Act/Law wise: Judgment of Supreme Court of Bangladesh

ALL A B C D E F G H I J K L M N O P Q R S T U V W X Y Z



International Crimes (Tribunals) Act (XIX of 1973)
Section/Order/Article/Rule/Regulation Head Note
Section 3(2)

Cognizance of the offence–
The Tribunal then took cognizance of the offence under Section 3(2) of the Act. On 3rd October 2011, and then framed as many as 20 charges engaging Sections 3(2) (a), 3(2) (C1), (g) and (h) of the Act, all of which, read with Section 3(1), are punishable under Section 20(2) of the Act. During arraignment, as the documents reveal, the charges were read over to the accused, and his pleaded “not guilty”. (Para-591); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 76] ....View Full Judgment

Section- 3(2)(a)(g)(h)/ 4(1) and 4(2)/ 20(2)

14 charges have been framed on the suggestion of the prosecutors. In twelve charges, the accused appellant has been arraigned for ‘abetting and facilitating’ the commission of offences of abduction, confinement and torture and in two other charges, he has been arraigned to have tortured to death as crimes against humanity specified in Section 3(2)(a)(g)(h) of the International Crimes Tribunal Act of 1973, which are punishable under Section 20(2) of the Act. He was also charged under Section 4(1) and 4(2) of the Act. (Para-207); .....Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka, (Criminal), 2017 (1)- [2 LM (AD) 364] ....View Full Judgment

Sections 3(2)(a)(g), (h) & 20 (2) read with 3 (1)

