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

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

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

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

International Crimes (Tribunals) Act, 1973
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

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

The theory of a plea of alibi is such that the fact of presence of the accused at the scene of the crime and the time alleged is essentially inconsistent and therefore, his personal participation as an offender in the act is false. The Appellate Division opined that it is obviously essential to prove an alibi that it should cover an account for whole of the time of the transaction in question, or at least for so much of it as to render it impossible that the offender could have committed the imputed act-it is not enough that it render his guilt improbable merely, and if the time is not exactly fixed and the place of which the offender is alleged by the defence to have been is not far off, the question then becomes one of opposing probabilities. While it is the burden of the prosecution to prove beyond reasonable doubt that the accused was present at the scene of the crime at the time of its commission, the burden of going forward with the evidence in regard to a fact which is specially within his knowledge, the accused has to show that he was elsewhere at the moment of the crime and that he remained there for such a period of time as will reasonably exclude the probability that he was in the place of the crime when it was committed. It is now well settled law that, in regard to this bur-den of going forward with the evidence is to be discharged by the accused, if he raises a reasonable doubt of his presence at the scene of the crime at the time that it was committed, it is not incumbent upon the accused to prove his alibi beyond a reason-able doubt. Accused took the plea of alibi only to show that during the relevant time of crimes, he was not at Parerhat, Pirojpur. It should be kept in mind that whenever a defence plea of alibi is set up and the defence utterly break down, it is a strong inference that if the offender was not in fact where he says he was, then in all probability, he was where the prosecution says he was. Though the onus of establishing the plea of alibi set up by the accused is upon him, no presumption of his complicity in the crimes arise from his failure to establish the plea. The witnesses’ falsity of an alibi is not a sufficient ground for holding that the case for the prosecution is thereby proved. Allama Delwar Hossain Sayedee -Vs.- The Government of the People’s Republic of Bangladesh, represented by the Chief prosecutor, International Crimes Tribunal, Dhaka, Bangladesh (Criminal) 2019 ALR (AD) Online 113 ....View Full Judgment

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

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 “কামারুজ্জামান কোন দিন সকালে, কোন দিন দুপুরে আবার কোন দিন সন্ধ্যার পরে আসত” 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

International Crimes Tribunals Act, 1973
Section 4(1) r/w
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

