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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, (Criminal), 2019 (2) [7
LM (AD) 375] ....View Full Judgment
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