Charges (Abdul Quader Mollah case)– The charges as framed are reproduced below verbatim;
Charge-01: that during the period of War of Liberation in 1971, one Pallab, a student of Bangla College was one of the organizers of War of Liberation. For such reason anti-liberation people, in order to execute their plan and to eliminate the freedom loving people, went to Nababpur from where they apprehended Pallab and forcibly brought him to you at Mirpur section 12 and then on your order, your accomplices dragged Pallab there from to Shah Ali Majar at section 1 and he was then dragged again to Idgah ground at section 12 where he was kept hanging with a tree and on 05 April 1971, on your order, your notorious accomplice Akhter, Al-Badar, killed him by gunshot and his dead body was buried, by the side of ‘Kalapani Jheel’ along with dead bodies of 07 others.
Therefore, you accused Abdul Quader Molla, in the capacity of one of prominent leaders of Islami Chatra Sangha as well as significant member of Al-Badar or member of group of individuals are being charged for participating and substantially facilitating and contributing to the commission of the above criminal acts, in concert with Al-Badar members, causing murder of Pallab, a non-combatant civilian which is an offence of murder as crime against humanity and for complicity to commit such crime as specified in section 3(2)(a)(h) of the International Crimes (Tribunals) Act, 1973 which are punishable under section 20 (2) read with section 3 (1) of the Act.
Charge-02: that during the period of War of Liberation, on 27 March 1971, at any time, you, one of the leaders of Islami Chatra Sangha as well as a prominent member of Al-Badar and as a member of a group of individuals, being accompanied by your accomplices, with common intention, brutally murdered the pro-liberation poet Meherun Nesa, her mother and two brothers when they had been in their house located at Section 6, Mirpur, Dhaka. One of the survived inmates named Seraj became mentally imbalanced on witnessing the horrific incident of those murders. The allegation, as transpired, indicates that you actively participated and substantially facilitated and contributed to the attack upon unarmed poet Meherun Nesa, her mother and two brothers causing commission of their brutal murder.
Therefore, you, in the capacity of one of the leaders of Islami Chatra Sangha as well as a prominent member of Al-Badar or a member of a group of individuals, are being charged for participating and substantially facilitating and contributing to the commission of the above criminal acts causing murder of civilians which is an offence of ‘murder as crime against humanity’ and for ‘complicity to commit such crime’ as specified in section 3(2)(a)(h) of the International Crimes (Tribunals) Act, 1973 which are punishable under section 20(2) read with section 3(1) of the Act.
Charge-03: that during the period of War of Liberation, on 29.03.1971 in between 04:00 to 04:30 evening, victim Khondoker Abu Taleb was coming from Arambag to see the condition of his house located at section-10, Block-B, Road-2, Plot-13, Mirpur, Dhaka but he found it burnt into ashes and then on the way of his return to Arambag he arrived at Mirpur-10 Bus Stoppage wherefrom you, one of the leaders of Islami Chatra Sangha as well as potential member of Al- Badar, being accompanied by other members of Al-Badars, Razakars, accomplices and non-Bengalees apprehended him, tied him up by a rope and brought him to the place known as ‘Mirpur Jallad Khana Pump House’ and slaughtered him to death. The allegation, as transpired, sufficiently indicates that you actively participated, facilitated and substantially contributed to the execution of the attack upon the victim, an unarmed civilian, causing commission of his horrific murder.
Therefore, you, in the capacity of one of the leaders of Islami Chatra Sangha as well as potential member of Al-Badar or member of a group of individuals are being charged for participating, facilitating and substantially contributing to the commission of the above criminal acts causing murder of a civilian which is an offence of ‘murder as crime against humanity’ or in the alternative ‘complicity to commit such crime’ as specified in section 3(2) (a) (h) of the International Crimes (Tribunals) Act, 1973 which are punishable under under section 20(2) read with section 3(1) of the Act.
Charge-04: that during the period of War of Liberation, on 25.11.1971 at about 07:30 am to 11:00 am you along with your 60-70 accomplices belonging to Rajaker Bahini went to village Khanbari and Ghatar Char (Shaheed Nagar) under police station Keraniganj, Dhaka and in concert with your accomplices, in execution of your plan, 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 broadday light.
Thereafter, you along with your 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 villagers including (1) Mozammel Haque (2) Nabi Hossain Bulu (3) Nasir Uddin (4) Aswini Mondol (5) Brindabon Mondol (6) Hari Nanda Mondol (7) Rentosh Mondol Zuddin (8) Habibur Rahman (9) Abdur Rashid (10) Miaz Uddin (11) Dhoni Matbor (12) Brindabon Mridha (13) Sontosh Mondol (14) Bitambor Mondol (15) Nilambor Mondor (16) Laxzman Mistri (17) Surja Kamar (18) Amar Chand (19) Curu Das (20) Panchananon Nanda (21) Giribala (22) Maran Dasi (23) Darbesh Ali and (24) Aroj Ali. The allegation, as transpired, sufficiently indicates that you actively participated, facilitated, aided and substantially contributed to cause murder of two unarmed freedom fighters and the attack was directed upon the unarmed civilians, causing commission of their horrific murder.
Therefore, you, in the capacity of one of the leaders of Islami Chatra Sangha as well as a prominent member of Al-Badar or a member of group of individuals are being charged for accompanying the perpetrators to the crime scene and also aiding and substantially facilitating the co-perpetrators in launching the planned attack directing towards the non-combatant civilians that resulted to large scale killing of hundreds of civilians including 24 persons named above and also to cause brutal murder of two freedom fighters and as such you have committed the offence of ‘murder as crime against humanity’, ‘aiding and abetting the commission of murder as crime against humanity’ or in the alternative for ‘complicity in committing such offence’ 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.
