154. According to Section 3(2)(c)(i) of the Act of 1973 ‘genocide’ is the deliberate and systematic destruction of a national, ethnic,

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

racial, religious or political group. The extermination of individuals because of their membership to distinct national, ethnic, racial, religious or political group has been perpetrated throughout the period of War of Liberation in 1971 within the territory of Bangladesh. It is the history of common knowledge and need not be proved by adducing evidence.

155. The relevant provisions of Section 3(2)(c) of the Act of 1973 are as follows: Genocide : meaning and including any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial, religious or political group, as such : (i) killing members of the group (ii) causing serious bodily or mental harm to members of the group; (iii) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (iv) imposing measures intended to prevent births within the group; (v) forcibly transferring children of the group to another group.

156. The Accused Abul Kalam Azad @ Bachchu has been charged with the offence of genocide as he allegedly acted and participated to the commission of ‘killing members of the Hindu religious group’ with ‘intent to destroy’ it, ‘in whole or in part’. The meaning of ‘genocide’ as contained in the Act of 1973 seems to be in conformity with the Article 6 of the Rome Statute.

157. However, in holding the accused criminally responsible for the offence of

141

genocide with which he has been charged we are to arrive at a finding that he committed such a crime, as an individual or as a member of Razakar force, an armed militia group jointly with Pakistani army, regardless of whether that other person is criminally responsible or he induced, aided and substantially contributed to the commission of such a crime with the knowledge of the intention of the principals by acting with a common purpose with the aim of furthering the perpetration of crime of genocide.

158. Determination of the targeted group is to be made on a case-by-case basis. In light of the narration depicted form evidence relating to charge no.7, from subjective standpoint we consider that the victims of the killing were perceived by the accused and his co perpetrators of the crime as belonging to the group i.e ‘Hindu religion or community’ targeted for destruction. Hindu community is a group sharing common beliefs. It is clear that the victims were targeted because they belonged to this group.

159. In a report titled ‘Hindus are targets of Army Terror in an East Pakistan Town’ of Sydney H. Schanberg, the special correspondent published in The New York Times: 29 June 1971 “An undetermined number of Faridpur’s 10.000 Hindus have been killed and others have fled across the border to predominantly Hindu India. ………On April 21, when the army rolled into Faridpur, the old woman and her 84-year old husband ran to seek refuge in a Hindu village, Bodidangi, about three miles away.

The next day the army hit Bodidangi and, reliable local reports say, as many as 300 Hindus were massacred. The

142

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

campaign against the Hindus was – and in some cases still is systematic. ………..Only about half of Faridpur’s 35,000 people have returned, although the flow has been growing. Recently the army eased up on its executions and burning of villages in an attempt to demonstrate that normality has returned. The change in tactics began in mid-June, just before the central Government announced that it was allowing foreign newsmen back into the region.”

[Source:http://www.docstrangelove.com/uploads/1971/for eign/19710704_nyt_hindus_are_targets_of_army_terror_i n_an_east_pakistani_town.pdf]

160. It will appear that all the events, excepting that one narrated in charge no.2, constituting offences for which the accused has been charged with took place in between the period of mid-May to 08 June of 1971. Further it is found from the report that the Pakistani army rolled into Faridpur town on 21 April 1971 which has been established too by the testimony of P.W.s. Next, the above report also reflects that annihilation of Hindu community was the intent of Pakistani army and its local pro-Pakistan collaborators who assisted them in accomplishment of atrocities. We have found from evidence of P.W.s that instantly after rolling into Faridpur town, the local Bengali accomplices aided the Pakistani army in launching systematic attack, particularly targeting Hindus. The report of the New York Times of June 29 1971 reflects it too.

161. It is now settled that genocide is a subset of crimes against humanity and it covers many of the same physical acts, but requires a very specific intent (genocidal intent) that is not required to constitute the offence of crimes against humanity. To constitute the offence of

2 LNJ (2013)

‘genocide’ any of acts specified in section 3(2(C) (i) of the Act is to be committed with intent to destroy, either whole or in part. Intent is a mental factor which is hard, even impracticable, to determine and as such, it can only be inferred from a certain number of presumptions of fact. However, ‘intent’ may be fairly inferred from (a) the scale and pattern of atrocities, (b) the fact of systematically targeting the individuals belonging to a group (c) political dogma of the perpetrators of the crime and (d) extent and repetition of the destructive and discriminatory acts.

162. The testimony of P.W.16 and P.W.19 paints a picture of shattered lives and livelihoods, and of tremendous ongoing pain and trauma caused to the civilian residents belonging to Hindu community of the crime village. Considering the pattern of the organized attack launched by the accused Abul Kalam Azad @ Bachchu and his armed accomplices and Pakistani army we arrive at an unerring finding that the killings, together with the forced deportation of the remaining members of the targeted group i.e individuals belonging to Hindu religion, and the destruction of their homes by torching and looting, constituted a single operation which was executed with intent to destroy a group in whole or in part.

163. The phrase “in whole or in part” implies that in the event that the plan to destroy all members of the group fails, the successful destruction of part of the group also constitutes genocide. In that case all members of the group or part of it who suffered are counted as victims of genocide. For example, although Hitler failed to exterminate all Jews under his plan, he still committed genocide. We have found from evidence that after the destruction

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

and massacre almost all the members belonging to Hindu community deported to India as all of them felt sufferer with the destructive atrocities. In addition, the plan to destroy in part also constitutes genocide.

164. Raphael Lemkin, the scholar who first proposed the concept of genocide in his book Axis Rule in Occupied Europe, spoke regularly of a plan as if this was sine qua non for the crime of genocide. In the case of Prosecutor v.

Kayishema, the ICTR Trial Chamber wrote: “Although a specific plan to destroy does not constitute an element of genocide, it would appear that it is not easy to carry out genocide without a plan or organization.” [Prosecutor v.

Kayishema, Case No. ICTR 95-1-T, Judgement, 94 (May 21, 1999)]. Furthermore, the Chamber said that existence of such a plan would be strong evidence of the specific intent requirement for the crime of genocide. Thus, we see that existence of a plan or policy is not a legal ingredient of the crime of genocide.

However, in the context of proving specific intent, the existence of a plan or policy may play an important factor in most cases.

165. Therefore, the acts of killing, torturing, confining of Hindu civilians and destruction, looting and torching of their properties were part of attack designed on certain policy and plan of Pakistani government and its occupation army. All the four P.W.s who have testified in support of the charge of genocide as listed in charge no.7 have proved that accused Abul Kalam Azad @ Bachchu, at the time of commission of the crimes, was accompanied by his armed accomplices and Pakistani army.

It is not claimed that accused alone himself committed the crimes. The pattern and extent of horrendousness of atrocities adequately demonstrates that the accused joined the gang

143

of perpetrators with actus reus of aiding and substantially contributing to the accomplishhment of crimes.

166. Accused Abul Kalam Azad @ Bachchu was a member of the militia organization comprised of armed civilians (Razakers). It is proved. It is to be noted that dictionary definitions consider an ‘organization’ to comprise any organized group of people. Further, the actus reus of aiding may occur before, during or after the principal crime. Aiding means providing assistance or help to another to the commission of a crime. Prosecution has been able to establish close affiliation of accused Abul Kalam Azad @ Bachchu with the Pakistani army since it rolled into Faridpur town on 21 April, 1971.

167. We have found from evidence of P.W.16, P.W 17, P.W 19 and P.W. 20 that at the time of commission of crimes narrated in charge no.7 Pakistani army and some armed civilian accomplices were also with the accused Abul Kalam Azad @ Bachchu. It is also found that the accused had rendered, apart from his physical participation as found from testimony of P.W.16 and P.W.19, assistance, encourageement and moral support which had substantial effect on the perpetration of the massive crimes as has been listed in charge no.7. It is proved that the accused accompanied the armed perpetrators and he was physically present at the crime scenes and thus he is deemed to have rendered ‘tacit approval’ to the accomplishment of the event of massacre. Besides, in conjunction of the commission of the event of massacre, accused Abul Kalam Azda @ Bachchu himself too actively and directly participated to the commission of the acts of killings.

168. Naturally the Pakistani army was not at all familiar with the communications and

144

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

locations of villages or the information as to where a particular group of civilians used to reside. Therefore, by dint of his position that the accused was able to establish, accompanied the Pakistani army and his armed accomplices and thereby substantially urged to the author of crimes to perpetrate the attack targeting the Hindu community of the crime village. The accused even by being present during the attack and participating through shooting is thus guilty of committing genocide.

169. By taking the conducts and acts of the accused as a whole into account we are constrained to imprint our valid inference that the accused, in addition to his physical and direct participation to killing, substantially aided and assisted the Pakistani army not only by accompanying them at the time of commission of crimes but also before or after such commission, as one of their close associates and local Razakars. On this score as well, accused Abul Kalam Azad @ Bachchu is held criminally responsible for the crime of genocide. The accused himself need not have participated in all aspects of the alleged criminal event. The acts of providing assistance, encouragement and moral support need not be tangible, but the same have to be inferred from the totality of the event and conduct of the accused who accompanied the gang of perpetrators.

170. Section 4(1) of the Act of 1973 states: “When any crime as specified in section 3 is committed by several persons, each of such person is liable for that crime in the same manner as if it were done by him alone.” It has been established that accused Abul Kalam Azad @ Bachchu was a potential associate of Pakistani army and also was a significant armed member of volunteer Razakar force which was organized after the Pakistani army

2 LNJ (2013)

struck Faridpur on 21 April 1971. This being the status that the accused was holding at relevant time, his presence at the crime site as an active accomplice of the principals inevitably prompts us to infer that, in addition to his direct participation of killing at the time of commission of the event of massacre, he substantially provided practical assistance, encouragement and moral support to the principals i.e co-perpetrators in perpetration of the offence of genocide that resulted in mass killing of individuals belonging to ‘Hindu Community’ which is a ‘distinct religious group’ and mass destruction and thereby he incurs liability under section 4(1) of the Act for the offence of genocide as specified in section 3(2)(c) (i) of the Act of 1973.

XIX. Adjudication of Charges relating to crimes against Humanity 171. Charge nos. 1,2,3,4, 5,6 and 8 relate to the acts of murder, rape, abduction, confinement and torture constituting the offence of crimes against humanity. Now, we are going to make successive discussion for adjudicating these seven charges based on alleged independent event of criminal acts.

Adjudication of Charge No. 01 [Abduction, confinement and torture of Ranjit Nath @ Babu Nath 172. Summary Charge: Abul Kalam Azad @ Bachchu(absconded) a member of Razaker Force and subsequently the local commander of Al-Badar Bahini and or as a member of group of individuals being accompanied by accomplices is alleged to have abducted , tortured and confined Ranjit Nath @ Babu Nath, during the first week of June ,1971 as narrated in the charge No. 01 and thereby he has been charged for the physical participation and also for substantially contributing to the

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

actual commission of offence of ‘abduction, confinement and torture as crime against humanity’ by directing attack against the Hindu civilian population as specified in section 3(2) (a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act Witnesses 173. Prosecution examined only one live witness (P.W.5 Ranjit Kumar Nath) in support of this charge. He is the victim of the offence of abduction, confinement and torture caused to him. He has narrated some relevant facts as well while deposing on dock. P.W.15 Probodh Kumar Sarker is a hearsay witness who has corroborated P.W.5 relating to the fact of his (P.W.5) confinement and torture at the army camp.

Discussion of Evidence 174. P.W.5 Ranjit Kumar Nath, the victim, as alleged in the charge no. 01, at the out set, stated how the Pakistani army was welcomed by the accused and his accomplices in April 1971 and how the accused used to maintain association with the Pakistani army staying at camps set up at different places in Faridpur town. He also stated how in association with the accused, the Pakistani army used to apprehend and bring pro-liberation people from the town and villages and tortured and killed them at the camp set up at Faridpur stadium.

175. P.W.5 stated further that Jamat Secretary General Mujahid, Bachchu Razakar (accused) and some Biharis (Urdu speaking people) welcomed the Pakistani army when they arrived in Faridpur on April 21, 1971. They [accused and his accomplices] took the army to Prabhu Jagatbandhu Ashram (temple) where the Pakistani army men shoot eight priests dead while Mujahid and Bachchu (accused) were

145

with them, added the 62-year-old witness P.W.5 from Faridpur.

176. P.W.5 Ranjit Kumar Nath has narrated the incident of his confinement and torture caused to him in Pakistani army camp. In stating it, P.W.5 has testified that during the first week of June 1971 when he was approaching the town, one Habi Matabbar, terming him a freedom fighter, handed him over to Abul Kalam Azad (accused), Abul Mia and Kalu Bihari at East Khabashpur. After beating him up, they took him to Faridpur Circuit House by a rickshaw and he saw Major Akram Koraishi, a Pakistani army official, Mujahid, Afzal and other Razakars were holding a meeting there, P.W.5 added. On seeing him Mujahid had told “ he is a freedom fighter, he is a Hindu” and asked Azad (accused) to take him away and then Azad (accused) and his associates blindfolded him (P.W.5 Ranjit) and took him to Faridpur Zilla School ground and put him under a palm tree.

After a few minutes a jeep went there and someone in the jeep said in Urdu:”Don't shoot him. Hand him over to the Biharis and slaughter him in the morning”. He was then taken near a Bihari colony of Mollah Bari Road.

177. P.W.5 Ranjit Kumar Nath has further narrated that thereafter, hanging him up side down from a kadama tree, they [Azad and others] had beaten him up for one hour and one of his teeth and a bone of his nose were broken.

Later, they confined him in a house inside the Bihari colony and around midnight he (P.W.5 Ranjit) somehow escaped breaking through a window.

178. Defence could not controvert what has been deposed by P.W.5 on material particular incriminating the accused with the acts related

146

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

2 LNJ (2013)

to ‘abduction, confinement and torture’ caused to him. In cross-examination, P.W.5 in reply to question put to him stated that since prior to the War of Liberation he knew accused Abul Kalam Azad @ Bachchu as he had attended anti Awami League meetings and processions and at that time he was a student of Faridpur Rajendra College. It is the reason why P.W.5 could recognize the accused Abul Kalam Azad@ Bachchu at the army camp at Faridpur circuit house, after he was taken there. Thus his testimony involving the accused with the acts constituting the offence of inspires credence.

version made by the P.W.15 Probodh Kumar Sarker it is presumed that he, as a neighbour of Rashid Mia, had opportunity to know about the fact of confining P.W.5 Ranjit Kumar Nath in his (Rashid Mia) house. Therefore, the version of P.W.15 is considered to be corroborative in nature, on material particular. Furthermore, in cross-examination of both the P.W.s it has been confirmed that the accused was earlier acquainted to these P.W.s and P.W.15 leaving no occasion to taint the identification of the accused even though the accused has been absconding.

179. In cross-examination, it has been confirmed that the P.W.5 was a freedom fighter and he participated in many operations and had fought under Major Manzur of sector no. 8.

P.W.5 has also stated in reply to a question elicited in cross-examination that accused Bachchu had actively participated in the process of formation of ‘Razakar’ in Faridpur and in 1971 he used to stay in Faridpur town and subsequently he was the head of Al-badar of Faridpur town.

Evaluation of Evidence and Finding

180. P.W.15 Probodh Kumar Sarker has testified that Bachchu Razakar (accused) apprehending Ranjit Kumar Nath (P.W.5, the victim of charge no.1) from Khabashpur area brought him to circuit house and afterwards, he was kept confined at the house of one Rashid Mia which was nearer to his(P.W.15) own house and eventually he (P.W.5) managed to escape there from. In his cross-examination, it is neither denied nor refuted by the defence.

Rather, it is established from evidence of the victim P.W.5 that the accused and his accomplices after causing inhuman torture kept him confined in a house of one Rashid Mia inside the Bihari colony and around midnight he (P.W.5 Ranjit Kumar Nath) escaped breaking through a window. Thus, from the

181. It has been argued by the learned state defence counsel that for corroborating the version in relation to the event of crimes narrated in charge no.1 made by P.W.5 no other direct witness has been examined by the prosecution and as such evidence of a single witness does not qualify the charge proved.

Evidence of P.W.15 Probodh Kumar Sarker is not adequate to corroborate the narration of P.W.5 Ranjit Kumar Nath, the victim.

182. We are not with what has been argued by the learned state defence counsel. First, evidence even of a single witness is enough to prove the accusation if it inspires credence and acceptance of and reliance upon uncorroborated evidence, per se, does not constitute an error in law. Second, P.W.5 himself is the victim of wrongs caused to him.

Third, considering the context, the offence was not an isolated one and it happened in organized manner by the Pakistani army and its local accomplices including the accused and as such it was not possible and natural for else one to experience the fact of abduction, confinement and torture done to P.W.5. Fourth, testimony of P.W.15 carries reasonable proba-

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

tive value as he had opportunity to know what he has deposed relating to the fact of torturing and confining P.W.5 Ranjit Kumar Nath by the accused in the house of Rashid Mia at Bihari colony. Finally, we do not find any earthly reason to disbelieve P.W.5 who himself is the victim of the offence alleged in charge no.1 and thus his testimony does not appear to have been stained by any flaw.

183. From the evidence of P.W.5 , the victim of the offence of abduction, confinement and torture and P.W.15, it is proved that after apprehending him(P.W.5) he was brought to the Pakistan army camp at Faridpur circuit house where he found accused Abul Kalam Azad @ Bachchu holding a meeting with Major Koraishi. Mujahid , Afzal and others and there from, on direction of Mujahid the accused Abul Kalam Azad @ Bachchu and his associates blindfolded him (P.W.5 Ranjit) and took him to Faridpur Zilla School ground and put him under a palm tree and had beaten him up for one hour and then he was kept confined in a house inside the Bihari colony and around midnight he (P.W.5 Ranjit) escaped breaking through a window. Defence could not dislodge this incriminating version in any manner.

184. Therefore, it has been proved beyond reasonable doubt that accused Abul Kalam Azad @ Bachchu a close associate of the Pakistani army and a member of Razakar force was not only much more pro-active in encouraging the wrongs caused to him (P.W.5) but he himself physically participated to the commission of offence of torture, confinement, and inhuman acts caused to Ranjit Nath (P.W.5). Why P.W.5 was targeted? The answer is simple. At the army camp at Faridpur circuit house, according to P.W.5, he found Mujahid (a potential leader and the President of the then East Pakistan Islami Chatra Sangha),

147

on seeing him, had told “he is a freedom fighter, he is a Hindu” and then handed him over to accused Abul Kalam Azad @ Bachchu.

185. We have got it confirmed in his (P.W.15) cross-examination that he was a freedom fighter. It is a fact of common knowledge that Pro-liberation Bengali civilians, Hindu Community, were the main target of the perpetrators in 1971. This was the reason of atrocious acts of accused forming part of attack targeting P.W.5 Ranjit Kumar Nath.

186. We have already given our view that the context itself as reflected from policies adopted by the Pakistani army and its local proPakistan political organization , chiefly the Jamat E Islami (JEI) and ‘auxiliary forces’ is sufficient to prove the existence of the notion of ‘systematic attack’ on Bangladeshi selfdetermined population in 1971, during the War of Liberation. This context unerringly prompts us in arriving at decision that the atrocities committed upon P.W.5 Ranjit Kumar Nath was a part of systematic attack constituting the offences of crimes against humanity as specified in section 3(2)(a) of the Act of 1973.

187. Accused Abul Kalam Azad @ Bachchu is thus criminally liable under section 4(1) of the Act of 1973 for physical participation and also for providing substantial contribution to the commission of offence of abduction, confinement and torture as crime against humanity as specified in section 3(2)(a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act Adjudication of Charge No. 02 [Abduction, confinement and torture on Abu Yusuf Pakhi] 188. Summary Charge : Abul Kalam Azad @ Bachchu(absconded) a member of Razaker

148

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

2 LNJ (2013)

Force and subsequently the local commander of Al-Badar Bahini and or as a member of group of individuals being accompanied by accomplices is alleged to have abducted , tortured and confined Abu Yusuf Pakhi , on 26 July 1971 during the war of liberation, as narrated in the charge no.02 and thereby he has been charged for the physical participation and also for substantially contributing to the actual commission of offence of ‘abduction, confinement and torture as crime against humanity’ by directing attack against the Hindu civilian population as specified in section 3(2) (a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act.

during the Liberation War. He stated that Azad, also known as Bachchu Razakar who used to accompany the Pakistani army all the time and also used their vehicles. Abu Yusuf Siddique alias Pakhi is one of the detainees of the army camp established at Faridpur Stadium during 1971.

Witnesses

192. P.W.18 in narrating the fact of his abduction has stated that on April 22, 1971, Kamaruzzaman Jasu, cousin of Azad (accused), picked him (P.W.18) and his brother from the intersection of Bhanga Road and handed them to the army. And then they were produced before Pakistani Major Akram Koreshi at Faridpur Circuit House where he saw Pakistani army shooting a few people to death on the east side of the Circuit House.

They were then brought to Major Akram Koraishi of the camp and his brother (who was apprehended with P.W.18) had talk with Major Koraishi in English and then they were released from the camp by another Pakistan army’s Baluch Major and then he joined the war of liberation, P.W.18 Yusuf added. This fact, as stated by P.W.18, is not related to the charge no.2.

189. Prosecution examined three witnesses including one live witness P.W.18 Abu Yusuf Siddique @ Pakhi in support of this charge.

P.W.18 is the victim of torture and inhuman treatment caused to him. He has also narrated some facts relevant to focus the role of accused and atrocious feature prevailing in Faridpur in 1971, while deposing on dock. P.W.7 Md. Amir Hossain and P.W.15 Probodh Kumar Sarker have testified corroborating the fact of confining P.W.18, the victim. Of them P.W.7 was, at the relevant time, one of detainees at the crime camp and P.W. 15 later on, learnt the event from the victims (detainees of the camp) including P.W.18 Discussion of Evidence 190. Before narrating the event and facts relevant to the event as listed in the charge no.2, P.W.18 a war-wounded freedom fighter Abu Yusuf Siddique @ Pakhi has testified on some related facts. He stated that Abul Kalam Azad used to select detainees of a torture centre in Faridpur for Pakistani army to kill them

191. The 61-year-old P.W.18 Abu Yusuf Pakhi has narrated the description of the torture he endured during his 43-day detention at the Pakistani army camp at Fairdpur Stadium. He deposed that the Pakistani army entered Faridpur town on April 21 and on their way they killed eight priests of Prabhu Jagatbandhu Ashram [temple].

193. The above incident happened prior to the event narrated in the charge. However, from the above description we have got that Pakistani army had set up a camp at circuit house which was in fact a ‘torture and killing camp’ and their pet civilian accomplices aided

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

them to the accomplishment of atrocities. This pertinent fact remains undisputed in crossexamination.

194. Now let us come to the event as narrated in charge no.2. P.W.18 while deposing on the event related to the charge, has narrated that he sustained bullet injury on July 24 when they attacked Razakars who were in position at a bridge at Arpara in Jessore. Razakars later apprehended him from Chandra High School area of Alfadanga of Faridpur on July 26 and handed him over to the Pakistani army camp at Faridpur Stadium. On the following morning Major Akram Koreshi went there along with Abul Kalam Azad alias Bachchu. P.W.18 Yusuf further stated that he was tortured in a ‘torture cell’ where he saw many persons [detainees] were slaughtered. His hand and ribs were broken resulting from torture caused to him. He cannot narrate the torture in words, said P.W.18 Yusuf as tears rolled down his cheeks.

195. Thus, we have found that ‘Razakars’ apprehended P.W.18 from a place near the Chandra High School of Alfadanga of Faridpur on July 26 and handed him over to the Pakistani army camp at Faridpur Stadium. It has not been claimed by this P.W.18, the victim that accused Abul Kalam Azad @ Bachchu was involved with the act of apprehending and handing him (P.W.18) over to the Pakistani army camp at Faridpur Stadium or he (accused) accompanied the gang who committed alleged abduction. P.W.7 Md. Amir Hossain and P.W.15 Probodh Kumar Sarker also do not claim so and they have testified merely corroborating the fact of confining P.W.18, the victim at the camp.

196. Prosecution could not prove that the accused had effective control over the gang of

149

Razakars who allegedly abducted the victim (P.W.18) or the accused had any substantial link with the act of abducting the victim or the accused substantially acted, facilitated or contributed to the commission of the offence of abduction.

197. In cross-examination, in reply to question put to him P.W.18 stated that in 1971 he was first year student of Faridpur Rajendra College and accused Abul Kalam Azad @ Bachchu was also student of that college and he was one year senior to him and he was associated with Islami Chatra Snagha (ICS) [the student wing of the Jamat E Islam (JEI]. This is the reason why P.W.18 could recognize the accused at the army camp at Faridpur. Thus, recognition of accused Abul Kalam Azad @ Bachchu by the P.W.18 at the camp remains unaffected.

198. P.W.7 Md. Amir Hossain has narrated the incident how he was apprehended and then kept confined at the ‘army camp’ of Faridpur stadium. In addition to this fact, P.W. 7 has stated, corroborating P.W.18, that during his confinement for long one month he found Abu Yusuf Pakhi (P.W.18) and others were brought there. It remains unshaken. Thus, this unimpeachable version goes to corroborate the fact of keeping P.W.18 confined at the ‘army camp’.

199. Next, it has been corroborated by the P.W.15 Probodh Kumar Sarker that he later on, learnt the event of confinement and torture caused to the detainees at the army camp set up at Faridpur stadium from the victims including P.W.18 Abu Yusuf Pakhi. Defence could not shatter this version, though hearsay in nature.

The source of learning the fact of alleged confinement and torture was one of victims detained at the camp. Thus, the hearsay testimony of P.W.15 on this material particular

150

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

carries probative value and lends corroboration to what has been deposed by the P.W. 18, the victim of confinement and torture.

200. But we do not find any indication from the evidence of P.W.15 that the accused Abul Kalam Azad @ Bachchu actively facilitated or contributed to the commission of offence of such confinement and torture. We have just found from corroborative version of P.W.15 that Abu Ysuf Pakhi was kept confined and tortured at the army camp.

201. P.W.18 stated that Advocate Afzal, Mainuddin, Alauddin Khan and Abul Kalam Azad, leaders of Peace Committee, another anti-liberation force, used to be present with the army during the brutal torture of the detainees. One day, Azad (accused) brought some women and handed them to the Major Akram, said P.W.18 Yusuf, adding that the women were tortured and abused beside their cell. From this version we have got a picture that the accused used to remain present at the time of causing torture to the detainees at the camp. This version reflects adequately that the accused had association with the crime camp.

