আলী আহসান মুজাহিদের পূর্নাঙ্গ রায় পড়ুন।
লিখেছেন লিখেছেন Deshe ২৫ জুলাই, ২০১৩, ০৪:০৩:২১ বিকাল
Case No. 04 of 2012:
Judgment
Chief Prosecutor
v.
Ali Ahsan Muhammad Mujahid
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
ICT-BD Case No. 04 of 2012
[Charges: crimes against Humanity and aiding & complicity to commit such
crimes as specified in section 3(2)(a)(g)(h) of the Act No. XIX of 1973]
The Chief Prosecutor
Vs
Ali Ahsan Muhammad Mujahid
Before
Justice Obaidul Hassan, Chairman
Justice Md. Mozibur Rahman Miah, Member
Judge Md. Shahinur Islam, Member
For the Prosecution:
Mr. Golam Arief Tipoo, Chief Prosecutor
Mr. Mokhlesur Rahman Badal, Prosecutor
Ms. Tureen Afroz, Prosecutor
Mr. Abul Kalam, Prosecutor
Ms. Sabina Yesmin Khan, Prosecutor
Mr. Tapas Kanti Baul, Prosecutor
For the Accused:
Mr. Abdur Razzak, Senior Advocate, Bangladesh Supreme Court
Mr. Syed Mizanr Rahman, Advocate, Bangladesh Supreme Court
Mr. Munshi Ahsanul Kabir, Advocate, Bangladesh Supreme Court
Mr. Emran Siddique, Advocate, Bangladesh Supreme Court
Mr. Gazi M.H Tamim, Advocate,
Date of delivery of Judgment: 17 July 2013
JUDGEMENT
[Under section 20(1) of the Act XIX of 1973]
I. Opening words
Before we render our verdict we should not be failing to recall the efforts
extended by both sides, at all stages of proceedings. We extend our
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appreciation to the commendable performance presented particularly on legal
issues advanced by both sides. Ali Ahsan Mohammad Mujahid has been
arraigned of internationally recognized crimes i.e. crimes against humanity
perpetrated in 1971 in the territory of Bangladesh, during the War of
Liberation, under the International Crimes (Tribunals) Act, 1973. After
conclusion of trial this Tribunal [ICT-2], a domestic court of law constituted
under the International Crimes (Tribunals) Act, 1973 is sitting today to render
its unanimous Judgement and verdict.
In addition to legal and factual aspects involved, we consider it necessary and
relevant to address and resolve the 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. It is to be noted that particularly in resolving legal issues we will
make reiteration on our earlier deliberations and finding on it given in the case
of Chief Prosecutor v. Abdul Quader Molla [ICT-BD Case No. 02 of 2013
Judgment: 05 February 2013] and Chief prosecutor v. Muhammad
Kamaruzzaman [ICT-BD Case No. 03 of 2012 Judgment: 09 May 2013] with
necessary addition. Finally, on cautious appraisal of evidence adduced, we
have penned our finding on alleged culpability of the accused, in relation to
charges, by making independent adjudication.
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 pronounces 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) and Rule 18(1) of the Rules of
Procedure 2010 [ICT-1] against accused Ali Ahsan Muhammad Mujahid.
After affording due opportunity of perpetration to accused, the Tribunal[ICT-
1] , took cognizance of offences as mentioned in section 3(2) (a)(b)(g)(h) of
the Act of 1973. On receipt of the case record on transfer this Tribunal [ICT-
2], after hearing both sides and on perusal of the formal charge, documents
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and statement of witnesses framed seven charges on distinct event of criminal
acts constituting the offence of ‘crimes against humanity’ and ‘genocide’ as
specified in the Act of 1973 .The charges so framed were read out and
explained to the accused Ali Ahsan Muhammad Mujahid in open court when
he pleaded not guilty and claimed to be tried and thus the trial started.
III. Introductory Words
2. The 2nd Tribunal [ICT-2] has been set up on 22 March 2012. The notion of
fairness and due process as have been contemplated in the Act and the Rules
of Procedure, 2012 (ROP) formulated by the Tribunal [ICT-2] under the
powers conferred in section 22 of the principal Act is 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, together with the recognized norms and jurisprudence
evolved.
3. The Act XIX enacted in 1973 which is meant to prosecute crimes against
humanity, genocide and system crimes committed in violation of customary
international law is ex-post facto legislation. It is fairly permitted. It is to be
noted that the ICTY, ICTR and SCSL the adhoc Tribunals backed by the
United Nations (UN) have been constituted under their respective
retrospective Statute. Only the International Criminal Court (ICC) is founded
on prospective Statute [Rome Statute]. The 1973 Act of Bangladesh has the
merit and means of ensuring the standard of safeguards recognized universally
to be provided to the person accused of crimes against humanity.
IV. Jurisdiction of the Tribunal
4. 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’ or
‘organisation’[as amended with effect from 14.7.2009]. It is manifested from
section 3(1) of the Act of 1973 that even any person (individual), if he is
prima facie found accountable either under section 4(1) or 4(2) of the Act of
1973 for the perpetration of offence(s), can be brought to justice under the
Act. We reiterate that the Tribunal set up under the Act of 1973 is absolutely a
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domestic Tribunal but meant to try internationally recognized crimes or
system 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 mistaken to assume that the
Tribunal must be treated as an ‘‘International Tribunal’’.
V. Brief Historical Background
5. 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 and the motherland of the Bengali nation. 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 a deep scratch on the country's political awareness and the whole nation.
The impunity they enjoyed held back political stability, saw the rise of
militancy, and destroyed the nation's Constitution.
6. 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.
7. 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.
