International Crimes Tribunal-2 (ICT-2)
[Tribunal constituted under section 6 (1) of the Act No. XIX of 1973]
Old High Court Building, Dhaka, Bangladesh.
|Obaidul Hassan, Chairman
Md. Mozibur Rahman Miah, Member
Md. Shahinur Islam, Member
The Chief Prosecutor
Abdul Quader Molla.
International Crimes (Tribunals) Act (XIX of 1973)
Section 9 (1)
It has been contended on behalf of the defence that there has been no limitation in bringing criminal prosecution but such inordinate delay of long 40 years must be explained. The Prosecution has remained silent without offering any explanation. On this issue in its formal charge submitted under section 9 (1) of the Act. From the point of morality and sound legal dogma, time bar should not apply to the prosecution of human rights crimes. Neither the Genocide Convention of 1948, nor the Geneva Conventions of 1949 contain any provisions on statutory limitations to war crimes and crimes against humanity. Article I of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity adopted and opened for signature, ratification and ace-ssion by General Assembly resolution 2391 (XXIII) of 26 November 1968 provides pro-tection against even any statutory limitation in prosecuting crimes against humanity, genocide etc. Thus, criminal prosecutions are always open and not barred by time limitation.
In view of settled position and in the absence of any statutory limitation, as a procedural bar, only the delay itself does not preclude prosecutorial action to adjudicate the culp-ability of the perpetrator of core internat-ional crimes.
What consequence would follow if no explanation regarding delay is made while prosecuting the accused for perpetrating crimes against humanity has not been elaborated by the learned defence counsel. However, there can be no recognised theory to insist that such a ‘system crime’ can only be pursued within a given number of years. Therefore, delayed prosecution does not rest as a clog in prosecuting and trying the accused and creates no mystification about the atrocities committed in 1971.
… (81, 83, 88 and 92).
Constitution of Bangladesh, 1972
Articles 47 (3) and 47A (2)
International Crimes (Tribunals) Act (XIX of 1973)
The legislative modification that has been adopted by bringing amendment in 2009 has merely extended jurisdiction of the Tribunal for bringing the perpetrator to book if he is found involved with the commission of the criminal acts even in the capacity of an ‘individual’ or member of ‘group of individ-uals’. It is thus validly understood that the rationale behind this amendment is to avoid letting those who committed the most heinous atrocities go unpunished. This is the intent of bringing such amendment.
The words ‘individual’ or ‘group of individ-uals’ have been incorporated both in section 3 of the Act of 1973 and in Article 47(3) of the Constitution by way of amendments in 2009 and 2011 respectively. The right to move the Supreme Court for calling any law relating to internationally recognised crimes in question by the person charged with crimes against humanity and genocide has been taken away by the provision of Article 47A(2) of the Constitution. Since the accused has been prosecuted for offences recognised as international crimes as mentioned in the Act of 1973 he does not have right to call in question any provision of the International Crimes (Tribunals) Act, 1973 or any of amended provisions thereto.
The contention raised by the defence is of no consequence to the accused in consideration of his legal status and accordingly the defence objection is not sustainable in law, particularly in the light of Article 47(3) and Article 47A(2) of the Constitution.
… (100,101& 102).
International Crimes (Tribunals) Act (XIX of 1973)
Vienna Convention on the Law of the Treaties, 1969
The Act of 1973 is meant to prosecute and punish not only the ‘armed forces’ but also the perpetrators who belonged to ‘auxiliary forces’, or who committed the offence as an ‘individual’ or member of ‘group of individ-uals’ and nowhere the Act says that without prosecuting the armed forces (Pakistani) the person or persons having any other capacity specified in section 3(1) of the Act cannot be prosecuted. Rather, it is manifested from section 3(1) of the Act of 1973 that even any person (individual or member of group of individuals), if he is prima facie found individually criminally re-sponsible for the offence(s), can be brought to justice under the Act of 1973.
Amnesty shown to 195 listed war criminals are opposed to peremptory norms of intern-ational law. It is to be noted that any agreement and treaty amongst states in derogation of this principle stands void as per the provisions of international treaty law convention [Article 53 of the Vienna Convention on the Law of the Treaties, 1969]
Despite the immunity given to 195 listed war criminals belonging to Pakistani armed for-ce on the strength of ‘tripartite agreement’ the Act of 1973 still provides jurisdiction to bring them to the process of justice. Prov-isions as contained in section 3(1) of the Act of 1973 has kept the entrance unbolt to prosecute, try and punish them for shocking and barbaric atrocities committed in 1971 in the territory of Bangladesh. Of course in order to prosecute and try those 195 war cri-minal belonging to Pakistani army a unified, bold and national effort would be required. It is to be noted that the perpetrators of crimes against humanity and genocide are the enemies of mankind.
… (109, 110 and 111).
Adjudication of Charge No-1
International Crimes (Tribunals) Act (XIX of 1973)
Sections 3 (2)(a)(h) and 20(2)
The anti liberation people in order to execute plan to eliminate the freedom loving people apprehended one Pallab student of Bangla College from Nawabpur forcely brought to accused Abdul Quader Mollah during the period of War of Liberation in 1971, when on his order his accomplices dragged Pallab therefrom to Shah Ali Mazar, he was then dragged again to Idgah ground at section 12 where he was kept hanging with a tree and on 05 April 1971, on order of accused his notorious accomplices Akter and other killed Pallab, a non comba-tant civilian and thereby accused committed an offence of murder as crime against huma-nity as specified in section 3(2) (a) of the Act of 1973 or he had complicity to commit such crime as specified in section 3(2) (a)(h) of the Act of 1973 which are punishable under section 20 (2) read with section 3(1) of the Act.
Prosecution adduced and examined P.W.2 and P.W.10, the residents of the crime locality Mirpur who have testified as to the commission of event of alleged killing and complicity of the accused therewith. Both the witnesses are hearsay witness insofar as their testimony relates to the event alleged.
P.W.2 Shahidul Huq Mama does not claim to have witnessed the accused giving order to kill Pallab nor did he witness the fact of bringing Pallab to the accused. He (P.W.2) has stated that Hakka Goonda’s ‘akhra’ was in ‘Thathari Bazar’ wherefrom Akter Goonda and his accomplices apprehending Pallab brought him to Mirpur Muslim Bazar area and chopped his (Pallab) fingers and then hanging him with a tree caused inhuman torture and then they killed him on 05 April. Accused Abdul Quader Molla, Aktar Goonda and other Biharis i.e Hasib Hashmi, Hakka Goonda, Nehal mastermin-ded the event of killing.
Charge no.1 is based on hearsay evidence. With regard to hearsay evidence, it should be pointed out first that this is not per se inadmissible. The Tribunal has the discre-tion to cautiously consider this kind of evide-nce and, depending on the circumstances of each case together with relevant facts.
