International Crimes Tribunals Matter
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, [8 LM (AD) 375]

Sentence (Muhammad Kamaruzzaman case)–– The Tribunal was of the view that the offences of murder are predominantly shocking to the conscience of mankind; that the fierceness of the event of the attack of Sohagpur massacre was launched in such grotesque and revolting manner in which the helpless victims could not save their lives and that the act of massacre and devastation of human honour was diabolic and detrimental to basic humanness. It was further observed that the act of indiscriminate sexual invasion committed on women coupled with mass killing shocks the conscience of human kind and aggravates the pattern of criminal acts and that the mode of participation of the accused in committing crimes together with his superior position increases his culpability which deserves to be taken into account as aggravating fact. We approve the above views except that of accused’s complicity holding superior position increased his culpability. It is on record that in the Sohagpur massacre almost all male members of the village were brutally killed. The planning and operation was conducted from the Al-Badar camp set up at the house of Suren Saha. He was directly involved in the implementation of the killing and rape and in pursuance of his planning, the incidents were perpetrated. The incidents were so cruel, inhuman and barbarous, the perpetrators not only killed almost all the male members of the village, they also did not spare the widows of the victims, who were also ravished. Even the women who fled away sensing the enormity of the crime and returned back 2/3 days after the incidents in their houses were also not spared. While narrating the horrific incident of killing of her husband and causing violence to her after the killing, P.W.12 was kept in the convulsive gasps under mental distress. The Tribunal noted down the demeanour while recording her statement. She could not control her emotion even after 40 years. How gruesome incident it was? None can imagine other than the one who has experienced the traumatic incidents. Accused Kamaruzzaman directly participated in these barbarous acts. These acts are comparable with none. Even Nazis did not perpetrate similar nature of brutal acts. Accused Kamaruzzaman did not express any repentance of his criminal acts at any stage of the proceedings for his role rather showed vaunter for his conducts and acts. He led the armed groups to perpetrate the incidents of rampant killing and rape. The very nature of the incidents proved beyond doubt that the killing was perpetrated systematically in furtherance of a preconcert plan and design upon civilian population. These offences are distinguishable from other incidents of murder perpetrated during the normal condition of the country. No doubt these crimes were committed against humanity because the killing was perpetrated to the innocent unarmed civilians who could not leave the country to avoid the onslaught of the Pak army. The author of ext. ‘A’ stated that the killing spree continued for six hours continuously. In Bangladesh Documents, the Al-Badar force organised by the accused was termed as ‘Fascist’ force, that is, this force was compared with Mussolini’s regime in Italy. The nature of the incident orchestrated by the accused with his force has all trappings of ‘Genocide’. The acts of the accused in the formation of Al-Badar force and then his involvement in the participation of the mass killing and rape of the widows of Sohagpur village is inhuman and gruesome. Accused Kamaruzzaman deserves no sympathy for such behavioral pattern of the criminal acts. We find no difference between the conduct of a man and a beast in the perpetration of these crimes. Neither in the Tribunal nor before this Division any argument was made on behalf of the accused to take a lenient view if he was found guilty of the charge. Even under the general law, when a murder is perpetrated in cold blooded and in a calculated manner, the courts normally award a sentence of death on the reasoning that such type of incident shocks the conscience of the society. It has been revealed from the documentary evidence and oral evidence, which described the gruesome manner of killing as a scene resembling that of the Hindu spring festival, ‘the Holy’, where the crowd is immersed in red coloured water. The accused and his force killed one by one persons of the village and this killing spree continued for six hours, and bathed with their blood. The killing spree was such as if they were hunting birds and animals. We cannot imagine how the accused being a Bangalee citizen could involve in such gruesome inhuman acts and from such conduct, he does not deserve any compassionate consideration on the question of sentence. The proper and appropriate sentence for his crimes is the extreme one. We cannot think of giving him any lesser sentence at least in respect of this charge which will defeat the ends of justice. In Abdul Quader Mollah, this Division while awarding the death sentence observed that ‘while considering the punishment to be given to an accused person, the court should be alive not only to the right of the perpetrator but also rights of victims of the crime and society’s reasonable expectation from the court for the proportionate deterrent punishment conforming to the gravity of the offence and consistent with the public abhorrence for the heinous crime committed by the accused person’. The incidents of murder and rape perpetrated at Sohagpur village are much heinous than that of Abdul Quader Mollah. Therefore, it is the most appropriate case in which a sentence of death is the only sentence, which will be just and proper proportionate to the gravity of the crime. The Tribunal is thus justified in awarding him death sentence. In respect of charge No.4, though the Tribunal was of the view that unless the highest sentence is not awarded to the accused, there would be failure of justice. While assigning the reasons the Tribunal observed that this charge also falls ‘within the kind of such gravest crimes which tremble the collective conscience of mankind’. We cannot endorse the views of the Tribunal. The evidence on record revealed that Golam Mustafa was taken, detained and tortured at the camp set up at the house of Surendra Mohan Saha and then he was taken on the Sheri bridge and shot to death. There is no evidence that accused Kamaruzzaman directly participated in the killing. From the evidence of P.W.2, it may be presumed that Kamaruzzaman shot him to death. In the absence of direct and definite evidence about accused Kamaruzzaman’s act of shooting to Golam Mustafa to death, a sentence of forfeiture of life cannot be awarded. The extreme penalty is awarded against an accused person if the act of accused is ‘cruel and brutal’, and the accused deserved no mercy because he showed no mercy. These ingredients and/or constituents are absent in this charge. Considering the nature of evidence led by the prosecution, the sentence of death is not proportionate to the gravity of the crime. We are of the view that the imprisonment for life is proportionate to the gravity of the crime. Accordingly, we commute his sentence to imprisonment for life. In respect of other two counts, the Tribunal has properly awarded the sentences and we are not inclined to interfere with the same. Appellant Mohammad Kamaruzzaman is acquitted of charge No.1. His conviction and sentence in respect of charge Nos.2 and 7 are maintained by majority. His conviction in respect of charge No.3 is maintained unanimously but his sentence of death of the said charge is maintained by majority. His conviction in respect of charge No.4 is maintained by majority but his sentence is commuted to imprisonment for life. (S. K. Sinha, J) …Muhammad Kamaruzzaman =VS= The Chief Prosecutor, ICT, Dhaka, [7 LM (AD) 375]

Reasons for Capital Sentence (Muhammad Kamaruzzaman case)–– As professor Ashworth aptly stated, sentencing is the most difficult aspect in a criminal trial No doubt, sentencing capital offenders in a country that allows death sentence is all the more difficult and mind blowing. Having gone through comparative sentencing policies in capital offences in various jurisdiction, it is my firm understanding that the trail that Indian higher judiciary follows, is the possible best one. It is based on the principle balancing and in doing so Indian judiciary peddle the normative that while life is precious and should not be taken away through judicial device in ordinary circumstances, there are cases when nothing short of death sentence is conducive. Indian Supreme Court by various decisions have laid down guide lines. Actually, the Indian legislative scheme requires the Courts to do the balancing in murder cases, which is such that while retaining death sentence, the scheme makes it the sentence of last, rather than of first, resort. Although Indian Supreme Court ordain that capital punishment shall be awarded only in the rarest of the rare cases, instances of death sentence confirmation is, by no account , insignificant. Indian system is humane enough not to send all murderers to the gallows, yet resolute enough to award ultimate sentence if the offence appears to be too gruesome. Thus, when ordinary killers are spared of their necks socially repulsive felons are not. In deciding on the sentence of this appellant, I, for myself, have given extensive thought about what would be conducive and proportionate. As are done in most jurisdictions, I have taken into account the aggravating and, possible mitigating circumstance-have reminisced the impact the acts of this felon entailed during our Glorious War of Liberation, having, of course, regard to one of history’s worst ever genocide that took place in Bangladesh in 1971 which rocked the world. I have scanned the his acts left behind on the surviving victims, families of murdered victims and, of course on the country as a whole, as I am required by the principle followed globally in sentencing. I kept in mind what people with great endowment, reverence, wisdom and fully matured thoughts observed from time to time. I read with keen devotion and introspection the following observation of the universally acclaimed jurist, who specialise on crimes against humanity, Sir Geoffrey Robertson, QC who suggested application of retributive norm of sentencing for the offenders whose crimes touch the righteous people all over the world; “If the crimes of such individuals are the most heinous of all, because they touch not only the families of victims but decent people throughout the world, then some retribution is required”. (Geoffrey Robertson, Q.C. page 330 of his book Crimes Against Humanity, New Edition). In affirming the capital sentence, I do echo the observation the Nuremberg Tribunal and the US prosecutor scripted, as quoted above. We must not be over compassionate when sentencing a felon of the appellant’s type, but must think of the trail of horror his acts left behind for successive of generations. We must be firm enough to pass extreme sentence if that be proportionate to the gravity of the offence. It is a pathetic episode of our history that such a human monster was allowed to escape the regiour of Justice for so many decades, for which blames fall squarely upon those who usurped power unconstitutionally for many years after killing the Founding Father of the Nation, Banga Bandhu Sheikh Mujibur Rahmanand and tried to put the clock back to pre 1971 state. For all I Have stated above, I remain indubitably convinced that the interest of justice can only be met if this appellant is shown the gallow. (A. H. M. Shamsuddin Choudhury, J) …Muhammad Kamaruzzaman =VS= The Chief Prosecutor, ICT, Dhaka, [7 LM (AD) 375]

Courts order (Muhammad Kamaruzzaman case)–– For the reasons to be assigned later on, this appeal is allowed in part. Appellant Muhammad Kamaruzzaman is acquitted of charge No.1. His conviction and sentence in respect of charge Nos.2 and 7 are maintained by majority. His conviction in respect of charge No.3 is maintained unanimously but his sentence of death of the said charge is maintained by majority. His conviction in respect of charge No.4 is maintained by majority and his sentence is commuted to imprisonment for life. (A. H. M. Shamsuddin Choudhury, J) …Muhammad Kamaruzzaman =VS= The Chief Prosecutor, ICT, Dhaka, [7 LM (AD) 375]

Guilty of offence–– When a person who abets the commission of an offence is present and helps in the commission of the offence, he is guilty of such offence. In the case of Semanza Vs. Prosecutor, Case No. ICTR-97-20A (Appeal Chamber), it was held, “For an accused to be convicted as perpetrator or co-perpetrator of genocide, it is not necessary that he or she fulfils a ‘key coordinating role’ or that a ‘high level genocidal plan’ be established even if the existence of a plan to commit genocide can be useful to prove the specific intent required for genocide”. (Majority view), (Per Mr. Justice Hasan Foez Siddique). ...A.T.M. Azharul Islam =VS= Chief Prosecutor, ICT, Bangladesh, [9 LM (AD) 593]

Accused Mir Quashem Ali charge Nos. 4 and 12 acquitted–– This appeal is thus allowed in part. Accused Mir Quashem Ali is found not guilty in respect of charge Nos. 4 and 12 and he is acquitted of those charges. His conviction and sentence in respect of charge Nos. 2, 3, 7, 9, 10 and 11 is maintained. (Para-218); .....Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 364]

Appellate Division followed ICPR guidelines–– It is axiomatic that in affirming death sentence, the Appellate Division followed ICPR guidelines, doctrine of just desert having proportionality and commensurability as its touch stone and the predicament the victims, their families and the country as a whole suffered, and, of course also looked at the presumed intention of the legislators. (Para – 31); .....Ali Ahsan Muhammad Mujahid =VS= The Government of Bangladesh, [2 LM (AD) 65]

Authors with Notoricly on Death Sentence–– Sir Geoffrey Robertson Q.C. states “despite the clear modern trend in state practice towards abolition there is still not sufficient consensus for execution to be prohibited as a matter of customary International Law”. (Page 141, Crimes Against Humanity, Penguin, 3rd Edition, April 2006). While Sir Geoffrey has expressed his disavowance for capital punishment in other parts of his book “Crimes Against Humanity”, supra, he has nevertheless stated at page 144, “Murder is the Crime for which it (death sentence) is most commonly and most appropriately (in the retributive sense) inflicted, although murders vary so much in heinousness (from enthensia and domestic crimes of passion to contract killing and hostage executions) that any automatic infliction of death sentence on all murders, or all murders within a defined category, is contrary to International Law prohibitions on arbitrary and inhuman treatment”. The phrases “most appropriately” is significant. It suggests that subject to the reservation he expressed, including on auto infliction, he deems death sentence “most appropriate in the retributive sense in murder cases. At page 145 he states, “The only other serious crimes for which that penalty can be justified are those assumed to involve indirect taking of life, such as by peddling heroin or by serving an enemy”. So, in his view death penalty may also be justified in these situations as well, and as such, his opposition to death sentence is not absolute, but conditional. (Paras: 1089-1093); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76]

Charge should be proved a beyond all reasonable doubt–– In view of the above evidence and the facts and circumstances our considered opinion is that the prosecution could not prove the charge No. 1 against the accused appellant beyond all reasonable doubt. We therefore, find that the tribunal was not justified in finding the accused appellant guilty of the offence of killing of Moulana Kasim Uddin as stated in charge No. 1. We hold that the charge No. 1 being not proved beyond all reasonable doubt the accused appellant is entitled to get acquittal from this charge. (Para-68); .....Motiur Rahman Nizami =VS= The Government of Bangladesh, [2 LM (AD) 446]

Commiting those crimes in the syncronised plan and design–– The awarding to death sentences were adequate and no leniency should be shown to him. He was directly involved in those heinous crimes and his participation was intentional with motive to eliminate a religious community as a whole for political vengeance. Accused Salauddin Qader Chowdhury has committed crimes with highest ruthlessness and extreme atrocity. He persecuted civilian and unarmed people, tortured them to death, caused disappearance of innocent people and helped in disappearing people in collaboration with the occupier Pakistani Army. He rampantly looted and assisted to plunder people’s property. The offences were not the one envisaged in the penal laws of any country, the accused in commiting those crimes in the syncronised plan and design that were developed and put into execution with cool blood. Salauddin Qader Chowdhury persecuted, killed and caused disappearance of civilian people solely on religious and political grounds. He had direct involvement in the killing of innocent people. Brutal offences with specific intention to exterminate the Hindu religious community and his political opponents from that locality. (Paras– 70 & 71); .....Salauddin Quader Chowdhury =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 511]

The Criminal Appeal No.39 of 2013 is disposed of in the following terms:–– Appellant-Allama Delwar Hossain Sayedee (Crl. A. No. 39 of 2013) is acquitted of charge Nos. 6, 11 and 14. Appellant-Allama Delwar Hossain Sayedee is sentenced to 10(ten) years rigorous imprisonment in respect of charge No.7. Appellant-Allama Delwar Hossain Sayedee’s death sentence in respect of charge No.8 is affirmed. Appellant-Allama Delwar Hossain Sayedee’s death sentence in respect of charge No.10 is also affirmed. Appellant – Allama Delwar Hossain Sayedee is sentenced to imprisonment for life i.e. rest of his natural life in respect of charge Nos. 16 and 19. (Para-1104); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76]

Cruel, gruesome and barbarous crimes warrants death sentence only–– It is the solemn duty of the courts to award proper sentence commensurate with the gravity of the crimes. In the present case the appellant has been awarded death sentences on three charges, viz mass killing, rape and other crimes against humanity. All these crimes were extremely cruel and horrendous in nature. The commission of these crimes- even the slightest complicity in these most cruel, gruesome and barbarous crimes warrants death sentence only. There is no mitigating circumstances to reduce the death sentences, rather there are aggravating circumstances. In this case the appellant has been found to have committed series of crimes of extremely cruel and inhuman nature during the period of Liberation War, and he has been awarded 5 separate sentences for 5 different crimes in this instant case. The commission of series of crimes of most cruel and inhuman nature by an accused may be considered as aggravating circumstances for awarding him the maximum sentence. (Para-227); .....Motiur Rahman Nizami =VS= The Government of Bangladesh, [2 LM (AD) 446]

Dalim Hotel as the torture centre of Al-Badar forces and perpetrated crimes against humanity–– We were surprised to note that in respect of charge No.11, the accusation was torture and killing of Jasim and other 5 persons, but we do not find sufficient evidence on record to convict and sentence him for charge relating to those 5 persons. The prosecution was totally silent about them. In respect of all the charges the positive version of the prosecution is that the accused set up Dalim Hotel as the torture centre of Al-Badar forces and perpetrated crimes against humanity in the said centre with his force. (Para-216); .....Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 364]

Death Penalty by Allied Nations Pre and Post IMT–– Before and after the IMT’s trial at Nuremberg, Allied Powers sentenced several thousand Nazi criminals in those area of Germany they respectively occupied. Of those several hundreds were sentenced to death. In the American occupied zone in Nuremberg and Dachon, some 450 people were sentenced to death by the American tribunals. The war tribunals of France which administered Justice in its zone of occupation heard the cases of 2107 Nazi War criminals. The activities of the French tribunal differed in that they issued several hundred sentences in absentia, including Klaus Barbie, who was, years later apprehended and dealt with. Dic Welt stated, “The French Judicial authorities were guided by a gross stereotyping. They sentenced to death in absentia many hundreds of soldiers of the German Wchrmacht for the reason alone that their units took part in execution by firing squad of the fighters of the French resistance. (Dentsche Richterzeitsch rift 1971 Noz p- 85 ff. Die welt, July 10 1974 P-13). Military tribunals were also established in the British Zone of occupation. In contrast with other zones, in the British zone the Special Crown Act of 14th January 1946 was considered the basic normative act for the prosecution and punishment of the Nazi perpetrators of Crimes against Humanity. The British tribunals based thereon their operations, procedural principles and pronouncement of verdicts. They treated the decisions of the IMT not as irrefutable proof, but only as arguments along with other facts and circumstances. As opposed to the tribunals of other occupying powers, the British Courts consisted of non-professional jurists and they convicted 1085 Nazi accused, of whom 240 were sentenced to death. On some points the British tribunal disregarded IMT principles. The East European socialist block waged a consistent policy of prosecuting and punishing Nazi accused. During June 1946 and August 1948 period the Supreme Peoples Tribunal of Polland heard cases of those Nazi personnel who perpetrated Crimes against Humanity on the German occupied territory of Polland. Many of the accused were sentenced to death. The German Democratic Republic sentenced some 12828 Nazi accused, under their national legislation which were enacted to bring their national law in conformity with the demands of international law. Their special part of the Criminal Code of 1968 contains sanctions for criminal responsibility for crimes against peace, war crimes and crimes against humanity. Prosecution continued to be waged by the military tribunals of the occupation authorities in their respective zones. Six branches of American military tribunals started operation in Nuremberg (The materials of the trial are published in Niurnberg skii protsess. Sbornik materialov (The Nuremberg Trial of Major War Criminals, collection of materials in 3 volumes) Moscow: Yurizdat 1966.) From 1947 to 1949 twelve trials took place. The first one dealt with 23 Nazi doctors, the second one was the case against Field Marshal Mitch, the 3rd was the case against 16 Leading Nazi Jurists and the President of the special courts, the fourth involved war crimes, crimes against humanity and membership of criminal organisation, SS. The US military tribunals through these 12 trials heard the cases against 185 Nazi accused, four of which committed suicide, cases against four were dismissed owing to illness, thirty five were acquitted, capital punishments were meted to 24 persons in the doctors cases, in the case of Pohl and in the case against Einsatzgmppen, nineteen were sentenced to suffer life imprisonment, and the others were saddled with various terms. Three were found guilty for belonging to criminal organisations namely SS. The most important aspect appears to be the practice of the US military tribunals that attests to the concurring, uniform understanding and application of the Nuremberg law. If we consider as its basic source the London Agreement, together with the charter of the IMT, its Verdict and Law No 10 of the Allied control Council of December 20, 1945, supplementary thereto. It is clear from the sentences awarded that retribution, proportionality and general deterrence were the rational the tribunals of the Allied Powers used. Large scale death sentence definitely vindicates this argument. (Para: 1088); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76]

