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
|
Allama Delwar Hossain Sayedee =VS= Government of Bangladesh |
2 LM (AD) 76 |
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
|
Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka |
2 LM (AD) 364 |
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
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Government of Bangladesh =VS= Abdul Quader Molla |
8 LM (AD) 375 |
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
|
Government of Bangladesh =VS= Abdul Quader Molla |
8 LM (AD) 375 |
Section 3(2), 20(2), 20(3)
|
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
|
Government of Bangladesh =VS= Abdul Quader Molla |
8 LM (AD) 375 |
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
|
Government of Bangladesh =VS= Abdul Quader Molla |
8 LM (AD) 375 |
Section 3(2)(a)
|
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
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Allama Delwar Hossain Sayedee -Vs.- The Government of the People’s Republic of Bangladesh, represented by the Chief prosecutor, International Crimes Tribunal, Dhaka, Bangladesh |
2019 ALR (AD) Online 113 |
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
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A.T.M. Azharul Islam =VS= Chief Prosecutor, ICT, Bangladesh |
9 LM (AD) 593 |
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
“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
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Muhammad Kamaruzzaman =VS= The Chief Prosecutor, ICT, Dhaka |
7 LM (AD) 375 |
Section 4(1)
|
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
|
Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka |
2 LM (AD) 364 |
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
|
Motiur Rahman Nizami =VS= The Government of Bangladesh |
2 LM (AD) 446 |
Section 4(2)
|
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
|
Muhammad Kamaruzzaman =VS= The Chief Prosecutor, ICT, Dhaka |
7 LM (AD) 375 |
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
|
Motiur Rahman Nizami =VS= The Government of Bangladesh |
2 LM (AD) 446 |
Section 19(1)
|
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
|
Allama Delwar Hossain Sayedee =VS= Government of Bangladesh |
2 LM (AD) 76 |
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
|
Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka |
2 LM (AD) 364 |
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
|
Government of Bangladesh =VS= Abdul Quader Molla |
8 LM (AD) 375 |
Section 20(2)
|
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
|
Md. Akbar Ali alias Jelhaque Mondal =VS= The State |
16 LM (AD) 17 |
Section 20(2), 4(1) and 4(2)
|
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
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Mir Quasem Ali -Vs.- The Chief Prosecutor, International Crimes Tribunal, Dhaka Bangladesh |
2019 ALR (AD) Online 25 |
Section 21(1)
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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
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Motiur Rahman Nizami vs. Government of Bangladesh |
13 ADC 607 |
Section 21
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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
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Muhammad Kamaruzzaman vs. Government of Bangladesh |
12 ADC 217 |
Courts Order (Abdul Quader Mollah case)–
|
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]
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Government of Bangladesh =VS= Abdul Quader Molla |
8 LM (AD) 375 |