Evaluation of Evidence and Finding 202. The learned state defence counsel reiterated his argument that the evidence of P.W.18 lacks of corroboration and as such it is not safe to act solely on it. He further argued that P.W.18 does not claim that the accused himself abducted, kept him confined and caused torture to him in the camp. P.W.15 is a hearsay witness and thus his evidence does not carry value. Mere testimony of P.W.7 that he, during his confinement period at the camp, found there P.W.18 Abu Ysuf Pakhi is not the proof of the fact of his alleged abduction and torture caused to him. Therefore, the accused cannot be held responsible for the event of

2 LNJ (2013)

crime brought in charge no.02. Prosecution has not been able to prove complicity of accused, in any manner, with the commission of offences narrated in charge no.02.

203. The fact of abducting and handing P.W.18 over to the Pakistani army camp at Faridpur Stadium; that on the following morning Major Akram Koreshi went there along with Abul Kalam Azad alias Bachchu and he was tortured in a torture cell and he was kept confined there for 43 days remain unshaken in his cross-examination. P.W.7 Md. Amir Hossain, during his own confinement at the same camp, found that Abu Yusuf Pakhi (P.W.18) and some other persons were brought there. Now the question comes forward how he acted to the accomplishment of the crimes alleged.

204. Since it could not be established that accused himself had involvement with the alleged act of abducting and handing him (P.W.18) over to the army camp the mere fact revealed from evidence of P.W.18 that the accused used to visit the camp and remained present while torture was caused to other detainees does not give rise to an irresistible inference that the accused himself was involved with the act of confining and causing torture to P.W.18, the victim.

205. Mere infrequent visit of the accused at the army camp does not establish it beyond reasonable doubt that the accused substantially contributed or facilitated the act of confinement and causing torture to P.W.18, particularly in absence of any specific and substantial criminal act or conduct to the accomplishment of the offence of alleged confinement and torture.

Admittedly, the crime site was an ‘army camp’ set up at Faridpur stadium. Prosecution has not come up with a case that the accused had

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

effective control and command over the alleged ‘army camp’, the crime site.

206. Evidence of P.W.15 Probodh Kumar Sarker , though hearsay, cannot be excluded as according to him later on, he learnt the event of confinement and torture caused to the detainees at the Faridpur stadium camp from the victims including P.W.18 Abu Yusuf Pakhi, the victim of charge no.2.

207. Evidence on the fact of confinement need not even be visible by any one else, considering the context and nature of the crime site. The offence of confinement as alleged has been established. The event and sufferings caused by torture may only be testified by the victim. Evidence of P.W.15 Probodh Kumar Sarker , though hearsay, cannot be excluded as according to him later on, he learnt the event of confinement and torture caused to the detainees at the Faridpur stadium camp from the victims including P.W.18 Abu Yusuf Pakhi, the victim of charge no.2.

208. We thus unerringly believe that P.W.18 was subjected to torture and degrading treatment at the camp. It is quite impractical to think that it was really possible to see such event by any one else. P.W.7 Md. Amir Hossain who was one of detainees of the camp had occasion only to see P.W.18 detained there. But P.W.7 has not stated that he saw the accused causing torture to P.W.18 or encouraging or facilitating in any manner to the accomplishment of the offence of torture upon P.W.18 by the principals.

209. P.W.18 the victim does not claim that at the time of causing torture to him too accused remained present with the Pakistani army and thereby encouraged or facilitated the commiss-

151

ion of the offence of torture to him. Indubitably it has been proved that P.W.18 was a victim of torture during his confinement of the Pakistani army camp at Faridpur Stadium and perpetrators were Pakistani army of the crime camp.

But for holding the accused criminally liable for the crimes alleged it has to be established that he participated or substantially contributed or facilitated to the commission of the offence of confinement and causing torture. The mere fact that the accused had close association with the Pakistani army of the ‘army camp’ and he used to make visit to it does not ipso facto prove his liability.

210. From the testimony of both P.W.18 and P.W.7 it could not be found that torture, causing mental or physical harm, was done to P.W.18 by the accused himself or the accused substantially contributed or facilitated to cause any kind of torture to him. On the strength of proved fact that the accused Abul Kalam Azad @ Bachchu almost all the time used to accompany the Major of the camp by his visit and used to avail the vehicle of Major, at best it can be held that the accused used to maintain close link and association with the army of the ‘crime camp’ and encouraged and provided moral support for committing offences directing to other persons brought to the camp.

211. However, the mere presence at and frequent visit to the ‘army camp’, the crime site, of the accused Abul Kalam Azad @ Bachchu, as testified by P.W.18, itself may however, be well perceived as a significant indicium of his close association with the army of the camp which is not sufficient to prove that the accused provided substantial encouragement or support and contribution to the accomplishment of the offence of confinement and torture done to P.W.18.

152

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

212. The victim P.W.18 stated that after remaining confined at the army camp at circuit house, prior to the event narrated in charge no.2, he was eventually released there from by another Pakistan army’s Baluch Major. Thus, it may be justifiably inferred that the accused had no role and control in keeping P.W.18 confined at an ‘army camp’ and to influence his release there from.

213. We are thus, on careful evaluation of evidence adduced in support of the charge no.2, persuaded that the offence of abducting, keeping confined at the army camp and causing torture to P.W.18 has been believably proved.

But prosecution, as we have found, has been failed to establish it beyond reasonable doubt that the accused Abul Kalam Azad @ Bachchu by his act or conduct contributed or facilitated to the commission of the offence of abduction, confinement and torture as crimes against humanity as specified in section 3(2) (a) of the Act and therefore, he is not found to have incurred criminally liability under section 4(1) of the Act for the offences as listed in the charge no.2.

Adjudication of Charge No.03 [Sudhangsu Mohon Roy Killing] 214. Summary Charge: Abul Kalam Azad @ Bachchu(absconded) a member of Razaker Force and subsequently the local commander of Al-Badar Bahini and or as a member of group of individuals being accompanied by 10/12 armed Razakers attacked the village Kolaron (Kvjvib) under police station Boalmari district Faridpur, and then the accused is alleged to have killed Sudhangsu Mohon Roy of village Kolaron on 14 May 1971 at about 15:00 hrs. during the War of Liberation and thereby he has been charged for the physical participation and also for

2 LNJ (2013)

substantially contributing to the actual commission of offence of ‘murder as crime against humanity’ by directing attack against the Hindu civilian population as specified in section 3(2) (a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act. Witnesses 215. Accused Abul Kalam Azad @ Bachchu is alleged to have physically participated to the commission of the crime. Prosecution has examined two witnesses (P.W.1 and P.W.3) in support of this charge. Both the witnesses are live witnesses. Now let us see what they have stated on dock.

216. The event relates to killing of Sudhangshu Mohon Roy, a local influential member of Hindu community of village Kolaron under police station Boalmari district Faridpur. The event took place in broad day light. Pattern of the attack that resulted in such killing and atrocious acts signifies that it was in furtherance of part of attack against civilian population implemented through out the country in 1971. Now let us see what the P.W.1 and P.W.3 have testified.

Discussion of Evidence 217. P.W.1 Freedom fighter Nepal Chandra Pathak testified before the Tribunal that accused Azad killed Sudhangshu Mohan Roy of Kolaran of Faridpur on May 14, 1971. He claims to have witnessed the incident which relates to charge no. 02. P.W.1 Nepal Chandra Pathak, has testified that he saw accused Bachchu Razakar shooting Sudhangshu Babu.

218. PW1 stated that on 14 May 1971 at 10:00 am he had gone to the residence of Jaminder Sudhangsa Mohon Roy to meet his elder

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

brother Haran Chandra Pathak who used to work there as ‘Nitya Pujari’ (daily worshiper)’.

He found Sudhangsa Mohon Roy, his wife Nani Bala Roy, his son Moni Moy Roy and his wife Minoti Rani Roy available there. At about 03:00 pm when he was talking with his brother, Abul Kalam Azad @ Bachchu Razaker being accompanied by 10-12 armed persons entered the house and accused Bachchu dragged Sudhangsu Mohon Roy out of his house despite request to leave him, P.W.1 added.

219. In cross-examination P.W.1 stated that he knew accused Bachchu as he was a resident of his neighboring village and used to come to ‘haat’ where he had occasion to see him(accused) and he also knew him personally and also had talk with him. Thus P.W.1 was familiar with accused since prior to the incident and as such he could recognize him when the armed gang led by accused launched the attack on the house of Sudhanshu Mohon Roy. Thus, it is established that at the relevant time the gang of 10-12 armed men led by accused Abul Kalam Azad @ Bachchu dragged Sudhanshu Mohon Roy out of his house as it remains unshaken even in cross-examination.

220. P.W.1 further stated that he and others started following them (the gang of perpetrators) but accused Bachchu threatened not to follow them and with this they remained stood on the road. Monimoy Roy @ Keshto, son of Sudhangsu Mohon Roy was also taken out with his father.

221. Thereafter, P.W.1 saw Bachchu Razaker snatching the precious stone-rings from Sudhangsu Mohon Roy’s fingers and signaled them to go back home. With this when Sudhangsu Mohon Roy and Moni Moy Roy were approaching the house, accused Bachchu shoot Sudhangsu Mohon Roy from behind and

153

with this he fell down. On seeing it Monimoy Roy started crying and then one of accomplices of Bachchu shoot him too causing injuries on his legs and with this he fell down. Thereafter, Bachchu and his accomplice disappeared towards eastern side road. P.W.1 next stated that they brought the dead body of Sudhangsu Mohon Roy and his funeral was done beside the pond adjacent to their residence and treatment was given to Moni Moy Roy @ Keshto, injured son of Sudhangsu Mohon Roy by a village doctor.

222. The description of the incident as depicted from evidence of P.W.1 could not be dislodged by the defence. Rather, it has been confirmed in cross-examination as P.W.1 in reply to question put to him stated that he himself saw accused Bachchu shooting Sudhangsu Mohon Roy to death and his (accused) father-in-law Chan Kazi also accompanied the gang to the crime site.

223. P.W.1 finally stated that afterwards, accused Bachchu along with Pakistani army also attacked Hasamdia and Moindia Bazar, looted valuables, burned houses and shops and killed a number of civilians there. This version remains undisputed in cross-examination.

Rather it is found that P.W.1 saw the incident of burning Hasamdia and Moindia bazar from his own house, as stated in cross-examination.

224. Defence suggested that the alleged incident was perpetrated by the Pakistani army and not by the accused and his accomplices.

P.W.1 denied the suggestion. However, the incident of killing as narrated in charge no.3 appears to have been proved beyond reasonable doubt.

225. The fact that P.W.1 went to the residence of victim Sudhangsu Mohon Roy to meet his

154

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

brother who used to work there as a ‘pujari’(priest) on the date and time alleged remains totally unchallenged and thus we do not find any reason to disbelieve P.W.1 and what he has stated before the Tribunal. Rather, P.W.1 seems to be a natural and competent live witness. It has thus been proved that the armed accused accompanied by his 10-12 armed accomplices physically perpetrated the crime of killing and destructive atrocities.

226. P.W.3 Md. Mojaher Sikder is another live witness who has been examined to substantiate the commission of crimes and complicity of accused Abul Kalam Azad @ Bachchu thereof.

227. P.W.3 Md. Mojaher Sikder stated that he and accused Abul Kalam Azad @ Bachchu had studied together in ‘Bahirdia Kowmi Madrasa’ in their boyhood and thus he knew him well. At the relevant time P.W.3 was a resident of the crime village. Additionally, P.W.3, in his cross-examination, in reply to question put to him stated that he and the accused Abul Kalam Azad @ Bachchu studied together for one year at ‘Bahirdia Kowmi Madrasa’. Thus, we are persuaded to infer that naturally it was quite possible for P.W.3 to recognize the accused at the crime site committing crime alleged.

228. P.W.3 stated that on 14 may 1971 at about 02:30- 03:00 noon he found some 10/12 armed men were approaching towards east through the road adjacent to his house. Of them he could recognize only one and it was Abul Kalam Azad alias Bachchu who was his classmate in ‘Bahirdia Qaumi Madrasa’. P.W.3 quoted accused Azad as saying, “I have come from Faridpur after receiving training. Now I will govern the country.” P.W.3 Mojaher then started following them when they were going towards Sudhangshu's house and he saw them

2 LNJ (2013)

bringing Sudhangshu and his son Monimoy Roy out and took them 200 yards east of their home, added P.W.3.

229. P.W.3 further stated that he was standing at a bit distance along with Binoy Roy, another son of Sudhangshu Mohon Roy and Nepal Pathak (P.W.1). Nani Bala Roy, wife of Shudhangshu Mohon Roy and Minoti Rani Roy wife of Kesto were watching the incident.

At a stage, Shudhangshu Mohon Roy and his son Keshto started returning back home and then accused Bachchu gunned Sudhanshu Mohon Roy down to death on seeing which Keshto started crying and instantly one of accomplices of accused Bachchu shoot him too causing injuries on his legs and with this he fell down. Afterwards, accused Bachchu and his gang left the crime site.

230. The above evidence of P.W.3, a live witness, seems to have corroborated what has been deposed by P.W.1, another live witness on the fact of commission of crime and physical complicity of the accused with it.

Defence failed to controvert what has been narrated by P.W.3. Rather, in cross-examination it has been confirmed that they were on road outside of house of Sudhangshu Mohon Roy when the perpetrators dragged him out of his house.

Evaluation of Evidence and Finding 231. The learned Prosecutor while summing up its case has submitted that two live witnesses have proved this charge beyond reasonable doubt. From there evidence it would appear to be proved that the an armed group of Razakars led by the accused Abul Kalam Azad @ Bachchu attacking the house of Sudhangshu Mohon Roy dragged him out of his house then accused himself gunned down him to death and

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

thereby he physically participated to the actual crimes which was a part of attack directed against civilian population constituting the offence of murder as crime against humanity as mentioned in section 3(2) (a) of the Act. 232. The learned state defence counsel reiterated his argument made by him in relation to charge nos. 1 and 2. He argued that P.W.1 and P.W.3 are not credible witnesses and had no opportunity to see the event of alleged killing; that the prosecution has been failed to prove that accused belonged to Razakar force and was associated with the Pakistani army.

155

argument extended by the learned state defence counsel does not fit to the claim of innocence of the accused. The unimpeachable evidence and relevant circumstances do not seem to have been tainted in any manner to cast reasonable doubt as to the guilt of the accused.

233. We have found from the corroborative and unimpeachable evidence of P.W.1 and P.W.3 that at the time of commission of the crime alleged the accused having fire arms with him led the armed gang of 10-12 accomplices. It may be validly inferred too that the accused on having training received rifle for the purpose of accomplishment of attack in furtherance of policy of Pakistani army and the pro-Pakistani political organization collaborating them in 1971. Both the P.W.1 and P.W.3 are the live witnesses and we do not see any reasonable ground to discard their testimony made before us.

235. Thus the manner date and time of the horrific event of killing and looting and physical participation of accused Abul Kalam Azad @ Bachchu accompanied by 10-12 armed accomplices to the commission thereof have been proved beyond reasonable doubt by the unimpeachable evidence of P.W.1 and P.W.3. We have got from evidence of P.W.1 victim Sudhangshu Mohon Roy was a local Zaminder i.e a member of local Hindu community having distinguished status in the community and thus it is lawfully presumed that this is the reason as to why he was targeted by the perpetrators. P.W.3 quoted accused Azad as saying, “I have come from Faridpur after receiving training. Now I will govern the country.� It is thus once again proved that accused was a close associate of Pakistani army and he acted as a member of Razakars in furtherance of the policy of annihilation of Hindu group and pro-liberation civilian population.

234. Defence could not impeach credibility of P.W.1 and P.W.3. They are natural and live witnesses. Their version as to the commission of crime and physical complicity of the accused with it is quite corroborative to each other. They had natural reason to identify and recognize the accused who led the armed gang to the accomplishment of crime. Their corroborative and credible evidence sufficien-tly demonstrates that accused Abul Kalam Azad @ Bachchu physically participated in killing of Sudhangshu Mohan Roy. Therefore, the

236. The killing of Sudhangshu Mohan Roy and the criminal acts committed in conjunction of the event by the accused and his accomplices were not isolated for which the accused Abul Kalam Azad @ Bachchu is found criminally responsible under section 4(1) of the Act of 1973. The criminal acts on part of the accused and his accomplices was certainly a part of attack against civilian population which qualifies the offence alleged as murder as crime against humanity as specified in section 3(2) (a) of the Act of 1973 which are

156

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

punishable under section 20(2) read with section 3(1) of the Act. Adjudication of Charge 04 [Madhab Chandra killing] 237. Summary Charge: Abul Kalam Azad @ Bachchu(absconded) a member of Razaker Force and subsequently the local commander of Al-Badar Bahini or as a member of group of individuals being accompanied by 10/12 armed Razakers is alleged to have killed Madhab Chandra Biswas at village ‘Purura Nampara‘ under police station Nagarkanda district Faridpur by dragging him out of his house , on 16 May 1971 at about 15:00 , during the War of Liberation and thereby he has been charged for the physical participation and also for substantially contributing to the actual commission of the offence of ‘murder as crime against humanity’ by directing attack targeting the civilian Hindu population as specified in section 3(2) (a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act. Witnesses 238. Prosecution, in support of this charge, has adduced and examined as many as three witnesses as P.W.6, P.W.8 and P.W.10. They are live witnesses who by deposing on dock have incriminated the accused with the commission of the offence of killing Madhab Chandra Biswas and Gyanendra. All the witnesses are from the crime village. Of them P.W.6 Bhakta Ranjan Biswas is the son of victim Madhab Chandra Biswas. The alleged offence of murder took place in broad day light and by dragging the victim out of his house.

P.W.6 Bhakta Ranjan Biswas, 65 year old and son of victim Madhab Chandra Biswas has testified about his experience of killing his father, the event as narrated in charge no.04. In

2 LNJ (2013)

narrating the event he stated that he had seen the incidents [killings] and his neighbours Prafulla Kumar Mandol (P.W.8), Tusto Kumar Mondol (P.W.10), Sunil Kumar Mondal and many others witnessed it too.

Discussion of Evidence 239. P.W.6 Vokto Ranjan Biswas stated that the Pakistani army established camps in Faridpur and since then accused Abul Kalam Azad @ Bachchu and his 10-12 armed accomplices started looting and destructing houses of Awami League supporters and Hindu community.

240. The above unshaken version has proved that the accused after having established his link with the Pakistani army had started committing atrocities particularly targeting Hindu community in the areas of Faridpur district and it also indicates that by committing such atrocious activities he intended, with conscious knowledge of consequence of his acts and conducts, to collaborate and provide substantial support to the Pakistani army, in implementation of its plan and policy.

241. In respect of the event of murder narrated in charge no.4, P.W. 6 stated that on 16 May 1971 corresponding to 01 Jaistha at about 13:00 hrs Abul Kalam Azad (accused) being accompanied by Mohammad Kazi and others raided their house at village Purura under police station Saltha district Faridpur. His father was a supporter of Awami League. His father, on seeing the armed gang coming attempted to escape but the perpetrators caught him hold, had looted ornaments, money from their house and afterwards they brought his father dragging to 300 yards west to the house of Tushta Master’s pond and then Abul Kalam Azad @ Bachchu shoot his father to death with the rifle in his hand. The fact of looting

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

ornaments and households as stated in examination-in-chief appears to have been confirmed as P.W.6 in reply to question elicited by the defence in cross-examination that Bachchu Razakar (accused) and his accomplices looted ornaments from their house.

242. The event of killing of Madhab Chandra Biswas as narrated by P.W.6 remains undisputed and defence could not however controvert it in any manner. We find no reason to infer that testimony of P.W.6 is tainted by any doubt. In addition to the event of killing his father P.W.6 further stated that afterwards accused Abul Kalam Azad @ Bachchu also shoot one Gayanendra Mondol to death at the southern part of their house with the rifle in his hand. He (P.W.6), his neighbours Prafulla Kumar Mondol (P.W.8), Tushta Kumar Mondol(P.W.10), Sunil Kumar Mondol, Monindra Nath Mondol and many others had witnessed the incident of killing. After the event of killings and attack they including 500600 Hindu residents of their village deported to India, in fear of Bachchu Razakar, P.W.6 added.

243. P.W.8 Prafulla Kumar Mandol , a 63year-old retired school headmaster, a resident of the crime village and a live witness has stated that around 1:00pm on May 16, 1971, he came out of his house hearing a hue and cry and saw 10 to 12 armed men dragging Madhab out of his house. Taking him [Madhab] by the bank of Tusto Master's [P.W.9] pond, about 300 yards west of their house, Abul Kalam Azad alias Bachchu gunned down Madhab Chandra Biswas to death. He saw the incident in his own eyes from a jute field where he remained in hiding, P.W.8 added. Even in cross-examination, P.W.8, in reply to question

157

put to him stated that remaining in hiding at a jute field he witnessed the event. Defence could not however shake what has been stated

by P.W.8 regarding the commission of the crime and direct participation of accused to the actual commission thereof.

244. P.W.8 further testified that afterwards, Gyannedra Mondol a relative of their neighbours Duari Sarder, on seeing accused Bachchu and his accomplices, attempted to escape but he could not as they apprehended him and then Bachchu Razakar (accused) himself had also gunned down Gyanendra Mondal to death at the same spot. In crossexamination, in reply to question put to him by the defence P.W.8 stated that on 16 May 1971 at about 13:00 hrs the gang of armed Razakars led by Bachchu (accused) raided their village.

245. P.W. 10 Tusto Kumar Mondol, a 54year-old school teacher and a resident of the crime village who is a live witness too has made almost a similar and corroborative description of the killings of Madhab Chandra Biswas and Gyanendra Mondol. He narrated that on 16 may 1971 at about 13:00 hrs armed Abul Kalam Azad @ Bachchu and his 10-12 armed accomplices, entering into their village, first raided the house of Madhab Chandra Biswas. On hearing it the villagers started to escape. After looting Madhab’s house the gang dragged Madhab out of his house and brought him to the east bank of his (P.W.10) pond and remaining in hiding inside a jute field he saw that Bachchu Razakar himself gunned down Madhab Chandra Biswas to death. Defence could not refute the fact of commission of killing and direct participation of the accused with the criminal act of murdering Madhab Chandra Biswas and thereafter Gyanendra was brought there by the co- perpetrators and

158

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

accused Bachchu himself also shoot him to death by rifle with him.

246. P.W.10 stated further that Abul Kalam Azad was a Razakar commander and his aim was to wipe out the Hindu community and Awami League supporters. P.W.10 stated that as part of the plan of the Pakistani army, killings, rapes, loot and arsons were carried out by the perpetrators led by Bachchu Razakar in Faridpur like everywhere else. This version patently reflects the context of committing crimes targeting the civilian population belonging to Hindu community.

Evaluation of Evidence and Finding 247. The learned Prosecutor while arguing on this charge has submitted that the witnesses who deposed in support of this charge are live witnesses and they had opportunity to witness the event of attack followed by looting and killing of Madhab Chandra Biswas and Gyannedra Mondol. They are natural witnesses and they explained the reason why and how they could recognize the accused at the crime site. Accused had directly participated to the actual commission of the criminal act of murder and the armed gang was led by him to the crime site. Defence failed to dislodge what the witnesses have narrated in their examination-in-chief, on material particulars.

248. Conversely, the learned state defence counsel, refuting the above argument, has submitted that the accused was not involved with the commission of crimes alleged in the charge no.4; that the prosecution failed to prove that the accused was an armed member of Razakar force; that the witnesses examined by the prosecution are not credible and it is not possible to memorize the event accurately.

249. It is true that for the reason of long passage of time human memory may be faded.

2 LNJ (2013)

We have found that the witnesses examined in support of the charge no.4 are live witnesses one of whom is the son (P.W.6) of victim Madhab Chandra Biswas. The trauma and nature of suffering he experienced relate to long term memory which naturally still remains imprinted in his memory and such horrific event never erases from human memory. For similar reason the corroborative version of P.W.8 and P.W.10 cannot be questioned and excluded from consideration.

250. The fact that P.W.6 had occasion to witness the event of atrocious murder of his father remains unshaken. As regard reason as to how he knew the accused, P.W.6, in crossexamination, has stated that he knew Abul Kalam Azad @ Bachchu who had a jute godown at Moindia haat and he had association with Muslim League politics and used to attend meetings at different areas of Saltha and Nagarkanda. He (accused) studied in Faridpur Rajendra College and ‘Bahirdia Madrasa’. Thus, naturally as a resident of same locality P.W.6 had reason to know the accused from earlier. The event took place in broad day light and at a place adjacent to the house of Madhab Chandra Biswas and thus it is quite believable that P.W.6 had opportunity to see the accused shooting his father to death by remaining in hiding inside an adjacent jute field.

251. The corroborative testimony of P.W.8 on the event of murder of Madhab Chandra Biswas and Gyannedra Mondol does not appear to have been tainted by any doubt.

Defence, by cross-examining him could not shake what he has narrated as regard commission of the killings and mode of participation of the accused to it. P.W.8 has also corroborated that after the incident 400500 Hindu residents of the crime village

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

became compelled to deport to India, in fear of Bachchu Razakar and his accomplices.

252. How P.W.8 could recognize the accused at the crime site? This pertinent question needs to be answered. In this regard, P.W.8 stated in his examination-in-chief that accused Abul Kalam Azad @ Bachchu was a student junior to him in Faridpur Rajendra College and he saw him attending numerous meetings of Jamat E Islami and that is why he was acquitted with him. It has been confirmed even in his crossexamination. That is to say, P.W.8 naturally could recognize the accused committing the killings alleged. Thus his testimony inevitably inspires credence.

253. P.W.8 also testified that accused Abul Kalam Azad @ Bachchu and his cohorts committed killings, torture, loot, and arsons during the nine-month-long war to uproot the Hindu community, Awami League supporters, pro-liberation unarmed Bangalees. This version adequately portrays the atrocious activities of the accused and intent to commit such acts during the War of Liberation in Faridpur. This portrayal is a crucial relevant fact in determining culpability of the accused.

254. Defence has not been able to tarnish creditability of P.W.10 in any manner by crossexamining him. Rather, he seems to be a natural witness. P.W.10 knew the accused from earlier as he saw him attending electoral meetings in support of the candidate of the symbol ‘scale’.

255. Concatenation of incriminating facts narrated by the P.W.6, P.W.8 and P.W.10 coupled with relevant facts are suffice to prove the commission of the event of the offence of murder of Madhab Chandra Biswas and Gyannedra Mondol as crimes against humanity

159

and mode of participation of the accused therewith. We have found that it has been established beyond reasonable doubt from the evidence of P.W.6 and P.W.8 and P.W.10 the residents of the crime village and live witnesses that on the date , time and in the manner an armed gang of Razakars led by accused Abul Kalam Azad @ Bachchu had launched attack to the house of Madhab Chandra Biswas who was a supporter of Awami League and after looting the ornaments and households etc., they dragged Madhab Chandra Biswas out of his house and took him to east bank of a pond of P.W.10 where accused Abul Kalam Azad @ Bachchu himself gunned down him to death and afterwards the accused also killed Gyanendra Mondol at the same spot. Attack targeting the Hindu village and killing of Awami League supporter indicates that the criminal acts of looting and murders were part of ‘systematic attack’ in furtherance of policy and plan directed against civilian population.