Death sentence confirmed–– The Proliferated List–– Following are what the Indian Supreme Court observed while sentencing those found guilty of murder: and deciding whether the case fits into the rarest category or not. While deciding whether case falls within the rarest of rare cases category, the judges applying the law must also be alive to the needs of society and the damage which can result if a ghastly crime is not dealt with in an effective and proper manner. (Para 25). Maya Kaur Baldevsingh Sardar v. State of Maharashtra, (2007) 12 SCC 654. Since the legislature in its wisdom though that in some rare cases it may still be necessary to impose the extreme punishment of death to deter others and to protect the society under section 354(3) CrPC the judge may visit the convict with the extreme punishment provided there exist special reason for so doing. Allauddin Mian v. State of Bihar, AIR 1989 SC 1456. Haru Ghosh v. State of W.B. (2009) 15 SCC 551. (Death sentence confirmed) Whether a case falls within the rarest of the rare case or not, has to be examined with reference to the facts and circumstances of each case and the court has to take note of the aggravating as well as mitigating circumstances and conclude whether there was something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for death sentence. (Paras 90 and 91). Dara Singh v. Republic of India, (2011) 2 SCC 490 Principle application of the rarest of rare dictum does not come in the way of individualised sentencing. With necessary room for sentencing, consistency has to be achieved in the manner in which the rarest of rare dictum has to be applied by courts. Bachan Singh expressly barred one-time enunciation of minute guidelines through a judicial verdict. But at the same time, it actively relied on judicial precedent in disciplining sentencing discretion to repel the argument of arbitrariness and Article 14 challenge. Sentencing discretion is also a kind of discretion and it shall be exercised judicially in the light of the precedents. (Paras 90 to 92). Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498. To kill is to be cruel and therefore, all murders are cruel, yet such cruelty may vary in its degree of culpability and it is only when culpability assumes the proportion of extreme depravity that special reasons can legitimately be said to exist. (Para 16) State of Punjab v. Manjit Singh, AIR 2009 SC 2888. Prima facie, a dangerous criminal who has indulged in the killing spree in an extremely brutal and horrendous manner to achieve his own selfish gains or to satisfy his physical lust or to disrupt the public order and peace, should be considered to be a menace to society and he be subjected to the extreme punishment of death. The justification behind death sentence is to respect the collective conscience of the society in relation to crimes of extreme brutality and terrorism and to impart security to the society. The element of deterrence is of course inherent in it. As pointed out in Allauddin Mian case death sentence serves a threefold purpose: (i) punitive, (ii) deterrent, and (iii) protective. (Para 15). A holistic view has to be taken on the facts presented in each case. (Paras 16 and 15). Gyasuddin Khan v. State of Bihar, AIR 2004 SC 210. Confirming death sentence, Held: For deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced in a dispassionate manner and discretionary judgment has to be exercised by the court in the particular circumstances of the case. Punishment must also respond to the society’s cry for justice against the criminal. While considering the punishment to be given to the accused, the Court should be alive not only to the right of the criminal to be awarded just and fair punishment by administering justice tempered with such mercy as the criminal may justly deserve, but also to the rights of the victims of the crime to have the assailant appropriately punished and the society’s reasonable expectation from the Court for the appropriate deterrent punishment conforming to the gravity of the offence and consistent with the public abhorrence for the heinous crime committed by the accused. The accused was in full senses and had committed the murders of four close relatives one after the other and also attempted to commit murder of his brother’s wife and daughter in a cool and calculated manner. He did not even feel remorse. Such murders and attempt to commit murders in a cool and calculated manner without provocation cannot but shock the conscience of the society which must abhor such heinous crime committed on helpless innocent persons. In the facts and circumstances of the case, the crime committed by the accused falls in the category of rarest of rare cases for which extreme penalty of death is fully justified. Surja Ram v. State of Rajasthan, AIR 1997 SC 18. Justifying death sentence, Indian Supreme Court held that the choice as to which one of the two punishments provided for murder is the proper one in a given case will depend upon the particular circumstances of that case and the Court has to exercise its discretion judicially and on well-recognised principles after balancing all the mitigating and aggravating circumstances of the crime. The Court also should see whether there is something uncommon about the crime which renders sentence of imprisonment of life inadequate and calls for death sentence. Individual part played by the accused may assume some importance in some cases, but in an organised crime that kind of enquiry may not be relevant for the purpose of finding out the special reasons. He brutally murdered six persons. The crime indulged was gruesome, cold-blooded, heinous, atrocious and cruel and he has proved to be an ardent criminal and thus a menace to the society. It is an exceptional case where the crime committed by him is so gruesome, diabolical and revolting which shocks the collective conscience of the community, Shankar v. State of T.N. (1994) 4 SCC 478. Death Penalty is to be upheld in a case where the accused, members of a Gang, caused death of 22 persons and injuries to several others by blasting of landmines, TADA, 1987, Ss. 3, 4 and 5 – CrPC, 1973, Ss. 386 and 377 The grant of life imprisonment is the rule and death penalty an exception in the rarest of rare cases by stating “special reasons” for awarding it, but at the same time the punishment awarded must be commensurate with the crime committed by the accused. The power to enhance death sentence from life should be very rarely exercised and only for strongest – possible reasons and not only because the appellate court is of that view. The question of enhancement of sentence to award death penalty can, however, be considered where the facts are such that to award any punishment less than the maximum would shock the conscience of the court. The court has to consider the nature of the crime as well as the accused. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. More often than not these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. In many cases the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate watertight compartments. (Paras 23, 29 and 32) The appellants are members of a notorious gang. They must have anticipated that their activity would result in elimination of a large number of lives. As a result of criminal activities, the normal life of those living in the area has been totally shattered. It would be mockery of justice if extreme punishment is not imposed. There can hardly be a more appropriate case than the present one to award maximum sentence. The Court has to perform this onerous duty for self-preservation i.e. preservation of persons who are living and working in the area where the appellants and their group operate, Simon v. State of Karnataka, (2004) 2 SCC 694. (Sentence enhanced to capital one) When the collective conscience of the community is so shocked, that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances: (1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community. (2) When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-á-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course of betrayal of the motherland. (3) When murder of a member of a Schedule Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of ‘bride burning’ or ‘dowry deaths’ or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation. (4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. (5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-á-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community. (Para 23) If upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so, Lehna v. State of Haryana, (2002) 3 SCC 76: 2002 SCC (Cri) 526. (Death sentence confirmed) In order that the sentence may be properly graded to fit the degree of gravity of each case, it is necessary that the maximum sentence prescribed by law should be reserved for ‘the rarest of rare’ cases which are of an exceptional nature. Sentences of severity are imposed to reflect the seriousness of the crime, to promote respect for the law, to provide just punishment for the offence, to afford adequate deterrent to criminal conduct and to protect the community from further similar conduct. It serves a threefold purpose (i) punitive (ii) deterrent and (iii) protective. The court must not only look to the crime and the victim but also the circumstances of the criminal and the impact of the crime on the community, Allauddin Mian v. State of Bihar, AIR 1989 SC 1456. (Death sentence confirmed) The fact that murders in question were committed in such a diabolic manner while the victims were sleeping, without any provocation whatsoever from the victims’ side indicates the cold-blooded and premeditated approach of the accused to cause death of the victims. The brutality of the act is amplified by the grotesque and revolting manner in which the helpless victims have been murdered which is indicative of the fact that the act was diabolic of the most superlative degree in conception and cruel in execution and that both the accused persons are not possessed of the basic humanness and completely lack the psyche or mindset which can be amenable to any reformation. If this act is not revolting or dastardly, it is beyond comprehension as to what other act can be so. In view of these facts, there would be failure of justice in case death sentence is not awarded in the present case as the same undoubtedly falls within the category of the rarest of the rare cases and the High Court was not justified in commuting death sentence to life imprisonment. (Para 66). Ram Singh v. Sonia, AIR 2007 SC 1218. (Death sentence confirmed) In a case where 13 members of his family, including small kids were killed for a flimsy reason, when victims were sleeping at the time of attack, it was not a fit case where death penalty could be commuted to life imprisonment (Para 8). Gurmeet Singh v. State of U.P., (2005) 12 SCC 107: (commutation reversed) Where the accused, a paying guest, brutally murdered three innocent defenceless children and caused injuries to all other helpless inmates of the house without provocation or reason for committing this ghastly act at a time when children would have been sleeping and would not have been in a position to defend themselves death sentence is proper. Considering the brutality, diabolic, inhuman nature and enormity of the crime (i.e. multiple murders and attacks), the mindset of the accused could not be said to be amenable to any reformation –Therefore, it came under the rarest of rare case where not awarding a death sentence would have caused a failure of justice – Death penalty confirmed, Prajeet Kumar Singh v. State of Bihar, (2008) 4 SCC 434. A case where the appellant amputated hands of the deceased, severed his head from the body, carried it through the road to the police station by holding it in one hand and the blood-dripping weapon in the other hand falls within the category of rarest of rare cases- In view of aggravating circumstances of the case the fact that the appellant was a young man having three unmarried sisters and aged parents would not justify lesser punishment. (Death sentence affirmed) Mahendra Nath Das v. State of Assam, AIR 1999 SC 1926. A case of murder of 5 persons, an old man of 75 years, a woman aged 32 years, two boys aged 12 years and a girl aged 15 years, at night when they were asleep by inflicting multiple injuries to wreak vengeance –Lower part of the body of the girl denuded in a ghastly and barbaric manner can be termed as rarest of the rare cases. State of U.P. v. Dharmendra Singh, AIR 1999 SC 3789. (Death sentence affirmed) Death sentence, is, justified for causing death of a 14-year-old girl after luring her into the house for committing criminal assault. Nathu Garam v. State of U.P. (1979) 3 SCC 366. Death sentence justified as “Rarest of the rare” case when two appellant accused giving chase to the deceased persons and butchering five of them with axes and other weapons in a very dastardly manner and after killing three adults, entered into the victims’ house and killed two children who in no way were involved with the alleged property dispute with the appellants, as if to exterminate the entire family. (Paras 5 and 6), Karan Singh v. State of U.P., (2005) 6 SCC 342. (Death Sentence affirmed) In a case where entire family was wiped out – Five persons had lost their lives while sole surviving lady has to lead life with 70% burn injuries, death sentence is the proper penalty as the murderer was committed in a cruel, grotesque and diabolical manner : and closing of door was the most foul act, by which accused actually intended to burn all persons inside the room and precisely that had happened –Deceased B who managed to come out was almost beheaded –Accused had gone to place of occurrence well prepared carrying jerry cans containing petrol, sword and also a pistol with two bullets which showed his premeditation and cold-blooded mind. Sunder Singh v. State of Uttaranchal, (2010) 10 SCC 61. (Death Sentence affirmed) The offence conceived and initiated with deliberation with the object of slaughtering a defenceless woman - Death sentence is proper sentence. Rama Shankar Singh v. State of W.B., AIR 1962 SC 1239. When offence of murder brutal, conceived and executed with deliberation upon a defenceless old woman – Death sentence, is proper. State of U.P. v. Deman Upadhyaya, AIR 1960 SC 1125. In a triple murder case -Sentence of death is to be the only appropriate sentence which a court of law could pass. Gulab Singh v. State of M.P., Cr. A. No. 45 of 1957. In a case of premeditated and well-planned murder, where death was caused by strangulation of four children and a woman, where the appellant killed woman with whom he lived as husband and wife, a woman who was deeply in love with him and where the appellant not only killed two children of the deceased, born from her first husband but had also killed his own two children –All four children and the woman were brought near a pond in a planned manner, strangulated to death and dead bodies of the children thrown into a pond to conceal the crime –Appellant not only killed woman but crushed her head to avoid identification, the crime has been committed in a beastly, extremely brutal, barbaric and grotesque manner which has resulted in intense and extreme indignation of the community and shocked collective conscience of society, death is proper sentence. Sudam v. State of Maharashtra, (2011) 7 SCC 125. Award of death sentence was justified in a Cold-blooded murder case-Presence of several aggravating circumstances –No mitigating circumstance – Offence committed in pre-planned manner in broad daylight- Two victims (including a boy, aged six years) burnt to death by locking the house from outside –Third victim cut into pieces – Offence committed in most barbaric manner to deter others from challenging the supremacy of the appellant in the village- Absence of any strong motive –Victims did not provoke or contribute to the incident –Appellant was leading the gang –He had no repentance for the ghastly act he committed the entire incident shocked the collective conscience of the community, there was no mitigating circumstance to refrain from imposing death penalty –(Para 18). Holiram Bordoloi v. State of Assam, AIR 2005 SC 2059. The object and function of criminal law, need for imposition of appropriate sentence, extent of adherence to principle of proportionality while sentencing, requirement for delicately balancing the aggravating and mitigating factors and circumstances in which crime committed and guidelines related to imposition of death sentence, restated –Murder of six members of a family, including helpless women and children, committed in a brutal, diabolic and grisly manner-Crime being one of enormous proportion which shocks conscience of law, death sentence as awarded to respondent –accused S and V on conviction was appropriate and High Court ought not to have altered it, State of U.P. v. Sattan, (2009) 4 SCC 736. In Kehar Singh-V-Delhi Administration (AIR 1988 S.C. 1883), ie Indira Gandhi murder case, the Apex Court confirmed the death sentence awarded by the Trial Court and maintained by the High Court of three appellants for entering into conspiracy and committing murder of SMT. INDIRA GANDHI The Court held that the murder of Mrs. Gandhi by the security guards is one of the rarest of the rare cases in which extreme penalty of DEATH is called for the assassin and his co-conspirators, it is a gruesome murder committed by the accused who were employed as security guards to protect the Prime Minister. The manner in which Mrs. Gandhi was mercilessly attacked by her own security guards on whom the confidence was reposed to give her protection repels any consideration of reduction of sentence. Even the conspirators (Kehar Singh and Balbir Singh) who inspired the persons do not deserve any leniency in the matter of sentence, it is a gruesome murder. In Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid – V-State of Moharastra, (Criminal Appeal No. 1899-1900 of 2011), i.e. the sensational Mumbai Hotel Bombing case, the Supreme Court of India upheld the death sentence for Ajmal Kasab, the only terrorist caught alive during the 26 /11 Mumbai terror bomb attacks in 2008 which caused death of 7 people and maiming of several others. Kasab wanted his death sentence, handed to him by the Bombay High Court, to be commuted to life imprisonment. The appellant, Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid, who was a Pakistani national, earned for himself five death penalties and an equal number of life terms in prison for committing multiple crimes of a horrendous kind in India. Charges against him included those of collecting arms with the intention of waging war against the Government of India; waging and abetting the waging of war against the Government of India; commission of terrorist acts; criminal conspiracy to commit murder; abetment; abduction for murder; with an attempt to cause death or grievous hurt; and causing explosions etc. He was found guilty of all these charges and was awarded death sentence on five counts, life-sentence on five other counts, as well as a number of relatively lighter sentences of imprisonment for the other offences. (Paras: 1023-1058); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76]

Death Sentence Generally–– The question of the desirability of death sentence is presently a subject of extensive international debate. There are strong arguments from both sides of the fence. Those who are in favour of retaining this age old sentence believe that this prove greater protection to the society as it acts as a more effective general deterrent conveying signal to others that they would face the same eventuality should they dare committing death penalty attracting crimes and also that this form of incapacitation is a desirable form of retribution in more gruesome and frenzied cases. Those, who, speak from the other side of the wall, assert that death sentence is an archaic, old fashioned device which has out runned its span, that it is an inhuman and cruel system which can not survive in the present days, that one wrong can not be quelled by another one. Advent of the 20th century marked an upsurge in the demand for its abolition, terming it inconducive to human dignity and that it does not reduce crimes. Abolitionists’ view is often more ethical than legal and it would be wrong to say that their view was or has been universally endorsed. Strongest argument of the abolitionist is based on the theme that once executed, the sentence is irreversible. Death Sentence is no doubt mecaburous but as Tanzanian Court of Appeal in Mbusvv-V- The Republic (30th January, 1955), quite aptly observed that the mandatory death penalty; while cruel and degrading, was none the less constitutional: it was a reasonable and necessary measure to protect the right to life of law abiding citizens. The fact that good number of countries could not be persuaded to swing to the abolitionists club vindicate the claim that it is not generally accepted that death penalty experiment has failed. Some 58 countries have still remained in the retentionist enclave while 35 others, though have been maintaining moratorium on death penalty, do in law, retain death sentence (Penal Reform International: 2014). In fact Jamaica, Papua New Guinea, Srilanka have restored death sentence, turning around previously imposed moratorium for cogent reasons. Philippines suspended it twice since 1987. One of the abiding arguments against the death sentence is the fallibility of the human justice which may result in the execution of people innocent. Though all West European countries along with the old Commonwealth have abolished capital punishment, it still reigns unhindered in many countries with proven success in reducing crime levels . 32 of the 50 component states of the United States of America are in the list of the retentionists. Staticts reveal that in those of US States where death sentence are prevalent, major crimes are relatively less frequent. Malaysia, which has attained an acclaimed sophistication in the progression of democratic order, prescribes mandatory death sentence for murder and drug offences. Most of the far eastern democracies, inclusive of Philippines, Indonesia, and Thailand maintain death sentence for drug peddling. Middle east countries, inclusive of Iran, do not only retain capital punishment, but practice it day in, day out. Although the United Kingdom had abolished death sentence generally, ostensibly after subsequently emerged evidence showing that some executed people were actually innocent, death sentence for certain very limited offences involving the monarch and the kingdom, are still in its book. While there can be no qualm on the theological doctrine that taking of life is within the exclusive and unfettered domain of the Creator, yet if we meticulously follow the creator’s Oracles, it become obvious that the Creator allowed the human being to pass death sentence on those guilty of repulsive felonies. With the sole exception of Budhism, all major religions endorse capital sentence for described offences. (Paras:972-982); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76]

Delwar Hossain Sayedee has committed no offence–– We are to accept the defence plea that Delwar Hossain Sayedee has committed no offence, it would be tantamount to saying that there was no genocide by the Paki army and their native stooges i.e. Rajakars, Al-Badars, Peace Committee Members, in Bangladesh in 1971. (Para-1106); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76]

Privy Council on Death Sentenced–– The most important case on which the Privy Council advised the British monarch on death sentence is that of Part and Morgan –v-Jamaica, an appeal against the decision of Jamaica’s top Court, in which case the P.C. advised that no execution can take place within the P.C’s jurisdiction of prisoner’s who are still alive more than five years after the sentence was passed. Thus, while the P.C. ordained against execution of a prisoner who was sentenced more than five years back, it did not, as such, out law death penalty (Prat and Morgan –V-AG of Jamaica, 1994, 2 AC 1). In Patrick Reyes-v-The Queen (2000 UK PC 11), the P.C. struck down mandatory death sentence in the Commonwealth Caribbean on the ground that it is inhuman and degrading to impose the most severe punishment without considering factors which might mitigate culpability. Again there who no general proscription of death sentence, where that sentence is not mandatory. (Paras: 1094-1095); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76]

The US Supreme Court on Death Sentenced –– US Justice Harry Blackmun in Callins –v- Collins (1994) observed, “I feel mentally and intellectually obliged simply to concede that the death penalty experiment has failed”. That statement notwithstanding, death penalty does not only survive in 32 of 50 US states, but according to latest Amnesty International Report the United States of America is fifth in the list of World’s top death sentencing nations. According to the Amnesty report some ……. people were sentenced to death in the year 2014. Abolitionists argue that the US for all its executions, still has the highest murder rate in the industrialised world, while the retaintionists argue that the rate would be even higher without death penalty. In Furman-v-Georgia (US Supreme Court, 1972) though the US Supreme Court came very close to abolish capital punish, nevertheless refrained from doing so. In that case a Judge remarked, “Death sentences are cruel and unusual in the same way that being struck by lightening is cruel and unusual”. This observation was based on the theme that the principle of equality does not operate in picking and choosing those sentenced to death. It is to be noted that the US public opinion favour death sentence by majority like in many other countries. (Paras: 1096-1099); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76]

Information to the witness the place where the event took place can trigger the memory–– The retrieval of the information from the witness is a vulnerable process and full of pitfalls. Investigators, prosecutors and Judges alike always want a chronological narrative of an event by the witness with sufficient focus on time, place, persons, who did, what –when, et cetera. And that is hardly ever the result of witness statement or testimony. Always the information needs to be aroused or triggered by what is called “retrieval cues”. As the psychology of a human works, this can be done by any means that arouses the sense organs. Giving pieces of information to the witness or bringing a person to the crime scene or the place where the event took place can trigger the memory; even a specific scent can do that. (Para-163); .....Salauddin Quader Chowdhury =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 511]

Inherent lacuna in conducting the prosecution case–– Learned Attorney General in the opening of his argument produced a paper and submitted that the appellant Mir Quashem Ali was not only Islami Chatra Sangha Leader and Al-Badar Chief, Chittagong chapter, but also the chief financer of a big political party, which wants to frustrate the trial of offenders of crimes against humanity, war crimes and genocide and engaged a lobbyist firm on payment of US$ 25 million to influence the government of the United States with a view to postponing the trial process. (Para-199); .....Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 364]