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

East Pakistan Razakars Ordinance 1971
Section 8 read with
The International Crimes (Tribunals) Act, 1973
Section 4(2)
Creation of Razakars
Facts, as are not in dispute, are that with a view to suppress and annihilate the aspiration of the people of the then East Pakistan under the leadership of Bangabandhu Sheikh Mujibur Rahman, to achieve independence from Pakistani colonial yoke, the Pakistani occupying authorities set up, through an ordinance, initially a para-militia outfit, naming the same, “Razakars”, by inducting into it those people, who were not, numerically, of large number, who were opposed to the idea of a State for the people of the then East Pakistan. While most of them were from the political party named, “Jamate Islami”, people from other pro-Pakistani parties, such as Nezami Islami, Mulsim League also supplied men to Razakar outfits.
Although they were not merged with traditional armed forces, they were equipped with fire arms and maronated with crush training courses. The ordinance that animated the said para militia, was titled, “East Pakistan Razakars Ordinance 1971, the preamble of which vested it with virtually para militia status by stating, “to provide for Constitution of a voluntary force in East Pakistan”.
The outfit was to be headed by a Director, under whom several officers and staff were to be appointed by the Government to assist the Director in the performance of his functions. (Section 8 of the Ordinance).
The Director and other officers were appointed under the Ordinance to “exercise such powers and perform such duties as (may be) prescribed by the provincial Government”.
At its inception it was placed under the Peace Committees of the respective areas.
Although no Ordinance or legislation was mooted to set up two more para-military outfits, namely, Al-Badar and Al-Shams, they were also de facto brought under the Ordinance. In September, by another Ordinance, the Razakars were glorified with the status of armed forces personnel.
Even though the Ordinance created one post of Director for the whole of the occupied “Bangladesh”, there were other officers and staff under him. So, from the hierarchical point of view, the Director was the ultimate and the top brass, for the whole of occupied Bangladesh de jure. But the evidence prove that there were subsuperiors under him as, naturally, it was not possible for only one Chief Commander to perform command duties for the whole of the occupied territory. As the Ordinance created posts for “Officers” also under the sole Director, it would, in the natural way, follow that these officers had de jure or at least defacto duty to act as regional superiors.
The fact that the Ordinance created one post of Director for the entire occupied territory and then officers under him, and also staff allover, coupled with the fact that the above mentioned prosecution witnesses found the appellant to be in the leading chair, such an inference that the latter was in fact de jure head of the two outfits in the district concerned faces no stumbling block whatsoever.
If witnesses testify that a given person headed the local unit of the outfits, in the backdrop of the fact that the Ordinance created posts of officers under one solitary Director, then there is no need to establish by any document or any evidence that the given person was so appointed. As stated above, the ICTY and ICTR held that no evidence of formal appointment or designation is needed.
It is worth mentioning that in our part of the world, the term officer bears a special significance in that this attribution only applies a person with superior status, i.e. a white colour personnel with a lot of clout. This legacy from the colonial era, when the British Roy applied their dominance over their subjugated Indian subjects through privileged “civil servants” known as “officers” still subsists. In the context of the culture that prevails in this sub-continent, no low level functionary is ornamented with this term. I do also take special notice of the fact that our section 4(2), in variance with Articles 6(3) and 7(3), did not restrict the liability to commanders only but also extend the same to “superior officers” as well. Inclusion of “superior officers” has particular significance because the Ordinance created posts of officers as well. As the Ordinance created no post of superior officers, the legislators must have meant all officers to be superiors because the ordinance created officers only, not superior officers and the staff, who were below the officers. In any event, testimony of these two prosecution witnesses leave no doubt whatsoever that the appellant was at least the de facto commander of the units concerned in the area, if not a de jure one.
It has been quite categorically affirmed by the SCSL Appeal Chamber in Brima, supra, ICTR in Semenza, and Kajchjcli, supra, ICTY in Delalic, supra that for the purpose of implicating a person for his responsibility as a commander over his subordinates, a de facto commandership will suffice.
This finding on law by the ICTY is, in my view, in wholesome consonance with the language in Section 4(2) of the Act, reproduced above and as far as the factual position is concerned, overwhelming weight of evidence prove beyond any shadow of doubt that the appellant in any event, was defacto commander, if not dejure.