256. Thus, the criminal acts to the accomplishment of murder are characterized as the offence of crimes against humanity as specified in section 3(2) (a) of the Act as it was directed against civilian population. The accused, as has been proved, had directly participated to the commission of offence of murder as described in the charge no.4 and thus he incurs individual criminal liability under section 4(1) of the Act and he is found guilty for perpetration of the offence as listed in charge no. 04 which is punishable under section 20(2) read with section 3(1) of the Act. Adjudication of Charge No.05 [Committing Rape upon Devi Rani and Shova Rani] 257. Summary Charge: Abul Kalam Azad @ Bachchu(absconded) a member of Razaker

160

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

Force and subsequently the local commander of Al-Badar Bahini and or as a member of group of individuals being accompanied by 10/12 armed Razakers is alleged to have attacked the house of Sudhir Biswas @ Gosai Pada Biswas of village ‘Natibodia’ (bvwUew`qv) under police station Boalmari district Faridpur on 08 June 1971 at about 12:00 hrs , during the War of Liberation and then allegedly commit-ted rape upon Devi Rani and Shova Rani and thereby he has been charged for the physical participation and also for substantially contrib.-uting to the actual commission of offence of ‘rape as crime against humanity’ by directing attack targeting the Hindu civilian population as specified in section 3(2) (a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act. Witnesses 258. Prosecution adduced and examined two witnesses as P.W.13 and P.W. 14 in support of this charge. P.W.13 Surabala Biswas, now 7071 years old is the wife of brother of victims’ husbands. P.W.14 Binod Chandra Biswas is the brother of P.W.13’s husband. They have narrated the criminal acts perpetrated by accused Abul Kalam Azad @ Bachchu and his accomplices.

Discussion of Evidence 259. P.W.13 Surabala Biswas stated that at the end of Jaistha in 1971 at about 12:00 hrs Bachchu Razakar and his 10-12 armed accomplices attacked their house with frequent gun firing from the end of southern part of their village. On hearing gun firing the male inmates of their houses remained in hiding inside a jute field nearer to their house. Bachchu Razakar and his accomplices then entering into their house apprehended Devi Rani the wife of

2 LNJ (2013)

Nagen and Shova Rani the wife of Gosai. 2-3 accomplices of Bachchu Razakar had kept them guarded and looted gold ornaments while Bachchu Razakar and his 7-8 accomplices dragged Shova Rani and Devi Rani to the dwelling room of Shova Rani where they keeping them confined for about one and half hour to two hours committed rape upon them, P.W.13 added. After the gang of Razakars had left the place they and the male inmates of the family entering into Shova Rani’s room found her (Shova Rani) and Devi Rani in subconscious condition having biting stain on their face and saw the lower part of their wearing apparel blood stained. They tried to get them settled by pouring water on their heads. Thereafter, Shova and Devi started crying and had told that Bachchu and their accomplices committed rape upon them and they would not be able to expose their face and would not remain in this country.

260. P.W.13 further stated that thereafter, they along with Shova Rani and Devi Rani deported to India and at present Shova and Devi have been residing in India. At the time of incident Shova was 15-16 years of age and Devi Rani was 17-18 years old.

261. P.W.14 Binod Chandra Biswas (62) is a live witness as to some facts crucially related to the charge of alleged rape. He is one of male inmates of victims’ family.

P.W.14 corroborating P.W.13 has stated that probably on 08 June 1971(last part of jaistha) Bachchu Razakar and his 8-10 accomplices were approaching toward their village with frequent gun firing and attacked their house. With this he and other male inmates of the family remained in hiding inside a jute field adjacent to their house. Bachchu and his accomplices entering into their house encircled the female members of their family including his boudi

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

Shova Rani, boudi Devi Rani, boudi Surabala (P.W.13) and his mother and afterwards, Bachchu and his 4-5 accomplices forcibly dragged Shova Rani and Devi Rani to the dwelling hut of Shova Rani where they kept them confined for half an hour and then they left the crime site after looting ornaments and households.

262. Ten minutes after the gang left, they the male members of the family entered into house and his mother and boudi Surabala (P.W.13) entering into the room of Shova Rani found her and Devi Rani in subconscious, almost unclothed and bleeding condition, P.W.14 added. They poured water on their heads and thus they regained their sense and had told ‘our chastity has been lost, we do not want to survive, and our everything has been finished’.

Shova Rani was wedded 4 moths prior to the event and Devi Rani was married only 6 months before the incident took place. P.W.14 further stated that they thought it not wise to stay further in country and thus on the following morning they along with surrounding Hindu people of 20 other families deported to India. Defence could not shake the testimony of P.W.14 made on material particulars.

263. In cross-examination, P.W.14 stated in reply to questions put to him that he could not say when the local peace committee was formed in Fairpdur in 1971; that whether it was not possible to organize the Razakar force in Faridpur till the gazette notification dated 02 August 1971. In our view, P.W.14 is not supposed to be familiar with all these information which are not at all decisive factors, particularly in relation to charge no.5.

Evaluation of Evidence and Finding

161

264. The learned prosecutor has argued that P.W.13 and P.W. 14 are live witnesses who have testified how the attack was launched and how the gang led by accused Abul kalam Azad @ Bachchu acted to the accomplishment of the offence of rape. P.W.13 a female member of victims’ family had opportunity to see accused and some of his accomplices dragging the victims to Shova Rani’s room where they kept them detained for one and half hour which together with victims’ version as portrayed by P.W.13 and P.W.14 adequately signify that Shova Rani and Devi Rani were raped and sexually ravished.

265. The learned state defence counsel has argued that the prosecution has not been able to prove that the accused was with the gang to pursue the attack and thus he was not involved with the commission of rape alleged in any manner. P.W.13 a female member of the victims’ family had no prior knowledge about Abul Kalam Azad@ Bachchu and for P.W.14 it was not possible to see as to what was happening inside their house by remaining hiding in jute field and thus the version that P.W.14 that he saw the accused accompanying the gang to the crime site and dragging the victims to Shova Rani’s room is not believable.

The charge is tainted by reasonable doubt.

266. Defence, as we find, could not shake what the P.W.13 has stated on material particulars.

Rather, the evidence of P.W.13 remains undisputed as well. In cross-examination, P.W.13 in reply to question put to her by the defence stated that she did not know accused Bachchu Razakar but she learnt it from the male inmates of the family that Bachchu Razakar was with the gang of armed perpetrators. The reason why this witness knew that one of members of the gang was Bachchu Razakar is quite natural as it has been corroborated by P.W.14 Binod Chandra Biswas

162

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

2 LNJ (2013)

one of male inmates of their family who knew accused Abul Kalam Azad since 1969 as he saw him (accused) attending meetings held in the office of jamat E Islami at Niltuli, Faridpur, as he deposed.

half hour (as deposed by P.W.13). The other female members were kept guarded by some of accomplices of accused Bachchu. The charge relates to commit rape upon Shova Rani and Devi Rani.

267. In reply to question put by court P.W.14 stated that he knew accused Bachchu from earlier as he saw him attending meetings of jamat E Islami and at the time of alleged event he saw the accused at the crime site. Even in cross-examination P.W.14 has stated that he knew accused Abul Kalam Azad @ Bachchu since 1969 and he saw him attending processsions and meetings of Jamat E Islami held in its office at Niltuli, Faridpur. Thus, the reason of knowing the accused even from earlier has been confirmed. In cross-examination, P.W.14 stated that nobody could see them from outside when they were in hiding inside the jute field.

Defence however did not suggest that even it was not possible too to see the outside in hiding position inside the jute field. Thus, and common sense suggest us to infer that it was possible to see the outside even in hiding condition inside the adjacent jute field.

269. None of two witnesses has claimed to have witnessed the alleged rape or sexual abuse upon the victims. The offence of alleged rape is not an isolated crime. The context also is to be viewed together with the criminal acts done.

The offence of committing rape particularly if it happened as a part of systematic attack in furtherance of policy and plan is not expected to have taken place in presence of anybody else. Besides, offence of rape or sexual abuse happens in sly. The situation as revealed also speaks sufficiently that it was not possible to see what was happening inside the room of Shova Rani. Thus the criminal acts of accused and his accomplices done to Shova Rani and Devi Rani have to be perceived from the entire facts and circumstance.

268. The matters which appear to have been proved from corroborative evidence of P.W.13 and P.W.14 are that on the date, time and in the manner accused Abul Kalam Azad @ Bachchu and his 10-12 accomplices attacked their village which was predominantly Hindu populated with frequent gun firing and with this the male members of their family remained in hiding inside a jute field adjacent to their house and then the gang attacking their house kept the female members encircled and from them Shova Rani and Devi Rani were segregated and the accused and some of his accomplices dragged them to the dwelling hut of Shova Rani and detained them for one and

270. P.W.14 has proved that ten minutes after the gang left the crime site they the male members of the family entered into house and his mother and boudi Surabala (P.W.13) entering into the room of Shova Rani found her and Devi Rani in subconscious, almost unclothed and bleeding condition. The victims regained their sense as they poured water on their heads and then the victims had told -‘our chastity has been lost, we do not want to survive, and our everything has been finished’.

This pertinent extra-judicial version of victims instantly narrated to P.W.14 a female inmate of victims’ family who had opportunity to see the attack and bringing the victims to Shova Rani’s room by the accused and his accomplices could not be shaken in any manner. P.W.14 further

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

stated that they thought it not wise to stay further at their home village and thus on the following morning they along with Hindu members of surrounding 20 other families deported to India.

271. We consider it improbable that the family members would ever invent a false story of sexual ravishment by inviting dishonour and disgrace on two newly wedded girls and on their family. No sane person would adopt such a course even out of any vengeance. Finding Shova Rani and Devi Rani in subconscious, almost unclothed and bleeding condition after the gang led by accused Abul Kalam Azad @ Bachchu left the crime site and the utterance of victims to P.W.14 a female member of the crime house that ‘our chastity has been lost, we do not want to survive, and our everything has been finished’ are strong and material circumstances which prompt us with no dubiety that Shova Rani and Devi Rani were raped and sexually ravished at their own house in furtherance of a part of systematic attack launched by the gang of armed Razakars led by accused Abul Kalam Azad@ Bachchu.

272. A single or limited number of acts on the accused’s part would qualify as a crime against humanity, unless those acts may be said to be isolated. The act of accompanying the gang of armed perpetrators in attacking the house of the victims and keeping them detained in the room of Shova Rani are sufficient to qualify the constitution of the offence of rape as crime against humanity. It is to be borne in mind that in certain circumstances even a single act comprises a crime against humanity when it occurs within the necessary context.

273. The context speaks that it was not possible for civilians to resist the armed

163

perpetrators led by the accused who were actually meant to execute the policy and plan of the Pakistani army and the pro-Pakistan political organization which had acted as its key auxiliary organisation. The pattern of the attack and acts indicates that the gang targeted the house of the victims belonging to Hindu community, a part of civilian population and the accused and his co-perpetrators finding no male inmates at the crime site, approached to cause harm to female members of the family in furtherance of which accused Abul Kalam Azad @ Bachchu and some of his accomplices dragged the victims to Shova Rani’s room where they were kept detained and at that time the other female members were kept guarded by other accomplices outside the room. We thus inescapably consider it just to pen our view that the victims were sexually ravished and the accused cannot be exonerated from criminal liability of committing the offence of rape as crime against humanity as specified in section 3(2) (a) of the Act. 274. The accused Abul Kalam Azad @ Bachchu, as has been proved, had directly participated to the commission of the offence of rape as described in the charge no.4 and thus he incurs individual criminal liability under section 4(1) of the Act and is found guilty for perpetration of the offence listed in charge no.05 which is punishable under section 20(2) read with section 3(1) of the Act. Adjudication of Charge No 06 [Killing of Chitta Ranjan Das] 275. Summary Charge: On 03 June 1971, during the War of Liberation you, Moulana Abul Kalam Azad @ Bachchu a member of Razaker Force and subsequently the local commander of Al-Badar Bahini and or as a member of group of individuals being

164

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

accompanied by 10/12 armed Razakers launched an attack targeting the Hindu community of village ‘Fulbaria’ under police station Nagarkanda district Faridpur and started looting the house of civilians. In the course of the event, you and your 7/8 accomplices entering inside the house of Chitta Ranjan Das dragged him out and then you, by the rifle with you, gunned down him to death and thereby the accused has been charged for the physical participation and also for substantially contributing to the actual commission of offence of ‘murder as crime against humanity’ by directing attack targeting the Hindu civilian population as specified in section 3(2) (a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act. Witnesses 276. Three witnesses have been adduced and examined in support of this charge. All the three witnesses i.e P.W.2 Jotsna Rani Das, P.W.4 Dhala Matabbar and P.W.9 Nagen Chandra Mondol are the live witnesses. Of them P.W.2 is the wife of victim of the offence of murder. P.W.4 and P.W 9 are from the crime village and claim to have witnessed the accused accompanying the armed gang of Razakars at the crime site and have corroborated the version of P.W.2, as regard commission of the event of crime and participation of the accused therewith. Now let us see what the witnesses have narrated.

Discussion of Evidence 277. P.W.2 Jotsna Rani Das (60), the wife of victim of the crime of murder has stated that on 19 Jaistha in 1971 Bachchu Razakar and his 20-25 armed accomplices came to their village by boat and of them accused Bachchu and his

2 LNJ (2013)

8-9 accomplices attacked their house and the rest of the gang started looting neighboring houses. Entering into their house accused Bachchu apprehended her husband Chitta Ranjan Das and tying him up started beating him by the rifle and then they had looted ornaments and other households. P.W.2 further stated that she attempted to rescue her husband from the clutch of accused Bachchu but he (accused) pushing her down on ground had brought her husband dragging one hundred and fifty yards east to their house where beneath a tree the accused gunned down him to death.

Half an hour later, Bachchu Razakar had shot one Badal Debnath to death at a place western side of their house, P.W.2 added. Afterwards, Bachchu Razakar and his accomplices threw the dead bodies of her husband and Badal Debnath by tying legs with a rope to ‘Kumar River’. She could not have trace of her husband’s dead body. 3-4 days after the event she along with her three minor children took shelter at the house of one Malek Bepari and 10-15 days after staying here she and many other Hindu civilians of the locality deported to India. At that time she was pregnant, P.W/2 added. Her three children died at ‘Kalyani’ camp in India and she gave birth of her fourth child on 28 December 1971 and after independence she returned back to home with her new born baby.

278. P.W.4 Dhala Matabbar (61) stated that on 19 Jaistha in 1971 at about 11:00 hrs on hearing crying from the house of Chitta Ranjan when he was on the way to Phulbaria Bazar approached to the crime site and found Bachchu Razakar and his 3 accomplices thrashing Chitta Ranjan. Afterwards, the gang brought Chitta Ranjan out of his house to a place at north side of their house and then Bachchu Razakar shoot him to death with rifle in his hand. Being frightened he (P.W.4) had left the site.

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

279. P.W.4 has made hearsay testimony as regard killing of Badal Debnath and some relevant destructive acts. He heard from people that Bachchu Razakar and his accomplices looted the house of Chitta Ranjan and the gang of perpetrators, dragging the dead body of Chitta Ranjan tying his legs with a rope threw it to Kumar River. P.W.4 also stated that he heard that Bachchu Razakar and his accomplices committed looting in the crime locality and Bachchu had also shoot Badal Debnath to death.

280. P.W.9 Nagen Chandra Mondol (72) was a resident of the crime village at the relevant time. He stated that he had business of betel leaf in 1971 and he owned a ‘pan baroj’.

On 19 jaistha in 1971 at about 11:00 hrs accused Bachchu Razkar of Baro Khardia and his accomplices came to their village by boat and he was accompanied by about 30 accomplices and of them 8-10 members of the gang attacked the house of Chitta Ranjan and the rest of the gang remained scattered around the village. Bachchu Razakar had a rifle with him. Afterwards, the members of the gang led by accused Bachchu committed looting of ornaments and house holds attacking the house of Chitta Ranjan and brought those to their boat. At the time of their exit from the crime site, Chitta Ranjan and his wife (P.W.2) had been in the courtyard of their house and he (P.W.9) remained in hiding inside a ‘pan baroj’ wherefrom he could hear Chitta Ranjan appealing accused Bachchu by saying ‘ Dada you have taken everything, how would I feed my children’. With this accused Bachchu inquired whether the house owned by Chitta Ranjan. Instantly after admission, Chitta Ranjan was tied up and Jotsna Rani Das (P.W.2) appealed to leave him but accused

165

pushing her down started taking Chitta Ranjan out of his house by dragging and he (accused) took him (Chitta Ranjan Das) to the east-north side of their house beneath a tree and then accused Bachchu Razakar gunned down him to death by a rifle with him.

281. P.W.9 stated that he witnessed the event of killing Chitta Ranjan. P.W.9 also stated that after killing Chitta Ranjan when the gang was moving toward south accused Bachchu Razakar also had shoot one Badal Debnath to death which he (P.W.9) witnessed . P.W.9 further stated that they could not trace the dead body of Chitta Ranjan as it was thrown to Kumar River and the gang led by accused Bachchu committed destruction and looting of houses of most of the residents of the crime village, in conjunction of the event.

Evaluation of Evidence and Finding 282. P.W.2 denied the suggestion put to her during cross-examination that accused Abul Kalam Azda@ Bachchu did not accompany the armed gang at the time of committing the attack and crimes alleged and that she did not know the accused. But the commission of event of crimes remains unshaken. How the P.W.2 could recognize the accused? In crossexamination, P.W.2, in reply to question elicited to her has stated that accused Bachchu was a resident of their neighboring village Khardia and he (accused) used to move around the locality and thus she could recognize him at the time of committing the crimes. The reason as stated by P.W.2 is naturally believable. We do not find any reason to exclude her testimony.

283. From the above evidence of P.W.4 it reveals that he witnessed the act of beating Chitta Ranjan Das including the act of shooting

166

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

him to death by accused Abul Kalam Azad @ Bachchu by a rifle with him. It remains unshaken. Rather, in cross-examination P.W.4 stated that apart from him, wife of Chitta Ranjan (P.W.2), Harun Molla, Nagen Mondol (P.W.9), Jaku Kazi had witnessed the event of killing Chitta Ranjan by the accused.

Witnessing the house of Chitta Ranjan Das in destructed condition, as stated by P.W.4 in his cross-examination has confirmed that the attack was launched targeting the house of Chitta Ranjan Das in conjunction of which accused Abul Kalam Azad @ Bachchu gunned down Chitta Ranjan Das to death by a rifle with him. Thus, the event of criminal acts done by the accused at the crime site resulted in murder of Chitta Ranjan Das and looting of their house is well established.

284. Was P.W.4 competent to recognize the accused at the crime site? Was it possible to see the event? P.W.4 in his cross-examination has stated that he knew Abul Kalam Azad @ Bachchu from earlier as his (accused) house was about four kilo meters far from his house and he (P.W.4) saw him (accused) attending electoral meetings in 1970 at Phulbaria Bazar.

It was thus probable to recognize a person of neighboring locality who was seen attending public meetings at the locality. Thus, the testimony of P.W.4, particularly in respect of seeing the accused beating and afterwards killing Chitta Ranjan Das carries value and it adds corroboration to the testimony of P.W.2 the wife of victim Chitta Ranjan Das. 285. We have found from first part of testimony of P.W.4 that on seeing the event of killing Chitta Ranjan Das he (P.W.4) became frightened and had left the crime site. Thus, it was naturally not possible to witness the killing of Badal Debnath that took place after the

2 LNJ (2013)

event of killing Chitta Ranjan Das. P.W.2 Jotsna Rani Das the eye witness of the event of killing her husband including the killing of Badal Debnath has stated that, Bachchu Razakar and his accomplices dragging the dead body of her husband and Badal Debnath tying their legs with a rope threw to Kumar River.

Thus, the hearsay version of P.W.4 so far it relates to killing of Badal Debnath and throwing the dead body of Chitta Ranjan Das to Kumar River carries much probative value which adds corroboration to what has been stated by P.W.2.

286. Testimony of P.W.9, a live witness has sufficiently and believably corroborated P.W.2 the wife of victim Chitta Ranjan Das and has narrated the event incriminating the accused with the commission of the offence of alleged murder. As regard reason of recognizing the accused P.W.9 stated that he knew accused Abul Kalam Azad @ Bachchu as during 197071 he (P.W.9) used to purchase straw for his own ‘pan baroj’ from the house of accused’s uncle. Even in cross-examination he stated that he knew the accused since prior to the War of Liberation and during the war of Liberation he saw him (accused) committing atrocity of looting and at that time he was not bearded.

Next, it has been confirmed too in crossexamination that the event alleged was committed on the date time and in the manner and P.W.9 had occasion to witness the event and he witnessed the accused as the actual perpetrator of the criminal act of killing Chitta Ranjan Das and Badal Debnath. Defence has however been failed to shake what has been testified by P.W.9 on material particulars.

287. Having regard to the evidence of P.W.2, P.W.4 and P.W9 we are thus convinced in arriving at decision that the atrocious event of

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

attack launched directing the crime village Phulbaria by the gang of armed Razakars led by accused Abul Kalam Azad @ Bachchu on the date time and in the manner has been proved beyond reasonable doubt. It is inferred unerringly too that intent of acts forming such attack was to cause destructive wrongs to the civilian population. It has also been established that the destructive and atrocious acts that resulted in killing of Chitta Ranjan and Badal Debnath and looting of numerous houses eventually compelled the victims and sufferers of the crime village including the P.W.2 to deport to India leaving their houses and properties. We have found how as a leader of the armed gang of Razakars the accused acted directly in committing the crimes. The event was simply horrific and was done in grave breaches of Humanitarian law and Geneva Convention too.

288. The accused Abul Kalam Azad @ Bachchu being accompanied by his armed accomplices, as has been proved, had directly participated to the commission of the offence of murder and the gang of co-perpetrators led by the accused indubitably had committed the criminal acts as part of the attack directing the civilians belonging to Hindu community and thereby the accused Abul Kalam Azad @ Bachchu is found to have incurred individual criminal liability under section 4(1) of the Act and found guilty for committing the offence of murder as crime against humanity as specified in section 3(2) (a) of the Act which is punishable under section 20(2) read with section 3(1) of the Act .

Adjudication of Charge No. 08 [Anjali Das abduction and torture]

167

289. Abul Kalam Azad @ Bachchu (absconded) a member of Razaker Force and subsequently the local commander of Al-Badar Bahini and or as a member of group of individuals, being accompanied by 7/8 armed Razakers entering inside the house of Guru Das, a civilian village dweller of village ‘Ujirpur Bazarpara’ (DwRicyi evRvicvov) under police station Saltha district Faridpur s is alleged to have abducted Anjali Das (18) Rani of the crime village on 18 May 1971 at about 10:00 hrs, during the War of Liberation and kept her confined and tortured and thereby the accused has been charged for the physical participation and also for substantially contributing to the actual commission of offence of ‘abduction, confinement and torture as crimes against humanity’ by directing attack targeting the Hindu civilian population as specified in section 3(2) (a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act. Witnesses 290. Prosecution examined three witnesses in support of this charge.P.W.11 Deb Kumar Das is the brother of victim Anjali Das and P.W.12 was a neighbour of victim at the relevant time.

P.W.16 is a hearsay witness and not from the crime village Ujirpur, Faridpur. They have testified as to who and how abducted Anjali Das and finally what happened to her.

291. PW11 53-year-old Dev Kumar Das, brother of victim Anjali Das stated that around 3:00 pm on May 18, 1971 Bachchu Razakar along with seven to eight armed men had come to their house and told his (P.W.11) father to hand over his sister Anjali Das to him (accused). But his father turned the proposal down and then Bachchu (accused) and his cohorts took away his sister forcibly. P.W.11

168

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

further stated that his father humbly requested the local Muslim leaders of their village to take initiative for her (Anjali Das) release. The matter was then conveyed to Chan Kazi the father-in-law of accused Abul Kalam Azad@ Bachchu and then Bachchu released his sister after seven to eight days and thus his sister returned home in one morning, but her condition was not well. Around 2:30 pm on the same day, cohorts of Bachchu Razakar attacked their house for abducting his sister again. His sister realised that they would take her away again, and then she committed suicide by taking poison to save her honour, P.W.11 added.

292. P.W.11 further stated that after hearing the news of Anjali's suicide, Bachchu's cohorts left the place and afterwards Bachchu came to their house in evening and asked his father to burry Anjali. But his father refused to do it, as they were Hindu and then her (victim) body was cremated accordingly. Nine to ten days after the incident, Bachchu Razakar and his men looted their house and took away even the tin sheets of the roof. Afterwards, they deported to India, P.W.11 added. This pertinent version could not be shaken in any manner by the defence.

293. In cross-examination P.W.11 replied to a question put to him that from his boyhood he knew Abul Kalam Azad @ Bachchu who was a resident of village about 01 kilo meter far from their house and he (accused) was known as Bachchu and he was a class mate of his (P.W.11) brother in Faridpur Rajendra College.

This is the reason why he could recognize the accused at the time of abducting his sister Anjali Das. Defence could not impeach the fact of abducting Anjali Das by the accused and his

2 LNJ (2013)

cohorts on the date and in the manner from the house of the victim. It remains undisputed too that the accused came to their house after the victim committed suicide in the wake of a second attack to abduct her (Anjali Das) from their house. P.W.11 stated in cross-examination that he could not say where his sister Anjalai Das was kept confined.

294. P.W.12 Rawshan Ali Biswas(60) a neighbour of the victim stated that on 18 May 1971 on hearing cry he moved toward the house of Deb Kumar Das (P.W.11) and saw the accused Bachchu Razakar and his 10-12 armed accomplices taking Anjali Das, sister of Deb Kumar Das forcibly. Afterwards, he became aware that Anajali Das was kept confined at the house of Chan Kazi(father-in-law of the accused). Mohammad Kazi was the son of Chan Kazi. After six to seven days, Anjali Das returned home alone and he at about 09:0010:00 hrs went their house and found Anjali Das ruthlessly sick and she could not even talk, P.W.12 added.

295. In cross-examination too P.W.12 has stated that at the time of abducting Anjali Das he along with Chandu Matabbar, Barkat Chowdhury, Abdul Haque Fakir and some other persons were present at the crime site but they could not resist or protest the gang in fear of gun with them. That is to say, even in crossexamination the fact of abducting Anjali Das by the accused and his armed cohorts has been rather confirmed.