Just Desert–– Desert theory is the modern form of retributive philosophy, and like retributism, it has various shades and hues. Andrew Von Hirsh, the leading proponent of this doctrine, who authored, “Doing Justice” in 1976 in the United States, opined that punishment has a twin justification, one of which is founded on the intuitive connection between desertand punishment, while the other one has underlying need for general deterence as its launching pad. The main thrust and chief contribution of desert theory is to the quantum of punishment where proportionality is the touchstone, which is either ordinal or cardinal. While ordinal proportionality is concerned with the relative seriousness of offences among themselves, cardinal proportionality relates the ordinal ranking to a scale of punishments and requires that the penalty should not be out of proportion to the gravity of the crime. It is the general perception that the rhetoric of desert is likely to lead to greater severity of penalties. It is said to be based on the intuition that punishment is an appropriate or natural response to offending. Cafeteria approach is the one where the sentencer selects the sentence as this to be most appropriate to each individual case. This allows the sentencer to pursue his own idiosyncratic approach. This is obviously at odd with the rule of law and substitutes for it the rule of individual judges. Hybrid approach, first declaring a primary rationale and then allowing it to be trumped by other rationales, has been hailed as a step forward to ensure consistency. Sweden adopts “desert” as the primary rationale. (Paras: 851-853); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76]

Just Desert in UK–– UK’s criminal Justice Act, 1991 the very first UK legislation to lay down sentencing principles on statutory ironshed was intended to embody desert as the primary rationale, including incapacitation (through custodial sentence) in appropriate cases. S. 2 of the Act states that the length of a custodial sentence should be commensurate with the seriousness of the offence. Dr. David Thomas added that it is a largely irrelevant exercise in “teaching grandmother to suck eggs”, that the principle of “just desert” is not new: it has been the basis of judicial practice in the use of custodial sentence for years”. Dr. Thomas in his path breaking book on the principle of sentencing described the tariff “as being sustained by a mixture of deterrent and desert principle: proportionality plays some part: but the judges selects a tariff sentence where he imposes, usually in the name of general deterrence, a sentence intended to reflect the offenders’ culpability” (Thomas 1979 page 8). Lord Taylor CJ expressed, “the purpose of custodial sentence must primarily be to punish and to deter. Accordingly the phrase “commensurate with the seriousness of the offence” must mean commensurate with the punishment and deterrence which the seriousness of the offence requires” (Re Cunningham 1993 14 Cr. A.R. (s) 444). Part of the white paper that preceded the enactment of the Criminal Justice Act, 1991, described by Dr. David Thomas as a new legislative framework for sentencing based on the seriousness of the offence or “just desert”, is reproduced below: “If the punishment is just and in proportion to the seriousness of the offence, then the victim, the victims’ family and friends and the public will be satisfied that the law has been upheld and there will be no desire for further retaliation or private revenge”. (White paper 1990 para 2.3) 1991 Act, mandates that the sentence shall be based on the primary rational of “Just desert”. As Ashworth states (Page 93, third edition) proportionality “has always played some role in English sentencing, and it continues to do so”. Penal law of Finland provides that punishment shall be measured so that it is in just proportion to the damage and danger caused by the offence and to the guilt of the offender manifested in the offence. Sweedish Criminal Code provides that sentences should be based on the penal value of the offence and the penal value is determined with regard to the harm, the conduct involved. (Paras: 854-861); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76]

Jyotsna Bala Chowdhury statement has not controverted by the defence–– Jyotsna Bala Chowdhury stated in unison with P.Ws.12 and 13. She is an eye witness and a victim of the incident. She saw the accused in the company of the army at the time of perpetration of killing. Exhibit 29 corroborates the statement of Jyotsna Bala in material particulars. P.W.12 stated that he saw his brother’s wife with bullet injuries about one mile away south of his house whose name was Jyotsna Bala Chowdhury. His statement has not been controverted by the defence and therefore, the statement may be taken as admitted by the defence. (Para-146); .....Salauddin Quader Chowdhury =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 511]

More than one person can be superior and can hold effective control on the same subordinates and more than one superior may be liable for the crime committed by the subordinates–– The Appellate Division helds that in this case sufficient evidence and facts and circumstances have come before the tribunal which have proved sufficiently that this appellant was a leader of Al-Badr Bahini and he had control on the members of Al-Badr Bahini and he had complicity also in the killing of intellectuals by the Al-Badr Bahini. In the circumstances the alleged non-implication of this appellant in the alleged earlier cases does not relieve him of the liability in intellectuals killing which has been proved in this case by sufficient evidence. The failure of the prosecution to produce any ID Card of any Al-Badr with the signature of the appellant is not fatal at all for the prosecution - specially in consideration of the fact that those ID Cards were issued long 42 years before. (Para-14); .....Motiur Rahman Nizami =VS= The Government of Bangladesh, [2 LM (AD) 504]

The members of Badar bahini were ÒJamat-e-Islami nominated army–– Admittedly, the appellant Mir Quasem Ali was leader of ICS Chittagong town unit in 1971. It is also admitted that he became the Secretary General East Pakistan ICS on 7th November, 1971. Admittedly, he was selected as Secretary General of ICS considering his performance and activities as leader of Chittagong ICS and Al- Badar Bahini. It is evident that while discharging his duties as Secretary General of East Pakistan ICS he was given charge of Chittagong Division of ICS as well. Such promotion and prize post were given definitely on consideration of his effective activities and performance as leader of ICS Chittagong town unit. In the case of Ali Ahshan Mohammad Mujahid- Vs. the Chief Prosecutor, 20 BLC (AP)266 and in the unreported case of Motiur Rahman Nizami, this Division held that the Al-Badar Bahini was formed with the members of ICS. The Pakistani politicians admitted that the members of Badar bahini were ÒJamat-e-Islami nominated armyÓ. (Para-53); .....Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 364]

Memory of witnesses of 42 years there may be some variation–– We should keep in mind that these witnesses deposed before a Tribunal about the occurrence which took place long about 42 years before. With passage of this long time of about 42 years the memory of witnesses faded. In the circumstances it is not unnatural at all that there may be some variations or discrepancies in the evidence of witnesses about a particular incident/ occurrence. To prove the charge No. 7 four witnesses have been examined by the prosecution, three of whom have rightly stated the date of killing of Sohrab Ali before Tribunal. One witness only namely P. W. 16 has stated the date of that occurrence as 4th December instead of 3rd December. We do not think that mentioning of such an incorrect date of the occurrence by a single witness raises any suspicion or doubt about the prosecution case. (Para-142); .....Motiur Rahman Nizami =VS= The Government of Bangladesh, [2 LM (AD) 446]

Modern Sentencing Principle Generally–– As prof Andrew Ashworth, Vinerion Professor of English Law at Oxford, observed, “there is no doubt that the task of sentencing imposes a great burden on the Judges and that many of them say that it is the hardest and most disturbing of judicial tasks. “(Sentencing and Criminal Justice: Prof Andrew Ashworth, 3rd Edition page 415). In similar vein Lord Bingham CJ also observed that the problem of dealing with cases which are on the borderline of the custody threshold as “one of the most elusive problems of criminal sentencing”. (R-V-Howells, 1999 1 WLR-307) The principal sources of English sentencing law are legislation, and judicial decisions. In a less formal sense the work of some academic lawyers may be regarded as a source. The leading writer is Dr. David A Thomas of Cambridge University, whose commentaries is often cited by the Court of Appeal with approval. In England, where most of the statutes, fixing maximum penalty only, leave it to the Courts’ discretion to award appropriate sentence, the Court of appeal has laid down guidelines in several cases. But many senior judicial personages at the top of the judicial higherarchy have expressed loath against “copy cat” followance of guideline tariffs expressing that sentence in each case should be based on the facts and circumstances peculiar to it. During an extra judicial speech Lord Taylor, CJ. expressed that guideline cases merely set the general tariff, but the Judges are free to determine the sentence on the basis of the facts and circumstances of the particular case (Taylor 1993, page 130). The test according to Lord Taylor, C.J. is “Whether public confidence in criminal Justice could be maintained if the public were aware of the circumstances of this case and the sentence which was passed” (AGs Reference No.15 of 1992 14 Cr. A P R (S) 324). Lord Lane, CJ in Mussel (1990 12 Cr. App. R. R(s) 607) observed that each offence has to be judged individually. Speaking extra judicially he expressed “Sentencing consists in trying to reconcile a number of totally irreconcilable facts. The Judges get very little help in this difficult matter”. (HL Deb Vol 486 col 1295). Prof Ashworth interpreted this observation, stating; “But the great difficulty of decision in sentencing is that there are so many, often, conflicting points to be taken into account”. Supporting Lord Lane’s view that “sentencing is not a science” (Oxford Pilot Study 1984 P-64) Ashworth observed that “maximum discretion should be left to Court and any encroachment on this is likely to lead to injustice”. Dr. David Thomas QC, who according to some Court of Appeal Judges made major contribution to revolutionise sentencing practice in the UK, expressed that a decision making sequence should be the basis of sentencing. According to him the Court should first decide between a “tariff sentence” based on general deterrence or proportionality and an individualised sentence, usually based on rehabilitative or incapacitative consideration. (Thomas 1979 page 11) Prof Ashworth suggested that four groups of factors, listed below may be identified; (i) views on the fact of the case (ii) views on the principle of sentencing (a) views on the gravity of the offence (b) views on the aims, effectiveness and relative severity of the available types of sentence (c) views on general principle of sentencing (d) views on the relative weight of aggravating and mitigating factors (iii) views and crimes and punishment (a) views on the aims of sentencing (b) views on the causes of crime (c) views on the function of Courts in passing sentence (iv) Demographic feature of sentence (a) age (b) social class (c) occupation (d) urban or rural back ground (e) race (f) gender (g) religion (h) political allegiance According to Durkhein, sentencing has an expressive function and the best punishment is that which puts the blame in the most expensive but least costly form possible (quoted in Garland 1990 P 46, Ashworth page 61). The Supreme Court of Victoria in Williscraft (-V-R (1975 229) observed, “The purpose of punishment are manifold and each element will assume a different significance not only in different cases but in individual commission of each crime ....... ultimately every sentence imposed represents a sentencing Judge’s instinctive synthesis of all the various aspects involved in the punitive process”. (Paras: 834-846); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76]

Nation did not and shall never forget 1971–– Considering the oral and documentary evidence together with the pre and post operation conduct and activities of the appellant during the war of Independence, we have no hesitation to hold that the ruthless Al-Badr Bahini, under the leadership of the appellant and being instigated, suggested, aided, provoked and incited by him, had kidnapped and killed the intellectuals just before the victory. It was cold blooded savagery. Such barbaric, gruesome and brutal crime which the Badr Bahini committed at the instigation of the appellant is comparable with Hitler’s gas chamber genocide. The entire world witnessed such genocide and brutality committed by Al- Badr Bahini. The people of this earth did not forget Hiroshima and Nagasaki. This Nation did not and shall never forget 1971. (Para-231); .....Ali Ahsan Muhammad Mujahid =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 1]

The non-inclusion of the name of the appellant in this exhibit-C does not prove at all that the appellant was not involved in the incident of Dhulaura village–– The Appellate Division is unable to accept this argument also of the learned Advocate. This exhibit-C is an incomplete list of Rajakar, Al-Badr and Al-Shams of Pabna district. The non-inclusion of the name of the appellant in this list does not prove at all that this appellant did not collaborate with the Pakistani invading force and did not take part in the incident of Dhulaura village with them. In this case there are sufficient evidence to prove that this appellant Motiur Rahman Nizami used to reside at Dhaka during the Liberation War of Bangladesh and he used to go to Pabna often and committed the atrocities as described in various charges framed against him. So in the circumstances the non-inclusion of the name of the appellant in this exhibit-C does not prove at all that the appellant was not involved in the incident of Dhulaura village. (Para-125); .....Motiur Rahman Nizami =VS= The Government of Bangladesh, [2 LM (AD) 446]

Punishment barbaric gruesome brutal crimes–– We held that petitioner’s ruthless ‘Badr Bahini’ being instigated, suggested, provoked and incited by the petitioner had kidnapped and killed the intellectuals which was cold blooded savagery. Such barbaric gruesome brutal crimes which are comparable with the Hitler’s Gas Chamber Genocide or Jalilianbag massacre. Does Islam permit killing of those unarmed people? While awarding the sentence, the Court must take into consideration the unbearable pains, tears rolling down the cheeks and sufferings of the widows and children of the victims who cried for getting justice for about 43 years. The barbaric gruesome and heinous crimes which under the petitioner’s leadership his ‘Badr Bahini’ committed is a revolt against the humanity. As leader of ‘Badr Bahini’ the petitioner can not escape from the liability. It is the duty of the court to impose proper punishment depending upon the criminality and proportionate to the gravity of the offence. (Para-34); .....Ali Ahsan Muhammad Mujahid =VS= The Government of Bangladesh, [2 LM (AD) 65]

Responsibility on the part of a commander or superior officer to shoulder the responsibility for commission of any crimes committed by his subordinates–– It is proved that he did not participate but his subordinates committed the offence within his knowledge or that he has prepared a plan to commit any of the offences, in that case also, he cannot avoid the responsibility because law imposes a responsibility on the part of a commander or superior officer to shoulder the responsibility for commission of any crimes committed by his subordinates. (Para-202); .....Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 364]

Retribution in Practice–– Relevant passages from some decisions pronounced by our Appellate and the High Court Divisions, which are reproduced below, do reveal that as in India, Pakistan, Sri Lanka and indeed most other countries, whether they follow common law or civil law, retribution and general deterrence rationale are more appropriate in awarding sentence to a person guilty of such felony as murder, rape, arson etc. “The High Court Division on consideration of the evidence found that the petitioner had killed two victims without any provocation whatsoever and the killing was result of pre-meditation and that the petitioner who has taken two lives should give his own life and rejected the plea of commutation of death sentence to imprisonment for life on the ground that petitioner was in death cell for about 3 years” (18 BLD 605). “On going through the materials on record and the impugned judgment, we find no illegality therein to interfere with the same. We also find no ground to commute the sentence as there is no extenuating circumstance for the same”. (Mofazzal Hossain Pramanik-V- State, 6 BLC (AD) 96). “In a case like the present where a number of persons inflict a large number of injuries with the intention of causing death so that each is contributing towards the death of the deceased, it is not necessary for the purpose of imposing the maximum penalty to determine who gave the fatal blow. In such a case all those accused to whom the Court attribute the intention of causing death in a brutal manner, should (in the absence of some other circumstance justifying the imposition of the lesser penalty) be awarded the maximum penalty. / (Fateh Khan and others –V – State, 15 DLR (SC) 5). “There being no extenuating circumstance, the sentence of death imposed on the condemned convict by the learned Sessions Judge, Munshiganj, was the only sentence that could be imposed” (The State-V – Siddiqur Rahman, 2 BLC (HC) 145). Application of retributive rationale is clearly implied in this judgment. In Abed Ali-V-State (42 DLR (AD) 171), the Appellate Division approved the following observation of the convicting Court; “He committed gruesome murder of 2 young men and attempt on third who however narrowly escaped. He is neither old, nor teenager and under circumstance I do not find any extenuating circumstance to save the accused from gallows. He came with a pre-determined and calculated intention to commit murder and with that end in view accosted the informant and his brothers who were unarmed and taken off / guard. We have nothing in the circumstance of the case and in the conduct of the accused to take a lenient view in the matter of the sentence inspite of our very best concur to temper Justice with mercy”. This is yet another judgment which shows that retribution morale dominated minds of the Judges. The following observation of the Appellate Division in the case of Dipok K Sarkar –V- State (40 DLR (AD) 139) also suggest that retributive rationale is to be followed but the principle of commensurability must be the basis; “It is not certainly our purpose to say, however, that killing of wife by husband is to be viewed by some other standard while considering the offence of murder, but as in all other cases the circumstances attending the crime have to be taken notice of for inflicting the proper punishment prescribed under the law”. (Paras: 931-933); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76]

Review is not a rehearing–– The review petition has been filed against the conviction and sentence maintained by this court in respect of count Nos.2, 3, 7, 9, 10, 11 and 14, learned counsel argues that he is not inclined to press this leave petition on all counts except charge No.11. He has confined his argument in respect of charge No.11. The petitioner’s contribution towards the economic development of the country by establishing business conglomerate and employing thousands of citizens in his business establishments which is not a legal ground to commute the sentence. It is within the jurisdiction of the executive. The court is only concerned with the culpability of the petitioner and the law governing on the sentencing principles. Crimes against humanity are taken as serious types of offence. The word ‘humanity’ signifies humanness-mankind collectively. That a review is available if there is error apparent on the face of the record. There cannot be a ground for review if of two or more views are argued on a point, it cannot be a ground for review. A review is not a rehearing of the matter afresh. It is only a clerical mistake or mistake apparent on the face of the record that can be corrected but does not include the correction of any erroneous view of law taken by the court. The basic philosophy inherent in it is the universal acceptance of human fallibility but the points raised by the learned counsel are beyond the principles on which a review can be allowed. (Paras-2, 14 & 12); .....Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 438]

A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error apparent on the face of the record–– The Appellate Division helds that a finding reached by a court cannot be revisited on the reassessment of the evidence, inasmuch as, an error has to be established on the face of the judgment but where there may conceivably arise two opinions, this can hardly be said to be an error apparent on the face of the record. (Para-16); .....Motiur Rahman Nizami =VS= The Government of Bangladesh, [2 LM (AD) 504]

No review lies except on ground of error apparent on the face of the record or miscarriage of justice–– The Appellate Division held that the learned Counsel could not show any error in the decision in arriving at the conclusion that the plea of alibi has not been substituted or that the reasons assigned by the Appellate Division are contrary to the evidence on record or that there are error apparent on the face of the record. No review lies in this court except on ground of error apparent on the face of the record or miscarriage of justice. The basic philosophy inherent in it is the universal acceptance of human fallibility. The learned Counsel fails to point out any error which has been cropped up on analysis of the evidence on record. Since the learned Counsel did not argue on the merit of the 13 matter, and stresses upon the plea of alibi, which has been rejected on a full flagged hearing, at the late stage the petitioner has renewed the plea by producing a spurious document. Further, the learned Counsel having not argued on merit pointing any error in the impugned judgment, it is apparent that there is no error of law in the impugned judgment for the Appellate Division interference. The Appellate Division found no cogent ground to review our judgment. The review petition is accordingly dismissed. (Para – 08); .....Salauddin Quader Chowdhury =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 571]

The Supreme Court in refusing to commute death sentence, made the following observations;–– “Mr. Ramachandran next submitted that the High Court has committed a serious error in balancing the aggravating and the mitigating circumstances against the appellant. … …. … Further, the High Court wrongly held the appellant “individually responsible” for the murder of seven (7) persons, including Amarchand Solanki. … … … Mr. Ramachandran submitted that the strongest reason for not giving the death penalty to the appellant was his young age; the appellant was barely twenty-one (21) years old at the time of the commission of the offences. ….. …. It is indeed correct that the appellant is quite young, but having said that one would think that nothing was left to be said for him. Mr. Ramachandran, however, thinks otherwise and he has many more things to say in the appellant’s favour. Mr. Ramachandran submitted that the Court cannot ignore the family and educational background and the economic circumstances of the appellant, and in determining the just punishment to him the Court must take those, too, into account. The learned Counsel submitted that here is a boy who, as a child, loved to watch Indian movies. But he hardly had a childhood like other children. He dropped out of school after class IV and was forced to start earning by hard manual labour. Soon thereafter, he had a quarrel with his father over his earnings and that led to his leaving his home. At that immature age, living away from home and family and earning his livelihood by manual labour, he was allured by a group of fanatic murderers seemingly engaged in social work. He thought that he too should contribute towards helping the Kashmiris, who he was led to believe were oppressed by the Indian Government. Mr. Ramachandran submitted that, seen from his point of view, the appellant may appear completely and dangerously wayward but his motivation was good and patriotic. Mr. Ramachandran further submitted that once trapped by Lashkar-e-Toiba he was completely brain-washed and became a tool in their hand. While executing the attack on Mumbai, along with nine (9) other terrorists, the appellant was hardly in control of his own mind. He was almost like an automation working under remote control, a mere extension of the deadly weapon in his hands. Mr. Ramachandran submitted that, viewed thus, it would appear wholly unjust to give the death penalty to the appellant. The death penalty should be kept reserved for his handlers, who, unfortunately, are not before a court till now. If the submission of Mr. Ramachandran is taken one step further it would almost appear …… that all those who were killed or injured in Mumbai were predestined to be visited by his violence. We have no absolute belief in the philosophical doctrine of predetermination and, therefore, we are completely unable to accept Mr. Ramachandran’s submission. In this proceeding before this Court we must judge the actions of the appellant and the offences committed by him as expressions of his free will, for which he alone is responsible and must face the punishment. We are unable to accept the submission that the appellant was a mere tool in the hands of the Lashkar-e-Toiba. He joined the Lashkar-e-Toiba around December 2007 and continued as its member till the end, despite a number of opportunities to leave it. This shows his clear and unmistakable intention to be a part of the organization and participate in its designs. Even after his arrest he regarded himself as a “watan parast”, a patriotic Pakistani at war with this country. Where is the question of his being brain-washed or acting under remote control? We completely disagree that the appellant was acting like an automaton. During the past months while we lived through this case we have been able to make a fair assessment of the appellant’s personality. It is true that he is not educated but he is a very good and quick learner, has a tough mind and strong determination. He is also quite clever and shrewd. Unfortunately, he is wholly remorseless and any feeling of pity is unknown to him. He kills without the slightest twinge of conscience. Leaving aside all the massacre, we may here refer only to the casualness with which the appellant and his associate Abu Ismail shot down Gupta Bhelwala and the shanty dwellers Thakur Waghela and Bhagan Shinde at Badruddin Tayabji Marg; the attempt to break into the wards of Cama Hospital to kill the women and children who were crying and wailing inside; and the nonchalance with which he and Abu Ismail gunned down the police officer Durgude on coming out of Cama Hospital. The saddest and the most disturbing part of the case is that the appellant never showed any remorse for the terrible things he did. … … … Fidayeen like him and follow him in his deeds. Even in the course of the trial he was never repentant and did not show any sign of contrition. The High Court, too, has noticed that the appellant never showed any remorse for the large-scale murder committed by him. … …. … The alternative option of life sentence is thus unquestionably excluded in the case of the appellant and death remains the only punishment that can be given to him”. (Para:1058); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76]