Charge-05: that during the period of War of Liberation, on 24.04.1971 at about 04:30 am, the members of Pakistan armed forces landing from helicopter moved to the western side of village Alubdi near Turag river and about 50 non-Banglaees, Rajakers and members of Pakistani armed force under your leadership and guidance also came forward from the eastern side of the village and then you all, with common intention and in execution of a plan, collectively raided the village Alubdi (Pallobi, Mirpur) and suddenly launched the attack on civilians and unarmed village dwellers and opened indiscriminate gun firing that caused mass killing of 344 civilians including (1) Basu Mia son of late Jonab Ali (2) Zahirul Mollah (3) Jerat Ali (4) Fuad Ali (5) Sukur Mia (6) Awal Molla son of late Salim Mollah (7) Sole Molla son of late Digaj Mollah (8) Rustam Ali Bepari (9) Karim Bisu Molla (10) Joinal Molla (11) Kashem Molla (12) Badar Uddin (13) Bisu Molla (14) Ajal Haque (15) Fajal Haque (16) Rahman Bepari (17) Nabi Mollah (18) Almat Mia (19) Moklesur Rahman (20) Fulchan (21) Nawab Mia (22) Yasin Vanu (23) Lalu Chan Bepari (24) Sunu Mia constituting the offence of their murder. The allegation, as transpired, sufficiently indicates that you actively participated, facilitated,aided and substantially contributed to the attack directed upon the unarmed civilians, causing commission of the mass murder.
Therefore, you, in the capacity of one of the leaders of Islami Chatra Sangha as well as prominent member of Al-Badar or member of a group of individuals are being charged for accompanying the perpetrators to the crime scene and also aiding the Pak army and coperpetrators in launching the attack that substantially contributed to the execution of the planned attack directing towards hundreds of non-combatant civilians that resulted to their death and as such you have committed the offence of ‘murder as ‘crime against humanity’, ‘aiding and abetting to the commission of such offences’ or in the alternative, ‘complicity in committing such offence 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.
Charge-06: that during the period of War of Liberation, on 26.03.1971 at about 06:00 p.m you being accompanied by some biharis and Pakistani army went to the house being house number 21, Kalapani Lane No. 5 at Mirpur Section-12 belonging to one Hajrat Ali and entering inside the house forcibly, with intent to kill Bangalee civilians, your accomplices under your leadership and on your 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 your 12 accomplices committed gang rape upon a minor, Amela aged 11 years, but another minor daughter Momena who somehow managed to hide herself in the crime room, on seeing of the atrocious acts, eventually escaped herself from the clutches of the perpetrators. The atrocious allegation, as transpired, sufficiently indicates that you actively participated, facilitated, aided and substantially contributed to the attack directed upon the unarmed civilians, causing commission of the horrific murders and rape.
Therefore, you, in the capacity of one of the leaders of Islami Chatra Sangha as well as a prominent member of Al-Badar or a member of group of individuals are being charged for accompanying the perpetrators to the crime scene and also aiding, abetting, ordering the accomplices in launching the planned attack directing againt the non-combatant civilians that substantially contributed to the commission of offence of ‘murder as crime against humanity’, ‘rape as crime against humanity’, ‘aiding and abetting the commission of such crimes’ and also for ‘complicity to committing such offence’ 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.
Thus, the above charges sufficiently indicate that you have committed the offences under section 3(2)(a)(g) and (h) which are punishable under section 20(2) read with section 3(1) of the Act.
The aforesaid charges of crimes against humanity, abetting and aiding to commit such crimes and also complicity to the commission of such crimes described under section 3(2)(a)(g) and (h) of the Act are punishable under the provisions of section 20(2) read with section 3(1) of the Act which are within the cognizance and jurisdiction of this Tribunal. And we hereby direct you to be tried by this Tribunal on the said charges. You have heard and understood the aforesaid chages.
The Tribunal during arraignment intimated the Appellant of the charges by reading the same and the Appellant pleaded not guilty.
On 4th June 2012 the appellant submitted a prayer before the Tribunal seeking review of the charge framing order. After hearing both the sides the Tribunal allowed permeation of the following passages into the charge as originally framed, “or in the alternative” in substitution of the originally inserted phrases “and also for”, before the words “complicity to commit such offence”. The Appellant submitted a big list of people who he proposed to call as D.Ws.
At the conclusion of the opening speech the prosecution examined some twelve witnesses, inclusive of the two investigating officers and adduced 4 exhibits.
As the Tribunal limited the number of defence witnesses to six (6), as almost all were to depose as alibi witnesses, the Appellant’s side examined defence witnesses of that numerical.
As the trial process came to a close on 13th December 2012 with the conclusion of submissions of the respective parties, preceded by the examination and cross-examination of the prosecution and defence witnesses, the judgment was kept reserved and was, eventually, pronounced on 5th February 2013, proclaiming the Appellant guilty of charges no. 1, 2, 3, 5 and 6 for the offences of “Crimes against Humanity” as stipulated in various sub-sections of Section 3(2) of the Act. The Appellant was sentenced to suffer imprisonment for life for the offences under Charges nos. 5 and 6 and imprisonment for fifteen(15) years for the offences under charges 1, 2 and 3 by a comprehensive and “no stone untouched” Judgment.
On charge no 4, the Tribunal held that the prosecution failed to prove the allegations the said charge was structured on and acquitted the Appellant of that charge.
On this charge the Tribunals’ findings on facts was actuated by its refusal to place reliance on the testimony of prosecution witnesses. According to the Tribunal, they were devoid of credence.
Generally, the Tribunal dissected the prosecution as well as defence witnesses with such precision, astuteness and sedulousness as are expected of a tribunal capable of being equated with world class ones.
Save adverse findings on the veracity of the testimony of P.Ws 7 and 8 in charge no 4, the Tribunal came up with no derogatory observation on the demeanor of other prosecution witnesses, implying them to have been truthful. (A. H. M. Shamsuddin Choudhury, J) …Government of Bangladesh =VS= Abdul Quader Molla, (Criminal), 2020 (1) [8 LM (AD) 375] ....View Full Judgment