That is to say hearsay evidence is to be assessed like all other evidence, on the basis of its ‘credibility’ and its ‘relevance’. In the case in hand, hearsay evidence of P.W.2 is quite relevant to the material particular of facts relating to the event of killing and involvement of the accused therewith and as such not inadmissible. Such hearsay evide-nce is to be weighed now in light of ‘other evidence’ relating to relevant facts and circumstances.
The unimpeached version of P.W.2 descr-ibing the role of accused on 26 March 1971 unequivocally and patently demonstrates that in furtherance of his prior association with the local Biharis namely Aktar Goonda, Nehal, Hakka Goonda, Abbas Chairman, Hasib Hashmi accused Abdul Quader Molla even at the early part of the war of liberation being accompanied by these notorious people visibly started play-ing antagonistic role in the area of Mirpur.
D.W.4 Most Sahera is also a hearsay witness as to the fact of alleged killing of Pallab. Re-affirming the fact that Palllab was forcibly brought from Nawabpur and then Aktar Goonda and his Bihari accomplices had killed him during the war of liberation in 1971 at a place known as ‘Idgah field of Muslim Bazar’ she stated in cross-exami-nation that son of accused Abdul Quader Molla 3-4 days back, meeting her asked to depose ‘in favour of his father’ (accused) and thus she came to depose as brought by him (son of Abdul Quader Molla). This version does not indicate that D.W.4 has preferred to testify as a defence witness to tell the ‘truth’. Rather it is legitimately inferred that purpose of deposing in court was to ‘favour the accused’. It may thus be legitimately concluded that since she has deposed favouring the accused with a view to suppress the truth and that is why she has denied even the matter of making statement to the IO. Undoubtedly D.W.4 has suppres-sed the truth insofar as it relates to compl-icity of accused with the offence alleged. Therefore, her testimony, in other words, lends further assurance to the probative value of hearsay evidence of P.W.2.
The fact of learning the complicity of the accused with the commission of Pallab murder from mass people, as testified by P.W.2, thus cannot be brushed aside, merely in absence of any eye witness, particularly when the attempt made by the defence to bring and examine a listed prosecution wit-ness (D.W.4) appears to have been a futile one to exclude complicity of accused, for the reasons discussed above.
The defence could not dislodge the facts relevant to conduct and culpable association of the accused with the Bihari perpetrators. Rather, it appears that on cross-examin-ation, P.W.2 has re-affirmed the fact that on 26 March morning 1971, Pakistani army, Bihari, Jamat-e-Islami and accused Abdul Quader Molla were present at the time of committing mass destruction in Mirpur locality.
Proof of all forms of criminal responsibility can be given by direct or circumstantial evidence. Although it is proved that the local Bihari extremists and Aktar Goonda were the main offenders, yet it is proved beyond reasonable doubt that accused Abdul Quader Molla, for the reason of his continui-ng culpable association with the principals, had ‘complicity’ to the criminal acts constit-uting the offence of Pallab killing as he ‘consciously’ used to maintain such culpable association with the perpetrators in materi-allizing the design of Pakistani occupation forces and Jamat E Islami the potential pro-Pakistan political organisation to extinguish the unarmed Bangalee and pro-liberation people and Awami league the political party which had leading role in encouraging the Bangalee nation for its self determination and independence.
The accused Abdul Quader Molla is thus found to have had ‘complicity’ to the actual commission of killing Pallab in the manner by bringing him forcibly from Nawabpur. The reason of targeting Pallab was that he was in favour of pro-liberation activities and as such it may be unambiguously presumed that killing him was in furtherance of systematic attack directed against civilian population. As a result, the accused incurs criminal liability for having his ‘complicity’ to the commission of the murder of Pallab constituting the offence of crime against humanity as specified in section 3(2)(a)(h) of the Act of 1973 which is punishable under section 20(2) of the Act.
…(154, 155,159,177,180, 182, 190, 193, 199, 211 and 216)
Adjudication of Charge No.02
[Meherunnesa and her Family Inmates Killing]
International Crimes (Tribunals) Act (XIX of 1973)
Sections 3(1), 3(2)(a)(h) and 20(2)
Summary Charge No.02: During the period of War of Liberation, on 27 March 1971, at any time, accused Abdul Quader Molla , one of leaders of Islami Chatra Sangha as well as a prominent member of Al-Badar or member of group of individuals, being acco-mpanied by his accomplices, with common intention, brutally murdered the pro-libera-tion poet Meherun Nesa , her mother and two brothers when they had been in their house located at section 6, Mirpur, Dhaka. And thereby the accused had actively partic-ipated and substantially facilitated and con-tributed to the attack for accomplishm-ent of the offence of murder as crimes against humanity as specified in section 3(2)(a) of the Act of 1973 or in the altern-ative he had ‘complicity to commit such crime’ as speci-fied in section 3(2)(a)(h) of the said Act which are punishable under section 20(2) read with section 3(1) of the Act.
Prosecution relies upon hearsay evidence in proving the charge nos. 2 relating to the event of horrendous killing of Meherun Nessa and her inmates. It is found that P.W.2, P.W.4 and P.W.10 have merely testified in Tribunal that they had learnt that accused Abdul Quader Molla and his Bihari accomplices Aktar Goonda and oth-ers committed the offence of those murders. They do not claim to have witnessed the alleged horrific events.
Conversely, the learned prosecutor has submitted that P.W.2 and P.W.4 are quite reliable witnesses and their hearsay evidence coupled with other proved relevant facts and circumstances carries reasonable probative value. Even an ‘individual’, apart from member of ‘auxiliary force’, may be brou-ght to justice under the Act of 1973 and he can be held guilty even if he is found to have committed offence specified in section 3(2) of the Act of 1973.
The Tribunal notes that hearsay evidence, under the International Crimes (Tribunals) Act 1973 is admissible and we do have jurisdiction to act on it if it is found to have reasonable probative value. It is found from evidence that immediately after the ‘opera-tion search light’ on 25 March, 1971 the perpetrators had launched horrific attack on 27 Match 1971 to Meherunnesa and her family inmates and it is not disputed that they were brutally slaughtered at their own house.
The defence has not been able to offer even a hint, by cross-examining the prosecution witnesses, that the murder was not a part of planned or systematic attack and it was an isolated crime. Therefore, the context, facts and circumstances revealed inevitably have proved the elements to constitute the alleged offence of murder as crime against hum-anity.
From the hearsay evidence of P.W.2 Syed Shahidul Huq Mama it has been proved that on 27 March accused Abdul Quader Molla, Hasib Hashmi, Abbas Chairman, Aktar Goonda, Hakka Goonda, Nehal and their accomplices slaughtered poetess Meherun-nesa, her brothers and mother. In cross-examination it has been simply denied but could not be shaken. P.W.2 had learnt the event of horrific killing of Meherunnesa and her family inmates from mass people. Defe-nce could not dislodge it.