As a matter of fact my learned brother S.K. Sinha, J. himself accepts that “All these witnesses practically depicted correct status of the accused” and that “As per law then prevailing, he performed his responsibilities as Razakars leader or officer”. My learned brother also accepts that “The evidence on record revealed that he was the commander of Al-Badre force in larger Mymensingh”.
He also states, “But in fact he performed the responsibility as a superior commander. This was abuse of the powers as he was in the good book of the military Junta. He was allowed to work according to his volition”.
My learned brother also states, “But as per law he was appointed and/or worked and/or performed as commander to assist the Director of the Razakars forces”.
With respect; I am to express that having accepted all these, it would a contradiction in terms to conclude that the appellant cannot be brought under the canopy of superior responsibility.
Acceptance that, (with which I totally agree), “But as per law he was appointed and/or worked and/or performed as Commander to assist the Director of the Razakar Forces”, is in my view, tantamount to accepting that the appellant was actually de jure sub-commander under the supreme commander and hence, saying that he had no command over his subordinates would be self contradictory.
Accepting that, (with which also I cannot disagree), “But in fact he performed the responsibility as a superior commander. This was abuse of the powers as he was in the good book of the military Junta”, in my view definitely means accepting that he was a de facto commander as he was so allowed by the Junta.
If he was really allowed by the Junta, being in their good book, to perform as a superior commander with the blessings of the Junta, then he must be deemed to have been a de facto commander, even if he had done so by abusing his powers.
De facto, connotes factual position, no matter whether that was by abuse of power or not.
I would also rely on the ICTY decision in Aleksovski and SCSL decision in Brima where it has been held that command responsibility may be shared by other members in a situation of collegiate responsibility and that superior responsibility is not excluded by concurrent responsibility of other superiors in a chain of command.
In finding that the appellant did not have command responsibility my learned brother relied on “(b)” of the Gazette notification of 7th September 1971, which provides, “the officers of Pakistan Army under whose command any member of the Razakars is placed shall exercise the same powers in relation to that member as he is authorised to exercise under the same Act in relation to a member of the Pakistan Army placed under his command”.
True it is that the members of the Razakars were placed under the command of Pakistan Army officers by 7th September notification, but it is equally true that, as Mr. Muntasir Mamun, a distinguished historian, stated in “Banglapidia”, the 7th September amendment also bestowed on Razakars the status of army personnel, and those who under the Razakars Ordinance were appointed as “Officers” of Razakars, under the 7th September notification assumed the status of army officers.
So, the situation since 7th September was such that a Razakar officer was of course placed under a Pak Army Officer’s Command. But to say that the Razakr officers were thereby stripped of command responsibility from over his subordinate Razakar staff, would be, in my view, erroneous, because within the Pakistan army structure, where four kind of personnel exists, namely (1) Commissioned Officers, (2) Junior Commissioned Officers, (3) Non-Commissioned Officers, (4) Jawans or Seppys, even a non-Commissioned Officer exercises command over the sepoys under his command even though such a Junior Commissioned or a Non-Commissioned Officer himself remains subject to the command of a Commissioned Officer. A chain of command is thereby formed from top to the bottom, consisting intermediate commanders between the highest and the lowest in the chain.
The chain of command, be it in the army, police or in civilian situation, is such that an officer, who commands his subordinates is also subject to command by his superior. That is why it is called chain of command: a Command in succession from the top to the lowest ladder of officerdom.
As such, it can not, in my view be said that since the appellant himself was under command of an army officer, he could not command his subordinates.
The finding on collegiate responsibility, as enunciated in Brima, supra, goes hands in gloves with this factuality where chain of command exists.
So, if it is accepted, as my learned brother also has done, that the appellant was a Razakar officer (officer carrying a white colour clout), rather than a Razakar staff, that would naturally follow that the appellant also had command responsibility over Razakar staff under him in the then Greater Mymensingh region, notwithstanding that he himself was subject to the command of a Pak Army Officer.
The Tribunal below, was, as such, in my view, in the right track in finding the appellant guilty for superior responsibility as well under section 4(2) of the Act, as there are overwhelming evidence to show that he acquiesced with the offences his subordinates committed and/or failed or omitted to discharge his duty to control or supervise the action of the persons under his command or his subordinates whereby such persons or subordinates or any of them committed such crimes, or failed to take necessary measures to prevent the commission of such crimes. (A. H. M. Shamsuddin Choudhury, J) …Muhammad Kamaruzzaman =VS= The Chief Prosecutor, ICT, Dhaka, (Criminal), 2019 (2) [7 LM (AD) 375] ....View Full Judgment