Securing ends of justice a review is maintainable in exercise of the inherent powers from the judgment of Appellate Division subject to the condition that where the error is so apparent to avoid miscarriage of justice and not otherwise–– The Appellate Division helds that securing ends of justice a review is maintainable in exercise of the inherent powers from the judgment of Appellate Division subject to the condition that where the error is so apparent and patent that review is necessary to avoid miscarriage of justice and not otherwise, and the execution of a sentence shall be suspended till the disposal of the review petition if the same is filed within the period as above. (Para-18); .....Motiur Rahman Nizami =VS= The Government of Bangladesh, [2 LM (AD) 504]

Sentencing Practice: India–– All that the Indian Penal Code, enacted by the imperial Parliament in Westminster in 1860 for the whole of undivided India, states is, “Whereas it is expedient to provide a general Penal Code for India: It is enacted as follows:-” So, it indicates nothing as to the penological object or purpose of the enactment. The adjective law, i.e. the Code of Criminal Procedure (Cr.P.C.) 1973, like its repealed predecessor, also lays down nothing like what the UK’s Criminal Justice Act, 1991, Criminal Justice Act, 1993 or Criminal Justice Act, 2003 had done to lay down sentencing objectives and policies. However, observations recorded by Indian Supreme Court from time to time supply decisive information on the object, and purpose of punishment and the principles of sentencing they follow. Prof Salmond’s globally acclaimed propoundment that a crime is an act that is deemed by law harmful not merely for the individual victim but for the society as a whole, has althrough been adhered to by the Judges in India. Ashworth’s observation, “The fundamental reason for having a system of criminal law is to provide a framework for the state punishment of wrongdoers and thereby preserve an acceptable degree of social order” (“Ashworth, Belief, Intent and Criminal Liability” Oxford Essams in Jurisprudence (1987) P.1.) is also strictly followed. Five objectives outlined in UK’s Criminal Justice Act, 2003 such as (1) punishment of the offender, (2) reduction of crime, (3) reform, (4) protection of society, (5) reparation to victims, are also give effect to. Through scores of decisions the Indian Supreme Court made this clear, while also emphasising that as crime is a “pathological aberration”, a criminal can nevertheless, in appropriate cases be redeemed and the state has to rehabilitate him (Md. Giasuddin –V-State of AP AIR 1977 SC 1926), thereby advanced the rationale of reform and rehabilitation, but only where appropriate. Similarly, in Prakash –v-State of MP the Indian Apex Court expressed, “It is the result of the recognition of the doctrine that the object of the criminal law is more to reform the individual offender than to punish him”. The case of State of Jharkhan – V- Saiyed Rizwan (2003 AIR Jhar HCR 513), is one of a few cases where applying the “reform” rational, death sentence was commuted to life imprisonment on ground that probabilities of reform could be seen, in a situation where the convict with her husband killed her parents, brother and grandmother, whose corps were kept in hiding, with a motive to misappropriate their property. The decision in the case of Omprokash – V- State of Haryana (AIR 1999 S.C. 1332) provides yet another example of Indian Supreme Court’s adherence to the “reform” rationale in sentencing policy. In that case the convict killed seven persons of a family, who tried to encroach upon the earlier’s property. The convict intimated the police several times but in vain and then finally killed them. In commuting the death sentence the Apex Court took notice of those facts. In Public Prosecutor – V- Pothuraju Norosimharao (2003 Cr.L.J. NOC 229) also the Court followed “reform and rehabilitation” rationale and commuted death sentence because the prosecution failed to prove that the accused was a threat to society and was not amendable to reformation. In that case the accused committed murder by pouring acid on his near relatives due to some family dispute. In Nadella Venkata Krishna Rao-v-State of AP the same Court expressed that the whole goal of punishment is curative and that accent must be more on rehabilitation rather retributive punivity inside the prison. But these refers to cases where reformation is possible. So, the Supreme Court also observed that “social defence is the criminological foundation of punishment” and that the Courts should not confuse between correctional approach to prison treatment and nominal punishment verging on decriminalisation of serious social offences and that soft sentencing justice is gross injustice where many innocents are the potential victims” (Madhab Hayawadanrao Hoskot-v-State of Maharastra (AIR 1978 S.C. 1548) Ramdeo Chauhan –V- State of Assam (2000 7 SCC 455) is a case where the retributive rationale with incapacitating consequence was certainly applied as the Supreme Court expressed that it is true that in a civilised society a tooth for tooth and a nail for nail or death for death can not be the rule but it is equally true that when a man becomes a beast and menace to the society, he can be deprived of his life, adding that the crime committed by the appellant was not only shocking but it had also jeopardised the society and the murder committed by him was most cruel, heinous, and dastardly and hence his young age at the time of the commission of the offence could not be considered. In this case the appellant inflicted multifarious injuries on each victim that included a female baby and two helpless women, who fast asleep when killed. It expressed that while the classical principles of retribution, deterrence, prevention and rehabilitation is in the vogue, a Judge, while considering the award of sentence, must bear in mind these principles and see with reference to the facts of the particular case as to which of them has greatest importance in the case and that the quantum of punishment should be such as deserved for the offence, no more, no less, (State of MP-v-Ganga Singh 1987 Cr. L. J 128). It did also endorse the “Just desert” rationale (without naming it), stating that sentencing the guilty is most important, albeit a difficult chapter in trial, and that while retributive and denunciatory theories have lost their potency in the civilised nations, deterrent and preventive sentence is often necessary in the interest of the society (Saradhar Sahu-V- State of Orissa 1985 Cr.L.J. 1591). In a case of brutal murder, the same Supreme Court, before whom the propriety of death sentence was questioned, held, confirming death sentence, that failure to impose death sentence in such grave cases would bring to naught the sentence of death provided by section 302 of the Penal Code and that the Courts duty is to impose proper punishment depending on the degree of criminality and desirability to impose such punishment. (Asharfi Lal-V-State of UP, AIR 1987 SC 1721), and thereby followed the mixture of just desert (without naming it) and general deterrence rationale. In that case the doctrines of proportionality (touch stone of just desert, supra,) and commensurability were also taken account of having regard to social necessity. In similar vein in Mahesh -v- State of MP (AIR 1987 SC 1346) the Indian Apex Court observed, “It will be a mockery of Justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give lesser punishment for the accused would be to render the justicing system of the country, suspect. The common man will lose faith in Courts. In such cases he understands and appreciates the language of deterrence more than the reformative Jargon”. By applying the rationale of general deterrence, and public confidence test, the Supreme Court in a road accident case, enhanced the sentence of fine, observing that consideration of undue sympathy in such cases will lead to miscarriage of justice and undermine pubic confidence in the efficacy of the criminal judicial system (State of Karnataka-v-Krishna alias Raju, AIR 1987 SC 861). Application of the mixture of just desert (without naming) and general deterrence rational touching upon proportionality and commensurability recorded a high water mark in Machhi Singh-v-State of Punjab (1983 SCc (3) 470) where the community’s response was profiled high. Indian Courts also heavily rely on “aggravating and mitigating” circumstances as are reflected in innumerable decisions of which the cases of Bachan Singh-v-State of Punjab (1980 (2) SCC 684) and Swamy Shraddananda –v-State of Karnataka (2008 (13) SCC 767) deserves specification. Describing that a Crime does not only affect the victim, but the conscience of the entire nation, it has been stated that the second aim of punishment is to open the eyes of the would be criminals that they would be dealt with likewise in case they dare to commit in similar crimes (surely general deterrence). To emphasise the doctrine of commensurability, the Indian Supreme Court in Satwant Singh-V-State of Punjab, (AIR 1960 SC 266) expressed that the measure of punishment to be awarded upon conviction for an offence has to be commensurate with the nature and seriousness of the offence and that if the accused is unable to show that the sentence imposed upon him is not in any way excessive, the fact that a co-accused charged with abetment of the same offence, received a lighter sentence is not a relevant circumstance. In numerous pre April 1974 (when new Cr.P.C. come into force) cases the Indian Supreme Court reiterated the view that in imposing sentence the main consideration should be the character and magnitude of the offence, but the Court cannot lose sight of the proportion which must be maintained between the offence and the penalty and the extenuating circumstances that may exit. The Court should also take account of the circumstances under which they were committed, degree of deliberation shown by the offender, provocation, offenders antecedents, that is while the sentence should be adequate to the offence, they should not be excessive either. (Adamji Umer Dolal-V-State of Bombay, AIR 1952 SC 14, Roghunath –V-Paria (AIR 1967 Goa 95, Sham Sundar-V-Puran AIR 1991 SC 8), by It also ordained that a Court should weigh the sentence with reference to the crime committed and the circumstances of the case and not with reference to what may happen subsequently. With regard to the quantum of punishment to be awarded to persons found guilty of offences dealt with in IPC, CrPC confers a wide discretion by prescribing the maximum punishment and in some cases both the maximum as well as the minimum punishment for the offence. Though no general guidelines are laid down, punishment should be commensurate with the gravity of the offence having regard to the aggravating and mitigating circumstances vis-á-vis an accused in each case. In such situation, the obligation of the court in making the choice of death sentence for the person who is found guilty of murder becomes more onerous indeed. (Para 15); State of Punjab-v-Manjit Singh, AIR 2009 SC 2888. Ramdeo Chauhan –V- State of Assam (2000 7 SCC 455) is a case where the retributive rationale with incapacitating consequence was certainly applied as the Supreme Court expressed that it is true that in a civilised society a tooth for tooth and a nail for nail or death for death can not be the rule but it is equally true that when a man becomes a beast and menace to the society, he can be deprived of his life, adding that the crime committed by the appellant was not only shocking but it had also jeopardised the society and the murder committed by him was most cruel, heinous, and dastardly and hence his young age at the time of the commission of the offence could not be considered. In this case the appellant inflicted multifarious injuries on each victim that included a female baby and two helpless women, who were fast asleep when killed To sum up, all the rationales a developed judicial regime apply, namely (1) general deterrence (2) individual deterrence (3) Just desert (in the form of retribution or otherwise (4) incapacitation and (5) rehabilitation, are followed by Indian Courts, notwithstanding absence of statutory guidelines like the UK’s Criminal Justice Acts of 1991, 1993 and 2003. Thus, Mohammad Shamim, in his treatise, “Capital Punishment” (1989 Cr.L.J. 52 (Journal), has stated (in the context of India) that there are four aims of punishment, namely (a) deterrent (b) preventive (c) retributory (d) reformative. These four rationales have also been judicially expressed by the Indian Supreme Court in State of MP –v-Ganga Singh (1987 Cr.L.J. 128). (Paras:897-924); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76]

Sentencing Practice: Bangladesh–– In Abed Ali –V-State (42 DLR AD 171) our Appellate Division considered mitigating and aggravating circumstances and considering proportionality concept, refused to commute death sentence, stating that claimed extenuating factor in the form of provocation remained unproven. The Appellate Division’s decision in Abul Khair-V-The State (44 DLR AD 225) also reveal that our Courts consider mitigating and aggravating circumstances in determining the sentence where statute allows discretion. Our law also permits restoration and rehabilitation both for juvenile as well as adult offenders. The children’s Act, as amended in 2013 allows restorative rationale while the Probation of the Offenders Ordinance (XLV) of 1960, allows this rationale for both Juveniles and adults . Under Ordinance XLV of 1960, if a person (irrespective of age) without previous conviction, is convicted of an offence punishable with no more than two years imprisonment, a Court can pass a probation order in the alter of inflicting punishment, or to discharge him after admonimation, or subject to condition of signing a bond, when probation order appears appropriate. So, through a chain of high preponderant judicial pronouncement, as well as by such statutory commandments as the Probation Ordinance and Children’s Act, Bangladesh Judicial System apply all the sentencing rationales that are in prevalence in the developed judicial regimes, such as (i) deterrent, both individual and general, (2) just desert (retributive or not), (3) resorative and rehabilitory (through statutory mandate). And, in applying these sentencing rationale the Courts take account of the principles of proportionality, commensurability, aggravating and mitigating circumstances as are done in other developed judiciaries. (Paras:927-930); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76]

Sentencing Practices in Crimes Against Humanity Cases Oberseas–– With the onset of the 2nd World War, the idea the responsibility of war criminals found expression in many international instruments. In October 1943 the leaders of three powers published the declaration on responsibility of the Hitlerites for the atrocities committed, where it was said that the guilty will be tried on the spot by the peoples who had suffered violence in their hands. The declaration read, “Let those who have hitherto not imbued their hands with innocent blood beaware lest they join the ranks of the guilty, for most assuredly the three allied powers will pursue them to the uttermost ends of the earth and will deliver them to their accusers in order that Justice may be done (The Nuremberg Trial Vol. 1 P 17-21).” (This declaration surely indicated retirbutivism). These Declaration, signed in Teharan guided the International Military Tribunal at Nuremberg, (IMT) whose charter enunciated the basic indicia of crimes against peace. Although the theme of International Criminal Law and Courts were within the contemplation of Hugo Grotius, (1625) the recognised patriarch of international law, with the formulation of the Nuremberg Charter a new generis of crimes known as War Crimes and Crimes against Humanity came to the vogue, initially under public international law though. Nuremberg trial was the first historical precedent for bringing to trial and punishing the most dangerous of them who committed War Crimes and Crimes against Humanity. On 8th August 1945 the agreement between the Governments of the designated states was signed and the Nuremberg Charter was ratified. Although crimes and punishment for murder, rape, arson, unlawful confinement had been in existence even before the Nuremberg charter, crime against Humanity, comprising murder, rape, arson, unlawful confinement etc emerged as a new concept which also permeated into the municipal law of several countries subsequently. (Declaration signed by Three Powers, (Nuremberg Trial Vol. 1 P 21). Although co-ordinating the actions of the members of the Tribunal was not an easy task for not only the socio political but also the legal systems of the four Powers were unidentical, nevertheless, the jurists of four countries found in each instance mutually acceptable solutions, by forging a singular, in many ways, unique, procedural formula, quite effective as they all shared the common will of punishing the perpetrators harshly. (surely applying retributism) So, the IMT widely resorted to the Soviet principle of an active Court, allowed cross examination which is more characteristic of Anglo-Saxon Law. Assessment of evidence in accordance with the inner conviction of the Judges. Although the sentencing rationale applied by 1TM has not been spelt out in black and white, the language used in the 1943 Declaration, part of which has been reproduced above, along with other expressions that found places in other declarations, reproduced below, make it abundantly clear that retribution and just desert conjugated with general deterrent rationale played the dominant part. That they emphasised “retribution” as the foremost is reflected from the following passages, which found place in different declarations and statements; “The War criminals will be sent back to the countries in which their abominable deeds were done in order that they may be Judged and punished according to the laws of the liberated countries and of the free governments which will be created therein”(Declaration on the responsibility of the Hitlarites for the atrocities committed 1943). The Soviet Union, advocated the principle that “severe punishment must overtake all who are guilty of these most atrocious crimes against culture and humanity. (lbid P = 87). Molotov expressly and publicly promised that the Soviet nation “would never forgive the atrocities, rape, destruction and mockery which the bestial bands of German invaders have committed and are committing against the peaceful population of our country “(lbid P-87, statement p-16). Molotov’s statement clearly indicates that he meant retributive punishment. Encouraged by the Soviet example, the London representatives of the Captive European States, who met at the conference of January 13, 1942 at the palace of Saint-James, issued a declaration to the effect that they “place among other principal war aims, the punishment through the chanel of organised justice of those guilty or responsible for these crimes whether they have ordered them, perpetrated them or in any way participated in them”. (Text of Resolution on German War Crimes signed by Representatives of Nine Occupied Countries: Voices of History 1942-1943 by F Watts, New York 1943 page 33). This text also indicate that the allied countries meant retributive punishment through the chanels of organised justice. Molotov repeated his pledge, stating “Hiltar’s government and its accomplices will not escape severe responsibility and deserved punishment for all their unparalleled crimes perpetrated against the peoples of the USSR and all freedom loving people. “(Vneshniaia Politika). Again, the flavour of Retributive and “Just Desert” rationale is apparent from Molotov’s statement. The British Prime Minister, Winston Churchill on 8th September 1942 made the following statement in British Lower House; “I wish most particularly to inform his Majesty’s Government and the House of Commons with the Solemn words which were used lately by the President of the United States, namely, that those who are guilty of the Nazi Crimes will have to stand up before tribunals in every land where their atrocities have been committed in order that an indelible warning may be given to future ages, and the successive generations of men may say, “ So perish all those who do the like again”. (The Nuremberg Trial and International Law. Page-14) The voice of the British Prime Minister, who had a pivotal role in setting the IMT into motion, is easily discernable to the thesis that he also meant retributive punishment with element of general deterrence. President Roosevelt of the United States also, by his reply dated 21st August 1942, to the representatives of the Governments in exile, associated himself with the idea of judicially administered retribution. (Nuremberg Trial and International Law page- 15) Molotov advanced an additional suggestion stating; “The Soviet Government considers it essential to handover without delay for trial before a special international tribunal and to punish according to all the severity of criminal law, any of the leaders of Fascist Germany who in the course of the war have fallen into the hands of states fighting against Hitlerite Germany”. (lbid page 52-54). The phrase “punish according to all the severity” can not be misunderstood as regards the applicable sentencing rationale. Joseph Stalin, who had a prime role in setting up the IMT, delivered a speech on 6th November 42, part of which is reproduced below, which divulge that retributory sentence was contemplated; “Let these butchers know that they will not escape responsibility for their crimes or elude the avenging hand of the tormented nations” (War Speeches p-48). The words “avenging hand” keep no room for qualm on the theme that retributive punishment was meant. On 19th April 1943, the Soviet Presidium passed a decree prescribing that German-Fascist criminals guilty of grave crimes against Soviet citizens were to be punished with death by hanging and their accomplices with hard labour. Between July 14th and 16th 1943, eleven Soviet citizens were tried pursuant to the aforementioned decree under the Soviet municipal law for atrocities committed in Soviet Union in collaboration with the German occupation authorities, and eight of them were sentenced to death notwithstanding their guilty plea. The punishment awarded was obviously retributive. This was the first instance of a trial of this kind for crimes connected with the 2nd World War. (Trial in the case of atrocities by German-Fascist invaders and their accomplices on the territory of the city of Krasnodar and the Krasnodar region during their temporary occupation – Moscow 1943) and also New York Times 30th July 1943 P-5). Barely a week after the release of the Moscow Declaration, Stalin on 6th November 1943 stated; “Together with our Allies, we must adopt measures to ensure that all the fascist criminals responsible for the present war and the suffering of the people, should bear stern punishment and retribution for all the crimes perpetrated by them no matter in what country they may hide” (War Speech P 82) Here the word “retribution” was actually used. This statement was adopted by the “Commission on the Punishment of War Criminals of the London International Assembly. (History of the United Nations War Crimes Commission and the Development of the Laws of War, London 1948 page -100-1001). Immediately after the cessation of the 2nd War, a series of public trials were conducted in Kiev, Minsk, Riga, Leningrad, Smolensk, Briansk, Velikie Luki and Nikolaev and death sentences were meted liberally. (Pravda, December 16-21, 1945, New York Times, 30th December 1945 P-6 and January 6th 1946, P-4, New York Times, 31st December 1945, Pravda, 27th December 1945 P-3). (Paras:934-955); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76]

Whether failure to produce any ID Card of any Al-Badr with the signature of the appellant (Motiur Rahman Nizami) is fatal for the prosecution–– The Appellate Division helds that the failure of the prosecution to produce any ID Card of any Al-Badr with the signature of the appellant is not fatal at all for the prosecution-specially in consideration of the fact that those ID Cards were issued long 42 years before. (Para-223); .....Motiur Rahman Nizami =VS= The Government of Bangladesh, [2 LM (AD) 446]