Section 3(2)(a)(g), (h) and section 20 (2)

VERDICT ON CONVICTION (Abdul Quader Mollah case)– For the reasons set out in this Judgement and having considered all evidence, materials 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 QuaderMolla
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. (A. H. M. Shamsuddin Choudhury, J) …Government of Bangladesh =VS= Abdul Quader Molla, (Criminal), 2020 (1) [8 LM (AD) 375] ....View Full Judgment

Section 3(2), 20(2), 20(3)

read with
The Rules of Procedure, 2012
Rule 46(2)
ORDERED (Abdul Quader Mollah case)– 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 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 no s . 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 there of.
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 for thwith from the date of this judgment as required under Rule 46(2) of the Rules of Procedure, 2012(ROP) of the Tribunal- 2 (ICT-2) 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. (A. H. M. Shamsuddin Choudhury, J) …Government of Bangladesh =VS= Abdul Quader Molla, (Criminal), 2020 (1) [8 LM (AD) 375] ....View Full Judgment

Section 3(2)(a)

Judicial Notice– In Bagosora et al, matters of common knowledge were described as “facts which are not subject to dispute among reasonable persons, including common or universally known facts such as historical facts, generally known geographical facts and the cause of nature, or facts that are generally known within the area of the Tribunal’s territorial jurisdiction” as well as “facts which are readily verifiable by reference to a reliable and authoritative source.”(Prosecutor Vs Bagosora etal, Prosecutor Vs Ndindliy Imaua et al)
It was held in Prosecutor Vs Karemera et el that Judicial Notice of facts of common knowledge should not be refused on the ground they constitute legal conclusions or elements of the charged offence. (Archbold Page- 779)
In the case of Prosecutor-vs-Karemera et al it was also held that “Judicial Notice can, be taken of the acts and conduct of persons allegedly under the responsibility of the accused, such as alleged subordinates, alleged members of a joint criminal enterprise, and persons the accused is alleged to have aided and abetted, as well as facts related to the existence of a joint criminal enterprise (Prosecutor-vs-Karemera et al) Archbold-Page-784.
Mr. Razzak submits that the prosecution was tied with the onus to prove that the alleged offences were directed against civilian population but had failed to discharge that onus.
While it is clear from the text in Section 3(2)(a) of the Act that to constitute actus reus of the offence, murder, rape etc victims must be “civilian population,” evidences adduced in respect of all of the six charges, proved that the victims of murder and rape were part of civilian population.
The phrase civilian population is not a term of art, nor a delicate legal jargon. These two words are very simple, which attract no complication and their meaning can very easily be ascertained by reference to any credible English dictionary, including Oxford Dictionary, according to which “civilian” means a person, not in the armed services or the police force. According to the decisions of the UN created crime tribunals, to qualify as civilian population, they must be non-combatant. The evidence adduced clearly established that all the victims were non-combatant. We rely on the ordinary dictionary meaning cannon of interpretation.
The Trial Chamber of ICT-Y held in Prosecutor-v-Tadic (Judgment 7th may 1997) that the requirement that the acts must be directed at a civilian population does not mean that the entire population of a state or territory must be subjected to attack, adding that “the emphasis is not on the individual victim but on the collective”.
Archbold’s International Criminal Courts, Practice, Procedure and Evidence. 3rd Edition, states, by reference to the ratio expressed in decided cases, “It is, however, not required that every act be directed against a collective of civilians, provided that the act formed part of widespread or systematic attack against a civilian population. “(Page 1046)
The Appeal Chamber of ICTR in Prosecutor-v-Nahiman at el, popularly dubbed as medicase (28th November 2007), held save for extermination, “a crime need not be carried out against a multiplicity of victims in order to constitute a crime against humanity. Thus an act directed against a limited number of victims, or against a single victim, can constitute a crime against humanity, provided it forms part of a widespread or systematic attack against a civilian population.”
In the instant case there are ample evidence to support the allegation that the Appellant’s acts formed part of widespread attack. Evidence prove beyond doubt that the Appellant’s acts, as the Tribunal below held, were not isolated ones, but part of a wide spread plan to thwart the Liberation War.
Archbold, with reference to Vukovor Hospital Decision, states, “It is not required that each act which occurs within the attack be widespread or systematic, provided that the acts form part of an attack with these characteristic.” (Page 1048)
With reference to Prosecutor-v-Tadic, Prosecutor-v-Kunarac et al Appeal Chamber 12th June 2002, Prosecutor-v-Blaskic Appeal Chambers, 29th July 2004, Archbold expresses as follows;
“In other words, if some murders, some rapes, and some beatings take place, each form of conduct need not be widespread or systematic, if together the fact satisfy either of these, conditions. The individual action themselves need not be widespread or systematic, provided that they form part of such an attack. The commission of a single act, such as one murder, in the context of a broader campaign against the civilian population, can constitute a crime against humanity (see, Judic Judgment, para- 649). “Clearly, a single act by a perpetrator taken within the context of a widespread or systematic attack against a civilian population entails individual criminal responsibility and one individual perpetrator need not commit numerous offences to be held liable.” The Blaskic Appeal Judgement para, 101, emphasised “that the acts of the accused need only be a part of this attack, and all other conditions being met, a single or limited number of acts on his or her part would qualify as a crime against humanity, unless those acts may be said to be is dated or random”. Also see, Vukovar Hospital Decision, Para 30, and Prosecutor Vs Brima et al. Jail Judgment, June 20.2007). (A. H. M. Shamsuddin Choudhury, J) …Government of Bangladesh =VS= Abdul Quader Molla, (Criminal), 2020 (1) [8 LM (AD) 375] ....View Full Judgment