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

The Evidence Act, 1872
Section-32, 33 r/w
International Crimes Tribunals Act, 1973
Section 19(1) r/w
The International Crimes (Tribunal-1) Rules of Procedure, 2010
Rule 56(2)
Hearsay evidence–
Mr. Shajahan repeatedly complained that the Tribunal below erred in admitting hearsay evidence.
Without any insinuation I only wish to express my surprise as to how Mr. Shajahan could be oblivious of the express provision in the Act which stipulates that the tribunal shall not be bound by technical rules of evidence and may admit any evidence which is deemed to have probative value, and of the express provision in Rule 56 (2) which confers discretion on the Tribunals to accord due consideration to hearsay evidence
Again, it is not only our Act, hearsay evidences were admissible in the IMT in Nuremberg and Tokyo Tribunal as well as by other national tribunals such as US Military Tribunal in Nuremberg and Soviet Tribunals and the British Tribunal that tried war criminals before as well after the hostility ended in 1945.
Statutes of modern UN sponsored tribunals such as ICTY, ICTR, SCSL, STL and even that of International Criminal Court (ICC) do not proscribe hearsay evidence for very cogent reasons. The very nature of the crimes concerned and the manner of their commission are such that credible hearsay evidence are indispensable.
Although there is no rule governing the admissibility of hearsay evidence before the ICTY, ICTR and SCSL, the Trial Chambers of all these tribunals have refrained from adopting a practice to exclude all hearsay evidence. There is no rule declaring hearsay rule per se inadmissible. General scheme for admissibility of evidence set out in Rule 89 for ICTY, ICTR and SCSL has guided the chambers in their deliberation on hearsay evidence.
In Prosecutor-v-Galic, the Appeals Chamber of ICTY defined the scope of admissibility of hearsay evidence pursuant to Rule 89(1) saying that the said Rule “permits the admission of hearsay evidence in order to prove the truth of such statements rather than merely the fact that they were made. According to that decision a hearsay evidence may be oral i.e. where someone else had told him something out of Court or in black and white, for example when an official report, written by someone who is not called as a witness, is tendered in evidence. The Appeal Chamber expressed that Rule 89(c) clearly encompasses both these forms of hearsay evidence” (Decision on Interlocutory Appeal, June 7, 2002). The Trial Chamber of ICTY expressed in Prosecutor –v-Tadic on a defence motion on hearsay (5th August 1996), “out of Court statement that are relevant and found to have probative value are admissible”.
The same position was taken by the Trial Chamber of ICTY in Prosecutor-v-Blaskic, while deciding on the standing objection of the defence to the admission of hearsay evidence with no inquiry as to its reliability. (January 21, 1998).
It was held that hearsay evidence must have indicia of reliability in order to be admissible: reliability is not merely a matter of going to the weight of the evidence.
Similar view was also expressed in Prosecutor-v-Natelic and Martionovic, ICTY Appeal judgment, May 3, 2006, para 217 and 516, Prosecutor-v- Aleksovski, decision on prosecutor’s appeal on admission of Evidence, 16th February 1999, para 15, Prosecutor-v-Milosevic, decision on testimony of defence witness, Dragan Jasovic, April 15, 2005, page – 4, Prosecutor-v-Mihitino Vic, decision denying prosecution Second Motion for admission of evidence pursuant to Rule 92, (13th September 2006, para 5,)? Prosecutor-v-Prlic, decision on appeals against decision admitting transcript of Jadranko Prlics questioning into evidence, (23rd November, 2007, para-52).
It has been held by all these tribunals that hearsay evidence can be admitted to prove the truth of its contents, and the fact that it is hearsay does not necessarily deprive the evidence of its probative value and that the chamber must be satisfied of its reliability given the context and character of the evidence for it to be admitted (Prosecutor –V- Aleksovski- ICTY, decision on Prosecutor’s appeal on admissibility of evidence, 16th February 1999, para – 15, Prosecutor-v-Semanza, decision on the defence motion for exclusion of evidence on the basis of violations of the rules of evidence, Res Gestae Hearsay and violation of the Statute and Rules of the Tribunals, 23rd August 2000.
In the case of notorious Milosevic, though the Appeal Chamber of ICTY held that hearsay evidence will usually be given less weight than that given to the testimony of a witness who has given it under a form of oath and who has been cross examined, it nevertheless also stated, “it depends upon infinitely variable circumstances of the particular case …..”. (Prosecutor –V – Milosevic, decision on admissibility of Prosecution Investigator’s evidence, 30th September 2002, para 18.
ICTY Chamber also made it abundantly clear that the right to cross examination incorporated as part of the fair trial provisions of Article 21(4)(e) Statute and Article 20(4)(e) of ICTR statute “applies to the witness testifying before the Trial Chamber and not to the initial declarant whose statement has been transmitted to this Trial Chamber by the witness” (Prosecutor –v- Blaskic, decision on standing objection of the defence to the admission of hearsay with no inquiry as to its reliability, 21st January 1998, para 29).
The SCSL in Prosecutor-v-Brima (decision on joint defence evidence to exclude all evidence from witness, 24th May 2005, para 12) observed “it is now well settled in the practice of international tribunals that hearsay evidence is admissible”. It went on to say, “the probative value of hearsay evidence is something to be considered by the Trial Chamber at the end of the trial when weighing and evaluating the evidence as a whole, in light of context and nature of the evidence itself, including the credibility and reliability of the relevant witness”.
The Appeal Chamber in Prosecutor-v-Norman, (Fofana appeal against bail refusal, 11th March 2005, para 22) held that the relevant rule has conferred a broad discretion upon the tribunals to admit hearsay evidence.
Even the East Timore’s Special Panel for serious Crimes held hearsay evidence to be admissible, though hearsay upon hearsay will deserve little weight (Prosecutor-v-Marques, 11th December 2001).
The ICC in Prosecutor-v-Katanga of Ngudjolo (decision on the confirmation of charges, 30th September 2008, ICC-01/04-01/07-717, para 137) held that though any challenge on hearsay evidence may affect its probative value, it may not affect its admissibility. ICC further stated in that case that hearsay is admissible even if the source of the evidence is anonymous.
Whilst relying on ECHR jurisprudence propounded in Kostovski-v-The Netherlands, judgment delivered on 20th November 1989, the pre-trial Chamber of ICC, in Prosecutor-v-Katanga of Ngudjolo, supra, reiterated previous finding of the Pre-Trial Chamber in Prosecutor –v-Labanga that there is nothing in the statute or the Rules which expressly provides that the evidence which can be considered hearsay from anonymous sources is inadmissible per se. In addition, the Appeals Chamber has accepted that, for the purposes of the confirmation hearing it is possible to use items of evidence which may contain anonymous hearsay, such as redacted versions of witness statement. (Prosecutor-v-Labanga ICC-01/04-01/06-803, para 101). The Pre-Trial Chamber further stated that the probative value of anonymous hearsay evidence will be determined in the “light of other evidence”.
The International Military Tribunal in Nuremberg allowed the use of hearsay evidence through affidavits, but it also required that any such affiant to be available for cross examination.
Its charter, developed under the Moscowc Declaration 1943, provided for a criminal procedure that was closer to civil law than to common law with wide allowance for hearsay evidence.
The London Charter enunciated simple evidentiary rule repeatedly propounded in the US internal position papers, reading; “The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and non-technical procedure and shall admit any evidence which it deems to have probative value” which stands virtually reproduced in Section 19(1) of the Act. (our provisions are not dissimilar) (Paras:713-731); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 76] ....View Full Judgment