No error detected to warrant review–– We have narrated above the review petition reveals nothing to say that any error is apparent in our appellate judgment. Indeed Mr. Khandakar, quite candidly submitted that he is aware of the limitations that a review petition faces. .....Muhammad Kamaruzzaman =VS= Chief Prosecutor, International Crimes Tribunal, Dhaka, [4 LM (AD) 392]

Brief History of the (Allama Delwar Hossain Sayedee) Case–– The case in question came into being on 11th July 2011 when the Chief Prosecutor, on receipt of investigation report supplied by the Investigation Agency, submitted the formal charge invoking Section 9(1) of the International Crimes (Tribunal) Act 1973, (henceforth, the Act) implicating the instant appellant (henceforth cited as the appellant) as the sole accused. As he was already in custody on the given date in conexion with same different cases, he was produced before Tribunal no. 2, (henceforth the Tribunal), a progeny of the Act on 14th July 2011, in response to a production warrant that the Tribunal issued. (Para-590); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76] ....View Full Judgment

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

Sentence (Muhammad Kamaruzzaman case)–– The Tribunal was of the view that the offences of murder are predominantly shocking to the conscience of mankind; that the fierceness of the event of the attack of Sohagpur massacre was launched in such grotesque and revolting manner in which the helpless victims could not save their lives and that the act of massacre and devastation of human honour was diabolic and detrimental to basic humanness. It was further observed that the act of indiscriminate sexual invasion committed on women coupled with mass killing shocks the conscience of human kind and aggravates the pattern of criminal acts and that the mode of participation of the accused in committing crimes together with his superior position increases his culpability which deserves to be taken into account as aggravating fact. We approve the above views except that of accused’s complicity holding superior position increased his culpability.
It is on record that in the Sohagpur massacre almost all male members of the village were brutally killed. The planning and operation was conducted from the Al-Badar camp set up at the house of Suren Saha. He was directly involved in the implementation of the killing and rape and in pursuance of his planning, the incidents were perpetrated. The incidents were so cruel, inhuman and barbarous, the perpetrators not only killed almost all the male members of the village, they also did not spare the widows of the victims, who were also ravished. Even the women who fled away sensing the enormity of the crime and returned back 2/3 days after the incidents in their houses were also not spared. While narrating the horrific incident of killing of her husband and causing violence to her after the killing, P.W.12 was kept in the convulsive gasps under mental distress. The Tribunal noted down the demeanour while recording her statement. She could not control her emotion even after 40 years. How gruesome incident it was? None can imagine other than the one who has experienced the traumatic incidents. Accused Kamaruzzaman directly participated in these barbarous acts. These acts are comparable with none. Even Nazis did not perpetrate similar nature of brutal acts. Accused Kamaruzzaman did not express any repentance of his criminal acts at any stage of the proceedings for his role rather showed vaunter for his conducts and acts. He led the armed groups to perpetrate the incidents of rampant killing and rape.
The very nature of the incidents proved beyond doubt that the killing was perpetrated systematically in furtherance of a preconcert plan and design upon civilian population. These offences are distinguishable from other incidents of murder perpetrated during the normal condition of the country. No doubt these crimes were committed against humanity because the killing was perpetrated to the innocent unarmed civilians who could not leave the country to avoid the onslaught of the Pak army. The author of ext. ‘A’ stated that the killing spree continued for six hours continuously. In Bangladesh Documents, the Al-Badar force organised by the accused was termed as ‘Fascist’ force, that is, this force was compared with Mussolini’s regime in Italy. The nature of the incident orchestrated by the accused with his force has all trappings of ‘Genocide’.
The acts of the accused in the formation of Al-Badar force and then his involvement in the participation of the mass killing and rape of the widows of Sohagpur village is inhuman and gruesome. Accused Kamaruzzaman deserves no sympathy for such behavioral pattern of the criminal acts. We find no difference between the conduct of a man and a beast in the perpetration of these crimes. Neither in the Tribunal nor before this Division any argument was made on behalf of the accused to take a lenient view if he was found guilty of the charge. Even under the general law, when a murder is perpetrated in cold blooded and in a calculated manner, the courts normally award a sentence of death on the reasoning that such type of incident shocks the conscience of the society. It has been revealed from the documentary evidence and oral evidence, which described the gruesome manner of killing as a scene resembling that of the Hindu spring festival, ‘the Holy’, where the crowd is immersed in red coloured water. The accused and his force killed one by one persons of the village and this killing spree continued for six hours, and bathed with their blood. The killing spree was such as if they were hunting birds and animals. We cannot imagine how the accused being a Bangalee citizen could involve in such gruesome inhuman acts and from such conduct, he does not deserve any compassionate consideration on the question of sentence. The proper and appropriate sentence for his crimes is the extreme one. We cannot think of giving him any lesser sentence at least in respect of this charge which will defeat the ends of justice.
In Abdul Quader Mollah, this Division while awarding the death sentence observed that ‘while considering the punishment to be given to an accused person, the court should be alive not only to the right of the perpetrator but also rights of victims of the crime and society’s reasonable expectation from the court for the proportionate deterrent punishment conforming to the gravity of the offence and consistent with the public abhorrence for the heinous crime committed by the accused person’. The incidents of murder and rape perpetrated at Sohagpur village are much heinous than that of Abdul Quader Mollah. Therefore, it is the most appropriate case in which a sentence of death is the only sentence, which will be just and proper proportionate to the gravity of the crime. The Tribunal is thus justified in awarding him death sentence.
In respect of charge No.4, though the Tribunal was of the view that unless the highest sentence is not awarded to the accused, there would be failure of justice. While assigning the reasons the Tribunal observed that this charge also falls ‘within the kind of such gravest crimes which tremble the collective conscience of mankind’. We cannot endorse the views of the Tribunal. The evidence on record revealed that Golam Mustafa was taken, detained and tortured at the camp set up at the house of Surendra Mohan Saha and then he was taken on the Sheri bridge and shot to death. There is no evidence that accused Kamaruzzaman directly participated in the killing. From the evidence of P.W.2, it may be presumed that Kamaruzzaman shot him to death. In the absence of direct and definite evidence about accused Kamaruzzaman’s act of shooting to Golam Mustafa to death, a sentence of forfeiture of life cannot be awarded. The extreme penalty is awarded against an accused person if the act of accused is ‘cruel and brutal’, and the accused deserved no mercy because he showed no mercy. These ingredients and/or constituents are absent in this charge. Considering the nature of evidence led by the prosecution, the sentence of death is not proportionate to the gravity of the crime. We are of the view that the imprisonment for life is proportionate to the gravity of the crime. Accordingly, we commute his sentence to imprisonment for life. In respect of other two counts, the Tribunal has properly awarded the sentences and we are not inclined to interfere with the same.
Appellant Mohammad Kamaruzzaman is acquitted of charge No.1. His conviction and sentence in respect of charge Nos.2 and 7 are maintained by majority. His conviction in respect of charge No.3 is maintained unanimously but his sentence of death of the said charge is maintained by majority. His conviction in respect of charge No.4 is maintained by majority but his sentence is commuted to imprisonment for life. (S. K. Sinha, J) …Muhammad Kamaruzzaman =VS= The Chief Prosecutor, ICT, Dhaka, [7 LM (AD) 375] ....View Full Judgment

Reasons for Capital Sentence (Muhammad Kamaruzzaman case)–– As professor Ashworth aptly stated, sentencing is the most difficult aspect in a criminal trial No doubt, sentencing capital offenders in a country that allows death sentence is all the more difficult and mind blowing.
Having gone through comparative sentencing policies in capital offences in various jurisdiction, it is my firm understanding that the trail that Indian higher judiciary follows, is the possible best one. It is based on the principle balancing and in doing so Indian judiciary peddle the normative that while life is precious and should not be taken away through judicial device in ordinary circumstances, there are cases when nothing short of death sentence is conducive. Indian Supreme Court by various decisions have laid down guide lines. Actually, the Indian legislative scheme requires the Courts to do the balancing in murder cases, which is such that while retaining death sentence, the scheme makes it the sentence of last, rather than of first, resort.
Although Indian Supreme Court ordain that capital punishment shall be awarded only in the rarest of the rare cases, instances of death sentence confirmation is, by no account , insignificant. Indian system is humane enough not to send all murderers to the gallows, yet resolute enough to award ultimate sentence if the offence appears to be too gruesome. Thus, when ordinary killers are spared of their necks socially repulsive felons are not.
In deciding on the sentence of this appellant, I, for myself, have given extensive thought about what would be conducive and proportionate.
As are done in most jurisdictions, I have taken into account the aggravating and, possible mitigating circumstance-have reminisced the impact the acts of this felon entailed during our Glorious War of Liberation, having, of course, regard to one of history’s worst ever genocide that took place in Bangladesh in 1971 which rocked the world.
I have scanned the his acts left behind on the surviving victims, families of murdered victims and, of course on the country as a whole, as I am required by the principle followed globally in sentencing.
I kept in mind what people with great endowment, reverence, wisdom and fully matured thoughts observed from time to time. I read with keen devotion and introspection the following observation of the universally acclaimed jurist, who specialise on crimes against humanity, Sir Geoffrey Robertson, QC who suggested application of retributive norm of sentencing for the offenders whose crimes touch the righteous people all over the world; “If the crimes of such individuals are the most heinous of all, because they touch not only the families of victims but decent people throughout the world, then some retribution is required”. (Geoffrey Robertson, Q.C. page 330 of his book Crimes Against Humanity, New Edition).
In affirming the capital sentence, I do echo the observation the Nuremberg Tribunal and the US prosecutor scripted, as quoted above.
We must not be over compassionate when sentencing a felon of the appellant’s type, but must think of the trail of horror his acts left behind for successive of generations. We must be firm enough to pass extreme sentence if that be proportionate to the gravity of the offence.
It is a pathetic episode of our history that such a human monster was allowed to escape the regiour of Justice for so many decades, for which blames fall squarely upon those who usurped power unconstitutionally for many years after killing the Founding Father of the Nation, Banga Bandhu Sheikh Mujibur Rahmanand and tried to put the clock back to pre 1971 state.
For all I Have stated above, I remain indubitably convinced that the interest of justice can only be met if this appellant is shown the gallow. (A. H. M. Shamsuddin Choudhury, J) …Muhammad Kamaruzzaman =VS= The Chief Prosecutor, ICT, Dhaka, [7 LM (AD) 375] ....View Full Judgment

Courts order (Muhammad Kamaruzzaman case)–– For the reasons to be assigned later on, this appeal is allowed in part. Appellant Muhammad Kamaruzzaman is acquitted of charge No.1. His conviction and sentence in respect of charge Nos.2 and 7 are maintained by majority. His conviction in respect of charge No.3 is maintained unanimously but his sentence of death of the said charge is maintained by majority. His conviction in respect of charge No.4 is maintained by majority and his sentence is commuted to imprisonment for life. (A. H. M. Shamsuddin Choudhury, J) …Muhammad Kamaruzzaman =VS= The Chief Prosecutor, ICT, Dhaka, [7 LM (AD) 375] ....View Full Judgment

Guilty of offence–– When a person who abets the commission of an offence is present and helps in the commission of the offence, he is guilty of such offence. In the case of Semanza Vs. Prosecutor, Case No. ICTR-97-20A (Appeal Chamber), it was held,
“For an accused to be convicted as perpetrator or co-perpetrator of genocide, it is not necessary that he or she fulfils a ‘key coordinating role’ or that a ‘high level genocidal plan’ be established even if the existence of a plan to commit genocide can be useful to prove the specific intent required for genocide”. (Majority view), (Per Mr. Justice Hasan Foez Siddique). ...A.T.M. Azharul Islam =VS= Chief Prosecutor, ICT, Bangladesh, [9 LM (AD) 593] ....View Full Judgment

Accused Mir Quashem Ali charge Nos. 4 and 12 acquitted–– This appeal is thus allowed in part. Accused Mir Quashem Ali is found not guilty in respect of charge Nos. 4 and 12 and he is acquitted of those charges. His conviction and sentence in respect of charge Nos. 2, 3, 7, 9, 10 and 11 is maintained. (Para-218); .....Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 364] ....View Full Judgment

Appellate Division followed ICPR guidelines–– It is axiomatic that in affirming death sentence, the Appellate Division followed ICPR guidelines, doctrine of just desert having proportionality and commensurability as its touch stone and the predicament the victims, their families and the country as a whole suffered, and, of course also looked at the presumed intention of the legislators. (Para – 31); .....Ali Ahsan Muhammad Mujahid =VS= The Government of Bangladesh, [2 LM (AD) 65] ....View Full Judgment

Authors with Notoricly on Death Sentence–– Sir Geoffrey Robertson Q.C. states “despite the clear modern trend in state practice towards abolition there is still not sufficient consensus for execution to be prohibited as a matter of customary International Law”. (Page 141, Crimes Against Humanity, Penguin, 3rd Edition, April 2006).
While Sir Geoffrey has expressed his disavowance for capital punishment in other parts of his book “Crimes Against Humanity”, supra, he has nevertheless stated at page 144, “Murder is the Crime for which it (death sentence) is most commonly and most appropriately (in the retributive sense) inflicted, although murders vary so much in heinousness (from enthensia and domestic crimes of passion to contract killing and hostage executions) that any automatic infliction of death sentence on all murders, or all murders within a defined category, is contrary to International Law prohibitions on arbitrary and inhuman treatment”.
The phrases “most appropriately” is significant. It suggests that subject to the reservation he expressed, including on auto infliction, he deems death sentence “most appropriate in the retributive sense in murder cases.
At page 145 he states, “The only other serious crimes for which that penalty can be justified are those assumed to involve indirect taking of life, such as by peddling heroin or by serving an enemy”.
So, in his view death penalty may also be justified in these situations as well, and as such, his opposition to death sentence is not absolute, but conditional. (Paras: 1089-1093); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76] ....View Full Judgment

Charge should be proved a beyond all reasonable doubt–– In view of the above evidence and the facts and circumstances our considered opinion is that the prosecution could not prove the charge No. 1 against the accused appellant beyond all reasonable doubt. We therefore, find that the tribunal was not justified in finding the accused appellant guilty of the offence of killing of Moulana Kasim Uddin as stated in charge No. 1. We hold that the charge No. 1 being not proved beyond all reasonable doubt the accused appellant is entitled to get acquittal from this charge. (Para-68); .....Motiur Rahman Nizami =VS= The Government of Bangladesh, [2 LM (AD) 446] ....View Full Judgment

Commiting those crimes in the syncronised plan and design–– The awarding to death sentences were adequate and no leniency should be shown to him. He was directly involved in those heinous crimes and his participation was intentional with motive to eliminate a religious community as a whole for political vengeance.
Accused Salauddin Qader Chowdhury has committed crimes with highest ruthlessness and extreme atrocity. He persecuted civilian and unarmed people, tortured them to death, caused disappearance of innocent people and helped in disappearing people in collaboration with the occupier Pakistani Army. He rampantly looted and assisted to plunder people’s property. The offences were not the one envisaged in the penal laws of any country, the accused in commiting those crimes in the syncronised plan and design that were developed and put into execution with cool blood. Salauddin Qader Chowdhury persecuted, killed and caused disappearance of civilian people solely on religious and political grounds. He had direct involvement in the killing of innocent people.
Brutal offences with specific intention to exterminate the Hindu religious community and his political opponents from that locality. (Paras– 70 & 71); .....Salauddin Quader Chowdhury =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 511] ....View Full Judgment

The Criminal Appeal No.39 of 2013 is disposed of in the following terms:–– Appellant-Allama Delwar Hossain Sayedee (Crl. A. No. 39 of 2013) is acquitted of charge Nos. 6, 11 and 14. Appellant-Allama Delwar Hossain Sayedee is sentenced to 10(ten) years rigorous imprisonment in respect of charge No.7. Appellant-Allama Delwar Hossain Sayedee’s death sentence in respect of charge No.8 is affirmed. Appellant-Allama Delwar Hossain Sayedee’s death sentence in respect of charge No.10 is also affirmed. Appellant – Allama Delwar Hossain Sayedee is sentenced to imprisonment for life i.e. rest of his natural life in respect of charge Nos. 16 and 19. (Para-1104); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76] ....View Full Judgment

Cruel, gruesome and barbarous crimes warrants death sentence only–– It is the solemn duty of the courts to award proper sentence commensurate with the gravity of the crimes.
In the present case the appellant has been awarded death sentences on three charges, viz mass killing, rape and other crimes against humanity.
All these crimes were extremely cruel and horrendous in nature.
The commission of these crimes- even the slightest complicity in these most cruel, gruesome and barbarous crimes warrants death sentence only. There is no mitigating circumstances to reduce the death sentences, rather there are aggravating circumstances. In this case the appellant has been found to have committed series of crimes of extremely cruel and inhuman nature during the period of Liberation War, and he has been awarded 5 separate sentences for 5 different crimes in this instant case. The commission of series of crimes of most cruel and inhuman nature by an accused may be considered as aggravating circumstances for awarding him the maximum sentence. (Para-227); .....Motiur Rahman Nizami =VS= The Government of Bangladesh, [2 LM (AD) 446] ....View Full Judgment

Dalim Hotel as the torture centre of Al-Badar forces and perpetrated crimes against humanity–– We were surprised to note that in respect of charge No.11, the accusation was torture and killing of Jasim and other 5 persons, but we do not find sufficient evidence on record to convict and sentence him for charge relating to those 5 persons. The prosecution was totally silent about them. In respect of all the charges the positive version of the prosecution is that the accused set up Dalim Hotel as the torture centre of Al-Badar forces and perpetrated crimes against humanity in the said centre with his force. (Para-216); .....Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 364] ....View Full Judgment

Death Penalty by Allied Nations Pre and Post IMT–– Before and after the IMT’s trial at Nuremberg, Allied Powers sentenced several thousand Nazi criminals in those area of Germany they respectively occupied. Of those several hundreds were sentenced to death. In the American occupied zone in Nuremberg and Dachon, some 450 people were sentenced to death by the American tribunals. The war tribunals of France which administered Justice in its zone of occupation heard the cases of 2107 Nazi War criminals. The activities of the French tribunal differed in that they issued several hundred sentences in absentia, including Klaus Barbie, who was, years later apprehended and dealt with. Dic Welt stated, “The French Judicial authorities were guided by a gross stereotyping. They sentenced to death in absentia many hundreds of soldiers of the German Wchrmacht for the reason alone that their units took part in execution by firing squad of the fighters of the French resistance. (Dentsche Richterzeitsch rift 1971 Noz p- 85 ff. Die welt, July 10 1974 P-13). Military tribunals were also established in the British Zone of occupation. In contrast with other zones, in the British zone the Special Crown Act of 14th January 1946 was considered the basic normative act for the prosecution and punishment of the Nazi perpetrators of Crimes against Humanity. The British tribunals based thereon their operations, procedural principles and pronouncement of verdicts. They treated the decisions of the IMT not as irrefutable proof, but only as arguments along with other facts and circumstances. As opposed to the tribunals of other occupying powers, the British Courts consisted of non-professional jurists and they convicted 1085 Nazi accused, of whom 240 were sentenced to death. On some points the British tribunal disregarded IMT principles. The East European socialist block waged a consistent policy of prosecuting and punishing Nazi accused. During June 1946 and August 1948 period the Supreme Peoples Tribunal of Polland heard cases of those Nazi personnel who perpetrated Crimes against Humanity on the German occupied territory of Polland. Many of the accused were sentenced to death. The German Democratic Republic sentenced some 12828 Nazi accused, under their national legislation which were enacted to bring their national law in conformity with the demands of international law. Their special part of the Criminal Code of 1968 contains sanctions for criminal responsibility for crimes against peace, war crimes and crimes against humanity. Prosecution continued to be waged by the military tribunals of the occupation authorities in their respective zones. Six branches of American military tribunals started operation in Nuremberg (The materials of the trial are published in Niurnberg skii protsess. Sbornik materialov (The Nuremberg Trial of Major War Criminals, collection of materials in 3 volumes) Moscow: Yurizdat 1966.) From 1947 to 1949 twelve trials took place. The first one dealt with 23 Nazi doctors, the second one was the case against Field Marshal Mitch, the 3rd was the case against 16 Leading Nazi Jurists and the President of the special courts, the fourth involved war crimes, crimes against humanity and membership of criminal organisation, SS. The US military tribunals through these 12 trials heard the cases against 185 Nazi accused, four of which committed suicide, cases against four were dismissed owing to illness, thirty five were acquitted, capital punishments were meted to 24 persons in the doctors cases, in the case of Pohl and in the case against Einsatzgmppen, nineteen were sentenced to suffer life imprisonment, and the others were saddled with various terms. Three were found guilty for belonging to criminal organisations namely SS. The most important aspect appears to be the practice of the US military tribunals that attests to the concurring, uniform understanding and application of the Nuremberg law. If we consider as its basic source the London Agreement, together with the charter of the IMT, its Verdict and Law No 10 of the Allied control Council of December 20, 1945, supplementary thereto. It is clear from the sentences awarded that retribution, proportionality and general deterrence were the rational the tribunals of the Allied Powers used. Large scale death sentence definitely vindicates this argument. (Para: 1088); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76] ....View Full Judgment