Sections 3 (2)(a)(c)(g)and (h), 4(1)

International Crimes Tribunals Act, 1973
Sections 3 (2)(a)(c)(g)and (h), 4(1)
The Evidence Act, 1872
Section 133
Criminal liability– In order to incur criminal liability in a case of crime against humanity, the accused himself need not participate in all aspects of the criminal conduct. (Majority view), (Per Mr. Justice Syed Mahmud Hossain, CJ). ...A.T.M. Azharul Islam =VS= Chief Prosecutor, ICT, Bangladesh, (Criminal), 2020 [9 LM (AD) 593] ....View Full Judgment

Sections 3(2)(a)/4(1) and 3(2)(a)(h)

In considering the evidence of PWs 1, 9 and 15 in respect of this charge, we must also take into consideration the occurrences which allegedly took place at Sherpur Town under Sherpur Police Station and at village-Sohagpur under Nalitabari Police Station both under Sherpur District as listed in charge Nos.2, 3 and 4. PW2 figured as a key witness in respect of those 3(three) charges and, in fact, the prosecution has projected him as all knowing person and the Tribunal relied heavily upon his testimonies that he was an Al-Badar and also a guard at the Al-Badars’ camp at Suren Saha’s house, but this PW never said in his testimonies either in examination-in-chief or in crossexamination that the accused ever left Sherpur and went to Mymensingh. Not only that, PW2 in his statement made before the Investigation Officer clearly stated that “L¡j¡l¦‹¡j¡e ®L¡e ¢ce pL¡®m, ®L¡e ¢ce c¤f¤®l Bh¡l ®L¡e ¢ce påÉ¡l f®l Bpaz” if that be so, how the accused could be a prominent Al-Badar leader at the Al-Badars’ camp at the Dak Banglow of Zila Parishad, Mymensingh and how PWs 1, 9 and 15 could see him there and how he could be connected with the alleged occurrences or the activities of Al-Badars at the Al-Badars’ camp at the Dak Banglow of Mymensingh Zila Parishad; which witnesses of the prosecution side are to be believed, PW2 or PWs1, 9 and 15, but it appears that the Tribunal did not at all consider this broad factual aspect of the case in believing the testimonies of PWs 1, 9 and 15 in coming to the finding of guilt against the accused of this charge. For the discussions made above, my considered view is that the prosecution failed to prove the allegations made in this charge against the accused beyond reasonable doubt and he is found not guilty of this charge and accordingly, he is acquitted of the charge.
In the result, the appeal is allowed in part. The appellant is found not guilty of the charges listed in charge Nos.1, 2, 4 and 7 and accordingly, he is acquitted of these charges.
The appellant is found guilty under sections 3(2)(a)/4(1) of the Act, 1973 of charge No.3 instead of section 3(2)(a)(h) thereof as found by the Tribunal and he is sentenced to suffer imprisonment for life instead of sentence of death as awarded by the Tribunal. (Md. Abdul Wahhab Miah, J) …Muhammad Kamaruzzaman =VS= The Chief Prosecutor, ICT, Dhaka, (Criminal), 2019 (2) [7 LM (AD) 375] ....View Full Judgment