296. How P.W.12 could recognize the accused Abul Kalam Azad @ Bachchu at the time of committing the act of taking away the victim forcibly? It appears that in cross-examination, P.W.12 stated that Bachchu was a Razakar and he used to assist the Pakistani army in

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

identifying the localities and he (P.W.12) saw him (accused) accompanying the Pakistani army. P.W.12 further stated that he knew the accused since earlier and he heard that he (accused) studied in Faridpur Rajendra College. Thus, P.W.12 cannot be said to be incompetent in recognizing the accused at the time of alleged act of abducting Anjali Das. His testimony that he witnessed the incident is quite credible as he was a close neighbour of the victim which remains undisputed.

297. P.W.12, as regard the second part of the event, has stated that on the day victim Anjali Das returned back home Mohammad Kazi and his accomplices came for taking Anjali Das forcibly again and on sensing it Anjali Das committed suicide by taking poison at room of first floor of their house. This fact also remains undislodged. Rather in cross-examination P.W.12 stated that he heard from parents of Anjali Das that Mohammad Kazi (brother-inlaw of the accused) was accompanied by Rizu kazi, Mona Kazi and other accomplices made the second attempt of taking away Anjali Das forcibly.

298. P.W.12 stated that 10-12 days after Anjali had died accused Bachchu and his 20-30 armed accomplices attacked the house of Anjali Das and looted and destructed their house and he (P.W.12) himself witnessed it. This post event fact could not be dislodged by the defence and it adequately indicates the intent and reason of launching repeated attack directing the family of the victim belonging to Hindu community, a part of civilian population.

299. P.W.16 Abdul Mannan (56) from village Moindia under police station Boalmari district Faridpur is a hearsay witness. In fact he has testified in support of charge no.7 as a live witness. However, in respect of the event of the offence narrated in charge no.8 P.W.16 has just

169

corroborated P.W.11 and P.W.12 on material particulars.

Evaluation of Evidence and Finding 300. The learned prosecutor has argued that P.W.11 the brother of victim and P.W.12 neighbour of the victim had occasion to witness the event of abducting Anjali Das by the accused and his armed accomplices and it has been proved too that the victim was kept confined for 7-8 days. The fact of confining itself is a proof of causing torture upon the victim.

301. The learned state defence counsel has argued that the accused was not involved with the event alleged and there has been no evidence that Anjali Das was kept confined and tortured by the accused and thus the accused cannot be held criminally responsible for the alleged acts constituting the offence, even if it is taken to be proved.

302. From evidence of P.W.11 and P.W. 12 we have found it proved that on the date time and in the manner accused Abul Kalam Azad @ Bachchu being accompanied by armed accomplices launched attack to the house of Anjali Das and defying oral confrontation they forcibly took away Anjali Das with them. That is to say, the accused is found to have directly participated to the act of abduction alleged. It remains unshaken too.

303. It is also proved that with the intervention of local Muslim elites eventually 7-8 days after abduction the victim was released. Where she was kept confined? P.W.12 stated in crossexamination that later on he heard that the victim was kept confined at the house of Chan Kazi. According to P.W.11, request was made to said Chan Kazi by the local Muslim elites

170

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

for releasing Anjali Das. Who is this Chan Kazi? Admittedly he is the father-in-law of the accused. It sufficiently indicates that the accused had substantially contributed and facilitated to the act of confinement of the victim Anjali Das with full knowledge.

304. How Anjali Das was tortured? In reality and considering the context of such attack and circumstances revealed it was not possible to know it. But since it is proved that Anjali Das was forcibly abducted and taken away by the accused and his cohorts from their house defying oral resistance, it may be lawfully presumed that the accused substantially contributed in keeping the victim confined at a place selected by him. At the same time it may also be validly presumed that the purpose of keeping the victim under such confinement for 7-8 days was not of course anything lawful and certainly mental and physical harm including sexual abuse was caused to her that resulted in her severe sickness as stated by P.W.12.

305. The fact that on the very day of her release victim Anjali Das committed suicide as Mohammad Kazi and his accomplices attacked their house to abduct her again is proved.

Obviously such second attempt of abducting the traumatized victim Anjali Das made her panicked and frightened which eventually forced her to commit suicide. Who is this Mohammad Kazi? As it is found, he was the brother-in-law of the accused. That is to say, the second attempt to take away the victim forcibly was not done without the knowledge of the accused. Rather, the accused may be presumed to have substantially contributed and abetted in launching such second attack.

306. We have found that accused Abul Kalam Azad @ Bachchu was a potential armed

2 LNJ (2013)

member of Razakar force. He is found to have launched attack being accompanied by his armed cohorts with intent to commit criminal acts constituting the offence of crimes against humanity. The accused, in furtherance of policy and plan of the Pakistani army and the organization collaborating it launched such attack directing the Hindu community, a part of civilian population and the criminal acts were done in context of the war of liberation in 1971. Therefore, the accused Abul Kalam Azad @ Bachchu is found to have incurred criminal liability under section 4(1) of the Act and found guilty for committing the offence of abduction, confinement and torture as crimes against humanity as specified in section 3(2) (a) of the Act which is punishable under section 20(2) read with section 3(1) of the Act .

XX. Contextual requirement to qualify the offences proved as crimes against humanity 307. Defence argued that crimes were isolated in nature apart from the fact that accused had no involvement with the commission of any of alleged crimes, in any manner.

308. From the second segment of our discussion on adjudication of charges relating to crimes against humanity(charge nos.

1,2,3,4,5,6 and 8) we have found the events of atrocities constituting crimes against humanity were perpetrated directing the unarmed civilians belonging to Hindu community. We have also found it proved from evidence as discussed above that the accused Abul Kalam Azad @ Bachchu physically participated and acted with knowledge and common intent to the commission of those atrocities and he (accused) committed all the wrongs and criminal acts in the capacity of an armed member of Razakars being accompanied by Pakistani army and his accomplices Razakars.

Under what context the accused committed

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

such acts forming part of attack directed against civilian population? We need to have look to the contextual backdrop of perpetration of such crimes in furtherance of ‘operation search light ‘on 25 March 1971.

309. It is essential to be established that the crimes for which the accused has been found criminally liable and guilty, as discussed above, were not isolated in nature and the same were committed under a different context and pattern in implementation of organizational policy and plan, although policy or plan are not considered as elements of the offence of crime against humanity.

310. Section 3(2) (a) of the International Crimes (Tribunals) Act, 1973 (as amended in 2009) defines the 'Crimes against Humanity' in the following manner: 'Crimes against Humanity: name-ly, murder, extermination, enslave-ment, deportation, imprisonment, abduction, confinement, torture, rape or other inhumane acts committed against any civilian population or persecutions on political, racial, ethnic or religious grounds, whether or not in violation of the domestic law of the country where perpetrated;' 311. Thus, crime must not, however, be an isolated act. A crime would be regarded as an “isolated act” when it is so far removed from that attack. The expression ‘directed against civilian population’ is an expression which specifies that in the context of a crime against humanity the civilian population is the primary object of the attack.

312. In determining the fact as to whether the atrocious acts which are already proved to have

171

been committed were directed against Bengali civilian population constituting the crimes against humanity in 1971 during the War of Liberation it is to be considered that the criminal acts committed in violation of customary international law constituting the offences enumerated in section 3(2)(a) of the Act of 1973 were connected to some policy of the government or an organization. It is to be noted too that such policy and plan are not the required elements to constitute the offence of crimes against humanity. These may be taken into consideration as factors for the purpose of deciding the context upon which the offences were committed.

313. As regards elements to qualify the ‘attack’ as a ‘systematic character’ the Trial Chamber of ICTY in the case of Blaskic [(Trial Chamber) , March 3, 2000, para 203] has observed as below; “The systematic character refers to four elements which………may be expressed as follows: [1] the existe-nce of a political objective, a plan pursuant to which the attack is perpetrated or an ideology, in the broad sense of the word, that is, to destroy, persecute or weaken a community; [2] the perpetration of a criminal act on a very large scale against a group of civilians or the repeated and continuous commission of inhuman acts linked to one another; [3] the perpetration and use of significant public or private resources, whether military or other; [4] the implementation of high-level political and/or military authorities in the definition and establishment of the methodical plan’”

172

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

Context prevailing in 1971 in the territory of Bangladesh 314. It is indeed a history now that the Pakistani army with the aid of its auxiliary forces, pro-Pakistan political organizations implemented the commission of atrocities in 1971 in the territory of Bangladesh in furtherance of following policies: •

Policy was to target the selfdetermined Bangladeshi civilian population

•

High level political or military authorities, resources military or other were involved to implement the policy

•

Auxiliary forces were established in aiding the implementation of the policy

•

The regular and continuous horrific pattern of atrocities perpetrated against the targeted non combatant civilian population.

315. The above facts in relation to policies are not only widely known but also beyond reasonable dispute. The context itself reflected from above policies is sufficient to prove that the offences of crimes against humanity as specified in section 3(2)(a) of the Act of 1973 were the inevitable effect of part of systematic attack directed against civilian population. This view finds support from the observation made by the Trial Chamber of ICTY in the case of Blaskic as mentioned above.

316. It is quite coherent from the facts of common knowledge involving the backdrop of our war of liberation for the cause of self

2 LNJ (2013)

determination that the Pakistani armed force, in execution of government’s plan and policy in collaboration with the local anti liberation section belonging to JEI and its student wing ICS and auxiliary forces, had to deploy public and private resources and target of such policy and plan was the unarmed civilian Bangalee population, pro-liberation people, Hindu community and pursuant to such plan and policy atrocities were committed to them as a ‘part of a regular pattern basis’ through out the long nine months of war of liberation. It may be legitimately inferred from the phrase “directed against any civilian population” as contained in the Act of 1973 that the acts of the accused comprise part of a pattern of ‘systematic’ crimes directed against civilian population.

317. Anthony Mascarenhas in a report titled ‘Genocide’ published in The Sunday Times , June 13, 1971 found as below: “SO THE ARMY is not going to pull out.

The Government’s policy for East Bengal was spelled out to me in the Eastern Command headquarters at Dacca. It has three elements:(1) The Bengalis have proved themselves “unreliable” and must be ruled

by West Pakistanis; (2) The Bengalis will have to be reeducated along proper Islamic lines. The “Islamisation of the masses” – this is the official jargon – is intended to eliminate secessionist tendencies and provide a strong religious bond with West Pakistan; (3) When the Hindus have been eliminated by death and flight,

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

their property will be used as a golden carrot to win over the under-privileged Muslim.”

[Source: http://www.docstrangelove.com/uploads/1971/foreign/19 710613_tst_genocide_center_page.pdf]

318. Therefore, the crimes for which the accused has been charged and found guilty were not isolated crimes, rather these were part of organized and planned attack intended to commit the offence of crimes against humanity as enumerated in section 3(2) of the Act, in furtherance of policy and plan.

319. Further, Section 3(2) (c)(i) of the Act of 1973 defines ‘Genocide’ as an act committed with intent to destroy, in whole or in part, a national, ethnic, racial, religious or political group, such as, killing members of the group.

From the charge no.7 framed we find that the criminal acts narrated therein were directed against the Hindu community which falls within the meaning of ‘religious group’ or a particular ‘members of the group’, with intent to destroy it, either whole or in part. From testimony of most of witnesses it has been established that almost instantly after accomplishment of crimes targeting the Hindu community, the members of this community who were residents of the crime villages deported to India, in fear of further fatality and harms. This amply indicates the ‘genocidal intent’ of causing massive destruction and killing of civilians belonging to the Hindu community, as has been narrated in charge no. 7.

320. From the backdrop and context it is thus quite evident that the existence of factors, as discussed above, lends assurance that the atrocious criminal acts ‘directed civilian population’ formed part of ‘systematic attack’.

Section 3(2) (a) of the Act of 1973 enumerates

173

which acts are categorized as the offence of crimes against humanity. Any of such acts is committed ‘against any civilian population’ shall fall within the offence of crimes against humanity. The notion of ‘attack’ thus embodies the notion of acting purposefully to the detriment of the interest or well being of a civilian population and the ‘population’ need not be the entire population of a state, city, or town or village.

321. Thus, the phrase ‘acts committed ‘against any civilian population’ as occur-ed in section 3(2)(a) clearly signifies that the acts forming attack must be directed against the target population to the accom-plishment of the crimes against humanity and the accused need only know his acts are part thereof .

322. On the other hand, defence has not been able to establish even a hint that the murder was not a part of planned and systematic attack and the crimes for which the accused has been charged and found criminally liable were isolated crimes. Therefore, the facts and circumstances inevitably have proved the elements to constitute the offences of murder, rape, abduction, confinement and torture as crimes against humanity.

XXI. Conclusion 323. Despite lapse of long 40 years time the testimony of PWs most of whom are live witnesses to the incidents of atrocities narrated in the charges does not appear to have been suffered from any material infirmity. Besides, no significant inconsis-tencies between their testimony made before the Tribunal and their earlier statement made to the Investigation Officer could be found.

324. It has been proved from testimony of witnesses that the accused had directly participated to the commission of crimes as an

174

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

armed member of Razakar force. Besides, we have found that for the reason of his atrocious acts in the locality the accused was widely known as ‘Razaker’. According to Section 3(1) of the Act of 1973 it is manifested that even any person (individual or a member of group of individuals) is liable to be prosecuted if he is found to have committed the offences specified in section 3(2) of the Act. That is to say, accused Abul Kalam Azad @ Bachchu, even in the capacity of an ‘individual’ or member of ‘group of individuals’ comes within the jurisdiction of the Tribunal if he is alleged to have committed crimes specified in section 3(1) of the Act. 325. We are convinced from the evidence, oral and documentary, led by the prosecution that accused Abul Kalam Azad was a potential member of Razakar (volunteer) force in Faridpur, otherwise he would not have carried rifle with him when he led the armed gang to the crime sites for committing crimes. He, at that time, was widely and generally known as ‘Bachchu Razakar’. Already we have got from evidence of P.W.5, P.W.8, P.W.10 and P.W.15 that at the relevant time of commission of alleged crimes accused was a potential Razakar who received training and a rifle. It is found that before formal formation of Razakar force pursuant to a gazette notification dated 02 August 1971 the then Pakistani government and Pakistani army in the then East Pakistan organized ‘Razakar’ (Volunteer) force almost instantly after they took the territory under their armed control. The purpose was to have aid and assistance to carry out their atrocious operations against the Bengali civilian population including the Hindu group, intellectuals, pro-liberation civilians. As a result, we may legitimately infer that the accused Abul Kalam Azad @ Bachchu

2 LNJ (2013)

committed the offences for which he has been charged in the capacity of Razakar i.e as a member of ‘auxiliary force’ as specified in section 2(a) of the Act of 1973.

326. According to section 4(1) of the Act of 1973 an individual incurs criminal liability for the direct commission of a crime, whether as an individual or jointly. In the case in hand, in dealing with the charges we have found that the accused Abul Kalam Azad @ Bachchu himself had physically participated being accompanied by his armed accomplices to the commission of crimes and as such he held criminally responsible for the direct commission of crimes proved.

327. Now, another question comes forward as to whether the accused can be brought within the jurisdiction of the Tribunal if we consider that the prosecution has not been able to prove that the accused committed the crimes proved as a member of Razakar , an auxiliary force?

The answer is ‘yes’. Section 3(1) provides jurisdiction of trying and punishing even any ‘individual’ or ‘group of individuals’ who commits or has committed, in the territory of Bangladesh any of crimes mentioned in section 3(2) of the Act. We have resolved the issue on incorporating the phrase ‘individual’ or ‘group of individuals’ by way of amending the statute in 2009 together with the relevant Article of our Constitution. On this score as well, the accused cannot be relieved from being prosecuted and tried under the Act of 1973.

328. Therefore, it must be borne in mind too that no guilty man should be allowed to go unpunished, merely for any faint doubt, particularly in a case involving prosecution of crimes against humanity and genocide committed in 1971 in violation of customary international law during the War of Liberation.

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

Because, wrong acquittal has its chain reactions, the law breakers would continue to break the law with impunity.

329. ‘No innocent person be convicted, let hundreds guilty be acquitted’—the principle has been changed in the present time. In this regard it has been observed by the Indian Supreme Court that “A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties.” [Per Viscount Simon in Stirla-nd vs.

Director of Public Prosecution: 1944 AC(PC) 315: quoted in State of U.P Vs. Anil Singh: AIR 1988 SC 1998] 330. In the case in hand, it is abundantly clear that the accused absconded to evade the process of justice. Had the accused was not involved in the crime he would have certainly prepared to face the trial. But not only he has absconded instantly after issuance of warrant of arrest by this Tribunal but he has even left the country as reported by the enforcement or executing authority. The accused cannot be consid-ered merely as an absentee accused. He is an absconded accused. Evading trial for the offences of which he has been charged with signifies his culpability too. The accused deliberately waived his right to be present at trial. This conduct adds further to his culpability.

331. Such deliberate absondence as a material incriminating circumstance lends further assurance as to the guilt of the accused who has been found criminally liable in relation to

175

charges proved, excepting the charge no.2.

Therefore, the fact of absconding of the accused can also be taken as an adverse and material incriminating circumstance to reinforce the evidence and circumstances available in the case.

XXII. VERDICT ON CONVICTION 332. For the reasons set out in this Judgement and having considered all evidence and arguments, the Tribunal unanimously finds the accused Abul Kalam Azad @ Bachchu Charge No.1: GUILTY of the offence of abduction, confinement and torture as ‘crimes against humanity’ as specified in section 3(2)(a) of the Act and he be convicted and sentenced under section 20(2) of the Act. Charge No.2: NOT GUILTY of the offence of abduction, confinement and torture as ‘crimes against humanity’ as specified in section 3(2)(a) of the Act and thus he be acquitted.

Charge No.3: GUILTY of offence of murder as ‘crimes against humanity’as specified in section 3(2)(a) of the Act he be convicted and sentenced under section 20(2) of the Act. Charge No.4: GUILTY of offence of murder as ‘crimes against humanity’as specified in section 3(2)(a) of the Act he be convicted and sentenced under section 20(2) of the Act. Charge No.5: GUILTY of offence of rape as ‘crimes against humanity’ as specified in section 3(2)(a) of the Act he be convicted and sentenced under section 20(2) of the Act. Charge No.6: GUILTY of offence of murder as ‘crimes against humanity’as specified in section 3(2)(a) of the Act he be convicted and sentenced under section 20(2) of the Act.

176

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

Charge No.7: GUILTY of offence of ‘genocide’ for ‘killing the members of Hindu community as specified in section 3(2)(c)(i) of the Act he be convicted and sentenced under section 20(2) of the Act. Charge No.8: GUILTY of offence of abduction, confinement and torture as ‘crimes against humanity’ as specified in section 3(2)(a) of the Act he be convicted and sentenced under section 20(2) of the Act. XXIII. VERDICT ON SENTENCE 333. We have taken due notice of the intrinsic gravity of the offence of ‘genocide’ and murders as ‘crimes against humanity’ being offences which are particularly shocking to the conscience of mankind. We are of agreed view that justice be meet with if a single ‘sentence of death’ under section 20(2) of the Act of 1973 is awarded to accused Abul Kalam Azad @ Bachchu for convictions relating to the offences of murder as ‘crimes against humanity’ (listed in charge no.s 3, 4 and 6) and for the offence of ‘genocide’ (listed in charge no.7) of which he has been found guilty beyond reasonable doubt.

334. However, we are of further view that considering the proportionate to the gravity of offences the accused Abul Kalam Azad @ Bachchu deserves imprisonment i.e. lesser punishment for convictions relating to the remaining offences as crimes against humanity (listed in charge no.s 1, 5 and 8).

Accordingly, we do hereby render the following ORDER on SENTENCE. Hence, it is ORDERED That the accused Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu son of late Abdus Salam Mia & late Magfura Khatun of

2 LNJ (2013)

village-Barakhardia (Choi ani), Police StationSaltha, District-Faridpur at present sector no.

07, road no. 33, house no. 06, Police Station– Uttara, DMP, Dhaka and ‘Azad Villa’, 279/6 Chan Para, Uttarkhan, Dhaka is found guilty of the offences of ‘crimes against humanity’ (listed in charge no.s 3,4 and 6) and for the offence of ‘genocide’(listed in charge no.7) and he be convicted and sentenced to death and be hanged by the neck till he is dead under section 20(2) of the International Crimes (Tribunals) Act, 1973.

No separate sentence of imprisonment is being awarded to the accused Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu for convictions relating to the offences of crimes against humanity as listed in charge nos. 1, 5 and 8 of which too he has been found guilty as the ‘sentence of death’ has been awarded to him in respect of four other charges as mentioned above.

The accused Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu is however found not guilty of offence of crimes against humanity as listed in charge no.2 and he be acquitted thereof.

Since the convicted accused has been absconding the ‘sentence of death’ as awarded above shall be executed after causing his arrest or when he surrenders before the Tribunal, whichever is earlier. The sentence of death awarded as above under section 20(2) of the International Crimes (Tribunals) Act , 1973 [The Act No.XIX of 1973] shall be carried out and executed in accordance with the order of the government as required under section 20(3) of the said Act.

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

Issue conviction warrant. Let a copy of the Judgment be transmitted together with the conviction warrant to the Inspector General of Police, Bangladesh Police, Police Headquarters, Dhaka for information and necessary action and compliance. Let a copy of the judgement be transmitted also to the District Magistrate, Dhaka for information and necessary compliance.

Ed.

177

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

International Crimes Tribunal-2 (ICT-2) [Tribunal constituted under section 6 (1) of The Act No. XIX of 1973] Old High Court Building, Dhaka, Bangladesh.

Obaidul Hassan, Chairman

} }

The Chief Prosecutor

Md. Mozibur Rahman Miah, Member

}

-Versus-

Md. Shahinur Islam, Member

Judgment 21.01.2013

} }

Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu (Absconded)

Delay cannot obstruct bringing prosecution under the Act of 1973—In the absence of any statutory limitation, the delay itself cannot preclude prosecution from adjudicating the culpability of the perpetrators of war crimes, crimes against humanity and genocide etc.

From the point of morality and sound legal dogma, time bar should not apply to the prosecution of human rights crimes. Neither the Genocide Convention of 1948, nor the Geneva Conventions of 1949 contain any provisions on statutory limitations to war crimes and crimes against humanity. Article I of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity adopted and opened for signature, ratification and accession by General Assembly resolution 2391 (XXIII) of 26 November 1968 provides protection against even any statutory limitation in prosecuting crimes against humanity, genocide etc. Thus, criminal prosecutions are always open and not barred by time limitation. …(43).

Still the Nazi war criminals of the Second World War are being prosecuted. Trials of genocides committed during the 1973 Chilean ICT-BD Case No. 05 of 2012.

[Charges: crimes against Humanity and Genocide as specified in section 3(2)(a) and 3(2)(c)(i) of the Act No. XIX of 1973]

95

revolution and the Poll Pot regime of Cambodia in the 1970s are now ongoing. The sovereign immunity of Slobodan Milosevic of Serbia, Charles Taylor of Liberia, and Augusta Pinochet of Chile (with the Chilean Senate's life-long immunity) as the head of state could not protect them from being detained and prosecuted for committing genocides, crimes against humanity, and war crimes. …(44) In view of above settled position and in the absence of any statutory limitation, as a procedural bar, only the delay itself does not preclude prosecutorial action to adjudicate the culpability of the perpetrator of core international crimes. Indubitably, a prompt and indisputable justice process cannot be motorized solely by the painful memories and aspirations of the victims. It requires strong public and political will together with favorable and stable political situation. Mere state inaction, for whatever reasons, does not render the delayed prosecution readily frustrated and barred by any law. …(45) International Crimes (Tribunals) Act (X I X of 1973) Section 10A (1) When the accused remained absconded in spite of reasonable steps taken to inform him of the proceeding through media publication the accused can be tried in absentia.

The Act of 1973 provides provision of holding trial in abesntia, if the appearance of the accused could not be ensured for the reason of his absconsion [Section 10A (1) of the Act]. In the international context, the issue of trials in absentia arose with the first modern international criminal tribunal, the International Military Tribunal (IMT) at Nuremberg, which was established to try war criminals operating under the European Axis Powers during World War II. Article 12 of the Charter of the International Military Tribunal allowed for trials in absentia whenever the Tribunal found it necessary to do so in the interest of justice.

Famously, Martin Barman, who served as the

96

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

Nazi Party secretary, was indicted, tried, and sentenced to death, all in absentia, despite doubts as to whether he had even been informed of the proceedings. …(49).

In the case in our hand, at pre-trial stage, for the purpose of effective investigation this Tribunal ordered for his arrest by issuing warrant and as it appears from the execution report, the accused knowing it preferred to remain absconded, instead of facing proceedings and trial. The accused has not intended to take part in the trial, rather wished to escape prosecution. The jurisprudence of both the ICCPR and the ECHR confirms that a trial in absentia will not violate a person's right to be present when he has expressly declined to exercise this right. The circumstance and the time and way the accused had gone to absconsion and left country led us to lawful inference that the accused has expressly declined to exercise his right to be present in trial. …(53).

That is to say, despite all reasonable steps taken to inform him of the proceedings including media publication, the accused Abul Kalam Azad @ Bachchu seems to be unwilling to face the trial, as he remained absconded and fled away even from country. It is a patent indicium that the accused, by his conduct, has waived his right to be present, and as such on this score too trial in his absence is quite permissible. …(54).

International Crimes (Tribunals) Act [XIX of 1973] Section 3 [1].

Constitution of Bangladesh,1972 Articles 47[3] and 47A [2].

The subsequent amendment as brought in 2009 Act of 1973 by inserting the phrases ‘individual’ and groups of individuals in section 3(1) of the Act carries prospective effect the present accused cannot be prosecuted in the capacity of an individual for the offences, underlying in the Act as has been submitted on behalf of the accused. The words

2 LNJ (2013)

‘individual’ or ‘group of individuals’ have been incorporated in section 3 of the Act of 1973 as well as in Article 47(3) of the Constitution by amendments in 2009 and 2011 respectively. The right to move the Supreme Court for calling any law relating to internationally recognised crimes in question by the person charged with crimes against humanity and genocide has been taken away by the provision of Article 47A(2) of the Constitution.

Hence the accused has no right to call in question any provision of the Act of 1973. …(55 and 59).

Can Tripartite Agreement and immunity to 195 Pakistan war Criminals be brought to justice?

Any agreement or treaty if seems to be conflicting and derogatory to jus cogens (Compelling Laws) norms does not create any hurdle to internationally recognized state obligation the tripartite agreement is not at all a barrier to prosecute even a local civilian perpetrator under the Act of 1973.

Whether the accused can be prosecuted without prosecuting his accomplishes.

If the accused is found guilty and criminally liable beyond reasonable doubt for his culpable acts, inaction in prosecuting his accomplices cannot be the reason for holding the former innocent or relieved from liability. In this regard we may recall the provision as contained in section 4(1) of the Act of 1973. …(71).

