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