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

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

Acid Aparadh Damon Ain, 2002
Section 5(Ka)
Penal Code, 1860
Sections 45 and 53 r/w sec. 55 & 57
Code of Criminal Procedure, 1898
Section 35A
International Crimes (Tribunal) Act, 1973
Section 20(2)
Imprisonment for life— The trial Court on proper assessment of the evidences as well as other materials on record convicted the petitioner and sentenced him death penalty. The High Court Division as well as this Division on proper scrutiny upheld the judgment and order of conviction and sentence passed by the trial Court. Appellate Division does not find any error of law apparent on the face of the record in the impugned judgment passed by this Division and as such the same does not call for interference. It has been held in the case of Ataur Mridha Vs. State reported in 73 DLR(AD) 298 that-
“1. Imprisonment for life prima facie means imprisonment for the whole of the remaining period of convicts natural life.
2. Imprisonment for life be deemed equivalent to imprisonment for 30 years if sections 45 and 53 are read along with sections 55 and 57 of the Penal Code and section 35A of the Code of Criminal Procedure.
3. However, in the case of sentence awarded to the convict for the imprisonment for life till his natural death by the Court, Tribunal or the International Crimes Tribunal under the International Crimes (Tribunal) Act, 1973 (Act XIX of 1973), the convict will not be entitled to get the benefit of section 35A of the Code of Criminal Procedure. (underlines supplied by us)
Therefore, taking note of the gravity of offence committed by the petitioner it is justifiable that he shall remain in the jail till the remaining period of his natural life in the light of the ratio decided in Ataur Mridha’s case (supra). .....Md. Akbar Ali alias Jelhaque Mondal =VS= The State, (Criminal), 2024(1) [16 LM (AD) 17] ....View Full Judgment

The defence wanted to make out a case that Dalim Hotel was under the control of a Razakar Matiur Rahman alias Moitta Gunda and also wanted to establish that in the ground floor the army had established a camp, but could not substantiate the same.
The Appellate Division held that when the learned Counsel for appellant placed the charges, the Court had the impression that the accused appellant had been charged with for abetment of the offences, but when he placed the evidence of the witnesses, the court was bewildered to notice that in fact, the prosecution led evidence portraying the appellant as the principal offender in respect of charge No. 11. The main allegation against him is that the accused appellant was the influential leader of the Islamic Chhatra Sangha, who organized Al-Badar force in Chittagong chapter and carried out, perpetrated and committed atrocities like crimes against humanity by setting up an Al-Badars torture centre at Dalim Hotel in Chittagong town in which he was the commander and no army or other forces were in command. It is also on record that the army had established a torture centre at Circuit House and Salauddin Quader Chowdhury had established another torture centre at Goodshill. In these three torture centres, all atrocities of killing and other inhuman acts were perpetrated.
The defence wanted to make out a case that Dalim Hotel was under the con-trol of a Razakar Matiur Rahman alias Moitta Gunda and also wanted to establish that in the ground floor the army had established a camp, but could not substantiate the same. Mir Quasem Ali -Vs.- The Chief Prosecutor, International Crimes Tribunal, Dhaka Bangladesh (Criminal [Appeal]) 2019 ALR (AD) Online 25 ....View Full Judgment

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

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

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