International Crimes (Tribunals) Act (XIX of 1973) Section 19 (3) If the specific offences of 'Crimes against Humanity' which were committed during 1971 are tried under 1973 Act, it is obvious that they were committed in the ‘context’ of the 1971 war. This context itself is sufficient to prove the existence of a ‘systematic attack' on Bangladeshi self-determined population in 1971. The Tribunal, as per section

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

97

19(3) of the 1973 Act, shall not require proof of facts of common knowledge; it shall take judicial notice of such fact. The specific offences committed as 'Crimes against Humanity' during 1971 war, were very much a part of a ‘systematic attack’ of the ongoing atrocious activities. …(78)

to the actual commission of offence of ‘genocide’ for ‘killing the members of Hindu community’, with intent to destroy the Hindu religious group, either whole or in part as specified in section 3(2) (c)(i) of the Act which are punishable under section 20(2) read with section 3(1) of the Act.

Adjudication of Charge No. 7 International Crimes (Tribunals) Act (XIX of 1973) Sections 3(2)(c)(i) and 4 (i)

P.W.17 does not claim to have witnessed the accused killing his father and brother. But he has stated that he learnt instantly after the incident from Surja Kumar Das, a bulletinjured victim that accused Abul Kalam Azad @ Bachchu accompanied the army during the killing. Thus it is inferred that the accused substantially contributed and encouraged the gang of perpetrators in accomplishment of the crimes.

Charge No. 7 relates to the crime of ‘genocide’ as specified in section 3(2)(c)(i) of the Act while the remaining 07 charges relate to the criminal acts constituting the offences of ‘crimes against humanity’ as specified in section 3(2) (a) of the Act. For the sake of convenience of discussion the Tribunal considers it expedient to adjudicate the charge no.7 first as the nature of crimes related to it differs from that as described in the latter ones. (i) Adjudication of Charge No 07 Summary Charge: On May 17 1971 in the early morning, accused Abul Kamal @ Bachchu (absconded) a member of Razakar Force and subsequently the local commander of Al-Badar Bahini or as a member of group of individuals, being accompanied by his 30/35 armed accomplices is alleged to have caused indiscriminate destruction and killing of (1) Sharat Chandra Poddar, (2) Suresh Poddar, (3) Shyama Pada Saha, (4) Jatindra Mohan Saha, (5) Nil Ratan Samadder, (6) Subol Koyal and (7) Mallik Chakravarti, the members of Hindu community, by gun shot. It is also alleged that in conjunction of the incident, the accused and his accomplices gunned down (8) Haripada Saha residents of crime village Hasamdia and (9) Probir Kumar Saha @ Puitta to death by abducting them to the river bank of ‘Maindia bazar’ and thereby the accused has been charged for the physical participation and also for substantially contributing

Defence did not put any question to P.W.17 with a view to dislodge the fact of his learning the first part of the attack at village Hasamdia from him by the P.W.16.

Additionally, we do not find any reasonable ground to discard the hearsay evidence as to learning the incident of killing of 7/8 persons at Hasamdia Hindu para. Rather, P.W.16 and P.W.17 seem to be natural witnesses, particularly in absence of any reason whatsoever of being interested to tell a lie.

The hearsay evidence of P.W.17 so far it relates to the fact of his learning as to involvement of accused with killing of his father and other killings and destructive acts carries reasonable probative value.

Defence could not however controvert the commission of the event of crimes, by crossexamining P.W.19. Rather, his evidence has rendered corroboration to what has been testified by the P.W.16, P.W.17 on the acts of killing, destruction, looting and involvement of accused therewith. P.W.19, a live witness, is the son of one of victims of the horrific atrocities who had opportunity to witness the incident of killing his father Shayamapada Saha by remaining in hiding in a bamboo bush. It remains undisputed.

98

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

Additionally, P.W.19 knew the accused from earlier as he (accused) was a resident of their neighboring village Kahrdia. P.W. 19 is a natural and live witness and there is no reason to exclude what he has testified.

Perpetration of the horrific event including murder of numerous civilians targeting the Hindu group including the father of P.W.19 on the date time and manner as narrated by a live witness P.W.19 has been proved. At the same time we have found from evidence of P.W.19 that the accused accompanied the gang of perpetrators and how he had directly participated to the commission of destructive crimes. All these facts remain totally undisputed in cross-examination of P.W.19.

Generally, considering the horrendous nature of crimes the event could not be expected to have been witnessed by numerous persons. Incidentally some one might have opportunity of seeing it remaining in hiding at a place adjacent to the crime site.

Apart from them, other person cannot be perceived to have seen the event of massacre. So, the perpetration of crime and acts and conduct of perpetrators could have been learnt from an injured victim or person who had incidental opportunity of seeing the event. It is quite natural and thus the testimony of P.W.17 and P.W.20 though hearsay inspires credence, particularly when such hearsay testimony gets fair corroboration from live witness’s (P.W.16 and P.W.19) account.

It has also been established from evidence of P.W.16. P.W.17, P.W.19 and P.W 20 that few days after the horrendous crimes almost all the members of the Hindu community residing at the crime village including the relatives of victims and sufferers became compelled to deport to India leaving their properties, houses etc. and they returned back only after achieving the victory on 16 December. That is to say, the cumulative

2 LNJ (2013)

effect of the atrocities including killing, destruction and looting of properties, mental harms compelling the Hindu community of the crime village inevitably imprints an unmistakable notion that the aim and intent of the perpetrators was to destroy the ‘Hindu group or community’, in part. This notion is qualified as ‘genocidal intent’ as required to constitute the offence of ‘genocide’. It remains totally uncontroversial.

We have found from evidence of P.W.16, P.W 17, P.W 19 and P.W. 20 that at the time of commission of crimes narrated in charge no.7 Pakistani army and some armed civilian accomplices were also with the accused Abul Kalam Azad @ Bachchu. It is also found that the accused had rendered, apart from his physical participation as found from testimony of P.W.16 and P.W.19, assistance, encouragement and moral support which had substantial effect on the perpetration of the massive crimes as has been listed in charge no.7. It is proved that the accused accompanied the armed perpetrators and he was physically present at the crime scenes and thus he is deemed to have rendered ‘tacit approval’ to the accomplishment of the event of massacre. Besides, in conjunction of the commission of the event of massacre, accused Abul Kalam Azad @ Bachchu himself too actively and directly participated to the commission of the acts of killings.

It has been established that accused Abul Kalam Azad @ Bachchu was a potential associate of Pakistani army and also was a significant armed member of volunteer Razakar force which was organized after the Pakistani army struck Faridpur on 21 April 1971. This being the status that the accused was holding at relevant time, his presence at the crime site as an active accomplice of the principals inevitably prompts us to infer that, in addition to his direct participation of killing at the time of commission of the event

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

99

of massacre, he substantially provided practical assistance, encouragement and moral support to the principals i.e co-perpetrators in perpetration of the offence of genocide that resulted in mass killing of individuals belonging to ‘Hindu Community’ which is a ‘distinct religious group’ and mass destructtion and thereby he incurs liability under section 4(1) of the Act for the offence of genocide as specified in section 3(2)(c) (i) of the Act of 1973.

accused Abul Kalam Azad @ Bachchu and his associates blindfold-ded him (P.W.5 Ranjit) and took him to Faridpur Zilla School ground and put him under a palm tree and had beaten him up for one hour and then he was kept confined in a house inside the Bihari colony and around midnight he (P.W.5 Ranjit) escaped breaking through a window. Defence could not dislodge this incriminating version in any manner.

…(112, 113, 133-135, 139, 140, 144, 147, 167 and 170)

The context itself as reflected from policies adopted by the Pakistani army and its local pro-Pakistan political organization, chiefly the Jamat E Islami (JEI) and ‘auxiliary forces’ is sufficient to prove the existence of the notion of ‘systematic attack’ on Bangladeshi self-determined population in 1971, during the War of Liberation. This context unerringgly prompts us in arriving at decision that the atrocities committed upon P.W.5 Ranjit Kumar Nath was a part of systematic attack constituting the offences of crimes against humanity as specified in section 3(2)(a) of the Act of 1973.

Adjudication of charge No. 01 (Abduction confinement and torture of Ranjit Nath @ Babu Nath) International Crimes (Tribunals) Act (XIX of 1973) Sections 3(1), 3(2)(a) and 20(2) Abul Kalam Azad @ Bachchu(absconded) a member of Razaker Force and subsequently the local commander of Al-Badar Bahini and or as a member of group of individuals being accompanied by accomplices is alleged to have abducted , tortured and confined Ranjit Nath @ Babu Nath , during the first week of June ,1971 as narrated in the charge No. 01 and thereby he has been charged for the physical participation and also for substantially contributing to the actual commission of offence of ‘abduction, confinement and torture as crime against humanity’ by directing attack against the Hindu civilian population as specified in section 3(2) (a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act. From the evidence of P.W.5, the victim of the offence of abduction, confinement and torture and P.W.15, it is proved that after apprehending him(P.W.5) he was brought to the Pakistan army camp at Faridpur circuit house where he found accused Abul Kalam Azad @ Bachchu holding a meeting with Major Koraishi. Mujahid , Afzal and others and there from, on direction of Mujahid the

Accused Abul Kalam Azad @ Bachchu is thus criminally liable under section 4(1) of the Act of 1973 for physical participation and also for providing substantial contributeon to the commission of offence of abduction, confinement and torture upon Ranjit Nath @ Babu Nath as crime against humanity as specified in section 3(2)(a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act. … (172, 183—187).

Adjudication of charge No. 02 (Abduction confinement and torture on Abu Yusuf Pakhi) International Crimes (Tribunals) Act (XIX of 1973) Sections 3(2) (a) and 4 (1) Abul Kalam Azad @ Bachchu(absconded) a member of Razaker Force and subsequently the local commander of Al-Badar Bahini

100

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

and or as a member of group of individuals being accompanied by accomplices is alleged to have abducted, tortured and confined Abu Yusuf Pakhi, on 26 July 1971 during the war of liberation, as narrated in the charge no.02 and thereby he has been charged for the physical participation and also for substantially contributing to the actual commission of offence of ‘abduction, confinement and torture as crime against humanity’ by directing attack against the Hindu civilian population as specified in section 3(2) (a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act. P.W.18 in narrating the fact of his abduction has stated that on April 22, 1971, Kamaruzzaman Jasu, cousin of Azad (accused), picked him (P.W.18) and his brother from the intersection of Bhanga Road and handed them to the army. And then they were produced before Pakistani Major Akram Koreshi at Faridpur Circuit House where he saw Pakistani army shooting a few people to death on the east side of the Circuit House.

They were then brought to Major Akram Koraishi of the camp and his brother (who was apprehended with P.W.18) had talk with Major Koraishi in English and then they were released from the camp by another Pakistan army’s Baluch Major and then he joined the war of liberation, P.W.18 Yusuf added. This fact, as stated by P.W.18, is not related to the charge no. 2.

We thus unerringly believe that P.W.18 was subjected to torture and degrading treatment at the camp. It is quite impractical to think that it was really possible to see such event by any one else. P.W.7 Md. Amir Hossain who was one of detainees of the camp had occasion only to see P.W.18 detained there. But P.W.7 has not stated that he saw the accused causing torture to P.W.18 or encouraging or facilitating in any manner to the accomplishment of the

2 LNJ (2013)

offence of torture upon P.W.18 by the principals.

P.W.18 the victim does not claim that at the time of causing torture to him too accused remained present with the Pakistani army and thereby encouraged or facilitated the commission of the offence of torture to him.

Indubitably it has been proved that P.W.18 was a victim of torture during his confinement of the Pakistani army camp at Faridpur Stadium and perpetrators were Pakistani army of the crime camp. But for holding the accused criminally liable for the crimes alleged it has to be established that he participated or substantially contributed or facilitated to the commission of the offence of confinement and causing torture. The mere fact that the accused had close association with the Pakistani army of the ‘army camp’ and he used to make visit to it does not ipso facto prove his liability.

From the testimony of both P.W.18 and P.W.7 it could not be found that torture, causing mental or physical harm, was done to P.W.18 by the accused himself or the accused substantially contributed or facilitated to cause any kind of torture to him. On the strength of proved fact that the accused Abul Kalam Azad @ Bachchu almost all the time used to accompany the Major of the camp by his visit and used to avail the vehicle of Major, at best it can be held that the accused used to maintain close link and association with the army of the ‘crime camp’ and encouraged and provided moral support for committing offences directing to other persons brought to the camp.

The victim P.W.18 stated that after remaining confined at the army camp at circuit house, prior to the event narrated in charge no.2, he was eventually released there from by another Pakistan army’s Baluch Major. Thus, it may be justifiably inferred that the accused had no role and

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

control in keeping P.W.18 confined at an ‘army camp’ and to influence his release there from.

On careful evaluation of evidence adduced in support of the charge no.2, persuaded that the offence of abducting, keeping confined at the army camp and causing torture to P.W.18 has been believably proved. But prosecution, as we have found, has been failed to establish it beyond reasonable doubt that the accused Abul Kalam Azad @ Bachchu by his act or conduct contributed or facilitated to the commission of the offence of abduction, confinement and torture upon Abu Yusuf Pakhi as crimes against humanity as specified in section 3(2) (a) of the Act and therefore, he is not found to have incurred criminally liability under section 4(1) of the Act for the offences as listed in the charge no. 2. …(188, 192, 208-210, 212 and 213).

Adjudication of charge No. 03 (Sudhangsu Mohon Roy Killing) International Crimes (Tribunals) Act (XIX of 1973) Sections 3(1), 3(2)(a), 4(1) and 20 (2) Abul Kalam Azad @ Bachchu (absconded), a member of Razaker Force and subsequently the local commander of Al-Badar Bahini and or as a member of group of individuals being accompanied by 10/12 armed Razakers attacked the village Kolaron (Kvjv-ib) under police station Boalmari district Faridpur, and then the accused is alleged to have killed Sudhangsu Mohon Roy of village Kolaron on 14 May 1971 at about 15:00 hrs. during the War of Liberation and thereby he has been charged for the physical partici-pation and also for substantially contribu-ting to the actual commission of offence of ‘murder as crime against humanity’ by dire-cting attack against the Hindu civilian population as specified in section 3(2) (a) of the Act which

101

are punishable under section 20(2) read with section 3(1) of the Act. We have found from the corroborative and unimpeachable evidence of P.W.1 and P.W.3 that at the time of commission of the crime alleged the accused having fire arms with him led the armed gang of 10-12 accomplices. It may be validly inferred too that the accused on having training received rifle for the purpose of accomplishment of attack in furtherance of policy of Pakistani army and the pro-Pakistani political organization collaborating them in 1971. Both the P.W.1 and P.W.3 are the live witnesses and we do not see any reasonable ground to discard their testimony made before us.

Defence could not impeach credibility of P.W.1 and P.W.3. They are natural and live witnesses. Their version as to the commission of crime and physical complicity of the accused with it is quite corroborative to each other.

The killing of Sudhangshu Mohan Roy and the criminal acts committed in conjunction of the event by the accused and his accomplices were not isolated for which the accused Abul Kalam Azad @ Bachchu is found criminally responsible under section 4(1) of the Act of 1973. The criminal acts on part of the accused and his accomplices was certainly a part of attack against civilian population which qualifies the offence alleged as murder as crime against humanity as specified in section 3(2) (a) of the Act of 1973 which are punishable under section 20(2) read with section 3(1) of the Act. …(214, 233, 234 and 236) Adjudication of charge No. 04 [Madhab Chandra Killing] International Crimes (Tribunals) Act (XIX of 1973) Sections 3(1), 3(2)(a), 4(1) and 20 (2) Abul Kalam Azad @ Bachchu (absconded), a member of Razaker Force and subsequen-

102

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

tly the local commander of Al-Badar Bahini or as a member of group of individuals being accompanied by 10/12 armed Razakers is alleged to have killed Madhab Chandra Biswas at village ‘Purura Nampara‘ under police station Nagarkanda district Faridpur by dragging him out of his house, on 16 May 1971 at about 15:00 , during the War of Liberation and thereby he has been charged for the physical participation and also for substantially contributing to the actual commission of the offence of ‘murder as crime against humanity’ by directing attack targeting the civilian Hindu population as specified in section 3(2) (a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act. Prosecution, in support of this charge, has adduced and examined as many as three witnesses as P.W.6, P.W.8 and P.W.10. They are live witnesses, who by deposing on dock have incriminated the accused with the commission of the offence of killing Madhab Chandra Biswas and Gyanendra. All the witnesses are from the crime village. Of them P.W.6 Bhakta Ranjan Biswas is the son of victim Madhab Chandra Biswas. The alleged offence of murder took place in broad day light and by dragging the victim out of his house. P.W.6 Bhakta Ranjan Biswas, 65 year old and son of victim Madhab Chandra Biswas has testified about his experience of killing his father, the event as narrated in charge no.04. In narrating the event he stated that he had seen the incidents [killings] and his neighbours Prafulla Kumar Mandol (P.W.8), Tusto Kumar Mondol (P.W.10), Sunil Kumar Mondal and many others witnessed it too.

Concatenation of incriminating facts narrated by the P.W.6, P.W.8 and P.W.10 coupled with relevant facts are suffice to prove the commission of the event of the offence of murder of Madhab Chandra Biswas and Gyannedra Mondol as crimes against humanity and mode of participation of the

2 LNJ (2013)

accused therewith. We have found that it has been established beyond reasonable doubt from the evidence of P.W.6 and P.W.8 and P.W.10 the residents of the crime village and live witnesses that on the date, time and in the manner an armed gang of Razakars led by accused Abul Kalam Azad @ Bachchu had launched attack to the house of Madhab Chandra Biswas who was a supporter of Awami League and after looting the ornaments and households etc., they dragged Madhab Chandra Biswas out of his house and took him to east bank of a pond of P.W.10 where accused Abul Kalam Azad @ Bachchu himself gunned down him to death and afterwards the accused also killed Gyanendra Mondol at the same spot.

Attack targeting the Hindu village and killing of Awami League supporter indicates that the criminal acts of looting and murders were part of ‘systematic attack’ in furtherance of policy and plan directed against civilian population.

Thus, the criminal acts to the accomplishhment of murder are characterized as the offence of crimes against humanity as specified in section 3(2) (a) of the Act as it was directed against civilian population. The accused, as has been proved, had directly participated to the commission of offence of murder of Madhab Chandra as described in the charge No. 4 and thus he incurs individual criminal liability under section 4(1) of the Act and he is found guilty for perpetration of the offence as listed in charge no. 04 which is punishable under section 20(2) read with section 3(1) of the Act. …(237, 238, 255 and 256) Adjudication of charge No. 05 [Committing Rape upon Devi Rani and Shova Rani] International Crimes (Tribunals) Act (XIX of 1973) Sections 3(1), 3(2)(a), 4(1) and 20 (2)

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

Abul Kalam Azad @ Bachchu (absconded), a member of Razaker Force and subsequently the local commander of Al-Badar Bahini and or as a member of group of individuals being accompanied by 10/12 armed Razakers is alleged to have attacked the house of Sudhir Biswas @ Gosai Pada Biswas of village ‘Natibodia’ (bvwUew`qv) under police station Boalmari district Faridpur on 08 June 1971 at about 12:00 hrs, during the War of Liberation and then allegedly committed rape upon Devi Rani and Shova Rani and thereby he has been charged for the physical participation and also for substantially cont-ributing to the actual commission of offence of ‘rape as crime against humanity’ by directing attack targeting the Hindu civilian population as specified in section 3(2) (a) of the Act which are punishable under section 20(2) read with section 3(1) of the Act. Prosecution adduced and examined two witnesses as P.W.13 and P.W. 14 in support of this charge. P.W.13, Surabala Biswas, now 70-71 years old is the wife of brother of victims’ husbands. P.W.14, Binod Chandra Biswas is the brother of P.W.13’s husband.

They have narrated the criminal acts perpetrated by accused Abul Kalam Azad @ Bachchu and his accomplices.

The matters which appear to have been proved from corroborative evidence of P.W.13 and P.W.14 are that on the date, time and in the manner accused Abul Kalam Azad @ Bachchu and his 10-12 accomplices attacked their village which was predominantly Hindu populated with frequent gun firing and with this the male members of their family remained in hiding inside a jute field adjacent to their house and then the gang attacking their house kept the female members encircled and from them Shova Rani and Devi Rani were segregated and the accused and some of his accomplices

103

dragged them to the dwelling hut of Shova Rani and detained them for one and half hour (as deposed by P.W.13). The other female members were kept guarded by some of accomplices of accused Bachchu. The charge relates to commit rape upon Shova Rani and Devi Rani.

None of two witnesses has claimed to have witnessed the alleged rape or sexual abuse upon the victims. The offence of alleged rape is not an isolated crime. The context also is to be viewed together with the criminal acts done. The offence of committing rape particularly if it happened as a part of systematic attack in furtherance of policy and plan is not expected to have taken place in presence of anybody else. Besides, offence of rape or sexual abuse happens in sly. The situation as revealed also speaks sufficiently that it was not possible to see what was happening inside the room of Shova Rani.

Thus the criminal acts of accused and his accomplices done to Shova Rani and Devi Rani have to be perceived from the entire facts and circumstance.

The context speaks that it was not possible for civilians to resist the armed perpetrators led by the accused who were actually meant to execute the policy and plan of the Pakistani army and the pro-Pakistan political organization which had acted as its key auxiliary organisation. The pattern of the attack and acts indicates that the gang targeted the house of the victims belonging to Hindu community, a part of civilian population and the accused and his coperpetrators finding no male inmates at the crime site, approached to cause harm to female members of the family in furtherance of which accused Abul Kalam Azad @ Bachchu and some of his accomplices draged the victims to Shova Rani’s room where they were kept detained and at that time the other female members were kept guarded by other accomplices outside the room. We thus

104

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

inescapably consider it just to pen our view that the victims were sexually ravished and the accused cannot be exonerated from criminal liability of committing the offence of rape as crime against humanity as specified in section 3(2) (a) of the Act. The accused Abul Kalam Azad @ Bachchu, as has been proved, had directly participated to the commission of the offence of rape upon Devi Rani and Shova Rani as described in the charge No.5 and thus he incurs individual criminal liability under section 4(1) of the Act and is found guilty for perpetration of the offence listed in charge No. 05 which is punishable under section 20(2) read with section 3(1) of the Act. …(257, 258, 268, 269, 273 and 274) Adjudication of charge No.06 [Killing of Chitta Ranjan Das] International Crimes (Tribunals) Act (XIX of 1973) Sections 3(1), 3(2)(a), 4(1) and 20(2) On 03 June 1971, during the War of Liberation you, Moulana Abul Kalam Azad @ Bachchu a member of Razaker Force and subsequently the local commander of AlBadar Bahini and or as a member of group of individuals being accompanied by 10/12 armed Razakers launched an attack targeting the Hindu community of village ‘Fulbaria’ under police station Nagarkanda district Faridpur and started looting the house of civilians. In the course of the event, you and your 7/8 accomplices entering inside the house of Chitta Ranjan Das dragged him out and then you, by the rifle with you, gunned down him to death and thereby the accused has been charged for the physical participation and also for substantially contributing to the actual commission of offence of ‘murder as crime against humanity’ by directing attack targeting the Hindu civilian population as specified in section 3(2) (a) of the Act which are punishable

2 LNJ (2013)

under section 20(2) read with section 3(1) of the Act. Three witnesses have been adduced and examined in support of this charge. All the three witnesses i.e P.W.2 Jotsna Rani Das, P.W.4 Dhala Matabbar and P.W.9 Nagen Chandra Mondol are the live witnesses. Of them P.W.2 is the wife of victim of the offence of murder. P.W.4 and P.W 9 are from the crime village and claim to have witnessed the accused accompanying the armed gang of Razakars at the crime site and have corroborated the version of P.W.2, as regard commission of the event of crime and participation of the accused therewith.

We have found from first part of testimony of P.W.4 that on seeing the event of killing Chitta Ranjan Das he (P.W.4) became frightened and had left the crime site. Thus, it was naturally not possible to witness the killing of Badal Debnath that took place after the event of killing Chitta Ranjan Das. P.W.2 Jotsna Rani Das, the eye witness of the event of killing her husband including the killing of Badal Debnath has stated that, Bachchu Razakar and his accomplices dragging the dead body of her husband and Badal Debnath tying their legs with a rope threw to Kumar River. Thus, the hearsay version of P.W.4 so far it relates to killing of Badal Debnath and throwing the dead body of Chitta Ranjan Das to Kumar River carries much probative value which adds corroboration to what has been stated by P.W.2.

Testimony of P.W.9, a live witness has sufficiently and believably corroborated P.W.2 the wife of victim Chitta Ranjan Das and has narrated the event incriminating the accused with the commission of the offence of alleged murder. As regard reason of recognizing the accused P.W.9 stated that he knew accused Abul Kalam Azad @ Bachchu

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

as during 1970-71 he (P.W.9) used to purchase straw for his own ‘pan baroj’ from the house of accused’s uncle.

Having regard to the evidence of P.W.2, P.W.4 and P.W9 we are thus convinced in arriving at decision that the atrocious event of attack launched directing the crime village Phulbaria by the gang of armed Razakars led by accused Abul Kalam Azad @ Bachchu on the date time and in the manner has been proved beyond reasonable doubt.

The accused Abul Kalam Azad @ Bachchu being accompanied by his armed accomplices, as has been proved, had directly participated to the commission of the offence of murder and the gang of co-perpetrators led by the accused indubitably had comm.itted the criminal acts as part of the attack directing the civilians belonging to Hindu community and thereby the accused Abul Kalam Azad @ Bachchu is found to have incurred individual criminal liability under section 4(1) of the Act and found guilty for committing the offence of murder as crime against humanity as specified in section 3(2) (a) of the Act which is punishable under section 20(2) read with section 3(1) of the Act . …(275, 276, 285-288) Adjudication of charge No.08 [Anjali Das abduction and torture] International Crimes (Tribunals) Act (XIX of 1973) Sections 3(1), 3(2)(a), 4(1) and 20 (2) Abul Kalam Azad @ Bachchu (absconded), a member of Razaker Force and subsequently the local commander of Al-Badar Bahini and or as a member of group of individuals, being accompanied by 7/8 armed Razakers entering inside the house of Guru Das, a civilian village dweller of village ‘Ujirpur Bazarpara’ (DwRicyi evRvicvov) under police station Saltha district Faridpur is alleged to have

105

abducted Anjali Das (18) Rani of the crime village on 18 May 1971 at about 10:00 hrs, during the War of Liberation and kept her confined and tortu-red and thereby the accused has been charged for the physical participation and also for substantially contributing to the actual commission of offence of ‘abduction, confinement and torture as crimes against humanity’ by directing attack targeting the Hindu civilian population as specified in section 3(2) (a) of the Act which are punish-able under section 20(2) read with section 3(1) of the Act. Prosecution examined three witnesses in support of this charge. P.W.11 Deb Kumar Das is the brother of victim Anjali Das and P.W.12 was a neighbour of victim at the relevant time. P.W.16 is a hearsay witness and not from the crime village Ujirpur, Faridpur. They have testified as to who and how abducted Anjali Das and finally what happened to her.