Death sentence confirmed–– The Proliferated List–– Following are what the Indian Supreme Court observed while sentencing those found guilty of murder: and deciding whether the case fits into the rarest category or not.
While deciding whether case falls within the rarest of rare cases category, the judges applying the law must also be alive to the needs of society and the damage which can result if a ghastly crime is not dealt with in an effective and proper manner. (Para 25). Maya Kaur Baldevsingh Sardar v. State of Maharashtra, (2007) 12 SCC 654.
Since the legislature in its wisdom though that in some rare cases it may still be necessary to impose the extreme punishment of death to deter others and to protect the society under section 354(3) CrPC the judge may visit the convict with the extreme punishment provided there exist special reason for so doing. Allauddin Mian v. State of Bihar, AIR 1989 SC 1456. Haru Ghosh v. State of W.B. (2009) 15 SCC 551. (Death sentence confirmed)
Whether a case falls within the rarest of the rare case or not, has to be examined with reference to the facts and circumstances of each case and the court has to take note of the aggravating as well as mitigating circumstances and conclude whether there was something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for death sentence. (Paras 90 and 91). Dara Singh v. Republic of India, (2011) 2 SCC 490
Principle application of the rarest of rare dictum does not come in the way of individualised sentencing. With necessary room for sentencing, consistency has to be achieved in the manner in which the rarest of rare dictum has to be applied by courts. Bachan Singh expressly barred one-time enunciation of minute guidelines through a judicial verdict. But at the same time, it actively relied on judicial precedent in disciplining sentencing discretion to repel the argument of arbitrariness and Article 14 challenge. Sentencing discretion is also a kind of discretion and it shall be exercised judicially in the light of the precedents. (Paras 90 to 92). Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra, (2009) 6 SCC 498.
To kill is to be cruel and therefore, all murders are cruel, yet such cruelty may vary in its degree of culpability and it is only when culpability assumes the proportion of extreme depravity that special reasons can legitimately be said to exist. (Para 16) State of Punjab v. Manjit Singh, AIR 2009 SC 2888.
Prima facie, a dangerous criminal who has indulged in the killing spree in an extremely brutal and horrendous manner to achieve his own selfish gains or to satisfy his physical lust or to disrupt the public order and peace, should be considered to be a menace to society and he be subjected to the extreme punishment of death. The justification behind death sentence is to respect the collective conscience of the society in relation to crimes of extreme brutality and terrorism and to impart security to the society. The element of deterrence is of course inherent in it. As pointed out in Allauddin Mian case death sentence serves a threefold purpose: (i) punitive, (ii) deterrent, and (iii) protective. (Para 15).
A holistic view has to be taken on the facts presented in each case. (Paras 16 and 15). Gyasuddin Khan v. State of Bihar, AIR 2004 SC 210.
Confirming death sentence,
Held:
For deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced in a dispassionate manner and discretionary judgment has to be exercised by the court in the particular circumstances of the case. Punishment must also respond to the society’s cry for justice against the criminal. While considering the punishment to be given to the accused, the Court should be alive not only to the right of the criminal to be awarded just and fair punishment by administering justice tempered with such mercy as the criminal may justly deserve, but also to the rights of the victims of the crime to have the assailant appropriately punished and the society’s reasonable expectation from the Court for the appropriate deterrent punishment conforming to the gravity of the offence and consistent with the public abhorrence for the heinous crime committed by the accused.
The accused was in full senses and had committed the murders of four close relatives one after the other and also attempted to commit murder of his brother’s wife and daughter in a cool and calculated manner. He did not even feel remorse. Such murders and attempt to commit murders in a cool and calculated manner without provocation cannot but shock the conscience of the society which must abhor such heinous crime committed on helpless innocent persons. In the facts and circumstances of the case, the crime committed by the accused falls in the category of rarest of rare cases for which extreme penalty of death is fully justified. Surja Ram v. State of Rajasthan, AIR 1997 SC 18.
Justifying death sentence, Indian Supreme Court held that the choice as to which one of the two punishments provided for murder is the proper one in a given case will depend upon the particular circumstances of that case and the Court has to exercise its discretion judicially and on well-recognised principles after balancing all the mitigating and aggravating circumstances of the crime. The Court also should see whether there is something uncommon about the crime which renders sentence of imprisonment of life inadequate and calls for death sentence.
Individual part played by the accused may assume some importance in some cases, but in an organised crime that kind of enquiry may not be relevant for the purpose of finding out the special reasons.
He brutally murdered six persons. The crime indulged was gruesome, cold-blooded, heinous, atrocious and cruel and he has proved to be an ardent criminal and thus a menace to the society. It is an exceptional case where the crime committed by him is so gruesome, diabolical and revolting which shocks the collective conscience of the community, Shankar v. State of T.N. (1994) 4 SCC 478.
Death Penalty is to be upheld in a case where the accused, members of a Gang, caused death of 22 persons and injuries to several others by blasting of landmines, TADA, 1987, Ss. 3, 4 and 5 – CrPC, 1973, Ss. 386 and 377
The grant of life imprisonment is the rule and death penalty an exception in the rarest of rare cases by stating “special reasons” for awarding it, but at the same time the punishment awarded must be commensurate with the crime committed by the accused. The power to enhance death sentence from life should be very rarely exercised and only for strongest – possible reasons and not only because the appellate court is of that view. The question of enhancement of sentence to award death penalty can, however, be considered where the facts are such that to award any punishment less than the maximum would shock the conscience of the court.
The court has to consider the nature of the crime as well as the accused. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. More often than not these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. In many cases the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate watertight compartments. (Paras 23, 29 and 32)
The appellants are members of a notorious gang. They must have anticipated that their activity would result in elimination of a large number of lives. As a result of criminal activities, the normal life of those living in the area has been totally shattered. It would be mockery of justice if extreme punishment is not imposed. There can hardly be a more appropriate case than the present one to award maximum sentence. The Court has to perform this onerous duty for self-preservation i.e. preservation of persons who are living and working in the area where the appellants and their group operate, Simon v. State of Karnataka, (2004) 2 SCC 694. (Sentence enhanced to capital one)
When the collective conscience of the community is so shocked, that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances:
(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.
(2) When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-á-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course of betrayal of the motherland.
(3) When murder of a member of a Schedule Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of ‘bride burning’ or ‘dowry deaths’ or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
(5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-á-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community. (Para 23)
If upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so, Lehna v. State of Haryana, (2002) 3 SCC 76: 2002 SCC (Cri) 526. (Death sentence confirmed)
In order that the sentence may be properly graded to fit the degree of gravity of each case, it is necessary that the maximum sentence prescribed by law should be reserved for ‘the rarest of rare’ cases which are of an exceptional nature. Sentences of severity are imposed to reflect the seriousness of the crime, to promote respect for the law, to provide just punishment for the offence, to afford adequate deterrent to criminal conduct and to protect the community from further similar conduct. It serves a threefold purpose (i) punitive (ii) deterrent and (iii) protective. The court must not only look to the crime and the victim but also the circumstances of the criminal and the impact of the crime on the community, Allauddin Mian v. State of Bihar, AIR 1989 SC 1456. (Death sentence confirmed)
The fact that murders in question were committed in such a diabolic manner while the victims were sleeping, without any provocation whatsoever from the victims’ side indicates the cold-blooded and premeditated approach of the accused to cause death of the victims. The brutality of the act is amplified by the grotesque and revolting manner in which the helpless victims have been murdered which is indicative of the fact that the act was diabolic of the most superlative degree in conception and cruel in execution and that both the accused persons are not possessed of the basic humanness and completely lack the psyche or mindset which can be amenable to any reformation. If this act is not revolting or dastardly, it is beyond comprehension as to what other act can be so. In view of these facts, there would be failure of justice in case death sentence is not awarded in the present case as the same undoubtedly falls within the category of the rarest of the rare cases and the High Court was not justified in commuting death sentence to life imprisonment. (Para 66). Ram Singh v. Sonia, AIR 2007 SC 1218. (Death sentence confirmed)
In a case where 13 members of his family, including small kids were killed for a flimsy reason, when victims were sleeping at the time of attack, it was not a fit case where death penalty could be commuted to life imprisonment (Para 8). Gurmeet Singh v. State of U.P., (2005) 12 SCC 107: (commutation reversed)
Where the accused, a paying guest, brutally murdered three innocent defenceless children and caused injuries to all other helpless inmates of the house without provocation or reason for committing this ghastly act at a time when children would have been sleeping and would not have been in a position to defend themselves death sentence is proper. Considering the brutality, diabolic, inhuman nature and enormity of the crime (i.e. multiple murders and attacks), the mindset of the accused could not be said to be amenable to any reformation –Therefore, it came under the rarest of rare case where not awarding a death sentence would have caused a failure of justice – Death penalty confirmed, Prajeet Kumar Singh v. State of Bihar, (2008) 4 SCC 434.
A case where the appellant amputated hands of the deceased, severed his head from the body, carried it through the road to the police station by holding it in one hand and the blood-dripping weapon in the other hand falls within the category of rarest of rare cases- In view of aggravating circumstances of the case the fact that the appellant was a young man having three unmarried sisters and aged parents would not justify lesser punishment. (Death sentence affirmed) Mahendra Nath Das v. State of Assam, AIR 1999 SC 1926.
A case of murder of 5 persons, an old man of 75 years, a woman aged 32 years, two boys aged 12 years and a girl aged 15 years, at night when they were asleep by inflicting multiple injuries to wreak vengeance –Lower part of the body of the girl denuded in a ghastly and barbaric manner can be termed as rarest of the rare cases. State of U.P. v. Dharmendra Singh, AIR 1999 SC 3789. (Death sentence affirmed)
Death sentence, is, justified for causing death of a 14-year-old girl after luring her into the house for committing criminal assault. Nathu Garam v. State of U.P. (1979) 3 SCC 366.
Death sentence justified as “Rarest of the rare” case when two appellant accused giving chase to the deceased persons and butchering five of them with axes and other weapons in a very dastardly manner and after killing three adults, entered into the victims’ house and killed two children who in no way were involved with the alleged property dispute with the appellants, as if to exterminate the entire family. (Paras 5 and 6), Karan Singh v. State of U.P., (2005) 6 SCC 342. (Death Sentence affirmed)
In a case where entire family was wiped out – Five persons had lost their lives while sole surviving lady has to lead life with 70% burn injuries, death sentence is the proper penalty as the murderer was committed in a cruel, grotesque and diabolical manner : and closing of door was the most foul act, by which accused actually intended to burn all persons inside the room and precisely that had happened –Deceased B who managed to come out was almost beheaded –Accused had gone to place of occurrence well prepared carrying jerry cans containing petrol, sword and also a pistol with two bullets which showed his premeditation and cold-blooded mind. Sunder Singh v. State of Uttaranchal, (2010) 10 SCC 61. (Death Sentence affirmed)
The offence conceived and initiated with deliberation with the object of slaughtering a defenceless woman - Death sentence is proper sentence. Rama Shankar Singh v. State of W.B., AIR 1962 SC 1239.
When offence of murder brutal, conceived and executed with deliberation upon a defenceless old woman – Death sentence, is proper. State of U.P. v. Deman Upadhyaya, AIR 1960 SC 1125.
In a triple murder case -Sentence of death is to be the only appropriate sentence which a court of law could pass. Gulab Singh v. State of M.P., Cr. A. No. 45 of 1957.
In a case of premeditated and well-planned murder, where death was caused by strangulation of four children and a woman, where the appellant killed woman with whom he lived as husband and wife, a woman who was deeply in love with him and where the appellant not only killed two children of the deceased, born from her first husband but had also killed his own two children –All four children and the woman were brought near a pond in a planned manner, strangulated to death and dead bodies of the children thrown into a pond to conceal the crime –Appellant not only killed woman but crushed her head to avoid identification, the crime has been committed in a beastly, extremely brutal, barbaric and grotesque manner which has resulted in intense and extreme indignation of the community and shocked collective conscience of society, death is proper sentence. Sudam v. State of Maharashtra, (2011) 7 SCC 125.
Award of death sentence was justified in a Cold-blooded murder case-Presence of several aggravating circumstances –No mitigating circumstance – Offence committed in pre-planned manner in broad daylight- Two victims (including a boy, aged six years) burnt to death by locking the house from outside –Third victim cut into pieces – Offence committed in most barbaric manner to deter others from challenging the supremacy of the appellant in the village- Absence of any strong motive –Victims did not provoke or contribute to the incident –Appellant was leading the gang –He had no repentance for the ghastly act he committed the entire incident shocked the collective conscience of the community, there was no mitigating circumstance to refrain from imposing death penalty –(Para 18). Holiram Bordoloi v. State of Assam, AIR 2005 SC 2059.
The object and function of criminal law, need for imposition of appropriate sentence, extent of adherence to principle of proportionality while sentencing, requirement for delicately balancing the aggravating and mitigating factors and circumstances in which crime committed and guidelines related to imposition of death sentence, restated –Murder of six members of a family, including helpless women and children, committed in a brutal, diabolic and grisly manner-Crime being one of enormous proportion which shocks conscience of law, death sentence as awarded to respondent –accused S and V on conviction was appropriate and High Court ought not to have altered it, State of U.P. v. Sattan, (2009) 4 SCC 736.
In Kehar Singh-V-Delhi Administration (AIR 1988 S.C. 1883), ie Indira Gandhi murder case, the Apex Court confirmed the death sentence awarded by the Trial Court and maintained by the High Court of three appellants for entering into conspiracy and committing murder of SMT. INDIRA GANDHI The Court held that the murder of Mrs. Gandhi by the security guards is one of the rarest of the rare cases in which extreme penalty of DEATH is called for the assassin and his co-conspirators, it is a gruesome murder committed by the accused who were employed as security guards to protect the Prime Minister. The manner in which Mrs. Gandhi was mercilessly attacked by her own security guards on whom the confidence was reposed to give her protection repels any consideration of reduction of sentence. Even the conspirators (Kehar Singh and Balbir Singh) who inspired the persons do not deserve any leniency in the matter of sentence, it is a gruesome murder.
In Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid – V-State of Moharastra, (Criminal Appeal No. 1899-1900 of 2011), i.e. the sensational Mumbai Hotel Bombing case, the Supreme Court of India upheld the death sentence for Ajmal Kasab, the only terrorist caught alive during the 26 /11 Mumbai terror bomb attacks in 2008 which caused death of 7 people and maiming of several others. Kasab wanted his death sentence, handed to him by the Bombay High Court, to be commuted to life imprisonment.
The appellant, Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid, who was a Pakistani national, earned for himself five death penalties and an equal number of life terms in prison for committing multiple crimes of a horrendous kind in India. Charges against him included those of collecting arms with the intention of waging war against the Government of India; waging and abetting the waging of war against the Government of India; commission of terrorist acts; criminal conspiracy to commit murder; abetment; abduction for murder; with an attempt to cause death or grievous hurt; and causing explosions etc. He was found guilty of all these charges and was awarded death sentence on five counts, life-sentence on five other counts, as well as a number of relatively lighter sentences of imprisonment for the other offences. (Paras: 1023-1058); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76] ....View Full Judgment

Death Sentence Generally–– The question of the desirability of death sentence is presently a subject of extensive international debate. There are strong arguments from both sides of the fence. Those who are in favour of retaining this age old sentence believe that this prove greater protection to the society as it acts as a more effective general deterrent conveying signal to others that they would face the same eventuality should they dare committing death penalty attracting crimes and also that this form of incapacitation is a desirable form of retribution in more gruesome and frenzied cases.
Those, who, speak from the other side of the wall, assert that death sentence is an archaic, old fashioned device which has out runned its span, that it is an inhuman and cruel system which can not survive in the present days, that one wrong can not be quelled by another one.
Advent of the 20th century marked an upsurge in the demand for its abolition, terming it inconducive to human dignity and that it does not reduce crimes.
Abolitionists’ view is often more ethical than legal and it would be wrong to say that their view was or has been universally endorsed. Strongest argument of the abolitionist is based on the theme that once executed, the sentence is irreversible.
Death Sentence is no doubt mecaburous but as Tanzanian Court of Appeal in Mbusvv-V- The Republic (30th January, 1955), quite aptly observed that the mandatory death penalty; while cruel and degrading, was none the less constitutional: it was a reasonable and necessary measure to protect the right to life of law abiding citizens.
The fact that good number of countries could not be persuaded to swing to the abolitionists club vindicate the claim that it is not generally accepted that death penalty experiment has failed. Some 58 countries have still remained in the retentionist enclave while 35 others, though have been maintaining moratorium on death penalty, do in law, retain death sentence (Penal Reform International: 2014). In fact Jamaica, Papua New Guinea, Srilanka have restored death sentence, turning around previously imposed moratorium for cogent reasons. Philippines suspended it twice since 1987.
One of the abiding arguments against the death sentence is the fallibility of the human justice which may result in the execution of people innocent.
Though all West European countries along with the old Commonwealth have abolished capital punishment, it still reigns unhindered in many countries with proven success in reducing crime levels . 32 of the 50 component states of the United States of America are in the list of the retentionists. Staticts reveal that in those of US States where death sentence are prevalent, major crimes are relatively less frequent.
Malaysia, which has attained an acclaimed sophistication in the progression of democratic order, prescribes mandatory death sentence for murder and drug offences. Most of the far eastern democracies, inclusive of Philippines, Indonesia, and Thailand maintain death sentence for drug peddling. Middle east countries, inclusive of Iran, do not only retain capital punishment, but practice it day in, day out.
Although the United Kingdom had abolished death sentence generally, ostensibly after subsequently emerged evidence showing that some executed people were actually innocent, death sentence for certain very limited offences involving the monarch and the kingdom, are still in its book.
While there can be no qualm on the theological doctrine that taking of life is within the exclusive and unfettered domain of the Creator, yet if we meticulously follow the creator’s Oracles, it become obvious that the Creator allowed the human being to pass death sentence on those guilty of repulsive felonies. With the sole exception of Budhism, all major religions endorse capital sentence for described offences. (Paras:972-982); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76] ....View Full Judgment

Delwar Hossain Sayedee has committed no offence–– We are to accept the defence plea that Delwar Hossain Sayedee has committed no offence, it would be tantamount to saying that there was no genocide by the Paki army and their native stooges i.e. Rajakars, Al-Badars, Peace Committee Members, in Bangladesh in 1971. (Para-1106); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76] ....View Full Judgment

Privy Council on Death Sentenced–– The most important case on which the Privy Council advised the British monarch on death sentence is that of Part and Morgan –v-Jamaica, an appeal against the decision of Jamaica’s top Court, in which case the P.C. advised that no execution can take place within the P.C’s jurisdiction of prisoner’s who are still alive more than five years after the sentence was passed.
Thus, while the P.C. ordained against execution of a prisoner who was sentenced more than five years back, it did not, as such, out law death penalty (Prat and Morgan –V-AG of Jamaica, 1994, 2 AC 1). In Patrick Reyes-v-The Queen (2000 UK PC 11), the P.C. struck down mandatory death sentence in the Commonwealth Caribbean on the ground that it is inhuman and degrading to impose the most severe punishment without considering factors which might mitigate culpability. Again there who no general proscription of death sentence, where that sentence is not mandatory. (Paras: 1094-1095); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76] ....View Full Judgment

The US Supreme Court on Death Sentenced –– US Justice Harry Blackmun in Callins –v- Collins (1994) observed, “I feel mentally and intellectually obliged simply to concede that the death penalty experiment has failed”.
That statement notwithstanding, death penalty does not only survive in 32 of 50 US states, but according to latest Amnesty International Report the United States of America is fifth in the list of World’s top death sentencing nations.
According to the Amnesty report some ……. people were sentenced to death in the year 2014. Abolitionists argue that the US for all its executions, still has the highest murder rate in the industrialised world, while the retaintionists argue that the rate would be even higher without death penalty.
In Furman-v-Georgia (US Supreme Court, 1972) though the US Supreme Court came very close to abolish capital punish, nevertheless refrained from doing so. In that case a Judge remarked, “Death sentences are cruel and unusual in the same way that being struck by lightening is cruel and unusual”. This observation was based on the theme that the principle of equality does not operate in picking and choosing those sentenced to death. It is to be noted that the US public opinion favour death sentence by majority like in many other countries. (Paras: 1096-1099); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76] ....View Full Judgment