It may be lawfully inferred that the accused knew or had reason to know that the pri-ncipals were acting with intent to commit the offence of murder. The circumstances and facts insist to believe that the accused, as he led the gang of perpetrators, knew the intent of the principals. Thus, it has been proved that the accused Abdul Quader Molla had, with knowledge and mens rea, conscious complicity to the commission of the offence murder as crimes against huma-nity as listed in charge no.2 and thereby he incurs criminal liability for ‘complicity’ in commission of the murder of Meherunnesa and her inmates constituting the offence of crimes against humanity as specified in section 3(2)(a)(h) of the Act of 1973 which are punishable under section 20(2) read with section 3(1) of the said Act.
…(217, 218, 233 and 252)
Adjudication of Charge No. 03
[Khandaker Abu Taleb Killing]
International Crimes (Tribunals) Act (X1X of 1973)
Sections 3(1), 3(2) (a) (h) and 20(2)
Summary Charge No. 03: During the period of War of Liberation, on 29.3.1971 in bet-ween 04:00 to 04:30 evening, victim Kha-ndoker Abu Taleb while returning from his house located at section-10, Block-B, Road-2, Plot-13, Mirpur, Dhaka to Arambag the accused Abdul Quader Molla one of leaders of Islami Chatra Sangha and as well as prominent member of Al-Badar, being accompanied by other members of Al-Badars, Razakars, accomplices and non-Bengalese apprehended him from a place at Mirpur-10 Bus Stoppage, tied him up by a rope and brought him to the place known as ‘Mirpur Jallad Khana Pump House’ and slaughtered him to death and thereby the accused had participated, and substantially contributed to the execution of the attack upon the victim, an unarmed civilian, cau-sing commission of his horrific murder as ‘crime against humanity’ as specified in sec-tion 3(2)(a) of the Act of 1973 or in the alternative had ‘complicity to commit such crime’ as specified in section 3(2)(a)(h) of the said Act which are punishable under section 20(2) read with section 3(1) of the Act.
Slaughtering Kahndaker Abu Taleb to death at Mirpur ‘Jallad Khana’ is not disp-uted. From evidence of P.W.5 it has been proved that on 29 March 1971 victim was coming to his Mirpur home with non-Bengali accountant Abdul Halim by his (Halim) car. The fact of handing the victim over to accused Abdul Qauder Molla is denied by the defence. But the involvement of Aktar Goonda and local Bihari in slaug-htering the victim to death remains also unshaken.
The Tribunal notes that P.W.12 the IO has stated that P.W.5 stated to him that he learnt from Khalil that Halim brought his (P.W.5) father (victim) to Mirpur by his (Halim) car. Therefore, this cannot be a contradiction or subsequent embellishment, particularly when the P.W.5, in reply to question elicited to him by the defence stated that he came to know from Advocate Khalil of BNR (Law Firm) that one non Bengali Abdul Halim, the chief accountant of the ‘Daily Ittefaque’ brought his father by his car and Abdul Halim handed his (P.W.5) father over to Abdul Quader Molla and his accomplices at Mirpur.
It would be only an omission presumably due to his not being questioned on the point [Abdul Halim handed his (P.W.5) father over to Abdul Quader Molla and his accom-plices at Mirpur] by the IO, during investigation. Therefore, that cannot be of any benefit to the defence to suggest that the witness is now making intelligent improve-ments.
Actual physical participation when the crime is committed is not necessary and an accused can be considered to have part-icipated ‘in the commission of a crime’ if he is found to be ‘concerned’ with the killing. Since the testimony of P.W.5 as to the fact of bringing the victim to Mirpur by Non-Bangalee accountant Abdul Halim by his car who handed him over to accused Abdul Quader Molla and at the time of slaugh-tering the victim accused was present at the crime site carries sufficient probative value the accused is considered to have acted so intending to provide moral support and encouragement to the principals with whom he maintained continuous and culpable association accused Abdul Quader Molla incurs criminal liability for ‘complicity’ in commission of the murder of Khandoker Abu Taleb constituting the offence of crimes against humanity as specified in section 3(2)(a)(h) of the Act of 1973 which are punishable under section 20(2) read with section 3(1) of the said Act.
… (253, 264, 268, 269 and 276)
Adjudication of Charge No.4
[Ghatar Char and Bhawal Khan Bari killing]
International Crimes (Tribunals) Act (X1X of 1973)
Sections 3(1), 3(2) (a) (g) (h) and 20(2)
During the period of War of Liberation ,on 25.11.1971 at about 07:30 am to 11:00 am the accused Abdul Quader Molla one of leaders of Islami Chatra Sangha as well as prominent member of Al-Badar, being accompanied by his 60-70 accomplices belo-nging to Razaker Bahini went to the village Khanbari and Ghatar Char (Shaheed Nagar) under police station Keraniganj, Dhaka and in concert with his accomplices, raided the house of Mozaffar Ahmed Khan and apprehended two unarmed freedom fighters named Osman Gani and Golam Mostafa therefrom and thereafter, they were brutally murdered by charging bayonet in broad day light. In conjunction of the event of attack the accused and his accomplices attacking two villages known as Bhawal Khan Bari and Ghatar Chaar (Shaheed Nagar), as part of systematic attack, opened indiscriminate gun firing causing death of hundreds of unarmed civilian village dw-ellers including the civilians named in the charge no.04 and thereby the accused had actively participated, facilitated, aided and substantially contributed to cause murder of two unarmed freedom fighters including large scale killing of hundreds of unarmed civilians and thereby committed the offence of murder as ‘crimes against humanity’, ‘aiding and abetting’ the commission of the offence of murder as ‘crime against huma-nity’ or in the alternative he had ‘complicity in committing such offence’ as mentioned in section 3(2)(a)(g)(h) of the International Crimes (Tribunals) Act,1973 which are punishable under section 20(2) read with section 3(1) of the Act.
The fact of death of victims resulting from the attack launched in the locality of Ghata-rchar and Bhawal Khanbari is not disputed.
First, it appears that P.W.7 has made conflicting version as to the fact that accused accompanied the Pakistani army having rifle in his hand. Because, once he claims to have witnessed the accused at the crime site having rifle in hand and then claims to have learnt that a person named Abdul Quader Molla accompanied the gang after they had left the crime site. Which one is true version?
P.W.7 has not even disclosed the source of his knowledge as to presence of accused at the crime site. Next, according to him, he on hearing frequent gun firing from the end of northern part of village started approaching to that end and then he saw the accused Abdul Quader Molla with the Pakistani army. This version does not seem to be natural. Because, normal human prudence suggests that, particularly in circumstances prevailing through out the country, it was not natural for a Bangalee civilian to come forward to a place from which direction the perpetrators were moving with frequent gun firing. Rather in such a horrific situation non combatant civilians were supposed to escape.