From evidence of P.W.11 and P.W. 12 we have found it proved that on the date time and in the manner accused Abul Kalam Azad @ Bachchu being accompanied by armed accomplices launched attack to the house of Anjali Das and defying oral confrontation they forcibly took away Anjali Das with them. That is to say, the accused is found to have directly participated to the act of abduction alleged. It remains unshaken too.

It is also proved that with the intervention of local Muslim elites eventually 7-8 days after abduction the victim was released. Where she was kept confined? P.W.12 stated in cross-examination that later on he heard that the victim was kept confined at the house of Chan Kazi. According to P.W.11, request was made to said Chan Kazi by the local Muslim elites for releasing Anjali Das. Who is this Chan Kazi? Admittedly he is the father-in-law of the accused. It sufficiently indicates that the accused had substantially

106

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

contributed and facilitated to the act of confinement of the victim Anjali Das with full knowledge.

Since it is proved that Anjali Das was forcibly abducted and taken away by the accused and his cohorts from their house defying oral resistance, it may be lawfully presumed that the accused substantially contributed in keeping the victim confined at a place selected by him. At the same time it may also be validly presumed that the purpose of keeping the victim under such confinement for 7-8 days was not of course anything lawful and certainly mental and physical harm including sexual abuse was caused to her that resulted in her severe sickness as stated by P.W.12.

The fact that on the very day of her release victim Anjali Das committed suicide as Mohammad Kazi and his accomplices attacked their house to abduct her again is proved.

Obviously such second attempt of abducting the traumatized victim Anjali Das made her panicked and frightened which eventually forced her to commit suicide. Who is this Mohammad Kazi? As it is found, he was the brother-in-law of the accused. That is to say, the second attempt to take away the victim forcibly was not done without the knowledge of the accused. Rather, the accused may be presumed to have substantially contributed and abetted in launching such second attack.

We have found that accused Abul Kalam Azad @ Bachchu was a potential armed member of Razakar force. He is found to have launched attack being accompanied by his armed cohorts with intent to commit criminal acts constituting the offence of crimes against humanity. The accused, in furtherance of policy and plan of the Pakistani army and the organization collaborating it launched such attack directing the Hindu community, a part of civilian population and the criminal acts were done in

2 LNJ (2013)

context of the war of liberation in 1971.

Therefore, the accused Abul Kalam Azad @ Bachchu is found to have incurred criminal liability under section 4(1) of the Act and found guilty for committing the offence of abduction, confinement and tortu-re as crimes against humanity as specified in section 3(2) (a) of the Act which is punishable under section 20(2) read with section 3(1) of the Act . …(389, 390, 302-306) International Crimes (Tribunals) Act (XIX of 1973) Section 3(2)(a) Crimes against humanity—Proof of—In determining the fact as to whether the atrocious acts which are already proved to have been committed were directed against Bengali civilian population constituting the crimes against humanity in 1971 during the War of Liberation it is to be considered that the criminal acts committed in violation of customary international law constituting the offences enumerated in section 3(2)(a) of the Act of 1973 were connected to some policy of the government or an organization. It is to be noted too that such policy and plan are not the required elements to constitute the offence of crimes against humanity. These may be taken into consideration as factors for the purpose of deciding the context upon which the offences were committed. It is indeed a history now that the Pakistani army with the aid of its auxiliary forces, pro-Pakistan political organizations implementted the commission of atrocities in 1971 in the territory of Bangladesh in furtherance of following policies: •

Policy was to target the selfdetermined Bangladeshi civilian population

•

High level political or military authorities, resources military or other were involved to implement the policy

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

•

Auxiliary forces were established in aiding the implementation of the policy

•

The regular and continuous horrific pattern of atrocities perpetrated against the targeted non combatant civilian population.

The above facts in relation to policies are not only widely known but also beyond reasonable dispute. The context itself reflected from above policies is sufficient to prove that the offences of crimes against humanity as specified in section 3(2)(a) of the Act of 1973 were the inevitable effect of part of systematic attack directed against civilian population. This view finds support from the observation made by the Trial Chamber of ICTY in the case of Blaskic as mentioned above. It is quite coherent from the facts of common knowledge involving the backdrop of our war of liberation for the cause of self determination that the Pakistani armed force, in execution of government’s plan and policy in collaboration with the local anti liberation section belonging to JEI and its student wing ICS and auxiliary forces, had to deploy public and private resources and target of such policy and plan was the unarmed civilian Bangalee population, proliberation people, Hindu community and pursuant to such plan and policy atrocities were committed to them as a ‘part of a regular pattern basis’ through out the long nine months of war of liberation. It may be legitimately inferred from the phrase “directed against any civilian population” as contained in the Act of 1973 that the acts of the accused comprise part of a pattern of ‘systematic’ crimes directed against civilian population. Therefore, the crimes for which

107

the accused has been charged and found guilty were not isolated crimes, rather these were part of organized and planned attack intended to commit the offence of crimes against humanity as enumerated in section 3(2) of the Act, in furtherance of policy and plan. …(312, 314, 315, 316 and 318) International Crimes (Tribunals) Act (XIX of 1973) Section 3(2)(c) (i), Section 3(2) (c)(i) of the Act of 1973 defines ‘Genocide’ as an act committed with intent to destroy, in whole or in part, a national, ethnic, racial, religious or political group, such as, killing members of the group. From the charge no.7 framed we find that the criminal acts narrated therein were directed against the Hindu community which falls within the meaning of ‘religious group’ or a particular ‘members of the group’, with intent to destroy it, either whole or in part.

From testimony of most of witnesses it has been established that almost instantly after accomplishment of crimes targeting the Hindu community, the members of this community who were residents of the crime villages deported to India, in fear of further fatality and harms. This amply indicates the ‘genocidal intent’ of causing massive destruction and killing of civilians belonging to the Hindu community, as has been narrated in charge no. 7.

In the case in hand, it is abundantly clear that the accused absconded to evade the process of justice. Had the accused was not involved in the crime he would have certainly prepared to face the trial. But not only he has absconded instantly after issuance of warrant of arrest by this Tribunal but he has even left the country as reported by the enforcement or executing authority. The accused cannot be considered merely as an absentee accused. He is an

108

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

absconded accused. Evading trial for the offences of which he has been charged with signifies his culpability too. The accused deliberately waived his right to be present at trial. This conduct adds further to his culpability. …(319 and 330) VERDICT OF SENTENCE We have taken due notice of the intrinsic gravity of the offence of ‘genocide’ and murders as ‘crimes against humanity’ being offences which are particularly shocking to the conscience of mankind. We are of agreed view that justice be meet with if a single ‘sentence of death’ under section 20(2) of the Act of 1973 is awarded to accused Abul Kalam Azad @ Bachchu for convictions relating to the offences of murder as ‘crimes against humanity’ (listed in charge Nos. 3, 4 and 6) and for the offence of ‘genocide’ (listed in charge no.7) of which he has been found guilty beyond reasonable doubt.

2 LNJ (2013)

no.s 3,4 and 6) and for the offence of ‘genocide’(listed in charge no.7) and he be convicted and sentenced to death and be hanged by the neck till he is dead under section 20(2) of the International Crimes (Tribunals) Act, 1973.

No separate sentence of imprisonment is being awarded to the accused Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu for convictions relating to the offences of crimes against humanity as listed in charge nos. 1, 5 and 8 of which too he has been found guilty as the ‘sentence of death’ has been awarded to him in respect of four other charges as mentioned above.

The accused Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu is however found not guilty of offence of crimes against humanity as listed in charge no.2 and he be acquitted thereof.

Hence, it is

Since the convicted accused has been absconding the ‘sentence of death’ as awarded above shall be executed after causing his arrest or when he surrenders before the Tribunal, whichever is earlier.

The sentence of death awarded as above under section 20(2) of the International Crimes (Tribunals) Act, 1973 [The Act No. XIX of 1973] shall be carried out and executed in accordance with the order of the government as required under section 20(3) of the said Act. …(333 and 334).

ORDERED

For the Prosecution:

However, we are of further view that considering the proportionate to the gravity of offences the accused Abul Kalam Azad @ Bachchu deserves imprisonment i.e. lesser punishment for convictions relating to the remaining offences as crimes against humanity (listed in charge Nos. 1, 5 and 8).

Accordingly, we do hereby render the following ORDER on SENTENCE.

That the accused Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu son of late Abdus Salam Mia & late Magfura Khatun of village-Barakhardia (Choi ani), Police Station- Saltha, District-Faridpur at present sector no. 07, road no. 33, house no.

06, Police Station–Uttara, DMP, Dhaka and ‘Azad Villa’, 279/6 Chan Para, Uttarkhan, Dhaka is found guilty of the offences of ‘crimes against humanity’ (listed in charge

Mr. Golam Arief Tipoo, Chief Prosecutor Mr. Syed Haider Ali, Prosecutor Mr. Shahidur Rahman, Prosecutor For the Accused (Absconded): Mr. Abdus Shukur Khan, State Defence Counsel Bangladesh Supreme Court

JUDGMENT

Advocate,

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

[Under section 20(1) of the Act XIX of 1973] I. Opening words In the judicial history of Bangladesh, it is indeed the historic occasion that today this Tribunal (ICT-2), a lawfully constituted domestic judicial forum, after dealing with the matter of prosecution and trial of internationally recognized crimes i.e. crimes against humanity, genocide which were perpetrated in 1971 in the territory of Bangladesh, during the War of Liberation is going to deliver its first verdict. At all stages of proceedings the prosecution and the defence have made laudable efforts extending their precious arguments on academic and legal aspects including citation of the evolved jurisprudence. It inevitably has inspired us to address the legal issues closely involved in the case, together with the factual aspects as well. We take the privilege to appreciate their significant endeavor.

In delivering the verdict we have deemed it necessary in highlighting some issues, in addition to legal and factual aspects, relating to historical and contextual background, characterizeation of crimes, commencement of proceedings, procedural history reflecting the entire proceedings, charges framed, in brief, and the laws applicable to the case for the purpose of determining culpability of the accused. Next, together with the factual aspects we have made effort to address the legal issues involved and then discuss and evaluate evidence adduced in relation to charges independently and finally have penned our finding on culpability of accused.

Now, having regard to section 10(1) (j), section 20(1) and section 20(2) of the International Crimes (Tribunals) Act, 1973[Act No. XIX of 1973] this ‘Tribunal’ known as International Crimes Tribunal-2 (ICT-2) hereby renders and pronouncing the following judgment.

109

II. Commencement of proceedings 1. The Chief Prosecutor, on the basis of the report and documents submitted therewith by the Investigation Agency, after completion of investigation, submitted the ‘Formal Charge’ on 02.9.2012 under section 9(1) of the Act of 1973[hereinafter referred to as the ‘Act of 1973’] before this Tribunal alleging that the accused Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu as a significant member of Razaker, the auxiliary force and also as an ‘individual’, had committed the offences of crimes against humanity, genocide including the offence of providing contribution and moral support to the accomplishment of such crimes in different places of Faridpur district during the period of War of Liberation in 1971 and thereby proceedings commenced.

2. Thereafter, the Tribunal, under Rule 29(1) of the Rules of Procedure[hereinafter referred to as ‘ROP’], took cognizance of offences as mentioned in section 3(2) (a)(b)(g)(h) of the Act of 1973 and issued warrant of arrest for causing appearance of the accused as required under Rule 30 of the ROP. But the warrant could not be executed as the accused remained absconded. Thereafter, in compliance of legal requirement for holding trial in absentia by appointing state defence counsel to defend the absconded accused, the Tribunal on hearing both sides on charge framing matter framed 08 charges against the accused Abul Kalam Azad @ Bachchu by its order dated 04 November 2012 and thus the trial commenced.

III. Historical Background 3. Atrocious and horrendous crimes were committed during the nine-month-long war of liberation, which resulted in the birth of Bangladesh, an independent state. Some three million people were killed, nearly quarter

110

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

million women were raped and over 10 million people were forced to flee to India to escape brutal persecution at home, during the ninemonth battle and struggle of Bangalee nation.

The perpetrators of the crimes could not be brought to book, and this left a deep wound on the country's political psyche and the whole nation. The impunity they enjoyed held back political stability, saw the ascend of militancy, and destroyed the nation's Constitution.

4. A well-known researcher on genocide, R.J. Rummel, in his book Statistics of Democide: Genocide and Mass Murder Since 1900, states: “In East Pakistan [General Agha Mohammed Yahya Khan and his top generals] also planned to murder its Bengali intellectual, cultural, and political elite. They also planned to indiscriminately murder hundreds of thousands of its Hindus and drive the rest into India. And they planned to destroy its economic base to insure that it would be subordinate to West Pakistan for at least a generation to come.”

5. Women were tortured, raped and killed.

With the help of its local collaborators, the Pakistan military kept numerous Bengali women as sex slaves inside their camps and cantonments. Susan Brownmiller, who conducted a detailed study, has estimated the number of raped women at over 400,000.

[Source: http://bangladeshwatchdog1.wordpress.com/razakars/]

6. In August, 1947, the partition of British India based on two-nation theory, gave birth to two new states, one a secular state named India and the other the Islamic Republic of Pakistan.

The western zone was eventually named West Pakistan and the eastern zone was named East Pakistan, which is now Bangladesh.

2 LNJ (2013)

7. In 1952 the Pakistani authorities attemptted to impose ‘Urdu’ as the only State language of Pakistan ignoring Bangla, the language of the majority population of Pakistan. The people of the then East Pakistan started movement to get Bangla recognized as a state language thus marking the beginning of language movement that eventually turned to the movement for greater autonomy and self-determination and eventually independence.

8. In the general election of 1970, the Awami League under the leadership of Bangabandhu Sheikh Mujibur Rahman became the majority party of Pakistan. Despite this overwhelming majority, Pakistan Government did not hand over power to the leader of the majority party as democratic norms required.

As a result, movement started in this part of Pakistan and Bangabandhu Sheikh Mujibur Rahman in his historic speech of 7th March, 1971, called on the people of Bangladesh to strive for independence if people’s verdict is not respected and power is not handed over to the leader of the majority party. In the early hour of 26th March, following the onslaught of “Operation Search Light” by the Pakistani Military on 25th March, Bangabandhu declared Bangladesh independent immediately before he was arrested by the Pakistani authorities.

9. The massacres started with program called “Operation Searchlight,” which was designed to disarm and liquidate Bengali policemen, soldiers and military officers, to arrest and kill nationalist Bengali politicians, soldiers and military officers, to arrest and kill and round up professionals, intellectuals, and students (Siddiq 1997 and Safiullah 1989).

Actions in concert with its local collaborator militias, Razakar, Al-badar and Jamat E Islami (JEI) were intended to stamp out Bengali national liberation movement and to crush the national feelings and aspirations of the Bengalis.

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

10. In the War of Liberation that ensued, all people of East Pakistan wholeheartedly supported and participated in the call to free Bangladesh but a small number of Bangalees, Biharis, other pro-Pakistanis, as well as members of a number of different religionbased political parties, particularly Jamat E Islami (JEI) and its student wing Islami Chatra Sangha (ICS) joined and/or collaborated with the Pakistan military to actively oppose the creation of independent Bangladesh and most of them committed and facilitated the commission of atrocities in violation of customary international law in the territory of Bangladesh.

As a result, 3 million (thirty lac) people were killed, near about quarter million women were raped, about 10 million (one crore) people deported to India as refugees and million others were internally displaced. It also experienced unprecedented destruction of properties all over Bangladesh.

11. The Pakistan government and the military setup number of auxiliary forces such as the Razakars, the Al-Badar, the Al-Shams, the Peace Committee etc, essentially to collaborate with the military in identifying and eliminating all those who were perceived to be sympathyized with the liberation of Bangladesh, individuals belonging to minority religious groups especially the Hindus, political groups belonging to Awami League and other pro-Independence political parties, Bangalee intellectuals and civilian population of Bangladesh. Jamat E Islami (JEI), as an organization, substantially contributed in creating these paramilitias forces (auxiliary force) for combating the unarmed Bangalee civilians, in the name of protecting Pakistan. Undeniably the road to freedom for the people of Bangladesh was arduous and torturous, smeared with blood, toil and sacrifices. In the contemporary world history, perhaps no nation paid as dearly as the Bangalees did for their emancipation.

IV. Brief account of the accused

111

12. Accused Moulana Abul Kalam Azad @ Bachchu son of late Abdus Salam Mia & late Magfura Khatun of village-Barakhardia (Choi ani), Police Station- Saltha, District-Faridpur at present sector no. 07, road no. 33, house no.

06, Police Station–Uttara, DMP, Dhaka and ‘Azad Villa’, 279/6 Chan Para, Uttarkhan, Dhaka was born on 05.03.1947 in village ‘Barakhardia’. He studied in Faridpur Rajendra College and was a close associate of Ali Ahsan Mohammad Mujahid, the then President of East Pakistan Islami Chatra Sangha (ICS).

Till formal formation of Razaker force, Moulana Abul Kalam Azad @ Bachchu actively aided the Pakistani army as an armed member of volunteer Razakar Force formed in Faridpur in committing criminal acts alleged. He, during the war of liberation in 1971, assisted the Pakistani occupation force initially in the capacity of ‘Razaker’ and subsequently as chief of Al-Badar bahini of Faridpur. At one time, Moulana Abul Kalam Azad @ Bachchu was ‘rokan’ of Jamat-E-Islami and now he is not associated with any political party. He is the chairman of ‘Masjid Council, a non government organization [NGO]. He could speak in Urdu well as he studied in ‘madrasa’. On 21 April, 1971 he being united with the local anti liberation circle welcomed the Pakistani army in Faridpur district. He was a close associate of Pakistani army and actively and substantially assisted them as a potential member of Razakar (Volunteer) force in committing atrocities targeting the civilians and Hindu community and pro-liberation Bangalee people. In Faridpur, he was in charge of Razaker bahini which was equipped with rifles.

V. Introductory Words 13. International Crimes (Tribunals) Act, 1973 (the Act XIX of 1973) [hereinafter referred to as ‘the Act of 197’] is an ex-post facto domestic legislation enacted in 1973 and

112

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

after significant updating the ICTA 1973 through amendment in 2009, the present government has constituted the Tribunal ( 1st Tribunal) on 25 March 2010 . The 2nd Tribunal has been set up on 22 March 2012. The degree of fairness as has been contemplated in the Act and the Rules of Procedure (ROP) formulated by the Tribunals under the powers conferred in section 22 of the principal Act are to be assessed with reference to the national needs such as, the long denial of justice to the victims of the atrocities committed during 1971 independence war and the nation as a whole.

14. There should be no ambiguity that even under retrospective legislation (Act XIX enacted in 1973) initiation to prosecute crimes against humanity, genocide and system crimes committed in violation of customary international law is quite permitted. It is to be noted that the ICTY, ICTR and SCSL the judicial bodies backed by the UN have been constituted under their respective retrospective Statutes. Only the ICC is founded on prospective Statute.

15. Bangladesh Government is a signatory to and has ratified the ICCPR, along with its Optional Protocol. It is necessary to state that the provisions of the ICTA 1973 [(International Crimes (Tribunals) Act, 1973] and the Rules framed there under offer adequate compatibility with the rights of the accused enshrined under Article 14 of the ICCPR. The 1973 Act of Bangladesh has the merit and mechanism of ensuring the standard of safeguards needed universally to be provided to the person accused of crimes against humanity.

16. As state party of UDHR and Geneva Convention Bangladesh cannot evade obligetion to ensure and provide justice to victims of those offences and their relatives who still

2 LNJ (2013)

suffer the pains sustained by the victims and as such an ‘executive act’ (tripartite agreement) can no way derogate this internationally recognized obligation. Thus, any agreement or treaty if seems to be conflicting and derogatory to jus cogens (compelling laws) norms does not create any hurdle to internationally recognized state obligation.

VI. Jurisdiction of the Tribunal 17. The Act of 1973 is meant to prosecute and punish not only the armed forces but also the perpetrators who belonged to ‘auxiliary forces’, or who committed the offence as an ‘individual’ or a ‘group of individuals’ and nowhere the Act says that without prosecuting the armed forces (Pakistani) the person or persons having any other capacity specified in section 3(1) of the Act cannot be prosecuted.

Rather, it is manifested from section 3(1) of the Act of 1973 that even any person (individual or group of individuals), if he is prima facie found individually criminally responsible for the offence(s), can be brought to justice under the Act of 1973. Thus, the Tribunals set up under the Act of 1972 are absolutely domestic Tribunal but meant to try internationally recognised crimes committed in violation of customary international law.

VII. Procedural History 18. At pre-trial stage, the Investigation Agency constituted under section 8(1) of the Act of 1973, through the Chief Prosecutor prayed for causing arrest of the accused Abul Kalam Azad @ Bachchu by filing an application on 25 March 2012, for effective and proper investigation [Rule 9(1) of the ROP]. The Tribunal directed to submit a progress report about the task of investigation and fixed 03 April 2012 for hearing and

2 LNJ (2013)

The Chief Prosecutor Vs. Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu

disposal of the application. On having the progress report as mentioned the Tribunal on hearing application issued warrant of arrest against the accused. But the enforcement agency of the Dhaka Metropolitan Police could not execute it as the accused Abul Kalam Azad @ Bachchu, on sensing the matter of issuance of warrant of arrest had absconded.

113

2 LNJ (2013)

Md. Afzal Hossain Vs. Govt. of Bangladesh and others (Hasan Foez Siddique, J.)

111

HIGH COURT DIVISION (SPECIAL ORIGINAL JURISDICTION)

Motaleb Vs. Md. Mostaque Ali and others reported in 19 BLD (AD) page 156; V.S. Achuthanda Vs. P.J. Francis and another Hasan Foez Siddique, J. } Md. Afzal Hossain And ...Petitioner. reported in AIR 2001 SC page 837; Abdul Latif } Bepari Vs. Md. Nurul Islam Howlader reported Zafar Ahmed, J. Vs. } in 20 BLD (AD) page 264; Ansaruddin Ahmed Government of Judgment } Vs. Senior Assistant Judge and Election Bangladesh and 07.11.2012 Tribunal reported in 14 BLD (AD) 77; Ram } others. ...Respondents. Sewak Yadav and others Vs. Hussain Kamal Kedwai and others (AIR 1964 S.C.R. 239; Rajnarayon Vs. Indira Nehru Gandi reported Constitution of Bangladesh, 1972 in AIR 1972 S.C. 1302; Suresh Prasad Yadav Article 102 Vs. Jai Prakash Mishra and others reported in Local Government (Municipality) Election AIR 1975 S.C. 376; Dr. Mohiuddin Khan Rules, 2010 Alamgir Vs. Government of Bangladesh Rule 39 After counting the ballot papers, the respon- reported in 62 DLR (AD) 425, ref. dent No. 7 or any other contesting candidates did not take any steps to recount the ballots by Mr. Yousuf Hossain Humayun with filing any application before Presiding Officer of any of Polling Station which they would ordinarily have done if there was any truth in the pleas canvassed by the respondent No. 7 in his election petition and application for recounting of votes which was made after a lapse of seven months from counting of votes.

In the absence of any evidence regarding improper counting of votes it is difficult to accept the finding of the tribunal that the factual foundation for inspection and recounting has been established satisfactorily. Court can safely ignore to take notice of allegation which is couched in vague and nebulous manner. The averments made in the petition and the materials brought on record by the respondent No. 7 did not at all proved. Both the tribunals acted unlawfully in passing the order of inspection and recounting of ballot papers. ‌.(13, 23, 27, 30 & 31) Muzaffar Hossain Vs. Md. Humayun Kabir and other reported in 15 BLD (AD) page 245; Writ Petition No. 149 of 2012.

Mr. Manzill Murshid Mr. Abdul Awal, Advocates ---For the petitioner.

Mr. Jamiruddin Sircar, Mr. Md. Aminul Hoque, Senior Advocates With Mr. Mvi. Mohammad Wahidullah, Advocate ‌.For the respondents.

JUDGMENT Hasan Foez Siddique, J This Rule Nisi was issued calling upon the respondents to show cause as to why the order dated 29.11.2011 passed by the Election Appellate Tribunal, Jhalukathi in Election Appeal No.06 of 2011 affirming the order dated 01.11.2011 passed by the Election Tribunal, Jhalukathi in Election Petition No.05 of 2011 should not be declared to have been made without lawful authority and are of no legal effect.

112

Md. Afzal Hossain Vs. Govt. of Bangladesh and others (Hasan Foez Siddique, J.)

2. The relevant facts for the disposal of the Rule, in short, are that the petitioner, respondent No. 7 and some others contested in election for the post of Mayor of Jhalukathi Municipality held on 24.03.2011. The petitioner was declared elected defeating his nearest rival candidate, the respondent No.7. The respondent No.7 filed election petition before the Election Tribunal, Jhalukathi making following prayers: Ò(K) SvjKvVx †cŠimfvq Bs24/03/2011 Zvwi‡Li †cŠi wbe©vP‡bi 1bs weev`x cªwZc¶ bvwgK wbe©vPbx djvdj evwZj c~e©K Z`¯n‡j AÎ ev`x `iLv¯—Kvix‡K ‡gqi c‡` wbe©vwPZ g‡g© †Nvlbvi Av‡`k w`evi| (L) †gvKÏgvi mg¨K LiP weev`xMb cªwZ Av‡`k w`evi| (M) AvBb I BKz¨BwUi weavb g‡Z ev`x `iLv¯—Kvix Avi †h, cªwZKvi cvB‡Z cv‡i Zvnviv I Av‡`k w`evi|Ó 3. The symbols of petitioner and respondent No.7 were “Pine appeal” and “Ship” respectively. The names of Polling Centres are : 1) Jhalukathi Government College, West Chandkathi, 2) Bekona Government Primary School, Bekona, 3) Jhalukathi Government Women College, 4) Jhalukathi Government Boys High School, 5) Kutubnagar Government Primary School, 6) Zilla Parishad Bhaban, Krishnakathi, Jhalukathi, 7) Upazila Parishad Milonayaton (U.T.D.C. Hall), 8) Upazilla Parishad Officers Club and Library, 9) Municipal Ideal Government Primary school, 10) Shahi Model Government Primary school, 11) J.B.I. Union High School, Ishanil, 12) Basanda Government Primary School, 13) Kefayet Nagar Government Primary School ( New building), 14) Kefayetnagar Government Primary School (Old building), 15) Udbodhon Secondary School, 16) Syedunnessa Government Primary School, 17) Halima Moazzam Reg. Primary School and 18) City Kinder Garten Vote Centre.