Information to the witness the place where the event took place can trigger the memory–– The retrieval of the information from the witness is a vulnerable process and full of pitfalls. Investigators, prosecutors and Judges alike always want a chronological narrative of an event by the witness with sufficient focus on time, place, persons, who did, what –when, et cetera. And that is hardly ever the result of witness statement or testimony. Always the information needs to be aroused or triggered by what is called “retrieval cues”. As the psychology of a human works, this can be done by any means that arouses the sense organs. Giving pieces of information to the witness or bringing a person to the crime scene or the place where the event took place can trigger the memory; even a specific scent can do that. (Para-163); .....Salauddin Quader Chowdhury =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 511] ....View Full Judgment

Inherent lacuna in conducting the prosecution case–– Learned Attorney General in the opening of his argument produced a paper and submitted that the appellant Mir Quashem Ali was not only Islami Chatra Sangha Leader and Al-Badar Chief, Chittagong chapter, but also the chief financer of a big political party, which wants to frustrate the trial of offenders of crimes against humanity, war crimes and genocide and engaged a lobbyist firm on payment of US$ 25 million to influence the government of the United States with a view to postponing the trial process. (Para-199); .....Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 364] ....View Full Judgment

Just Desert–– Desert theory is the modern form of retributive philosophy, and like retributism, it has various shades and hues. Andrew Von Hirsh, the leading proponent of this doctrine, who authored, “Doing Justice” in 1976 in the United States, opined that punishment has a twin justification, one of which is founded on the intuitive connection between desertand punishment, while the other one has underlying need for general deterence as its launching pad.
The main thrust and chief contribution of desert theory is to the quantum of punishment where proportionality is the touchstone, which is either ordinal or cardinal. While ordinal proportionality is concerned with the relative seriousness of offences among themselves, cardinal proportionality relates the ordinal ranking to a scale of punishments and requires that the penalty should not be out of proportion to the gravity of the crime. It is the general perception that the rhetoric of desert is likely to lead to greater severity of penalties. It is said to be based on the intuition that punishment is an appropriate or natural response to offending. Cafeteria approach is the one where the sentencer selects the sentence as this to be most appropriate to each individual case. This allows the sentencer to pursue his own idiosyncratic approach. This is obviously at odd with the rule of law and substitutes for it the rule of individual judges.
Hybrid approach, first declaring a primary rationale and then allowing it to be trumped by other rationales, has been hailed as a step forward to ensure consistency. Sweden adopts “desert” as the primary rationale. (Paras: 851-853); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76] ....View Full Judgment

Just Desert in UK–– UK’s criminal Justice Act, 1991 the very first UK legislation to lay down sentencing principles on statutory ironshed was intended to embody desert as the primary rationale, including incapacitation (through custodial sentence) in appropriate cases. S. 2 of the Act states that the length of a custodial sentence should be commensurate with the seriousness of the offence.
Dr. David Thomas added that it is a largely irrelevant exercise in “teaching grandmother to suck eggs”, that the principle of “just desert” is not new: it has been the basis of judicial practice in the use of custodial sentence for years”.
Dr. Thomas in his path breaking book on the principle of sentencing described the tariff “as being sustained by a mixture of deterrent and desert principle: proportionality plays some part: but the judges selects a tariff sentence where he imposes, usually in the name of general deterrence, a sentence intended to reflect the offenders’ culpability” (Thomas 1979 page 8).
Lord Taylor CJ expressed, “the purpose of custodial sentence must primarily be to punish and to deter. Accordingly the phrase “commensurate with the seriousness of the offence” must mean commensurate with the punishment and deterrence which the seriousness of the offence requires” (Re Cunningham 1993 14 Cr. A.R. (s) 444).
Part of the white paper that preceded the enactment of the Criminal Justice Act, 1991, described by Dr. David Thomas as a new legislative framework for sentencing based on the seriousness of the offence or “just desert”, is reproduced below:
“If the punishment is just and in proportion to the seriousness of the offence, then the victim, the victims’ family and friends and the public will be satisfied that the law has been upheld and there will be no desire for further retaliation or private revenge”. (White paper 1990 para 2.3) 1991 Act, mandates that the sentence shall be based on the primary rational of “Just desert”.
As Ashworth states (Page 93, third edition) proportionality “has always played some role in English sentencing, and it continues to do so”.
Penal law of Finland provides that punishment shall be measured so that it is in just proportion to the damage and danger caused by the offence and to the guilt of the offender manifested in the offence.
Sweedish Criminal Code provides that sentences should be based on the penal value of the offence and the penal value is determined with regard to the harm, the conduct involved. (Paras: 854-861); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76] ....View Full Judgment

Jyotsna Bala Chowdhury statement has not controverted by the defence–– Jyotsna Bala Chowdhury stated in unison with P.Ws.12 and 13. She is an eye witness and a victim of the incident. She saw the accused in the company of the army at the time of perpetration of killing. Exhibit 29 corroborates the statement of Jyotsna Bala in material particulars. P.W.12 stated that he saw his brother’s wife with bullet injuries about one mile away south of his house whose name was Jyotsna Bala Chowdhury. His statement has not been controverted by the defence and therefore, the statement may be taken as admitted by the defence. (Para-146); .....Salauddin Quader Chowdhury =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 511] ....View Full Judgment

More than one person can be superior and can hold effective control on the same subordinates and more than one superior may be liable for the crime committed by the subordinates–– The Appellate Division helds that in this case sufficient evidence and facts and circumstances have come before the tribunal which have proved sufficiently that this appellant was a leader of Al-Badr Bahini and he had control on the members of Al-Badr Bahini and he had complicity also in the killing of intellectuals by the Al-Badr Bahini. In the circumstances the alleged non-implication of this appellant in the alleged earlier cases does not relieve him of the liability in intellectuals killing which has been proved in this case by sufficient evidence. The failure of the prosecution to produce any ID Card of any Al-Badr with the signature of the appellant is not fatal at all for the prosecution - specially in consideration of the fact that those ID Cards were issued long 42 years before. (Para-14); .....Motiur Rahman Nizami =VS= The Government of Bangladesh, [2 LM (AD) 504] ....View Full Judgment

The members of Badar bahini were ÒJamat-e-Islami nominated army–– Admittedly, the appellant Mir Quasem Ali was leader of ICS Chittagong town unit in 1971. It is also admitted that he became the Secretary General East Pakistan ICS on 7th November, 1971. Admittedly, he was selected as Secretary General of ICS considering his performance and activities as leader of Chittagong ICS and Al- Badar Bahini. It is evident that while discharging his duties as Secretary General of East Pakistan ICS he was given charge of Chittagong Division of ICS as well. Such promotion and prize post were given definitely on consideration of his effective activities and performance as leader of ICS Chittagong town unit. In the case of Ali Ahshan Mohammad Mujahid- Vs. the Chief Prosecutor, 20 BLC (AP)266 and in the unreported case of Motiur Rahman Nizami, this Division held that the Al-Badar Bahini was formed with the members of ICS. The Pakistani politicians admitted that the members of Badar bahini were ÒJamat-e-Islami nominated armyÓ. (Para-53); .....Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 364] ....View Full Judgment

Memory of witnesses of 42 years there may be some variation–– We should keep in mind that these witnesses deposed before a Tribunal about the occurrence which took place long about 42 years before. With passage of this long time of about 42 years the memory of witnesses faded. In the circumstances it is not unnatural at all that there may be some variations or discrepancies in the evidence of witnesses about a particular incident/ occurrence. To prove the charge No. 7 four witnesses have been examined by the prosecution, three of whom have rightly stated the date of killing of Sohrab Ali before Tribunal. One witness only namely P. W. 16 has stated the date of that occurrence as 4th December instead of 3rd December. We do not think that mentioning of such an incorrect date of the occurrence by a single witness raises any suspicion or doubt about the prosecution case. (Para-142); .....Motiur Rahman Nizami =VS= The Government of Bangladesh, [2 LM (AD) 446] ....View Full Judgment

Modern Sentencing Principle Generally–– As prof Andrew Ashworth, Vinerion Professor of English Law at Oxford, observed, “there is no doubt that the task of sentencing imposes a great burden on the Judges and that many of them say that it is the hardest and most disturbing of judicial tasks.

........................................................ The Supreme Court of Victoria in Williscraft (-V-R (1975 229) observed, “The purpose of punishment are manifold and each element will assume a different significance not only in different cases but in individual commission of each crime ....... ultimately every sentence imposed represents a sentencing Judge’s instinctive synthesis of all the various aspects involved in the punitive process”. (Paras: 834-846); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76] ....View Full Judgment

Nation did not and shall never forget 1971–– Considering the oral and documentary evidence together with the pre and post operation conduct and activities of the appellant during the war of Independence, we have no hesitation to hold that the ruthless Al-Badr Bahini, under the leadership of the appellant and being instigated, suggested, aided, provoked and incited by him, had kidnapped and killed the intellectuals just before the victory. It was cold blooded savagery. Such barbaric, gruesome and brutal crime which the Badr Bahini committed at the instigation of the appellant is comparable with Hitler’s gas chamber genocide. The entire world witnessed such genocide and brutality committed by Al- Badr Bahini. The people of this earth did not forget Hiroshima and Nagasaki. This Nation did not and shall never forget 1971. (Para-231); .....Ali Ahsan Muhammad Mujahid =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 1] ....View Full Judgment

The non-inclusion of the name of the appellant in this exhibit-C does not prove at all that the appellant was not involved in the incident of Dhulaura village–– The Appellate Division is unable to accept this argument also of the learned Advocate. This exhibit-C is an incomplete list of Rajakar, Al-Badr and Al-Shams of Pabna district. The non-inclusion of the name of the appellant in this list does not prove at all that this appellant did not collaborate with the Pakistani invading force and did not take part in the incident of Dhulaura village with them. In this case there are sufficient evidence to prove that this appellant Motiur Rahman Nizami used to reside at Dhaka during the Liberation War of Bangladesh and he used to go to Pabna often and committed the atrocities as described in various charges framed against him. So in the circumstances the non-inclusion of the name of the appellant in this exhibit-C does not prove at all that the appellant was not involved in the incident of Dhulaura village. (Para-125); .....Motiur Rahman Nizami =VS= The Government of Bangladesh, [2 LM (AD) 446] ....View Full Judgment

Punishment barbaric gruesome brutal crimes–– We held that petitioner’s ruthless ‘Badr Bahini’ being instigated, suggested, provoked and incited by the petitioner had kidnapped and killed the intellectuals which was cold blooded savagery. Such barbaric gruesome brutal crimes which are comparable with the Hitler’s Gas Chamber Genocide or Jalilianbag massacre. Does Islam permit killing of those unarmed people? While awarding the sentence, the Court must take into consideration the unbearable pains, tears rolling down the cheeks and sufferings of the widows and children of the victims who cried for getting justice for about 43 years. The barbaric gruesome and heinous crimes which under the petitioner’s leadership his ‘Badr Bahini’ committed is a revolt against the humanity. As leader of ‘Badr Bahini’ the petitioner can not escape from the liability. It is the duty of the court to impose proper punishment depending upon the criminality and proportionate to the gravity of the offence. (Para-34); .....Ali Ahsan Muhammad Mujahid =VS= The Government of Bangladesh, [2 LM (AD) 65] ....View Full Judgment

Responsibility on the part of a commander or superior officer to shoulder the responsibility for commission of any crimes committed by his subordinates–– It is proved that he did not participate but his subordinates committed the offence within his knowledge or that he has prepared a plan to commit any of the offences, in that case also, he cannot avoid the responsibility because law imposes a responsibility on the part of a commander or superior officer to shoulder the responsibility for commission of any crimes committed by his subordinates. (Para-202); .....Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 364] ....View Full Judgment

Retribution in Practice–– Relevant passages from some decisions pronounced by our Appellate and the High Court Divisions, which are reproduced below, do reveal that as in India, Pakistan, Sri Lanka and indeed most other countries, whether they follow common law or civil law, retribution and general deterrence rationale are more appropriate in awarding sentence to a person guilty of such felony as murder, rape, arson etc.
“The High Court Division on consideration of the evidence found that the petitioner had killed two victims without any provocation whatsoever and the killing was result of pre-meditation and that the petitioner who has taken two lives should give his own life and rejected the plea of commutation of death sentence to imprisonment for life on the ground that petitioner was in death cell for about 3 years” (18 BLD 605).
“On going through the materials on record and the impugned judgment, we find no illegality therein to interfere with the same. We also find no ground to commute the sentence as there is no extenuating circumstance for the same”.
(Mofazzal Hossain Pramanik-V- State, 6 BLC (AD) 96).
“In a case like the present where a number of persons inflict a large number of injuries with the intention of causing death so that each is contributing towards the death of the deceased, it is not necessary for the purpose of imposing the maximum penalty to determine who gave the fatal blow. In such a case all those accused to whom the Court attribute the intention of causing death in a brutal manner, should (in the absence of some other circumstance justifying the imposition of the lesser penalty) be awarded the maximum penalty. / (Fateh Khan and others –V – State, 15 DLR (SC) 5).
“There being no extenuating circumstance, the sentence of death imposed on the condemned convict by the learned Sessions Judge, Munshiganj, was the only sentence that could be imposed” (The State-V – Siddiqur Rahman, 2 BLC (HC) 145). Application of retributive rationale is clearly implied in this judgment.
In Abed Ali-V-State (42 DLR (AD) 171), the Appellate Division approved the following observation of the convicting Court; “He committed gruesome murder of 2 young men and attempt on third who however narrowly escaped. He is neither old, nor teenager and under circumstance I do not find any extenuating circumstance to save the accused from gallows. He came with a pre-determined and calculated intention to commit murder and with that end in view accosted the informant and his brothers who were unarmed and taken off / guard. We have nothing in the circumstance of the case and in the conduct of the accused to take a lenient view in the matter of the sentence inspite of our very best concur to temper Justice with mercy”.
This is yet another judgment which shows that retribution morale dominated minds of the Judges.
The following observation of the Appellate Division in the case of Dipok K Sarkar –V- State (40 DLR (AD) 139) also suggest that retributive rationale is to be followed but the principle of commensurability must be the basis; “It is not certainly our purpose to say, however, that killing of wife by husband is to be viewed by some other standard while considering the offence of murder, but as in all other cases the circumstances attending the crime have to be taken notice of for inflicting the proper punishment prescribed under the law”. (Paras: 931-933); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76] ....View Full Judgment

Review is not a rehearing–– The review petition has been filed against the conviction and sentence maintained by this court in respect of count Nos.2, 3, 7, 9, 10, 11 and 14, learned counsel argues that he is not inclined to press this leave petition on all counts except charge No.11. He has confined his argument in respect of charge No.11.
The petitioner’s contribution towards the economic development of the country by establishing business conglomerate and employing thousands of citizens in his business establishments which is not a legal ground to commute the sentence. It is within the jurisdiction of the executive. The court is only concerned with the culpability of the petitioner and the law governing on the sentencing principles. Crimes against humanity are taken as serious types of offence. The word ‘humanity’ signifies humanness-mankind collectively.
That a review is available if there is error apparent on the face of the record. There cannot be a ground for review if of two or more views are argued on a point, it cannot be a ground for review. A review is not a rehearing of the matter afresh. It is only a clerical mistake or mistake apparent on the face of the record that can be corrected but does not include the correction of any erroneous view of law taken by the court. The basic philosophy inherent in it is the universal acceptance of human fallibility but the points raised by the learned counsel are beyond the principles on which a review can be allowed. (Paras-2, 14 & 12); .....Mir Quasem Ali =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 438] ....View Full Judgment

A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error apparent on the face of the record–– The Appellate Division helds that a finding reached by a court cannot be revisited on the reassessment of the evidence, inasmuch as, an error has to be established on the face of the judgment but where there may conceivably arise two opinions, this can hardly be said to be an error apparent on the face of the record. (Para-16); .....Motiur Rahman Nizami =VS= The Government of Bangladesh, [2 LM (AD) 504] ....View Full Judgment

No review lies except on ground of error apparent on the face of the record or miscarriage of justice–– The Appellate Division held that the learned Counsel could not show any error in the decision in arriving at the conclusion that the plea of alibi has not been substituted or that the reasons assigned by the Appellate Division are contrary to the evidence on record or that there are error apparent on the face of the record. No review lies in this court except on ground of error apparent on the face of the record or miscarriage of justice. The basic philosophy inherent in it is the universal acceptance of human fallibility. The learned Counsel fails to point out any error which has been cropped up on analysis of the evidence on record. Since the learned Counsel did not argue on the merit of the 13 matter, and stresses upon the plea of alibi, which has been rejected on a full flagged hearing, at the late stage the petitioner has renewed the plea by producing a spurious document. Further, the learned Counsel having not argued on merit pointing any error in the impugned judgment, it is apparent that there is no error of law in the impugned judgment for the Appellate Division interference. The Appellate Division found no cogent ground to review our judgment. The review petition is accordingly dismissed. (Para – 08); .....Salauddin Quader Chowdhury =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 571] ....View Full Judgment

The Supreme Court in refusing to commute death sentence, made the following observations;––
“Mr. Ramachandran next submitted that the High Court has committed a serious error in balancing the aggravating and the mitigating circumstances against the appellant. … …. … Further, the High Court wrongly held the appellant “individually responsible” for the murder of seven (7) persons, including Amarchand Solanki. … … … Mr. Ramachandran submitted that the strongest reason for not giving the death penalty to the appellant was his young age; the appellant was barely twenty-one (21) years old at the time of the commission of the offences. ….. …. It is indeed correct that the appellant is quite young, but having said that one would think that nothing was left to be said for him. Mr. Ramachandran, however, thinks otherwise and he has many more things to say in the appellant’s favour. Mr. Ramachandran submitted that the Court cannot ignore the family and educational background and the economic circumstances of the appellant, and in determining the just punishment to him the Court must take those, too, into account. The learned Counsel submitted that here is a boy who, as a child, loved to watch Indian movies. But he hardly had a childhood like other children. He dropped out of school after class IV and was forced to start earning by hard manual labour. Soon thereafter, he had a quarrel with his father over his earnings and that led to his leaving his home. At that immature age, living away from home and family and earning his livelihood by manual labour, he was allured by a group of fanatic murderers seemingly engaged in social work. He thought that he too should contribute towards helping the Kashmiris, who he was led to believe were oppressed by the Indian Government. Mr. Ramachandran submitted that, seen from his point of view, the appellant may appear completely and dangerously wayward but his motivation was good and patriotic. Mr. Ramachandran further submitted that once trapped by Lashkar-e-Toiba he was completely brain-washed and became a tool in their hand. While executing the attack on Mumbai, along with nine (9) other terrorists, the appellant was hardly in control of his own mind. He was almost like an automation working under remote control, a mere extension of the deadly weapon in his hands. Mr. Ramachandran submitted that, viewed thus, it would appear wholly unjust to give the death penalty to the appellant. The death penalty should be kept reserved for his handlers, who, unfortunately, are not before a court till now. If the submission of Mr. Ramachandran is taken one step further it would almost appear …… that all those who were killed or injured in Mumbai were predestined to be visited by his violence. We have no absolute belief in the philosophical doctrine of predetermination and, therefore, we are completely unable to accept Mr. Ramachandran’s submission. In this proceeding before this Court we must judge the actions of the appellant and the offences committed by him as expressions of his free will, for which he alone is responsible and must face the punishment. We are unable to accept the submission that the appellant was a mere tool in the hands of the Lashkar-e-Toiba. He joined the Lashkar-e-Toiba around December 2007 and continued as its member till the end, despite a number of opportunities to leave it. This shows his clear and unmistakable intention to be a part of the organization and participate in its designs. Even after his arrest he regarded himself as a “watan parast”, a patriotic Pakistani at war with this country. Where is the question of his being brain-washed or acting under remote control? We completely disagree that the appellant was acting like an automaton. During the past months while we lived through this case we have been able to make a fair assessment of the appellant’s personality. It is true that he is not educated but he is a very good and quick learner, has a tough mind and strong determination. He is also quite clever and shrewd. Unfortunately, he is wholly remorseless and any feeling of pity is unknown to him. He kills without the slightest twinge of conscience. Leaving aside all the massacre, we may here refer only to the casualness with which the appellant and his associate Abu Ismail shot down Gupta Bhelwala and the shanty dwellers Thakur Waghela and Bhagan Shinde at Badruddin Tayabji Marg; the attempt to break into the wards of Cama Hospital to kill the women and children who were crying and wailing inside; and the nonchalance with which he and Abu Ismail gunned down the police officer Durgude on coming out of Cama Hospital. The saddest and the most disturbing part of the case is that the appellant never showed any remorse for the terrible things he did. … … … Fidayeen like him and follow him in his deeds. Even in the course of the trial he was never repentant and did not show any sign of contrition. The High Court, too, has noticed that the appellant never showed any remorse for the large-scale murder committed by him. … …. … The alternative option of life sentence is thus unquestionably excluded in the case of the appellant and death remains the only punishment that can be given to him”. (Para:1058); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76] ....View Full Judgment