Next, P.W.7 denied that he did not state what he has narrated here in Tribunal incriminating the accused with event alle-ged. But it appears that the I.O P.W.12 has stated that P.W.7 did not state all these to him implicating the accused, during invest-tigation. Earlier statement made to IO is not evidence, true. But it is used to contradict what the witness deposes in court. Thus, it appears that there has been a fatal omission in earlier statement made to IO as to pertinent fact relating to culpability of the accused with the alleged event of attack causing mass killing of unarmed civilians which is a ‘glaring contradiction’ in evide-nce made before the Tribunal by P.W.7 on material particular which has created serious doubt as to credibility and truthful-lness of his testimony.
This being the situation, naturally the hearsay evidence as to the fact of learning the event by P.W.1 from Abdul Mazid Palwan (P.W.7) loses weight and thus does not inspire any amount of credence.
Admittedly P.W.8 does not claim that she knew accused Abdul Qauder Molla even since prior to the alleged event. Her version goes to show that she learnt from P.W.7 that a person named Qauder Molla had killed her husband. But already we have found that P.W.7 Abdul Mazid Palwan has made seriously contradictory testimony as to seeing the accused at the crime site acco-mpanying the principals carrying rifle in hand.
Next, the version as made by P.W.8 that she also found, at the place where her husband was killed, some army men and a Bangalee of black complexion and dwarf height who by a rifle in his hand asked her to leave the place does not prove that the said person was nobody but accused Abdul Qauder Molla.
Mere fact that P.W.1 saw the accused standing in front of Physical Training center, Dhaka having rifle in hand, on one day prior to the alleged event, does not connect the accused with the commission of the event of massacre as listed in charge no.4. Although from this relevant fact it can be validly inferred that during the war of liberation the accused had complicity with the Pakistani occupation army as an armed member of Al-Badar. Therefore, the Tribu-nal is persuaded to note that the commission of the event of mass killing by launching attack directing the civilians as crimes against humanity on the date time and in the manner causing deaths of numerous civili-ans has been proved. Besides, commission of crimes alleged is not disputed. But for the reasons as stated above the Tribunal is not convinced to arrive at decision that the guilt of accused has been proved. Prosecution has failed to prove participation or complicity or act on part of the accused to the commission of the offence of crimes against humanity by adducing lawful and credible evidence. As a result of which accused Abdul Quader Molla is not found to have incurred criminal liability for the commission of offence of mass killing as crimes against humanity as listed in charge no. 4.
… (277, 295, 297-302 and 306)
Adjudication of Charge No.05
[Alubdi Mass Killing]
International Crimes (Tribunals) Act (X1X of 1973)
Sections 3(1), 3(2) (a), 4 (1) and 20(2)
During the period of War of Liberation ,on 24.4.1971 at about 04:30 am, the members of the accused Abdul Quader Molla one of leaders of Islami Chatra Sangha as well as prominent member of Al-Badar or member of group of individuals accompanied the Pakistani armed forces in launching the attack directed against civilian population of the village Alubdi (Pallabi, Mirpur) and suddenly by opening indiscriminate gun firing caused mass killing of 344 civilians including the persons listed in the charge No.05 constituting the offence of their murder and thereby the accused had comm-itted the offence of ‘murder as crime against humanity’, ‘aiding and abetting’ to the commission of such offences or in the alternative he committed the offence of ‘complicity in committing such offence’ as mentioned in section 3(2)(a)(g)(h) of the International Crimes (Tribunals) Act,1973 which are punishable under section 20(2) read with section 3(1) of the Act.
Prosecution has adduced and examined two witnesses in relation to this charge. The witnesses are P.W.6, Shafiuddin Mulla and P.W.9, Md. Amir Hossain Molla. They claim to have witnessed the atrocious event of mass killing participated by the accused Abdul Qauder Molla with the principal perpetrators. At the relevant time they were residents of the crime village Alubdi under police station Mirpur, Dhaka.
P.W.6 Shafiuddin Mulla (60), at the relevant time, was an inhabitant of Alubdi village. He was 19 years of age at the time of the alleged event of mass killing happened at their village. He narrated that on 24 April 1971 in the early morning, on hearing sound of helicopter, he came out of the house and found a helicopter landing at a place near the bank of river which was western part of the village and he instantly heard sound of indiscriminate gun firing and then being frightened they started running within the village. At a stage, he found dead bodies of some persons here and there. He then remained in hiding beneath a bush at the northern side of the village and therefrom had witnessed, from western side, the Pakistani Army bringing the villagers and the paddy harvesting laborers. Thereafter, he also found that the accused Abdul Quader Molla, his Bihari accomplices and Pakistani army brought the villagers and the paddy harvesting laborers from eastern side and made all of them assembled at the same place.
P.W.6 further stated that after a short while he saw the accused Abdul Quader Molla talking with the officers of Pakistani force in Urdu, although he could not exactly hear it from far and then gun shooting was started targeting the apprehended civilians and Quader Molla (accused) also had fired by the rifle in his hand and thus, in this way, they had killed 360/370 Bangalee civilians including 70/80 paddy harvesting laborers and his own uncle Nabiullah. The massacre continued till 11:00 am and the perpetrators also committed looting and burnt houses of civilians.
Defence, however, could not dislodge the fact of the incident of atrocious and planned mass killing in Alubdi village, in any manner.
The P.W.6 was actively associated with the student wing of the Awami League, a pro-liberation political party, while accused Abdul Quader Molla had worked actively for the opponent in 1970 general election in favour of the Jamat-E-Islami candidate, in the locality of Mirpur. It has been corroborated by P.W.2 Syed Shahidul Huq Mama. Admittedly, in 1971 the Alubdi village was under Mirpur Police Station and it is found from evidence of P.W.5 Khan-doker Abul Ahsan that the accused Abdul Quader Molla was also a resident of this locality (Duaripara, Mirpur). Therefore, it may legitimately presume that the P.W.6 had enough reason and occasion to know the accused Quader Molla.
Another live witness P.W.9 Amir Hossain Molla testified that Abdul Quader Molla had directly participated in the killing of around 400 people at Alubdi of Pallabi in Dhaka on April 24, 1971during the Libera-tion War. It is seen that the above version of P.W.9 has been corroborated by P.W.5 Shafiuddin Molla, another live witness of the incident who has also stated that Abdul Quader Molla directly took part in the killing of 360-370 Bangalees in Alubdi.
Context, activities and political affiliation of the accused, just prior to 1971 war of liberation, as has already been discussed reasonably and unambiguously inspire the Tribunal to believe the testimony of P.W.6 in respect of presence of the accused at the crime site of Alubdi and the fact that he himself also fired from the rifle in his hand while principally the Pakistani army perpe-trated the mass killing of civilians.