2 LNJ (2013)

4. In the election petition, the respondent No.7 brought allegation in the following manner: Ò¯’vbxq KwZcq ‡bZ…e„›` 1bs weev`x cªwZc¶‡K wbqv †Kvb fv‡eB AvMv‡bv m¤¢e b‡n Dnv wbwðZ eywS‡Z cvwiqv Zvnviv wbe©vPbx Kv‡R KZ…©c¶ KZ…©K wb‡qvwRZ Kg©KZ©v Kg©Pvix‡`i mwnZ †e-AvBbx †hvMmvR‡m _vwKqv SvjKvVx †cŠimfvi Bs 24/3/2011 Zvwi‡Li wbe©vP‡b †e-AvBbx I A‰ea cªfve we¯Ívi Kwiqv wewfbœ iKg KvimvwR Kwiqv mKj †fvU †K‡›`ª we‡klfv‡e mš¿vmx ZrciZv Ges AÎ c‡¶i G‡R›U ev mg_©K †fvUvi‡`i‡K bvbvfv‡e fqfxwZ cª`k©b Kwiqv AÎ c‡¶i mg_©bxq †fvUvi‡`i‡K †fvU †K‡›`ª hvIhvi e¨vcv‡i wej¤^ NUvBqv G‡`i bvgvKi‡b Rvj †fvU cª`vb K‡i| we‡kl Kwiqv wbg¥wjwLZ †fvU †K‡›`ª Zvnv‡`i `Ljxq cªfve LvUvBqv 1bs weev`x cªwZc‡¶i Avbvim gvK©vq Rvj †fvU cª`vb Kwi‡Z m¶g nq| we‡klfv‡e D‡j-L¨ †h, ¯^v¶i Ávbnxb †fvUvi‡`i e¨vjU †ccv‡ii gywo‡Z wUc †`Iqvi weavb _vKv ¯^‡Z¡I ¯^ ¯^ wcªRvBwWs Awdmvi mn †K‡›`ªi Ab¨vb¨ miKvix Kg©KZ©v Kg©Pvix‡`i †e-AvBbx fv‡e eva¨ Kwiqv ¯^v¶iÁvb m¤úbœ †fvUvi‡`i wUc †bIqv nBqv‡Q| ¯^v¶iÁvb m¤úbœ †fvUvi‡`i wUc †bIqv D‡Ï‡k¨g~jK Ges 1bs weev`x cªwZc‡¶i gvK©v Avbvi‡m †fvU msL¨v Ab¨vqAv‡e e„w× Kivq Kvh©vw` nq| GBi“c †e-AvBbx Kvh©vw` Kwiqv mKj †K‡›`ªB nBqv _vwK‡jI wbg¥wjwLZ †fvU †K›`ª¸‡jv‡Z we‡klfv‡e D³i“c Ab¨vq I †e-AvBbx Kvh©vw` nBqv‡Q| †K›`ª¸‡jv n‡jv- 1) Dc‡Rjv cwil` (BD wUwWwm nj), 2) Dc‡Rjv cwil` Awdmvm© K¬ve I jvB‡eªix, Dc‡Rjv cwil` PZ¡i, 3) kvnx g‡Wj miKvix cªv_wgK we`¨vjq, SvjKvVx, 4) †R,we,AvB, BDwbqb nvB¯‹zj, BQvbxj,

2 LNJ (2013)

Md. Afzal Hossain Vs. Govt. of Bangladesh and others (Hasan Foez Siddique, J.)

SvjKvVx, 5) evm›Wv miKvix cªv_wgK we`¨vjq, 6) wKdvBZbMi miKvix cªv_wgK we`¨vjq (bZzb feb), 7) wKdvBZbMi miKvix cªv_wgK we`¨vjq (cyivZb wØZj feb), 8) nvwjgv †gvqv‡¾g †iwRt cªv_wgK we`¨vjq, 9) D‡×vab gva¨wgK we`¨vjq, 10) wmwU wKÛvi Mv‡W©b, 11) miKvix gwnjv K‡jR| --Dc‡iv³ ‡fvU †K›`ª ¸‡jv‡Z Bmy¨K…Z e¨vjU †ccv‡ii †P‡q †fvU MYbvKvjxb mgq e¨vjU †ccv‡ii msL¨v AwaK nBqv‡Q| Z`ycwi cªvq †fvU †K‡›`ªB AÎ c‡¶i wb‡qvMK…Z G‡R›UMb‡K †fvU Mªnb I MYbvi mgh bvbv ai‡bi ûgwKi gva¨‡g fqfxwZ †`LvBqv Zvnv‡`i‡K mve©¶wbKfv‡e wbe©vPbx ey‡_ mn MYbvKvjxb mgq Dcw¯nZ _vwK‡Z †`Iqv nq bvB| †fvU MYbvi mgq AÎ ev`x `iLv¯— Kvixi RvnvR gvK©vq e¨vjU 1bs- weev`x cªwZc‡¶i Avbvim gvK©vq e¨vjU ev †fvU w`evi †`LvBqv 1bs weev`x cªwZc‡¶i mwVK cªvß †fv‡Ui †P‡q †ekx †fvU †`Lv‡bv nBqv‡Q-----1 bs weev`x cªwZc‡¶i †P‡q ev`xi ÒRvnvR gvK©vÓ cªZx‡K 8,797wU †fvU †ekx cªvß nBqv‡Qb| hvnv c~Yt MYbv Kwi‡jB cªgvwbZ nB‡e Ges ev`x SvjKvVx †cŠimfvi †gqi wnmv‡e weRqx †NvwlZ nB‡e|Ó 5. The election petition was resisted by the present petitioner, the returned candidate.

6. On 26.10.2011 that is, after 7 months of holding election, the respondent No.7 filed an application before the Election Tribunal for recounting votes. The contents of that application run as follows: ÒD³ bs †gvKÏgvwU Dfq c‡¶i m¨¶¨ †Riv mgvß nBqv AvMvgx 30/10/11 ZvwiL avh© Av‡Q| Zvnv‡Z SvjKvwV †cŠimfvi MZ Bs24/3/11 Zvwi‡Li wbe©vPbx 18wU

113

†fvU †K‡›`ªB †gqi c‡` †fvU MYbvq KviPzwc nBqv‡Q| hvnv‡Z wbe©vPbx djvdj mwVKfv‡e cª¯—Z nqwb| AÎ ev`x †gqic‡` 11,864wU †fvU Ges 1bs weev`x 3,067wU †fvU cªvß nBqv‡Qb g‡g© AÎ c¶ `vex Kwiqv‡Qb| †fvU MYbvi KviPzwc nIqvq welq AÎ c¶ mv¶x †Rivi gva¨‡g cªgvb Ki‡Z m¶g Bnqv‡Q| AÎ c‡¶i Av‡e`‡b weÁ Av`vj‡Z 18wU †fvU †K‡›`ªi M„nxZ †fv‡Ui e¨vjU Zje Kwiqv Avwbqv‡Qb| weÁ Av`vj‡Zi gva¨‡g †fvU MYbvq AvcwË bvB g‡g© 1bs weev`x ev`xi †Rivq cªKvk Kwiqv‡Qb| ‡gqi c‡`i †fvU MYbvq KviPzwc Kwiqv ev`xi RvnvR gvK©v cªZx‡K gvÎ 6,337wU †fvU cªvß †`wLqv‡Qb| AÎ ev`x eZ©gvb †gvKÏgvq 1bs weev`xi wbe©vPbx djvdj evwZj c~e©K Zvnv‡K weRqx g‡g© †Nvlbvi cªwZKv‡i eZ©gvb †gvKÏgv `v‡qi Kwiqv‡Qb| †cŠimfv wbe©vPb wewa 2010 Gi 62 wewa †gvZv‡eK weÁ Av`vjZ KZ…©K †fvU MYbv Kwi‡jB ev`xi `vexi mZ¨Zv cgvwbZ nB‡e| 1bs weev`x Bs 24/10/11 Zvwi‡L `iLv¯— `v‡qi Kwiqv eZ©gvb †gvKÏgvwU hyyw³ZK© ïbvbxi Rb¨ ZvwiL wba©vi‡bi cªv_©bv Kwiqv‡Qb| GgZve¯nvq eZ©gvb †gvKÏgvwU myô ,wb¯úwË I b¨vq wePv‡ii ¯^v‡_© hyw³ZK© ïbvbx c~‡©e weÁ Av`vj‡Z msiw¶Z Bs 24/3/11 Zvwi‡L AbywôZ †cŠi wbe©vP‡bi 18wU †fvU †K‡›`ªi †gqi c‡` †fvU MYbv Kivi Av‡`k †`Iqv Avek¨K| Z`Ab¨_vq AÎ c‡¶i ¶wZi KivY nB‡e| ‡mg‡Z cªv_©bv weÁ Av`vjZ `qv cªKv‡k †cªv³ KviY m`q we‡ePbv KiZt b¨vq wePv‡ii ¯^v‡_© eZ©gvb †gvKÏgvi hyw³ZK© ïbvbxi c~‡e© weMZ Bs 24/3/11 Zvwi‡Li †cŠi wbe©vP‡b 18wU †fvU †K‡›`ªi †gqi c‡` †fvU MYbvi Av‡`k `v‡b mywePvi Kivi gwR© nb|Ó

114

Md. Afzal Hossain Vs. Govt. of Bangladesh and others (Hasan Foez Siddique, J.)

7. The Tribunal by his order dated 01.11.

2011 allowed the said prayer and decided to recount the votes of all the polling centres.

8. Against which the present petitioner preferred appeal before the Election Appellate Tribunal, who by his order dated 29.11.2011, dismissed the appeal and upheld the order of the Election Tribunal. Then this petitioner moved the application in this Court and obtained the present Rule.

9. Mr. Manzill Murshed, the learned Advocate appearing on behalf of the petitioner, submits that the respondent No.7 in his evidence hopelessly failed to establish the foundation to reopen the ballot papers. He submits that subsequent after counting the votes the respondent No. 7 did not take any steps to recount the ballots by filing any application before the Presiding Officer or Returning officer. Mr. Abdul Awal, another learned Advocate for the petitioner, submits that the allegations brought by the respondent No.7 are quashi criminal in character so the allegations must be sufficiently clear and precise to bring home the charges to the candidates which are absolutely absent in this case. He submits that the respondent No.7 failed to produce trustworthy materials in support of the allegations made for a re-count enabling the Tribunal to record a satisfaction of a prima-facie case for re-opening the ballot bags. He submits that the ballot is sacrosanct and the same can not be violated merely for asking on vague and indefinite allegations.

10. Mr. Jamiruddin Sircar, the learned Senior Counsel along with Mr. Md. Aminul Houqe, the learned Senior Counsel, and Mr. Moulovi Wahidullah, the learned Advocate, appearing on behalf of the respondent No. 7 submits that in his evidence the writ petitioner admitted that

2 LNJ (2013)

he has no objection to recount the votes. He submits that the writ petition is not maintainable in view of the fact that the orders of the Tribunals are not coram non-judice or malice in law. He further submits that both the Tribunals below concurrently held that the respondent No.7 has been able to establish the factual foundations to reopen the ballot papers and there are adequate materials before the Tribunal to be satisfied that counting was not made properly. There is no error of law in the orders of the Tribunals which calls for any interference by this Writ Court.

11. We have heard the learned Advocates for both the parties, perused the writ petition, affidavit-in-opposition filed on behalf of the respondent No.7, annexures and other materials on record.

12. Election for the post of Mayor of Jhalokati Municipality was held on 24.03.2011. The present petitioner, the respondent No.7 and others contested the said election. After counting the votes, the Returning Officer declared the result of the election. The petitioner obtained 8,096 votes and the respondent No.7 got 6,337 votes. The petitioner was declared elected as Mayor of Jhalukhati Municipality which was published in the official gazette. The respondent No.7 filed election petition for declaration that he is the elected Mayor of Jhalokathi Municipality and result declaring the petitioner as Mayor is void.

The respondent no.7 adduced 10 witnesses in support of his case. On the other hand, the petitioner adduced 9 witnesses. At that stage, the respondent No.7 filed application for recounting the votes of all centres. The election Tribunal allowed that application. Election Appellate Tribunal affirmed that order.

2 LNJ (2013)

Md. Afzal Hossain Vs. Govt. of Bangladesh and others (Hasan Foez Siddique, J.)

13. An election enquiry is in nature of a quashi criminal trial. The standard required is rigorous. The election petitioner is virtually in the position of a prosecutor. It is an elementary rule of law that the prosecution should make out its case by positive proof and not by mere conjecture. The election petition must contain a concise statement of material facts and must setforth full particulars of the corrupt practice.

Since onus to prove corrupt practices lies entirely on the Election petitioner the material facts in regard to corrupt practices should be pleaded with exactitude and precision and like wise should be pleaded basic facts contributing the ingredients of that particular corrupt practice. Here election was held on 24.03.2011, Election Petition was filed on 18.04.2011. The respondent no.7 filed application for recounting of votes on 26.10.2011, that is, after 07 months of counting votes. There is specific provision in the law itself to recount the ballot papers. Rule 39(2) of the Local Government (Municipality) Election Rules, 2010 provided the provisions of recounting of votes which run as follows: “39(2) wcªRvBwWs Awdmvi wbg¥wjwLZ †¶‡Î c~Yivq †fvU MYbv Kwi‡Z cvwi‡eb(K) cª‡qvR‡b, ¯^xq D‡Ï‡M; ev (L) †Kvb cªwZØ›`¡x cªv_x©i ev wbe©vPbx G‡R‡›Ui ev †cvwjs G‡R‡›Ui mywbw`©ó wjwLZ Av‡e`‡bi †cªw¶‡Z, hw` Zvnvi wbKU Av‡e`bwU hyw³hy³ ewjqv we‡ewPZ nq|Ó 14. We do not find anything in the election petition or in the evidence or in the application for recounting the votes filed before the Election Tribunal that either the respondent No.7 or his Election agent or his polling agents made any prayer to the Presiding Officer for recounting votes. That provision has been

115

enacted as statutory checks and effective safeguards against trickery, mistakes and fraud in counting. The election petitioner cannot be permitted to make out a case for re-counting ballot papers on a ground for which there is no foundation laid by him.

15. The power vesting in the court seized of a election dispute to order for inspection and recount of the ballot papers has been subject matter of several decisions of our Apex Court which have by authorities exposition settled the law thereon.

16. In the case of Muzaffar Hossain Vs. Md. Humayun Kabir and other reported in 15 BLD (AD) page 245 their Lordships of the Appellate Division have observed : “When no written prayer is made before the Presiding Officer for recounting of the ballot papers on the ground of any malpractice and when no objection is raised before the Returning Officer alleging election malpractices, it is to be held that no valid ground for recounting of votes has been made out at the trial.”

17. In the case of Abdul Motaleb Vs. Md. Mostaque Ali and others reported in 19 BLD (AD) page 156 their Lordships have further observed: “Election Tribunal in the interest of justice may recount ballot papers for proper resolution of an election dispute. But in order to make out a case for recounting the person who challenges the counting has to prove that at the time of counting of votes by the Presiding officer a contesting candidates or his election agent upon raising specific objection specifically requested the Presiding officer to

116

Md. Afzal Hossain Vs. Govt. of Bangladesh and others (Hasan Foez Siddique, J.)

recount the ballot papers and the same was improperly refused or was not done in accordance with law.

Before opening the election materials for recounting of ballot papers the Election Tribunal is to satisfy itself positively that those materials have been preserved by the proper authority in accordance with law and the same has also been found intact under proper seal and cover so that no reasonable suspicion can be raised by the interested candidate of any post election tampering with ballot papers or other relevant election materials.”

18. The secrecy of the ballot is sacrosanct and shall not be permitted to be violated lightly and merely for asking for on vague and indefinite allegations or averments of general nature. At the same time purity of election process has to be preserved and therefore inspection and recount shall be permitted but only a case being properly made out in that regard. A particular seeking inspection and recount of ballot papers must contain averments which are adequate, clear and specific making a case of improper acceptance or rejection of votes or non-compliance with statutory provision in counting.

Vage and general allegation that valid votes were improperly rejected, or invalid votes were improperly accepted would not serve the purpose. The election petitioner must produce transworthy material in support of the allegations made for a re-count enabling the Court to record a satisfaction of a prima-facie case having been made out for grant of the prayer. The court must come to the conclu-sion that it was necessary and imperative to grant the prayer for inspection to do full justice between the parties so as to completely and effectually adjudicate upon the dispute. The

2 LNJ (2013)

power to direct inspection and re-count shall not be exercised by the court to show indulgence to a petitioner who was indulging in a roving enquiry with a view to fish out materials in the hope that the recount if allowed may probably twist the balance of votes in his favour. Aforesaid views have been expressed by the Supreme Court of India in the case of V.S. Achuthanda Vs. P.J. Francis and another reported in AIR 2001 SC page 837. The object of giving particulars of corrupt practices is that the election petitioner should not be allowed to fish out some possible material at a subsequent stage and the other side should be aware of the case which he has to meet.

19. We have found that there were total 18 pulling stations to cast votes in the election. In election petition the respondent No.7, inter alia, stated : ÒGBi“c †e-AvBbx Kvh©¨w` Kwiqv mKj †K‡›`ªB nBqv _vwK‡j I wbg¥wjwLZ †fvU †K‡›`ª ¸‡jv‡Z we‡kl fv‡e D³i“c Ab¨vq I †e-AvBbx Kvh©vw` nBqv‡Q|Ó Accordingly he mentioned the names of 11 Polling Stations, that is, the respondent No.7 himself left his allegations against counting of votes in 7 Polling Stations.

Those are 1) Jhal-ukathi Government College, West Chandkathi, 2) Bekona Government Primary School, Bekona, 3) Jhalukathi Government Boys High School, 4) Kutubnagar Government Primary School, 5) Zilla Parishad Bhaban, Krishna-kathi, 6) Poura Adorshya Government Primary School and 7) Syadunnessa Government Primary school Polling Centres.

Leaving the allegation of improper counting in respect of those 7 Polling Centres, the respondent No.7 cannot demand recounting of votes of those Centres.

20. In the case of Abdul Latif Bepari Vs. Md. Nurul Islam Howlader reported in 20 BLD (AD) page 264 their Lordships of the Appellate

2 LNJ (2013)

Md. Afzal Hossain Vs. Govt. of Bangladesh and others (Hasan Foez Siddique, J.)

Division have observed that recounting is not to be granted as a matter of course. It is only to be allowed when the tribunal is satisfied on the basis of evidence before it that recounting is indispensably necessary for complete and effectual justice. Similar views have been expressed by their Lordships in the case Ansaruddin Ahmed Vs. Senior Assistant Judge and Election Tribunal reported in 14 BLD (AD) 77 observing that the Election Tribunal has power to order for recounting of the ballots when it finds that there exists a factual foundations for the same and it is necessary for a proper decision in the case. In the case in hand, the Election Tribunal has, inter alia, observed : ÒD³ gvgjvi ivq Abyaveb KiZt AÎ U«vBey¨bvj g‡b K‡ib †h, AÎ wbe©vPbx `iLv‡¯—cªv_x© c¶ mywbw`©ófv‡e SvjKvwV †cŠimfv wbe©Pv‡b 2011 Gi 18wU †fvU †K‡›`ª †gqi c‡` †fvU MYbvq KviPywc Kiv nBqv‡Q , cªv_x©i ÒRvnvR gvKv©Ó cªZx‡K cªvß †fvU evwZj †fv‡Ui mv‡_ Ges 1bs cªwZc‡¶i ÒAvbvimÓ cªZx‡Ki mwnZ wgjvBqv MYbv Kiv nBqv‡Q, wbe©vPbx Kv‡h© RwoZ miKvix Kg©KZ©vKg©Pvixi gva¨‡g †fvU RvwjqvwZ Kiv nBqv‡Q, Bmy¨K…Z e¨vjU †ccv‡i PvB‡Z †fvU MYbv Kv‡j e¨vjU †ccv‡ii msL¨v AwaK nBqv‡Q, 1bs cªwZc‡¶i cªvß †fv‡Ui PvB‡Z †ekx †fvU †`Lv‡bv nBqv‡Q g‡g© Awf‡hvM Avbqb Kwiqv Ges Zrg‡g© mv¶¨ cª`vb Kwiqv bvwjkx †cŠi wbe©vP‡b e¨vjU †ccvi, gywocÎ cwi`k©b Ges †gqi c‡` cª`Ë †fvU c~bt MYbvi wel‡q AÎ U«vBey¨bvj KZ…©K Av‡`k

cªPv‡ii h_vh_ Kwiqv‡Qb|Ó

wfwË

117

m„wó

Now, let us see whether the finding of the Tribunal to the effect: Ò†fvU c~Yt MYbvi wel‡q AÎ UªvBey¨bvj KZ…©K Av‡`k cªPv‡ii h_vh_ wfwË m„wó Kwiqv‡Qb|Ó is based on evidence and other materials on record or not. Earlier we have quoted the relevant portion of the election petition and the application for recounting of ballot papers.

Where the election petitioners seeks to prove charge purely partisan evidence consisting of his workers, agents, supporters and friends, the court would have to approach the evidence with great care and cautious scrutiny and circumspection. Now let us see the evidence of the respondent No.7, the election petitioner.

21. In support of his case the election petitioner examined 10 witnesses out of them witness No. 1 is the election petitioner himself.

In his evidence he, inter alia, said: Òwbe©vP‡b mwVKfv‡e †fvU MYbv Kiv nq bvB| ------ wbe©vP‡b e¨eüZ e¨vjK c~Yt MYbv Kiv nB‡j Avgvi `vex cªgvwbZ n‡e|Ó 22. Ptr. W. 2 Md. Monirul Islam son of the election petitioner Liakat Ali, who was the chief election agent. He brought allegation in respect of J.B.I. Ishanil Polling Centre. He, inter alia, said ,: Ò†fvU MYbv mwVK nq bvB Ges †fvUvi‡`i cª`Ë †fvU †gvZv‡eK djvdj cª¯—yZ nq bvB| Ó In cross examination he said , Òwbe©vP‡bi mgq Gm.wc. I i¨ve wQj| wbe©vP‡b Dchy³ msL¨K cywjk m`m¨ wQj| †Kvb †Kvb G‡R›U‡K †K›`ª n‡Z ‡ei K‡i †`Iqv n‡q‡Q Zv Rvwb bv| Ó

118

Md. Afzal Hossain Vs. Govt. of Bangladesh and others (Hasan Foez Siddique, J.)

Ptr. W. 3 Kochi Begum was a polling agent of the election petitioner at Syed Halima Moazzem Mir School Polling Centre. In her cross examination she said “MYbvKv‡j RvnvR gvK©vi e¨vjU †ekx wQj| wKš— RvnvR gvK©vi e¨vjU Ab¨ e¨vj‡Ui mv‡_ wgkv‡bv n‡j Avwg evav †`B| ZLb Avgv‡K †ei K‡i †`q|Ó In cross examination she has said, ÒAvwg †kl ch©š— wQjvg bv|Ó ---- Avwg 8.30 Uvq †fvU †K‡›`ª Xz‡KwQ| Abygvb 3.30 Uvq †ei n‡qwQ|Ó That is, before concluding the votes she left the polling centre.

Ptr. W.4 Morsheda Akter Ripa was polling agent of the election petitioner at City Kinder Garten Polling centre. In her evidence she said, ÒD³ †K‡›`ª mwVKfv‡e †fvU MYbv nq bvB| RvnvR gvK©vq me‡P‡q †ekx †fvU cvq|Ó In cross examination she saidÒAvgv‡K 3/3.30 Uvq †fvU †K›`ª †_‡K †ei K‡i w`‡q‡Q| ---- wjqvKZ Avjx ZvjyK`vi Avgv‡K mv¶¨ w`‡Z e‡j‡Q| Ó Ptr. W.5 Md. Jamal Hossain Howlader, in his cross examination, has said, “Avwg †fvU MYbvi mgq wQjvg bv| Ó Ptr.W. 6 Al-Masum was a polling agent of the election petitioner at Kutubnagar Primary School polling centre. In his evidence he has said “ cª_g MYbv mwVK PjwQj c‡i wVK nq bvB| -------XXX mZ¨ †h, KzZze bMi †K‡›`ª wjqvKZ ZvjyK`vi m‡eŸv©PP †fvU †c‡q‡Q|Ó It is to be mentioned here that the petitioner did not bring any specific allegation of improper counting of ballots of Kutubnagar primary School Polling Centre.

Ptr.W. 7 Enayet Hossain was agent of the election petitioner at Ishanil Polling centre. In his evidence he has said: ÒAvwg fq †c‡q

2 LNJ (2013)

`yBUvi mgq †K›`ª †_‡K P‡j hvB|Ó In his cross examination he said that : “ ----- KLb †fvU Mªnb ïi“ I †kl n‡q‡Q Zv Rvwb bv|Ó Ptr.W. 8 Md. Jamal Hossain was a polling agent of the election petitioner at Bikana Polling Centre. In his cross examination he said : “ KqUvq MYbv ïi“ I †kl n‡h‡Q Zv ej‡Z cvi‡ev bv| †fvU MYbvi †kl ch©š— wQjvg bv |Ó In election petition the respondent No.7 did not bring any specific allegation in respect of improper counting of ballots of Bikana Primary School Centre.

Ptr.W. 9 Md. Alamgir Hossain Khan was a polling agent of Abu Zahid at Kutubpur Primary School Polling Centre. In his evidence he has said, “Avwg †fvU MYbv Kv‡j †K‡›`ª _vK‡Z cvwi bvB|Ó There is no specific allegation in the petition in respect of improper counting of votes at Kutubnagar School Centre in election petition.

Ptr.W. 10 Md. Sohag Howlader supporter of the election petitioner and voter of Ward No. 3 of the Zilla Parishad Polling centre. In his cross examination he has said, “Avwg †fvU MYbvi mgq wQjvg bv| Ó He has said about Zilla Parishad Polling Centre but in election petition the respondent No.7 left the allegation of improper counting of said centre.

23. None of the witnesses deposed a single word regarding improper counting of votes in respect of rest 12 polling Centres. In absence of any evidence regarding improper counting votes it is difficult to accept the finding of the tribunal that the factual foundation for inspection and recounting has been established satisfactory. The evidence should be realistically

2 LNJ (2013)

Md. Afzal Hossain Vs. Govt. of Bangladesh and others (Hasan Foez Siddique, J.)

and pragmatically viewed avoiding mere doctrinaire approach.

24. It has been consistent practice of this court not to interfere with the findings on question of facts unless there is some grave or palpable error in the application of evidence on the basis of which the findings were arrived.