Securing ends of justice a review is maintainable in exercise of the inherent powers from the judgment of Appellate Division subject to the condition that where the error is so apparent to avoid miscarriage of justice and not otherwise–– The Appellate Division helds that securing ends of justice a review is maintainable in exercise of the inherent powers from the judgment of Appellate Division subject to the condition that where the error is so apparent and patent that review is necessary to avoid miscarriage of justice and not otherwise, and the execution of a sentence shall be suspended till the disposal of the review petition if the same is filed within the period as above. (Para-18); .....Motiur Rahman Nizami =VS= The Government of Bangladesh, [2 LM (AD) 504] ....View Full Judgment

Sentencing Practice: India–– All that the Indian Penal Code, enacted by the imperial Parliament in Westminster in 1860 for the whole of undivided India, states is, “Whereas it is expedient to provide a general Penal Code for India: It is enacted as follows:-” So, it indicates nothing as to the penological object or purpose of the enactment.
The adjective law, i.e. the Code of Criminal Procedure (Cr.P.C.) 1973, like its repealed predecessor, also lays down nothing like what the UK’s Criminal Justice Act, 1991, Criminal Justice Act, 1993 or Criminal Justice Act, 2003 had done to lay down sentencing objectives and policies.
However, observations recorded by Indian Supreme Court from time to time supply decisive information on the object, and purpose of punishment and the principles of sentencing they follow.
Prof Salmond’s globally acclaimed propoundment that a crime is an act that is deemed by law harmful not merely for the individual victim but for the society as a whole, has althrough been adhered to by the Judges in India.
Ashworth’s observation, “The fundamental reason for having a system of criminal law is to provide a framework for the state punishment of wrongdoers and thereby preserve an acceptable degree of social order” (“Ashworth, Belief, Intent and Criminal Liability” Oxford Essams in Jurisprudence (1987) P.1.) is also strictly followed.
Five objectives outlined in UK’s Criminal Justice Act, 2003 such as (1) punishment of the offender, (2) reduction of crime, (3) reform, (4) protection of society, (5) reparation to victims, are also give effect to.
Through scores of decisions the Indian Supreme Court made this clear, while also emphasising that as crime is a “pathological aberration”, a criminal can nevertheless, in appropriate cases be redeemed and the state has to rehabilitate him (Md. Giasuddin –V-State of AP AIR 1977 SC 1926), thereby advanced the rationale of reform and rehabilitation, but only where appropriate. Similarly, in Prakash –v-State of MP the Indian Apex Court expressed, “It is the result of the recognition of the doctrine that the object of the criminal law is more to reform the individual offender than to punish him”.
The case of State of Jharkhan – V- Saiyed Rizwan (2003 AIR Jhar HCR 513), is one of a few cases where applying the “reform” rational, death sentence was commuted to life imprisonment on ground that probabilities of reform could be seen, in a situation where the convict with her husband killed her parents, brother and grandmother, whose corps were kept in hiding, with a motive to misappropriate their property.
The decision in the case of Omprokash – V- State of Haryana (AIR 1999 S.C. 1332) provides yet another example of Indian Supreme Court’s adherence to the “reform” rationale in sentencing policy. In that case the convict killed seven persons of a family, who tried to encroach upon the earlier’s property. The convict intimated the police several times but in vain and then finally killed them. In commuting the death sentence the Apex Court took notice of those facts.
In Public Prosecutor – V- Pothuraju Norosimharao (2003 Cr.L.J. NOC 229) also the Court followed “reform and rehabilitation” rationale and commuted death sentence because the prosecution failed to prove that the accused was a threat to society and was not amendable to reformation. In that case the accused committed murder by pouring acid on his near relatives due to some family dispute.
In Nadella Venkata Krishna Rao-v-State of AP the same Court expressed that the whole goal of punishment is curative and that accent must be more on rehabilitation rather retributive punivity inside the prison.
But these refers to cases where reformation is possible. So, the Supreme Court also observed that “social defence is the criminological foundation of punishment” and that the Courts should not confuse between correctional approach to prison treatment and nominal punishment verging on decriminalisation of serious social offences and that soft sentencing justice is gross injustice where many innocents are the potential victims” (Madhab Hayawadanrao Hoskot-v-State of Maharastra (AIR 1978 S.C. 1548)
Ramdeo Chauhan –V- State of Assam (2000 7 SCC 455) is a case where the retributive rationale with incapacitating consequence was certainly applied as the Supreme Court expressed that it is true that in a civilised society a tooth for tooth and a nail for nail or death for death can not be the rule but it is equally true that when a man becomes a beast and menace to the society, he can be deprived of his life, adding that the crime committed by the appellant was not only shocking but it had also jeopardised the society and the murder committed by him was most cruel, heinous, and dastardly and hence his young age at the time of the commission of the offence could not be considered.
In this case the appellant inflicted multifarious injuries on each victim that included a female baby and two helpless women, who fast asleep when killed.
It expressed that while the classical principles of retribution, deterrence, prevention and rehabilitation is in the vogue, a Judge, while considering the award of sentence, must bear in mind these principles and see with reference to the facts of the particular case as to which of them has greatest importance in the case and that the quantum of punishment should be such as deserved for the offence, no more, no less, (State of MP-v-Ganga Singh 1987 Cr. L. J 128).
It did also endorse the “Just desert” rationale (without naming it), stating that sentencing the guilty is most important, albeit a difficult chapter in trial, and that while retributive and denunciatory theories have lost their potency in the civilised nations, deterrent and preventive sentence is often necessary in the interest of the society (Saradhar Sahu-V- State of Orissa 1985 Cr.L.J. 1591). In a case of brutal murder, the same Supreme Court, before whom the propriety of death sentence was questioned, held, confirming death sentence, that failure to impose death sentence in such grave cases would bring to naught the sentence of death provided by section 302 of the Penal Code and that the Courts duty is to impose proper punishment depending on the degree of criminality and desirability to impose such punishment. (Asharfi Lal-V-State of UP, AIR 1987 SC 1721), and thereby followed the mixture of just desert (without naming it) and general deterrence rationale.
In that case the doctrines of proportionality (touch stone of just desert, supra,) and commensurability were also taken account of having regard to social necessity. In similar vein in Mahesh -v- State of MP (AIR 1987 SC 1346) the Indian Apex Court observed, “It will be a mockery of Justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give lesser punishment for the accused would be to render the justicing system of the country, suspect. The common man will lose faith in Courts. In such cases he understands and appreciates the language of deterrence more than the reformative Jargon”.
By applying the rationale of general deterrence, and public confidence test, the Supreme Court in a road accident case, enhanced the sentence of fine, observing that consideration of undue sympathy in such cases will lead to miscarriage of justice and undermine pubic confidence in the efficacy of the criminal judicial system (State of Karnataka-v-Krishna alias Raju, AIR 1987 SC 861).
Application of the mixture of just desert (without naming) and general deterrence rational touching upon proportionality and commensurability recorded a high water mark in Machhi Singh-v-State of Punjab (1983 SCc (3) 470) where the community’s response was profiled high.
Indian Courts also heavily rely on “aggravating and mitigating” circumstances as are reflected in innumerable decisions of which the cases of Bachan Singh-v-State of Punjab (1980 (2) SCC 684) and Swamy Shraddananda –v-State of Karnataka (2008 (13) SCC 767) deserves specification.
Describing that a Crime does not only affect the victim, but the conscience of the entire nation, it has been stated that the second aim of punishment is to open the eyes of the would be criminals that they would be dealt with likewise in case they dare to commit in similar crimes (surely general deterrence).
To emphasise the doctrine of commensurability, the Indian Supreme Court in Satwant Singh-V-State of Punjab, (AIR 1960 SC 266) expressed that the measure of punishment to be awarded upon conviction for an offence has to be commensurate with the nature and seriousness of the offence and that if the accused is unable to show that the sentence imposed upon him is not in any way excessive, the fact that a co-accused charged with abetment of the same offence, received a lighter sentence is not a relevant circumstance.
In numerous pre April 1974 (when new Cr.P.C. come into force) cases the Indian Supreme Court reiterated the view that in imposing sentence the main consideration should be the character and magnitude of the offence, but the Court cannot lose sight of the proportion which must be maintained between the offence and the penalty and the extenuating circumstances that may exit. The Court should also take account of the circumstances under which they were committed, degree of deliberation shown by the offender, provocation, offenders antecedents, that is while the sentence should be adequate to the offence, they should not be excessive either. (Adamji Umer Dolal-V-State of Bombay, AIR 1952 SC 14, Roghunath –V-Paria (AIR 1967 Goa 95, Sham Sundar-V-Puran AIR 1991 SC 8), by
It also ordained that a Court should weigh the sentence with reference to the crime committed and the circumstances of the case and not with reference to what may happen subsequently.
With regard to the quantum of punishment to be awarded to persons found guilty of offences dealt with in IPC, CrPC confers a wide discretion by prescribing the maximum punishment and in some cases both the maximum as well as the minimum punishment for the offence. Though no general guidelines are laid down, punishment should be commensurate with the gravity of the offence having regard to the aggravating and mitigating circumstances vis-á-vis an accused in each case. In such situation, the obligation of the court in making the choice of death sentence for the person who is found guilty of murder becomes more onerous indeed. (Para 15); State of Punjab-v-Manjit Singh, AIR 2009 SC 2888.
Ramdeo Chauhan –V- State of Assam (2000 7 SCC 455) is a case where the retributive rationale with incapacitating consequence was certainly applied as the Supreme Court expressed that it is true that in a civilised society a tooth for tooth and a nail for nail or death for death can not be the rule but it is equally true that when a man becomes a beast and menace to the society, he can be deprived of his life, adding that the crime committed by the appellant was not only shocking but it had also jeopardised the society and the murder committed by him was most cruel, heinous, and dastardly and hence his young age at the time of the commission of the offence could not be considered.
In this case the appellant inflicted multifarious injuries on each victim that included a female baby and two helpless women, who were fast asleep when killed To sum up, all the rationales a developed judicial regime apply, namely (1) general deterrence (2) individual deterrence (3) Just desert (in the form of retribution or otherwise (4) incapacitation and (5) rehabilitation, are followed by Indian Courts, notwithstanding absence of statutory guidelines like the UK’s Criminal Justice Acts of 1991, 1993 and 2003.
Thus, Mohammad Shamim, in his treatise, “Capital Punishment” (1989 Cr.L.J. 52 (Journal), has stated (in the context of India) that there are four aims of punishment, namely (a) deterrent (b) preventive (c) retributory (d) reformative. These four rationales have also been judicially expressed by the Indian Supreme Court in State of MP –v-Ganga Singh (1987 Cr.L.J. 128). (Paras:897-924); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76] ....View Full Judgment

Sentencing Practice: Bangladesh–– In Abed Ali –V-State (42 DLR AD 171) our Appellate Division considered mitigating and aggravating circumstances and considering proportionality concept, refused to commute death sentence, stating that claimed extenuating factor in the form of provocation remained unproven.
The Appellate Division’s decision in Abul Khair-V-The State (44 DLR AD 225) also reveal that our Courts consider mitigating and aggravating circumstances in determining the sentence where statute allows discretion. Our law also permits restoration and rehabilitation both for juvenile as well as adult offenders. The children’s Act, as amended in 2013 allows restorative rationale while the Probation of the Offenders Ordinance (XLV) of 1960, allows this rationale for both Juveniles and adults .
Under Ordinance XLV of 1960, if a person (irrespective of age) without previous conviction, is convicted of an offence punishable with no more than two years imprisonment, a Court can pass a probation order in the alter of inflicting punishment, or to discharge him after admonimation, or subject to condition of signing a bond, when probation order appears appropriate.
So, through a chain of high preponderant judicial pronouncement, as well as by such statutory commandments as the Probation Ordinance and Children’s Act, Bangladesh Judicial System apply all the sentencing rationales that are in prevalence in the developed judicial regimes, such as (i) deterrent, both individual and general, (2) just desert (retributive or not), (3) resorative and rehabilitory (through statutory mandate). And, in applying these sentencing rationale the Courts take account of the principles of proportionality, commensurability, aggravating and mitigating circumstances as are done in other developed judiciaries. (Paras:927-930); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76] ....View Full Judgment

Sentencing Practices in Crimes Against Humanity Cases Oberseas–– With the onset of the 2nd World War, the idea the responsibility of war criminals found expression in many international instruments.
In October 1943 the leaders of three powers published the declaration on responsibility of the Hitlerites for the atrocities committed, where it was said that the guilty will be tried on the spot by the peoples who had suffered violence in their hands. The declaration read,
“Let those who have hitherto not imbued their hands with innocent blood beaware lest they join the ranks of the guilty, for most assuredly the three allied powers will pursue them to the uttermost ends of the earth and will deliver them to their accusers in order that Justice may be done (The Nuremberg Trial Vol. 1 P 17-21).” (This declaration surely indicated retirbutivism).
These Declaration, signed in Teharan guided the International Military Tribunal at Nuremberg, (IMT) whose charter enunciated the basic indicia of crimes against peace.
Although the theme of International Criminal Law and Courts were within the contemplation of Hugo Grotius, (1625) the recognised patriarch of international law, with the formulation of the Nuremberg Charter a new generis of crimes known as War Crimes and Crimes against Humanity came to the vogue, initially under public international law though.
Nuremberg trial was the first historical precedent for bringing to trial and punishing the most dangerous of them who committed War Crimes and Crimes against Humanity.
On 8th August 1945 the agreement between the Governments of the designated states was signed and the Nuremberg Charter was ratified.
Although crimes and punishment for murder, rape, arson, unlawful confinement had been in existence even before the Nuremberg charter, crime against Humanity, comprising murder, rape, arson, unlawful confinement etc emerged as a new concept which also permeated into the municipal law of several countries subsequently. (Declaration signed by Three Powers, (Nuremberg Trial Vol. 1 P 21).
Although co-ordinating the actions of the members of the Tribunal was not an easy task for not only the socio political but also the legal systems of the four Powers were unidentical, nevertheless, the jurists of four countries found in each instance mutually acceptable solutions, by forging a singular, in many ways, unique, procedural formula, quite effective as they all shared the common will of punishing the perpetrators harshly. (surely applying retributism)
So, the IMT widely resorted to the Soviet principle of an active Court, allowed cross examination which is more characteristic of Anglo-Saxon Law. Assessment of evidence in accordance with the inner conviction of the Judges.
Although the sentencing rationale applied by 1TM has not been spelt out in black and white, the language used in the 1943 Declaration, part of which has been reproduced above, along with other expressions that found places in other declarations, reproduced below, make it abundantly clear that retribution and just desert conjugated with general deterrent rationale played the dominant part. That they emphasised “retribution” as the foremost is reflected from the following passages, which found place in different declarations and statements; “The War criminals will be sent back to the countries in which their abominable deeds were done in order that they may be Judged and punished according to the laws of the liberated countries and of the free governments which will be created therein”(Declaration on the responsibility of the Hitlarites for the atrocities committed 1943). The Soviet Union, advocated the principle that “severe punishment must overtake all who are guilty of these most atrocious crimes against culture and humanity. (lbid P = 87).
Molotov expressly and publicly promised that the Soviet nation “would never forgive the atrocities, rape, destruction and mockery which the bestial bands of German invaders have committed and are committing against the peaceful population of our country “(lbid P-87, statement p-16).
Molotov’s statement clearly indicates that he meant retributive punishment. Encouraged by the Soviet example, the London representatives of the Captive European States, who met at the conference of January 13, 1942 at the palace of Saint-James, issued a declaration to the effect that they “place among other principal war aims, the punishment through the chanel of organised justice of those guilty or responsible for these crimes whether they have ordered them, perpetrated them or in any way participated in them”. (Text of Resolution on German War Crimes signed by Representatives of Nine Occupied Countries: Voices of History 1942-1943 by F Watts, New York 1943 page 33).
This text also indicate that the allied countries meant retributive punishment through the chanels of organised justice.
Molotov repeated his pledge, stating “Hiltar’s government and its accomplices will not escape severe responsibility and deserved punishment for all their unparalleled crimes perpetrated against the peoples of the USSR and all freedom loving people. “(Vneshniaia Politika). Again, the flavour of Retributive and “Just Desert” rationale is apparent from Molotov’s statement.
The British Prime Minister, Winston Churchill on 8th September 1942 made the following statement in British Lower House;
“I wish most particularly to inform his Majesty’s Government and the House of Commons with the Solemn words which were used lately by the President of the United States, namely, that those who are guilty of the Nazi Crimes will have to stand up before tribunals in every land where their atrocities have been committed in order that an indelible warning may be given to future ages, and the successive generations of men may say, “ So perish all those who do the like again”. (The Nuremberg Trial and International Law. Page-14) The voice of the British Prime Minister, who had a pivotal role in setting the IMT into motion, is easily discernable to the thesis that he also meant retributive punishment with element of general deterrence.
President Roosevelt of the United States also, by his reply dated 21st August 1942, to the representatives of the Governments in exile, associated himself with the idea of judicially administered retribution. (Nuremberg Trial and International Law page- 15)
Molotov advanced an additional suggestion stating;
“The Soviet Government considers it essential to handover without delay for trial before a special international tribunal and to punish according to all the severity of criminal law, any of the leaders of Fascist Germany who in the course of the war have fallen into the hands of states fighting against Hitlerite Germany”. (lbid page 52-54). The phrase “punish according to all the severity” can not be misunderstood as regards the applicable sentencing rationale.
Joseph Stalin, who had a prime role in setting up the IMT, delivered a speech on 6th November 42, part of which is reproduced below, which divulge that retributory sentence was contemplated;
“Let these butchers know that they will not escape responsibility for their crimes or elude the avenging hand of the tormented nations” (War Speeches p-48). The words “avenging hand” keep no room for qualm on the theme that retributive punishment was meant.
On 19th April 1943, the Soviet Presidium passed a decree prescribing that German-Fascist criminals guilty of grave crimes against Soviet citizens were to be punished with death by hanging and their accomplices with hard labour.
Between July 14th and 16th 1943, eleven Soviet citizens were tried pursuant to the aforementioned decree under the Soviet municipal law for atrocities committed in Soviet Union in collaboration with the German occupation authorities, and eight of them were sentenced to death notwithstanding their guilty plea. The punishment awarded was obviously retributive. This was the first instance of a trial of this kind for crimes connected with the 2nd World War. (Trial in the case of atrocities by German-Fascist invaders and their accomplices on the territory of the city of Krasnodar and the Krasnodar region during their temporary occupation – Moscow 1943) and also New York Times 30th July 1943 P-5).
Barely a week after the release of the Moscow Declaration, Stalin on 6th November 1943 stated;
“Together with our Allies, we must adopt measures to ensure that all the fascist criminals responsible for the present war and the suffering of the people, should bear stern punishment and retribution for all the crimes perpetrated by them no matter in what country they may hide” (War Speech P 82) Here the word “retribution” was actually used.
This statement was adopted by the “Commission on the Punishment of War Criminals of the London International Assembly. (History of the United Nations War Crimes Commission and the Development of the Laws of War, London 1948 page -100-1001).
Immediately after the cessation of the 2nd War, a series of public trials were conducted in Kiev, Minsk, Riga, Leningrad, Smolensk, Briansk, Velikie Luki and Nikolaev and death sentences were meted liberally. (Pravda, December 16-21, 1945, New York Times, 30th December 1945 P-6 and January 6th 1946, P-4, New York Times, 31st December 1945, Pravda, 27th December 1945 P-3). (Paras:934-955); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76] ....View Full Judgment

Whether failure to produce any ID Card of any Al-Badr with the signature of the appellant (Motiur Rahman Nizami) is fatal for the prosecution–– The Appellate Division helds that the failure of the prosecution to produce any ID Card of any Al-Badr with the signature of the appellant is not fatal at all for the prosecution-specially in consideration of the fact that those ID Cards were issued long 42 years before. (Para-223); .....Motiur Rahman Nizami =VS= The Government of Bangladesh, [2 LM (AD) 446] ....View Full Judgment

No error detected to warrant review–– We have narrated above the review petition reveals nothing to say that any error is apparent in our appellate judgment. Indeed Mr. Khandakar, quite candidly submitted that he is aware of the limitations that a review petition faces. .....Muhammad Kamaruzzaman =VS= Chief Prosecutor, International Crimes Tribunal, Dhaka, [4 LM (AD) 392] ....View Full Judgment

Brief History of the (Allama Delwar Hossain Sayedee) Case–– The case in question came into being on 11th July 2011 when the Chief Prosecutor, on receipt of investigation report supplied by the Investigation Agency, submitted the formal charge invoking Section 9(1) of the International Crimes (Tribunal) Act 1973, (henceforth, the Act) implicating the instant appellant (henceforth cited as the appellant) as the sole accused. As he was already in custody on the given date in conexion with same different cases, he was produced before Tribunal no. 2, (henceforth the Tribunal), a progeny of the Act on 14th July 2011, in response to a production warrant that the Tribunal issued. (Para-590); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, [2 LM (AD) 76] ....View Full Judgment