Section 4(1)

International Crimes Tribunals Act, 1973
Section 4(1) read with
The Penal Code, 1860
Section 34
A plain reading of section 4(1) of the Act, 1973 suggests that for commission of any offence by more than one person will be deemed that each of such person is liable for the offence. This section 4(1) and section 34 of the Penal Code are cognate in nature. Where a criminal offence is committed by several persons in furtherance of common intention of all, each of such person is liable for that offence in the same manner as if it were done by him alone. (Para-201); .....Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka, (Criminal), 2017 (1)- [2 LM (AD) 364] ....View Full Judgment

Section 4(2)

A superior may be liable for the crimes committed by his subordinates–
We have found that accused Motiur Rahman Nizami was ex-officio leader of Al-Badr Bahini and he had effective control over the members of Al-Badr Bahini. It has been argued from the side of the appellant that after 30th September, 1971 the accused was no more president of All Pakistan Islami Chhatra Shanghha and as such it cannot be held that the appellant was ex-officio leader of Al-Badr Bahini and had effective control over the members of this Bahini after 30th September, 1971. We have already considered this argument of the learned Advocate for the appellant and found that the appellant retained his leadership and control over the members of Al-Badr Bahini after 30th September, 1971 also. In the above referred decision of the ICTY in Prosecution –v- Delalic it was held that a superior may be liable for the crimes committed by his subordinates whether his authority over the subordinates is de-facto or de-jure, as long as he exercises effective control. (Para-211); .....Motiur Rahman Nizami =VS= The Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 446] ....View Full Judgment

Section 9(4)

With the passage of this long period of 40 years the memories of these witness have faded, no doubt–
As against the P.W. 18 another objection raised from the side of the appellant is that this witness was cited as a witness long after commencement of the trial of the case. But we find no illegality in it, section 9(4) of the ICT Act has allowed calling in additional witnesses with the permission of the tribunal, at any stage of the trial. The P.W. 18 was examined by the prosecution with the permission of the tribunal. Defence also cross-examined this witness at length. As against the P.W. 11 allegation from the side of the appellant is that after giving evidence before the Tribunal this witness gave a video interview, which was available in “You tube”, an online media, denying the allegations made against this appellant and stating that being pressurized he deposed before the Tribunal against him. Admittedly the P.W. 11 has denied this so-called video interview by calling a press conference. In the circumstances this alleged “Video interview” of P.W. 11 does not deserve any consideration at all. From the side of the appellant some other alleged discrepancies as to dates of some events etc in the evidence of these P.Ws have been pointed out before us. But we do not find any of this alleged discrepancies fatal at all. These witnesses have deposed before the Tribunal long 40 years after the incident narrated. With the passage of this long period of 40 years the memories of these witness have faded, no doubt. So it is most natural that there may occur some minor discrepancies in their evidence. (Para-83); .....Motiur Rahman Nizami =VS= The Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 446] ....View Full Judgment

Section 20(2)

Sub-Section (2) of Section 20 provides that the tribunal shall award sentence of death or such other punishment proportionate to the gravity of the crime appears to the tribunal to be just and proper. The offences of crimes against humanity or genocides are by nature serious and heinous type of offences. The tribunal awarded the sentence of death in respect of charge No.11 which according to us was ‘proportionate to the gravity of the crime.’ (Para-217); .....Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka, (Criminal), 2017 (1)- [2 LM (AD) 364] ....View Full Judgment