There is no reasonable ground that could prompt the Tribunal to hold that P.W.9 is an interested witness or is not credible as well. It is thus proved beyond reasonable doubt that the accused was present at the crime site, assisted the Pakistani troops and thereby participated, aided and substa-ntially provided moral support to the commission of horrific mass killing of unar-med civilians of village Alubdi. Even the Tribunal accepts the only fact that the accused was merely present at the crime site to be true, he incurs criminal liability for encouraging and providing moral support to the commission of the crime.
It has been proved that the horrific event of mass killing of 300-350 unarmed civilians of Alubdi village was perpetrated by a gang of local Bihari hooligans and their accomplice accused Abdul Quader Molla and Pakistani army. Accused Abdul Quader Molla physic-cally accompanied the gang to the crime site having rifle in hand and therefore he is liable for the atrocious event of massacre in the same manner as if it was done by him alone. Therefore, accused Abdul Quader Molla incurs criminal liability under section 4(1) of the Act of 1973 for the offence of mass killing as crimes against humanity as specified in section 3(2)(a) of the Act of 1973 which are punishable under section 20(2) read with section 3(1) of the said Act.
… (307-311, 313, 314, 322, 329 and 335)
Adjudication of Charge No.06
[Killing of Hazrat Ali and his family and Rape]
International Crimes (Tribunals) Act (X1X of 1973)
Sections 3(1), 3(2) (a), 4 (1) and 20(2)
During the period of War of Liberation , on 26.3.1971 at about 06:00 pm the accused Abdul Quader Molla one of leaders of Islami Chatra Sangha as well as prominent mem-ber of Al-Badar or member of group of individuals being accompanied by some biharis and Pakistani army went to the house of Hajrat Ali at 21, Kalapani Lane No. 5 at Mirpur Section-12 and entering inside the house forcibly, with intent to kill Bangalee civilians, his accomplices under his leadership and on his order killed Hazrat Ali by gun fire, his wife Amina was gunned down and then slaughtered to death, their two minor daughters named Khatija and Tahmina were also slaughtered to death, their son Babu aged 02 years was also killed by dashing him to the ground violently. During the same transaction of the attack 12 accomplices of the accused committed gang rape upon a minor Amela aged 11 years but another minor daughter Momena who remained into hiding, on seeing the atrocious acts, eventually escaped herself from the clutches of the perpetrators. By such acts and conduct the accused had actively participated, facilitated, aided and substantially contributed to the attack directed upon the unarmed civilians, causing commission of the horrific murders and rape by launching planned attack directing the non-combatant civilians and thereby committed the offence of ‘murder’ as ‘crime against humanity’, ‘rape’ as ‘crime against humanity’, ‘aiding and abetting the commis-sion of such crimes’ or in the alternative the offence of ‘complicity in committing such offences’ as mentioned in section 3(2)(a)(g)-(h) of the International Crimes (Tribunals) Act,1973 which are punishable under section 20(2) read with section 3(1) of the Act.
Prosecution adduced and examined only one witness in support of this charge. It exami-ned Momena Begum as P.W.3. She is the only survived member of victim family and daughter of Hazrat Ali. She witnessed the horrendous event of killing and rape. The event happened inside their house and thus naturally none else had occasion to see the event committed. P.W.3 Momena Begum testified in camera as permitted by the Tribunal. She made heartrending narration of the atrocious event that she witnessed with choked voice. At the relevant time she was 13 years old and newly wedded.
P.W.3 Momena Begum has testified that she is the only survived member of their family. The event took place on 26th March 1971. According to P.W.3 at the relevant time they had been living in the house No. 21 of No. 5 Kalapani lane of Mirpur 12. It remains unshaken and undisputed too.
P.W.3 while narrating the incident on witness box stated that on 26th March 1971 just immediate before the dusk her father hastily came back to home and was telling frightened that Qauder Molla would kill him. Aktar Goonda and his Bihari accom-plices and Pakistani army were chasing her father to kill him. Her father entering inside house closed the door and at that time her parents and brothers and sisters were inside the room. On being asked by her father she and her sister Amena kept themselves in hiding under the cot. She heard that Quader Molla and biharis coming in front of the door started telling- “son of a bitch, open the door, otherwise we will throw bomb”. They threw a bomb as her father did not open the door and thereafter, her mother having a ‘dao’ in hand opened the door and instantly they gunned down her mother. Her father attempted to hold her mother and then accused Quader Molla holding collar of wearing shirt of her father was telling- “ son of a pig, would you not do now Awami league? Would you not follow Bangabandhu? Would you not utter the slogan ‘Joy Bangla’?” Then her father folded hands begged Quader Molla and Aktar Goonda to spare him. But the accused Abdul Quader Molla dragged her father outside the room. His accomplices slaughtered her mother with a ‘dao’, also slaughtered her sisters Khodeja and Taslima with a ‘chapati’ (at this stage, P.W.3 on dock started crying shedding tears).
P.W.3 further stated, by memorizing the horrendous event that her two years old brother Babu started crying but he was also killed by dashing him to the ground violently. On hearing cry of Babu, her sister Amena started howling and then they dragged Amena from under the cot and tortured her by ragging her wearing clothes. Amena had raised cry to save her and at a stage her cry came to an end. Thereafter, they also had dragged her out from under the cot by causing injury with some sharpen object and then she raised cry and lost her sense. When she regained her sense she felt severe pain at abdomen and she could not walk and found her wearing pant in ragged condition. She somehow, therefrom, came to one house at ‘Fakirbari’ where its inmates found her in bleeding condition wearing ragged pant and then they made arrange-ment of her treatment by calling a doctor on the following day and then on being informed by them her father-in-law came there and brought her to his house where she was given necessary treatment.
P.W.3 , in cross-examination, in reply to question elicited to her by defence stated that the Bangalee person accompanying the Biharis and Pakistani army who was speaking in Bangla and dragged her father out holding his shirt’s collar was Quader Molla and she saw it remaining in hiding under the cot. Thus, the presence of accused Abdul Qauder Molla at the crime site has been re-affirmed by P.W.3.
It is needless to say that the horrific event that the P.W.3 herself experienced is inevitably still retained in her memory. There has been no earthly reason to disbelieve this witness. Rather, she seems to be a natural live witness who sustained severe mental trauma experiencing the horrific killing of her parents, sisters and minor brother in front of herself.
Indeed, within a single attack, there may exist a combination of the enumerated crimes, for example murder, rape etc. In view of discussion as made above and in taking the settled jurisprudence into account event-ually the Tribunal is persuaded that the acts of accused Abdul Quader Molla , as has been testified by the P.W.3, in the course of implementation of the actual crime of killings and rape, render him criminally responsible for the commission of the crime that has been established to have taken place as a part of systematic attack and as such the accused Abdul Quader Molla is found to have incurred criminal liability under section 4(1) of the Act for the offence as mentioned in section 3(2)(a) of the Act of 1973 which are punishable under section 20(2) read with section 3(1) of the said Act.