25. In the instant case the allegation in the election petition and application for recounting are vague and those do not contain adequate statements of the material facts. In the case of Ram Sewak Yadav and others Vs. Hussain Kamal Kedwai and others (AIR 1964 S.C.R. 239) Supreme Court of India held that an order for inspection would not be granted as a matter of course. That having regard to the insistence upon the secrecy of the ballot papers, the court would not be justified in granting an order for inspection only where the petition for setting aside an election contains an adequate statement of facts on which the petitioner relies in support of his case and it is necessary to decide the dispute and to do complete justice between the parties. An order for inspection of ballot papers would not be granted to support vague pleas made in the petition not reported by material facts or to fish out evidence to support such pleas. Mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection. In the case of Rajnarayon Vs. Indira Nehru Gandi reported in AIR 1972 S.C. 1302 it has been observed that an election petition shall set fourth full particulars of any corrupt practice that the petitioner alleges, including as full or statements as possible of the names of that parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice.

119

26. In the case of Suresh Prasad Yadav Vs. Jai Prakash Mishra and others reported in AIR 1975 S.C. 376 Indian Supreme Court further held: “The Court would be justified in ordering a recount of the ballot papers only where: (i) the election petition contains an adequate statement of all the materials facts on which the allegations of irregularity or illegality in counting are founded; (ii) On the basis of evidence adduced such allegation are prima-facie established, affo-rding a good for believing that there has been a mistake in counting; and (iii) That Court trying the petition is prima-facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.

27. In absence of any specification with regard to the ground on which the election of the respondent is being questioned together with summary of the circumstances alleged to justify the election being questioned on such ground. Court can safely ignore to take notice of allegation which is couched in vague and nebulous manner.

28. Mr. Aminul Hoque, the learned Counsel for the respondent No. 7 relied on the case of Dr. Mohiuddin Khan Alamgir Vs. Government of Bangladesh reported in 62 DLR (AD) 425.

In the cited case their Lordships have observed: “In the case of AFM Shah Alam Vs. Mujibul Huq reported in 41 DLR (AD) 68 it was held that in election matters the jurisdiction of the High Court Division cannot be invoked under Article 102 of the Constitution

120

Md. Afzal Hossain Vs. Govt. of Bangladesh and others (Hasan Foez Siddique, J.)

except on a very limited ground of total absence of jurisdiction (coram non-judice) or malice in law for the purpose of interfering with any step in the election process, like, in that case, acceptance of nomination paper. It the present case it is against rejection of nomination paper. No case of coram non-judice or malice in law has been made out so as to attract the jurisdiction of the High Court Division under Article 102 of the Constitution.

Whether the writ petition is maintainable against any step in the election process stands well settled in view of the decision reported in the case of AFM Shah Alam Vs. Mujibul Huq reported in 41 DLR (AD) 68, in the case of Mahmudul Hoque (Md.) Vs. Md. Hedayetullah reported in 48 DLR (AD) 128 and in the case of AKM Moyeedul Islam Vs Bangladesh Election Commission reported in 48 DLR (AD) 208. It is well settled that writ petition under Article 102 is not maintainable against any step in the process of election like acceptance or rejection of nomination paper of a candidate.�

29. We have no disagreement with the observation of their Lordships of the Appellate Division. In all those cases the dispute arose regarding acceptance or rejection of nomination paper. But in the instant case the allegation has been brought against the decision of the tribunal regarding recounting of the ballot papers. The issues decided by their Lordships in the cited cases and in the present case is distinguishable. The ratio decidendi of the cited cases has got any manner of application in the present case.

30. Prayer for recount in term of Rule 39 (2) of the Local Government (Municipality) Election Rules, 2010 was not made by or on

2 LNJ (2013)

behalf of any of the contesting candidates including the respondent No.7 before the Presiding Officer of any of Polling Station which they would ordinarily have made if there was any truth in the pleas canvassed by the respondent No.7 in his election petition and application for recounting.

31. On consideration of the pleading, application for recounting the ballot papers and evidence adduced by the respondent No.7 it appears to us that allegation of improper counting of ballot papers and charges of corrupt practice which are quashi criminal in nature have not been established in the instant case. The allegations brought by the respondent No.7 are not specific and clear rather those are indefinite and vague. The evidence adduced by the respondent No.7 are unreliable. No definite particulars have been given in the application for inspection as to the illegalities, irregularities or improper counting of votes. A recount will not be granted as a matter of right but only on the basis of evidence of good grounds for believing that there has been a mistake in counting. The reasons are that such an order affects the secrecy of ballots which is under the law is not to be lightly disturbed. The secrecy of ballot is sacrosanct and shall not be permitted to be violated and merely for asking or on vague and indefinite allegations or averments of general nature. Our view is that the averments made in the petition and the material brought on record by the respondent No.7 did not make out a case of recount. The allegations of irregularity or improper counting of ballots have not been pleaded adequately and specifically and the evidence adduced by the election petitioner regarding improper counting of ballots each of the Polling Centres are insufficient and the allegations are not at all proved. Both the Tribunals acted unlawfully in passing the order of inspection and recounting the ballot papers inasmuch as the respondent No.7 failed to establish the factual foundation of it by adducing sufficient evidence bringing specific allegation of

2 LNJ (2013)

Md. Afzal Hossain Vs. Govt. of Bangladesh and others (Hasan Foez Siddique, J.)

improper counting of each of the Polling Centres.

32. In view of the facts and circumstances of the case we find substance in the Rule.

In the result, the Rule is made absolute.

The judgment and order dated 29.11.2011 passed by the Appellate Tribunal, Jhalukathi in Election Appeal No. 06 of 2011 affirming the order dated 01.11.2011 passed by the Electron Tribunal. Jhalukathi in Election Case No. 05 of 2011 are hereby declared to have been made without lawful authority and are of no legal effect and both the orders are set aside.

Ed. HIGH COURT DIVISION (CRIMINAL APPELLATE JURISDICTION) Syed Md. Ziaul Karim, J. } Kazi Nasir Uddin Babul And } Ashish Ranjan Das, J. ...Convict-Appellant. }

Judgment 04.09.2012

} }

Vs. The State ...Respondents.

Arms Act (XI of 1878) Section 19A and 19 (f) Code of Criminal Procedure (V of 1998) Section 103 Evidence Act ( I of 1872) Section 134 When the FIR named and seizure list witnesses do not support the prosecution story of recovery of arms, it is unsafe to base conviction on the evidence of police personnel.

The evidence of police personnel regarding recovery of arms are contradictory when the evidence of seizure list witnesses like Pws. 4, 6 and 7 are consistent and corroborative. So,

Criminal Appeal No. 2871 of 2007.

121

the prosecution case itself is vulnerable to the credibility. When the court has to act on the solitary evidence of a police witness it calls for corroboration as a rule of prudence. Mere suspicion no conviction can be given. It is a case of no legal evidence.

When the FIR named and seizure list witnesses who were the care-taker, security guard and secretary of the well-fare society of the P.O. do not support the prosecution story of recovery of arms or ammunitions from the possession of the accused, it is unsafe to base conviction on the evidence of police personnels interested in the prosecution case ‌(35).

The evidence of Police personnels in respect of recovery of arms are not consistent and uniform, but it is contradictory with each other with all material particulars.

130

Muhammad Salahuddin and others Vs. The Bar Council and others, (Hasan Foez Siddique, J.)

2 LNJ (2013)

HIGH COURT DIVISION (SPECIAL ORIGINAL JURISDICTION)

from today and communicate the same to the respective polling station. The Chairman, Bar Council was directed to refix the date of Hasan Foez Siddique, J. } Muhammad holding election and the date of objection Salahuddin and And thereof. The Chairman, Bar Council was } others Md. Zahangir Hossain, J. further directed to take effective steps so that } ...Petitioners one voter cannot cast his vote twice.

Judgment } Vs.

20.05.2012

}

The Bar Council and others. ...Respondents.

General Clauses Act (X of 1897) Section 21 It is well accepted principle of legislation that whenever power is conferred on an authority to issue an order or notification that power would include power to amend, vary or rescind its orders subject to the like sanctions and conditions if any. Section 21 of the General Clauses Act embodies a rule of construction the nature and extend of the application of that rule is governed by the relevant provisions of the rules which confer power to issue notification and to fix dates. …(43).

Bangladesh Legal Practitioners and Bar Council Order (PO 98 of 1972) Article 8 The word ‘shall’ as used in Article 8 has to be considered as merely directory. The neglect of which does not affect the validity or involve any other consequence if the election is held within the shortest possible time after 31st May in order to run the affairs of the Bar Council by the elected body following democratic process. In such view of the matter, the High Court Division was pleased to direct the Bar Council to correct the voter list, if any error is detected within 10 days

Writ Petition No. 4546 of 2012.

….(45 and 46) Narendra Nath Nandi Vs. Amiya Chowdhury (1959) 63 CWN 216; Giriwar Prashad Vs. Dukhulal , AIR (1968) SC 90; M/S Rubber House Vs. M/S. E.N. Industries (Pvt.) Ltd., AIR 1989 (SC) 1160; Shah Mohammed Umair Vs. Ram Charan Singh, AIR 1954 (Patna) 225; Rani Drigroy Kuer Vs. Raja Sri Amar Narain Singh, AIR 1960 S.C. page 444; G.C. Patel – Vs- Agricultural Produce Market Committee, (1995) 2 S.C.C. page 482 & Ravi Kiran Jain Vs. Bar Council of Uttar Prashad, AIR 1974 (Allahabad) 211, ref.

Mr. M.I. Farooqui with Mr. A.J. Mohammad Ali & Ms. Nazneen Nahar, Advocates ---For the petitioner.

Mr. Abdul Baset Majumder with Mr. M. K. Rahman, Advocates ---For the respondents.

JUDGMENT Hasan Foez Siddique, J This Rule Nisi was issued calling upon the respondents to show cause as to why the declaration of the election schedule of the Bangladesh Bar Council under Memo No. BBC/Prosha/2012/680(81) dated 14.3.2012 read with memo No. wewewm/cªkvmb/2012 dated 12.4.2012 under the signature of the Chairman of the Bangladesh Bar Council and setting into

2 LNJ (2013) Muhammad Salahuddin and others Vs. The Bar Council and others, (Hasan Foez Siddique, J.)

motion the election process should not be declared to have been done without lawful authority and is of no legal effect and as to why a direction should not be given upon the respondents to prepare a correct consolidated voter list in accordance with the provisions of the Bangladesh Legal Practitioners and Bar Council Order, 1972 and the Bangladesh Legal Practitioners and Bar Council Rules, 1972.

2. The relevant facts, for the disposal of the Rule, in short, are that the Chairman of the Bangladesh Bar Council by a Circular dated 14.03.2012 declared the schedule of election to elect 14 members of the Bar Council under Article 8 of the Bangladesh Legal Practitioners and Bar Council Order, 1972 (hereinafter referred as P.O. No. 46 of 1972). The schedule was subsequently amended on 12.4.2012. The amended schedule was as follows : 1. Date of submission of nomination paper--- from 17.4.2012 to 19.04.2012.

2. Date of scrutiny ---- 26.04.2012.

3. Date of withdrawal of nomination paper ----- 29.04.2012.

4. Date of holding election--- 28.05.2012.

5. Date of filing objection ----within one month from the date of publication of the result.

6. Date of receiving objection by the Tribunal ---- 05.7.2012.

3. The petitioners, who are the voters, procured a voter list on 10.04.2012, which was published on 09.04.2012, and came to know that their names have been recorded in the voter list twice. On verification, it was discovered that in most the cases the name of each member has been recorded more than one place in the voter list. On searching, the petiti-

131

oners had been able to find out 500 cases whose names had been recorded in the voter list in more than one place. A chart showing the names of the Advocates registered as voters in more than one time has been given in the petition. It has further been stated that Article 10 of P.O. 46 of 1972 provides that the Bar Council shall admit persons as advocates on its roll, to hold examinations for purposes of admission and to remove advocates from such roll and also prepare and maintain roll of advocates. Article 20 provides that the Bar Council shall prepare and maintain a roll of advocates and Article 23 provides that for entries in the roll in order to seniority and Article 25 provides that the roll shall be made in the order of seniority. The roll of advocates prepare and maintain in accordance with the provisions of P.O. 46 of 1972 shall be the sole basis for holding the election of the Bar Council but on scrutiny of the list of voters published by the Bar Council on 09.04.2012 clearly shows ex facie that the same was merely assimilation of the members list obtained from various Bar Associations recognized by the Bar Council. Consequently, many advocates have been shown as voters twice or thrice. The voter list prepared by the Bar Council on the basis of the members list of different Bar Associations is illegal. It has further been stated that election is a formal decision making process and to elect means to choose or make a decision in a participatory and liberal democracy at all level, and in no way that can be allowed to be frustrated by an election of the national Bar Council on the basis of inflated and illegal voter list. Thus, the petitioners moved the application in this Court and obtained the present Rule.

4. The respondent Nos. 1, 2 and 4 entered appearance in the instant Rule.

132

Muhammad Salahuddin and others Vs. The Bar Council and others, (Hasan Foez Siddique, J.)

5. The respondent No. 3 filed an affidavitin-opposition contending, inter alia, that some names of the voters appeared in the list in more than one polling station and the reason that the lists which were sent by the different Bar Association had been printed by the Bar Council and prepared the voter list. This process has been continuing for a long time.

No one raised any objection. It has further been stated that in a special meeting held on 29.4.2012, the Bar Council took resolution to omit the names of the voters from one place of voter list whose names appeared in the voter list twice. The Bar Council has already made a correction of the names of the voters which was referred to and others. Some steps for holding the election have already been taken.

In such circumstances, the process of election should not be stopped as the learned Advocates are waiting to cast their voters.

6. The petitioners, by a supplementary affidavit dated 09.05.2012, further stated that the petitioners have been able to collect 52 names of the voters whose names have been recorded as voters in the voter list in more than one place. In affidavit-in-reply the petitioners further stated that the statement made in paragraph 4 of the affidavit-in-opposition that “the Bar Council will take all the precaution to see that double voting is checked and accordingly in the meantime instruction has been given to the respective presiding officers to that effect� exposes that instruction has replaced the law that requires a consolidated Roll of Advocates under Articles 5, 20, 232, 25 read with articles 2(d) (e) and (h) of P.O. 46 of 1972. It has further been stated that the law requires that the Bar Council shall publish such list of voters in accordance with Articles 5, 20, 23, 25 of the P.O.46 of 1972 at least 30 days before the polling. It has further been

2 LNJ (2013)

stated that the voter list has not been prepared in accordance with law and no option had been sought for from the Advocates of the roll for their enlistment in general seats or in group seats as defined under Article 5 read with Article 2(d) (e) of P.O. 46 of 1972.

7. Mr. M.I. Farooqui and Mr. A.J. Mohammad Ali, the learned Senior Advocate appeared for the petitioners.

8. Mr. M.I. Farooqui, the learned Senior Advocate appearing for the petitioners submits that the declaration of election schedule of Bar Council on the basis of inflated voter list in violation of law is unlawful. He submits that the defective voter list shows the malafide intention of some vested quarter just to facilitate election engineering is violation of law and the same being unethical is liable to be declared unlawful. He submits that mere assimilation of the members list obtained from various Bar Associations has made the voter list defective and on the basis of such defective voter list a free, fair and impartial election cannot be held.

9. Mr. Abdul Baset Majumder and Mr. M.K. Rahman, the Senior Advocates appeared for respondents No.1-3, Mr. Abdul Baset Majumder submits that getting notice about defect in the voter list the Bar Council took steps to correct the voter list. He submits that membership of the present members of the Bar Council shall be ceased at the end of 30th June of this year so election of Bar Council is required to be held before 30th June. He submits that the Bar Council has already taken steps to correct the voter list but in fact, it has become impossible to hold election within 31st May as per provision of Article 8 of the Order in view of the order of stay of this court so the Bar Council may be allowed sometimes to hold

2 LNJ (2013) Muhammad Salahuddin and others Vs. The Bar Council and others, (Hasan Foez Siddique, J.)

election refixing the date of polling after 31st May. He submits that the provision of Article 8 is not mandatory rather the same is directory in nature.

10. We have heard the learned Advocates for both the parties and perused the petition and other materials on record.

11. The Bar Council is a statutory body. As per provision of Article 4 of the P.O. 46 of 1972, the tenure of the elected members of the Bar Council is three years beginning on the first day of July following the General Election to the Bar Council and at the end of each term the members of the Bar Council shall cease to hold office. Article 5 provided that the Bar Council shall consist of 15 members of whom (a) one shall be the Attorney General for Bangladesh, ex officio; (b) seven shall be elected in the prescribed manner by the Advocates on the roll from amongst their members and (c) seven shall be elected by the Advocates who are members of the Local Bar Association included in each group under clause (2), from amongst themselves. Article 5(2) provides that for the purpose of subclause (c) of clause (i), the Bar Associations shall be divided by the Government, by notification in the official Gazette, into seven groups. Article 8 provides that elections to the Bar Council shall always be held so as to conclude on or before the thirty first day of May, in the year in which the term of the Bar Council expires.

12. Article 9 provides that no election of a member to the Bar Council shall be called in question on the ground merely that due notice thereof has not been given to ay person entitled to vote thereat, if notice of the date has, not less than thirty days before that date, been published in the official Gazette.

133

13. Article 18 provides that no suit or other legal proceeding shall lie against the Bar Council or any Tribunal, Committee, Officer, or servant of the Bar Council for any act in good faith done or intended to be done in pursuance of the provisions of this Order or rules made thereunder.

14. In exercise of the powers conferred by clause (3) of Article 40 of P.O. 46 of 1972, the Government made Rules, namely, the Bangladesh Legal Practitioners and Bar Council Rules, 1972 (hereinafter referred as Rules) wherein the procedures of holding election of the Bar Council have been specifically provided.

15. Rule 3 of the said Rules provides that the Chairman shall (at least 45 days before the election of the Bar Council), publish a programme of the election of members of the Bar Council in the official Gazette.

16. Rule 11 (1) provides that the Bar Council shall publish a list of voters showing at which polling station a particular voter shall cast his vote at least thirty days before the polling.

Provided that the Bar Council shall have power to add to the list till the polling Provided further that no person shall be entitled to vote if he ceases to be an Advocate before the poll.

17. Rule 11 sub-rule (2) provides that all voters shall cast their votes at the polling stations indicated in the list except persons appointed as polling agents who shall be entitled to cast their votes at the polling station for which they have been appointed. A candidate can cast his vote at any polling station.

134

Muhammad Salahuddin and others Vs. The Bar Council and others, (Hasan Foez Siddique, J.)

18. Rule 12 provides that voting shall take place generally under the direction, control, and supervision of the Chairman at such hours as the Chairman may direct on the date or dates already fixed for voting in the programme, but the Chairman may, for sufficient reasons, direct that the voting may continue after the date or dates fixed. Directions given by the Chairman shall be put up on the notice board of the Bar Council, and a copy thereof shall be sent to the Presidents of all the Bar Associations recognized under rule 67 for being posted at the notice boards of the Associations.

19. Grievance of the petitioners, who are the learned Advocates and the voters is that their names have been recorded in the voter list more than one place and on verification they found that names of few hundred advocates have been registered in the voter list more than one place and according to them the vote cannot be held on the basis of such inflated and incorrect voter list. In the petition the petitioners have made a statement mentioning the names of 690 persons and in the supplementary affidavit they have also given the names of 51 persons whose names appeared in the voter list more than one place.

It has been stated in the petition that the Bar Council assimilated the members list obtained from the different Bar Association recognized by the Bar Council and as a result many advocates have been shown as voters twice or thrice. It is the case of the petitioners that such voter list made on the basis of the members list of different Bar Association is illegal and void.

20. The respondent No. 3 in his affidavit-inopposition admitted that some names of the voters appeared in voter list more than one polling station and the reasons of such appearance are that the list of the members of the Bar Associations which were sent by the

2 LNJ (2013)

respective Bar Association had been printed by the Bar Council and published as voter list. It has further been stated that such process had been continuing since long and no one raised any objection. Since some Advocates got their names enlisted in different Bar Association their names appeared in the voter list in more than one polling station.

21. Mr. M.I. Farooqui, the learned Advocate for the petitioners submits that it was the duty of the Bar Council to maintain a roll of the Advocates as per provision of Article 20 of P.O.46 of 1972 which provides that the Bar Council shall prepare and maintain a roll of advocates in which shall be entered the names of – (a) all persons who were, as advocates, entitled to practice in the High Court or in any court subordinate to the High Court immediately before the commencement of this order; (b) all persons who are admitted as advocates under the provisions of this Order and the same should be prepared in the order of seniority as provided under Article 23 of the Order.

22. He submits that the voter list should be prepared and published on the basis of the said roll and it is the duty of the Bar Council alone to prepare the same but the Bar Council has failed to perform its duty in accordance with Article 20.

23. Mr. A. J. Mohammad Ali, the learned Senior Council supported the submission of Mr. M.I. Farooqui.

24. “Roll� has been defined in Article 2(h) of P.O. 46 of 1972 which means the roll of Advocates prepared and maintained by the Bar

2 LNJ (2013) Muhammad Salahuddin and others Vs. The Bar Council and others, (Hasan Foez Siddique, J.)

Council. In view of the definition of roll and the provisions of Articles 20 and 23 of P.O. 46 of 1972 the submission of Mr. Farooqui is correct in respect of preparation and maintenance of roll of Advocates. But in respect of voter list his submission is not acceptable because the voter list has been defined in Rule 2(h) of the Rules which provides that voter means an Advocate whose name for the time being appears in the roll and who is a member of Bar Association. The voter includes Advocates who have been granted certificate of enrollment under Rule 73A of Chapter VI. 25. That is, in order to be a voter one must enroll his name in the roll of Bar Council and he also must be a member of Bar Association.

26. Rule 66(1) provides that no person shall practice as an Advocate unless he is a member of a Bar Association of the place at which he ordinarily practices, which Association has been recognized under the rules next following.

27. Sub-rule (2) provides that the certificate of enrolment of a person who has not become a member of a Bar Association within six months of his enrolment shall stand automatically suspended.

28. The aforesaid provisions clearly indicate that in order to prepare a voter list the roll of Bar Council and the members list sent by the Bar Association should be examined and thereafter the Bar Council shall prepare the voter list. That is, in order to prepare voter list help of the Bar Association is very much necessary to ascertain whether any person enrolled as Advocate is a member of any association or not.

29. The respondent No. 3 in his affidavit-inopposition stated that the Bar Council has already taken steps to correct the voter list.

They have adopted a resolution and prepared a list correcting the names of some voters (Annexure-I to the supplementary affidavit).

135

30. Mr. M.K. Rahman, the learned Advocate appearing on behalf of the respondent No. 1-3 submits that the preparation of voter list of the Bar Council is a continuous process and the Bar Council will take positive step to make the voter list corrected in order to hold free, fair and impartial election.

31. In view of the correction of the voter list it appears to us that the dispute between the parties has been reduced at a tolerable stage. It will be more acceptable if Bar Council is allowed sometime to get the voter list corrected if any error is detected. In the supplementary affidavit filed by the petitioners they mentioned the names of 51 persons whose names appeared in the voter list more than one place.

32. Both the parties demand a free, fair and impartial election which should be held in accordance with law. It is our pious wish and belief that learned Advocates, who demands highest respect from all corners of the people and Nation is confident about their honesty and integrity, would try to cast their votes twice in one poll. But it is the duty of the Bar Council to make every obstruction on the way of casting votes twice. Rule 12 of the Rules has given wide power to the Chairman of the Bar Council to take every steps so that a free, fair and impartial election can be held.

33. Mr. Abdul Baset Majumder, submits that the provision of holding election within 31st May as provided Article 8 of P.O. 46 of 1972 is not mandatory rather the same is directory in nature. Due to the order of stay of the Court, the process of Election has been stopped and it has become impossible to hold election by 31st May. There will be a total deadlock situation to run the functions of Bar Council if the election is not held by 30th June. So some time is required to be allowed to hold election condoning the delay.

136

Muhammad Salahuddin and others Vs. The Bar Council and others, (Hasan Foez Siddique, J.)

34. In view of the submission of Mr. Majumder the provision of Article 8 is required to be interpreted to ascertain whether the said provision is mandatory or directory in nature.

The said provision runs as follows: “Elections to the Bar Council shall always be held so as to conclude on or before the thirty first day of May, in the year in which the term of the Bar Council expires.”

35. The word “shall” as used in the said provision in its ordinary signification is mandatory though there may be considerations which may influence the court to hold that the intention of the legislature is to give a discretion.

36. In determination of the question whether a provision of law is directory or mandatory, the prime object must be to ascertain the legislative intent from a consideration of the entire statute, its nature, its object and the consequences that would result from construing it in one way or the other in connection with other related statutes and the determination does not depend on the form of the statute. The mandatory language of an enactment by itself affords no justification for the conclusion that its provision are always imperative and in the sense that any act done in violation will be invalid. The legislative mandate must be considered as mandatory not merely because of the language employed therefor. But also in view of the purpose behind the provision in question. We find the above views in the case of Narendra Nath Nandi Vs. Amiya Chowdhury reported in (1959) 63 CWN 216.

37. In the case of Giriwar Prashad Vs. Dukhulal reported in AIR (1968) SC 90, it has held by the Supreme Court of India: “The mere use of the word ‘shall’ is not finally determinative of a particular direction in a law being mandatory and

2 LNJ (2013)

there have been occasion where the direction given by the legislature is only meant to be directory.”

38. In the case of M/S Rubber House Vs. M/S. E.N. Industries (Pvt.) Ltd. reported in AIR 1989 (SC) 1160, the Indian Supreme Court further held: “the word “shall” in its ordinary import is obligatory but that connotation used not be given in each and every case. The provisions can be interpreted as directory depending the purpose which the legislature intended to achieve.”

39. In the case of Shah Mohammed Umair Vs. Ram Charan Singh reported in AIR 1954 (Patna) 225, it has been held : “The mere use of the word “shall” does not necessarily make the provision imperative; The nature of the provision must depend upon the context and the collocation in which the word ‘shall’ is used and must be gathered from the intention of the legislature from the four corners of the Act itself. The mere use of the word ‘shall’ torn from the context can not make the provision of the section wherein the word is used obligatory and imperative.”

40. In the case of Rani Drigroy Kuer Vs. Raja Sri Amar Narain Singh reported in AIR 1960 S.C. page 444 Supreme Court of India also observed that the use of the word “shall” is not conclusion of the question whether the provision is mandatory. The same may be construed to mean “ may” when no right or benefit to any one depends on its imperative use; when no advantage is lost, when no right is destroyed, when no benefit is sacrificed, either to the public or to any individual by giving it that construction; or when it is absolutely necessary to prevent irreparable mischief. (P Ramanatha Aiyar’s Law Laxiscon -1997 Edition ) In the Case of G.C. Patel –Vs- Agricultural Produce Market