Section 20(2)

VERDICT ON SENTENCE (Abdul Quader Mollah case)– We have taken due not ice 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 mustreflect 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.
We are of agreed view that justice be met if for the cr imes 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. (A. H. M. Shamsuddin Choudhury, J) …Government of Bangladesh =VS= Abdul Quader Molla, (Criminal), 2020 (1) [8 LM (AD) 375] ....View Full Judgment

Section 21(1)

Status and role of accused- appellant Motiur Rahman Nizami during the period of Liberation War in 1971. We cannot ignore the fact that the incidents of this case took place about long 42 years back and the investigation of this case also started about 40 years after those incidents. With the passage of this long period many of the important documentary evidence might have been destroyed. In the circumstances the failure of the prosecution to bring old documents before the court showing involvement of the accused with Al-Badr Bahini hould not be considered as fatal if the other evidence adduced by the prosecution are convincing.
But those alleged incorrect statements are as regards some other facts and circumstances and not as regards his above mentioned evidence regarding this appellant's status and role. For making some incorrect statements as regards any particular fact or matter the whole evidence of a witness cannot be rendered as incorrect or false.
He not only opposed the Liberation of Bangladesh and co-operated with the Pak army but also encouraged and provoked the members of Al-Badr Bahini and Islami Chhatra Shanghha to co-operate with the Pakistani invading force. These documentary evidence coupled with the admitted fact that the appellant Motiur Rahman Nizami was the president of East Pakistan Islami Chhatra Shanghha for three years and thereafter he became the president of All Pakistan Islami Chhatra Shanghha in the year 1969 and remained as such till September, 1971, and the proven fact that Al-Badr Bahini was formed with the members of Islami Chhatra Shanghha, in our opinion, prove sufficiently that appellant Motiur Rahman Nizami was the leader/commander of Al-Badr Bahini and he collaborated with the Pak army and played an active role against the liberation movement of this Country and also instigated, encouraged and provoked the members of Al-Badr Bahini and Islami Chhatra Shanghha to collaborate with the Pakistani Army. Motiur Rahman Nizami vs. Government of Bangladesh (Nazmun Ara Sultana J) (Criminal) 13 ADC 607 ....View Full Judgment

Section 21

In reply to Mr. Khandaker's assertion that hearsay needs corroboration, the learned Attorney General submitted that it is not what is required by the scheme of the Act. He, nevertheless, submitted that in any event, their depositions were squarely corroborated by circumstantial evidence, adding that the whole world knows of the atrocities these outfits resorted to in 1971.
Article 47A(2) of the Constitution, pro-visions figured in Article 105 can not be engaged by them who are accused of Crimes Against Humanity, but applying the doctrine of ex-debito justitiae, we may pass an order to correct mistakes in the judgment. We also held that inherent power of this Division may be invoked only when there does not exist any other provision and that this Division can invoke its inherent powers, not curtailed by Article 47A(2), under rule 46A of the Tribunals Procedure Rules, and, hence, it is not necessary to invoke Article 104 in this petition. Muhammad Kamaruzzaman vs. Government of Bangladesh (A.H.M Shamsuddin Choudhury J) (Criminal) 12 ADC 217 ....View Full Judgment

Courts Order (Abdul Quader Mollah case)–
Criminal Appeal No.24 of 2013 filed by the Government is found to be maintainable unanimouly. The appeal is allowed by majority. The order of acquittal passed by the International Crimes Tribunal No.2 in respect of charge No.4 is set aside by majority and the respondent is found guilty of the said charge as well. He is sentenced to imprisonment for life of that charge. He is sentenced to death by majority of 4:1 in respect of charge No.6. He be hanged till death.
Criminal Appeal No.25 of 2013 filed by Abdul Quader Molla is dismissed unanimously. The conviction in respect of charge No.6 is maintained unanimously. The conviction and sentence passed in respect of charge Nos.1, 2, 3 and 5 are maintained by majority of 4:1. (A. H. M. Shamsuddin Choudhury, J) …Government of Bangladesh =VS= Abdul Quader Molla, (Criminal), 2020 (1) [8 LM (AD) 375] ....View Full Judgment