…(336-340, 343, 352 and 368)
VERDICT OF SENTENCE
Justice be met if for the crimes as listed in charge nos. 5 and 6 the accused Abdul Quader Molla who has been found guilty beyond reasonable doubt is condemned to a single sentence of ‘imprisonment for life’. And for the crimes as listed in charge nos. 1, 2 and 3 to a single sentence of ‘imprisonm-ent for fifteen (15) years’ under section 20(2) of the Act of 1973. Accordingly, we do hereby render the following unanimous ORDER on SENTENCE.
Hence, it is
That the accused Abdul Quader Molla, son of late Sanaullah Molla of village Amirabad Police Station Sadarpur District-Faridpur at present Flat No. 8/A, Green Valley Apartm-ent, 493, Boro Moghbazar PS. Ramna, Dhaka is found guilty of the offences of ‘crimes against humanity’ enumerated in section 3(2) of the International Crimes (Tribunals) Act, 1973 as listed in charge no.s 1, 2, 3, 5 and 6 and he be convicted and condemned to a single sentence of ‘ impris-onnment for life’ for charge nos. 5 and 6 And also for the crimes as listed in charge nos. 1, 2 and 3 to a single sentence of ‘imprisonment for fifteen (15) years’ under section 20(2) of the Act of 1973. The accused Abdul Quader Molla is howe-ver found not guilty of offence of crimes against humanity as listed in charge no.4 and he be acquitted thereof.
However, as the convict Abdul Quader Molla is sentenced to ‘imprisonment for life’, the sentence of ‘imprisonment for 15 years’ will naturally get merged into the sentence of ‘imprisonment for life’. This sentence shall be carried out under section 20(3) of the Act of 1973.
The sentence so awarded shall commence forthwith from the date of this judgment as required under Rule 46(2) of the Rules of Procedure, 2012 (ROP) of the Tribunal-2(ICT-2) and the convict be sent to the prison with a conviction warrant to serve out the sentence accordingly.
…(429 and 430)
Dennis Vs. United States [(341 US 494-592) para US 525: page 208 of Final defence argument pack] Prosecutor V. Kunara [Case no IT-96-23/1-A: ICTY Appeal Chamber 12 june 2002]; Prosecutor V. Tadic [Case no IT-94-1-T: ICTY Trial Chamber, judgment 7 may 1997, para 646 (Page -142 of the Final Argument Pack submitted by the defence]; Prosecutor vs German Katanga and Mathieu Ngudjolo Chui [(1CCC: Prel-trial Chamber: 30 September 2008): Page 225 of the Final Argument pack submitted by defence]; Nahimana, Barayag-wisa and Ngeze, [Nove-mber 28-2007 Para 924]; Deronjic [july 20, 2005 para 109]; Kupreskic, the Trial Chamber of ICTY [Janu-ary 14, 2000, para-550]; Prosecutor V. Blaskic para 214; Prosecutor Vs Charles Ghankay Taylor: Trial Chamber II SCSL: Judgment 26 April 2012 paragraph 166]; Prosecutor Vs DU (KO TADI) ICTY Trial Chamber: Case no IT- 94-I- Page -199-para 688); Trail Chamber of ICTR in the Case of Kamubanda [January 22, 2004, para 597] Nchamihigo (ICTR Tnial Chamber), November 12, 2008, para 14] Trail Chamber of ICTY in the case of Blastic [(Trial Chamber) March 3,2000,para 203]Rajesh Kumar Vs. Dharram-bir and others, AIR 1997 SC 322 and Stirland Vs. Director of Public Prosecution: 1944 AC (PC) 315: State of U.P. Vs. Anil Singh: AIR 1988 SC 1998 ref.
For the Prosecution:
Mr. Golam Arief Tipoo, Chief Prosecutor
Mr. Mohammad Ali, Prosecutor
For the Accused :
Mr. Abdur Razzak, Senior Advocate, Bangladesh Supreme Court
Mr. Ekramul Haque, Advocate, Bangladesh Supreme Court
Mr. Abdus Sobhan Tarafder, Advocate, Bangladesh Supreme Court
Mr. Tajul Islam, Advocate, Bangladesh Supreme Court
Mr. Farid Uddin Khan, Advocate, Bangladesh Supreme Court
Mr. Sajjad Ali Chowdhury, Advocate
[Under section 20(1) of the Act XIX of 1973]
I. Opening words
This Tribunal (ICT-2), a lawfully constituted domestic judicial forum, after dealing with the matter of prosecution and trial of internationally recognized crimes i.e. crimes against humanity perpetrated in 1971 in the territory of Bangladesh, during the War of Liberation is going to deliver its verdict in a case after holding trial in presence of the person accused of crimes alleged. From this point of view, delivering unanimous verdict in this case by the Tribunal-2 (ICT-2) is indeed a significant occasion. At all stages of proceedings the prosecution and the defence have made admirable hard work in advancing their valued arguments on academic and legal aspects including citations of the evolved jurisprudence. It predictably has stimulated us to address the legal issues intimately involved in the case, together with the factual aspects as well. We take the privilege to appreciate and value their significant venture.
In delivering the verdict we have deemed it indispensable in highlighting some issues, in addition to legal and factual aspects, relating to historical and contextual background, characterization of crimes, commencement of proceedings, procedural history reflecting the entire proceedings, charges framed, in brief, and the laws applicable to the case for the purpose of determining culpability of the accused. Next, together with the factual aspects we have made endeavor to address the legal issues involved and then discussed and evaluated evidence adduced in relation to charges independently and finally have penned our finding on culpability of the accused.
Now, having regard to section 10(1) (j), section 20(1) and section 20(2) of the International Crimes (Tribunals) Act, 1973[Act No. XIX of 1973] this ‘Tribunal’ known as International Crimes Tribunal-2 (ICT-2) hereby renders and pronouncing the following unanimous judgment.
II. Commencement of proceedings
- 1. On 18 December 2011, the Prosecution filed the ‘formal charge’ in the form of petition as required under section 9(1) of the Act of 1973 against accused Abdul Quader Molla. After providing due opportunity of preparation to accused, the Tribunal, under Rule 29(1) of the Rules of Procedure [hereinafter referred to as ‘ROP’], took cognizance of offences as mentioned in section 3(2) (a)(b)(g)(h) of the Act of 1973. The Tribunal after hearing both sides and on perusal of the formal charge, documents and statement of witnesses framed six charges relating to the commission of ‘crimes against humanity’ as specified in section 3(2)(a) of the Act of 1973 or in the alternative for ‘complicity in committing such crimes’ as specified in section 3(2)(a)((g)(h) of the said Act . The charges so framed were read out and explained to the accused Abdul Qauder Molla in open court when he pleaded not guilty and claimed to be tried and thus the trial started.
III. Introductory Words
- 2. International Crimes (Tribunals) Act, 1973 (the Act XIX of 1973)[hereinafter referred to as ‘the Act of 1973] is an ex-post facto domestic legislation enacted in 1973 and after significant updating the ICTA 1973 through amendment in 2009, the present government has constituted the Tribunal ( 1st Tribunal) on 25 March 2010 . The 2nd Tribunal has been set up on 22 March 2012. The degree of fairness as has been contemplated in the Act and the Rules of Procedure (ROP) formulated by the Tribunals under the powers conferred in section 22 of the principal Act are to be assessed with reference to the national wishes such as, the long denial of justice to the victims of the atrocities committed during war of liberation 1971 and the nation as a whole.
- 3. There should be no ambiguity that even under retrospective legislation (Act XIX enacted in 1973) initiation to prosecute crimes against humanity, genocide and system crimes committed in violation of customary international law is fairly permitted. It is to be noted that the ICTY, ICTR and SCSL the judicial bodies backed by the United Nations (UN) have been constituted under their respective retrospective Statutes. Only the International Criminal Court (ICC) is founded on prospective Statute.
- 4. Bangladesh Government is a signatory to and has ratified the International Covenant for Civil and Political Rights (ICCPR), along with its Optional Protocol. It is necessary to state that the provisions of the ICTA 1973 [(International Crimes (Tribunals) Act, 1973] and the Rules framed there under offer adequate compatibility with the rights of the accused enshrined under Article 14 of the ICCPR. The 1973 Act of Bangladesh has the merit and mechanism of ensuring the standard of safeguards recognised universally to be provided to the person accused of crimes against humanity.
IV. Jurisdiction of the Tribunal
- 5. The Act of 1973 is meant to prosecute, try and punish not only the armed forces but also the perpetrators who belonged to ‘auxiliary forces’, or who committed the offence as an ‘individual’ or a ‘group of individuals’ and nowhere the Act says that without prosecuting the ‘armed forces’ (Pakistani) the person or persons having any other capacity specified in section 3(1) of the Act of 1973 cannot be prosecuted. Rather, it is manifested from section 3(1) of the Act of 1973 that even any person (individual or group of individuals), if he is prima facie found individually criminally responsible for the offence(s), can be brought to justice under the Act of 1973. Thus, the Tribunal set up under the Act of 1973 are absolutely domestic Tribunal but meant to try internationally recognised crimes committed in violation of customary international law during the war of liberation in 1971 in the territory of Bangladesh. Merely for the reason that the Tribunal is preceded by the word “international” and possessed jurisdiction over crimes such as Crimes against Humanity, Crimes against Peace, Genocide, and War Crimes, it will be wrong to assume that the Tribunal must be treated as an ‘‘International Tribunal’’
V. Brief Historical Background
- 6. Atrocious and dreadful crimes were committed during the nine-month-long war of liberation in 1971, which resulted in the birth of Bangladesh, an independent state. Some three million people were killed, nearly quarter million women were raped and over 10 million people were forced to take refuge in India to escape brutal persecution at home, during the nine-month battle and struggle of Bangalee nation. The perpetrators of the crimes could not be brought to book, and this left an unfathomable abrasion on the country’s political awareness and the whole nation. The impunity they enjoyed held back political stability, saw the ascend of militancy, and destroyed the nation’s Constitution.
- 7. A well-known researcher on genocide, R.J. Rummel, in his book Statistics of Democide: Genocide and Mass Murder Since 1900, states:
“In East Pakistan [General Agha Mohammed Yahya Khan and his top generals] also planned to murder its Bengali intellectual, cultural, and political elite. They also planned to indiscriminately murder hundreds of thousands of its Hindus and drive the rest into India. And they planned to destroy its economic base to insure that it would be subordinate to West Pakistan for at least a generation to come.”
- 8. Women were tortured, raped and killed. With the help of its local collaborators, the Pakistan military kept numerous Bengali women as sex slaves inside their camps and cantonments. Susan Brownmiller, who conducted a detailed study, has estimated the number of raped women at over 400,000. [Source:http://bangladeshwatchdog1.wordpress. com/razakars/]
- 9. In August, 1947, the partition of British India based on two-nation theory, gave birth to two new states, one a secular state named India and the other the Islamic Republic of Pakistan. The western zone was named West Pakistan and the eastern zone was named East Pakistan, which is now Bangladesh.
- 10. In 1952 the Pakistani authorities attempted to impose ‘Urdu’ as the only State language of Pakistan ignoring Bangla, the language of the majority population of Pakistan. The people of the then East Pakistan started movement to get Bangla recognized as a state language and eventually turned to the movement for greater autonomy and self-determination and finally independence.
- 11. The undisputed history goes on to portray that in the general election of 1970, the Awami League under the leadership of Bangabandhu Sheikh Mujibur Rahman became the majority party of Pakistan. But defying the democratic norms Pakistan Government did not care to respect this overwhelming majority. As a result, movement started in the territory of this part of Pakistan and Bangabandhu Sheikh Mujibur Rahman in his historic speech of 7th March, 1971, called on the Bangalee nation to struggle for independence if people’s verdict is not respected. In the early hour of 26th March, following the onslaught of “Operation Search Light” by the Pakistani Military on 25th March, Bangabandhu declared Bangladesh indepen-dent immediately before he was arrested by the Pakistani authorities.
- 12. The massacres started with program called “Operation Searchlight,” which was designed to deactivate and liquidate Bengali policemen, soldiers and military officers, to arrest and kill nationalist Bengali politicians, soldiers and military officers, to arrest and kill and round up professionals, intellectuals, and students (Siddiq 1997 and Safiullah 1989).
- 13. In the War of Liberation that ensued, all people of East Pakistan wholeheartedly supported and participated in the call to free Bangladesh but a small number of Bangalees, Biharis, other pro-Pakistanis, as well as members of a number of different religion-based political parties, particularly Jamat E Islami (JEI) and its student wing Islami Chatra Sangha (ICS), Muslim League, Pakistan Democratic Party(PDP) Council Muslim League, Nejam E Islami joined and/or collaborated with the Pakistan occupation army to aggressively resist the conception of independent Bangladesh and most of them committed and facilitated the commission of atrocities in violation of customary international law in the territory of Bangladesh. “The workers belonging to purely Islami Chatra Sangha were called Al-Badar, the general patriotic public belonging to Jamaat-e-Islami, Muslim League, Nizam-e-Islami etc were called Al-Shams and the Urdu-speaking generally known as Bihari were called al-Mujahid.” [Source: ‘Sunset at Midday’ (Exhibit-2 written by Mohi Uddin Chowdhury]
- 14. The Pakistan government and the military setup number of auxiliary forces such as the Razakars, the Al-Badar, the Al-Shams, the Peace Committee etc, essentially to act as a team with the Pakistani occupation army in identifying and eliminating all those who were perceived to be pro-liberation, individuals belonging to minority religious groups especially the Hindus, political groups belonging to Awami League and Bangalee intellectuals and unarmed civilian population of Bangladesh. “Bangladesh, formerly East Pakistan, became independent in December 1971 after a nine-month war against West Pakistan. The West’s army had the support of many of East Pakistan’s Islamist parties. They included Jamaat-e-Islami, still Bangla-desh’s largest Islamist party, which has a student wing that manned a pro-army paramilitary body, called Al Badr.”
[Source: The Economist : Jul 1st 2010: http://www.economist.com/node/16485517?zid=309&ah=80dcf288b8561b012f603b9fd9577f0e]
- 15. A report titled ‘A Country Full of Corpses’ published in SUMMA Magazine, Caracas, October 1971 speaks that
“The extermination of the Jewish people by the Nazi regime, the atomic crime of Hiroshima and Nagasaki, the massacre of Biafra, the napalm of Vietnam, all the great genocides of humanity have found a new equivalent: East Pakistan. Despite the world press having supplied a clear exposition of facts, the people do not appear to have raised that at this moment—and again in Asia—millions and millions of human beings face destruction of their life and mother land……………….A pathetic view of the tragedy is given to us by the fact that in a single night in the city of Dacca were killed 50,000 persons by the invading army. Between 26 March—the date of invasion—and this moment, the dead reach more than a million, and every day 30,000 persons leave East Pakistan and take refuge in Indian territory.
“[Source: Bangladesh Documents- Volume II, page 76]
- 16. Jamat E Islami (JEI) and some other pro-Pakistan political organizations substantially contributed in creating these para-militias forces (auxiliary force) for combating the unarmed Bangalee civilians, in the name of protecting Pakistan. Actions in concert with its local collaborator militias, Razakar, Al-Badar and Jamat E Islami (JEI) and other elements of pro-Pakistani political parties were intended to stamp out Bangalee national liberation move-ment and to mash the national feelings and aspirations of the Bangalee nation. Fox Butterfield wrote in the New York Times- January 3, 1972 that “Al Badar is believed to have been the action section of Jamat-e-Islami, carefully organised after the Pakistani crackdown last March” [Source: Bangladesh Documents Vol. II page 577, Ministry of External Affairs, New Delhi].
- 17. Incontrovertibly the way to self-determination for the Bangalee nation was strenuous, swabbed with immense blood, strives and sacrifices. In the present-day world history, conceivably no nation paid as extremely as the Bangalee nation did for its self-determination. Despite the above historic truth as to antagonistic and atrocious role of JEI and other pro-Pakistan political organizations section 3(1) of the Act of 1973 remains silent as regards responsibility of any ‘organisation’ for the atrocities committed in the territory of Bangladesh in 1971 war of liberation.
VI. Brief account of the accused
- 18. Accused Abdul Quader Molla was born in the village Amirabad under Police Station Sadarpur District- Faridpur in 1948. While he was a student of BSC (Bachelor of Science) in RajendraCollege, Faridpur in 1966, he joined the student wing of JEI known as ‘Islami Chatra Sangha’ (ICS) and he held the position of president of the organization. While he was student of the DhakaUniversity, he became the president of Islami Chatra Sangha of Shahidullah Hall unit. In 1971, according to the prosecution, he organized the formation of Al-Badar Bahini with the students belonging to Islami Chatra Sangha (ICS) which allegedly being in close alliance with the Pakistani occupation army and Jamat E Islami actively aided, abetted, facilitated and substantially assisted, contributed and provided moral support and encouragement in committing appalling atrocities in 1971 in the territory of Bangladesh.
VII. Procedural History
- 19. At pre-trial stage, the Chief Prosecutor submitted an application before the ICT-1 under Rule 9(1) of the Rules of Procedure seeking arrest of the accused Abdul Quader Molla for the purpose of effective and proper investigation. At the time of hearing it was learnt that the accused was already in custody in connection with some other case. Thereafter, pursuant to the production warrant issued by the Tribunal (Tribunal-1) the accused was produced before the Tribunal (Tribunal-1) by the prison authority and then he was shown arrested as an accused before the Tribunal. Accordingly, since 02.10.2010 the accused Abdul Quader Molla has been in custody.
- 20. The Tribunal (Tribunal-1), since his detention, has entertained a number of applications seeking bail filed on behalf of the accused and the same were disposed of in accordance with law and on hearing both sides. The Tribunal-2 also allowed the learned defence counsels to have privileged communication with the accused in custody, as and when they prayed for.
- 21. Finally, the Chief Prosecutor submitted the Formal Charge under section 9(1) of the Act on 18.12.2011, on the basis of the investigation report of the Investigating Agency, alleging that the accused as a member and a prominent organizer of the Al-Badar Bahini (i.e. auxiliary force) as well as a member of Islami Chatra Sangha(ICS) or member of a group of individuals had committed ‘crimes against humanity’, ‘genocide’ including abetting, aiding and for complicity to the commission of such crimes as specified in section 3(2)(a)(g)(h) of the Act of 1973 in different places in Mirpur area of Dhaka city during the period of Liberation War in 1971. The Tribunal (Tribunal-1) took cognizance of offences against the accused having found prima facie case in consideration of the documents together with the Formal Charge submitted by the prosecution. Prosecution was then directed to furnish copies of the Formal Charge and documents submitted there with which it intends to rely upon for supplying the same to the accused for preparation of defence.
- 22. At this stage, the Tribunal-1, on application filed by the Chief Prosecutor, ordered for transmission of the case record to this Tribunal-2 under section 11A (1) of the Act of 1973. This Tribunal-2 (ICT-2), thereafter, received the case record on 23.4.2012. Earlier, the case was at stage of hearing the charge framing matter. Thus, this Tribunal-2 had to hear the matter afresh as required under section 11A (2) of the Act. Accordingly, the hearing took place on 02 May, 07 May, 08 May, 09 May, 13 May, 14 May and 16 May 2012.
- 23. Before this Tribunal-2(ICT-2), in course of hearing the charge matter, the learned Prosecutor Mr. Mohammad Ali made his submissions showing his argument favourable to framing charges against the accused, in the light of the Formal Charge together with the statement of witnesses and documents submitted therewith. While Mr. Abdur Razzak, the learned senior counsel appearing for the accused, refuting prosecution’s submission, advanced his detailed submission both on factual and legal aspects and finally emphas-ized to allow the prayer to discharge the accused.
- 24. On hearing both sides and on perusal of the formal charge, statement of witnesses and documents submitted therewith this Tribunal(ICT-2), finally, framed six charges by its order dated 28 May 2012 and then by providing due opportunity for getting preparation by the defence Tribunal-2 fixed 20.6.2012 for placing opening statement by the prosecution and with this the prosecution case commenced.
- 25. Defe