8. The 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
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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 independent immediately before he
was arrested by the Pakistani authorities.
9. The ‘operation’ was designed to disarm 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 Afterwards, actions in concert with its local
collaborator militias, Razakar, Al-Badar and the key pro-Pakistan political
organisation Jamat E Islami (JEI) were intended to stamp out the Bengali
national liberation movement and to mash the national feelings and aspirations
of the Bangalee nation.
10. 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.”
11. In the War of Liberation that ensued, all people of East Pakistan
unreservedly 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) 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 appalling atrocities in violation of customary
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international law in the territory of Bangladesh. It also experienced
unprecedented devastation of properties all over Bangladesh.
12. The Pakistan government and the military formed 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 proliberation,
individuals belonging to minority religious groups especially the
Hindus, political groups belonging to Awami League and Bangalee
intellectuals and unarmed civilian population of Bangladesh.
13. A report titled ‘A Country Full of Corpses’ published in SUMMA
Magazine, Caracas, October 1971[Source: Bangladesh Documents- Volume
II, page 76] 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. …………………………….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. “
14. Incontrovertibly the ways to self-determination for the Bangalee nation
was strenuous, swabbed with enormous blood, strive and sacrifices. In the
present-day world history, conceivably no nation paid as extremely as the
Bangalee nation did for its self-determination.
15. Jamat E Islami (JEI), as an organization, substantially contributed in
creating the para-militia forces (auxiliary force) for combating the unarmed
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Bangalee civilians, in the name of protecting Pakistan. Al- Badar is believed
to have been the ‘action section’ of Jamat-e-Islami, carefully organised after
the Pakistani crackdown last March [Fox Butterfield in the New York
Times- January 3, 1972: Source: Bangladesh Documents Vol. II Ministry of
External Affairs New Delhi]
VI. Brief account of the Accused
16. Accused Ali Ahsan Muhammad Mujahid son of late Moulana Abdul Ali
and late Begum Nurjahan of ‘Paschim khabashpur’ under Kotwali police
station district Faridpur, at present Road No. 10, House No. 05, Flat No. 2/A,
Sector-11, Police Station Uttara, Dhaka Metropolitan Police, Dhaka was born
on 02 January 1948. He obtained SSC in 1964 and thereafter studied in
Faridpur Rajendra College when he joined the Islami Chatra Sangha. During
1968-1970 he was the president of Faridpur district Islami Chatra Sangha. In
1970 he got himself admitted in the department of Law, University of Dhaka.
He was nominated as the President of Dhaka district Islami Chatra Sangha and
in the same year, in the month of August/September he was assigned with the
responsibility of Secretary, East Pakistan Islami Chatra Sangha. Thereafter, in
the month of October, 1971 he was elected Provincial President of the
organization and also became the Chief of Al-Badar Bahini, as alleged. Ali
Ahsan Muhammad Mujahid belonged to a political family. His father late
Moulana Abdul Ali was a member of ‘Provincial Assembly’ of the then East
Pakistan since 1962-1964. Ali Ahsan Muhammad Mujahid contested the
parliamentary election in 1986, 1991, 1996 and 2008 but could not succeed
even for once. He was the social welfare Minister of the BNP-Jamat alliance
government during 2001-2006.
VII. Procedural History
Tribunal-1
(i)Detention & Interrogation of the Accused
17. Since pre-trial stage, on an application under Rule 9(1) of the Rules of
Procedure initiated by the Chief Prosecutor seeking arrest, accused Ali Ahsan
Muhammad Mujahid has been in detention in connection with this case, for
the purpose of effective and proper investigation. In course of hearing the
matter, it was learnt that the accused was already in custody in connection
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with some other cases. As a result, pursuant to the production warrant (PW)
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
/detained as an accused before the Tribunal. Accordingly, since 02.10.2010
the accused Ali Ahsan Muhammad Mujahid has been in custody in connection
with the case before us.
18. The Tribunal (Tribunal-1), since his detention, has entertained a number of
applications seeking his release on bail and the same were disposed of in
accordance with law and on hearing both sides. The Tribunal[ICT-1] also
allowed the learned defence counsels to have privileged communication with
the accused detained in prison. To prohibit coercion and torture of any kind,
the Tribunal[ICT-1] also ordered the presence of engaged counsel and a
doctor at a room adjacent to the room of the ‘safe home’ where the
Investigation Agency was allowed to interrogate the accused.
(ii) Submission of Formal Charge
19. Finally, the Chief Prosecutor submitted the Formal Charge under section
9(1) of the Act on 11.12.2011. But on considering it the Tribunal directed the
prosecution by its order dated 28.12.2011 to submit it afresh in an arranged
and systematic form.
(iii)Defence application seeking dismissal of the case
20. On 04.1.2012 an application was filed on behalf of the accused seeking
dismissal of the case on the grounds stated therein. The Tribunal[ICT-1] on
hearing the matter rejected the application by its order dated 09.1.2012 finding
that the application was premature and not tenable in law.
(iv) Re-submission of Formal Charge
21. As directed, the prosecution re-submitted the ‘formal charge’ on
16.01.2012 on accepting of which the Tribunal [ICT-1] fixed 26.1.2012 for
passing order on cognizance matter. Meanwhile, on 25.1.2012 defence filed an
application seeking privileged communication between the accused and his
counsel in prison. The Tribunal [ICT-1] on hearing the matter allowed the
privileged communication as prayed for.
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(v) Taking Cognizance of Offences [By the ICT-1]
22. On 26.1.2012, the Tribunal, considering the Formal Charge and
documents submitted therewith, having found prima facie case, took
cognizance of offences under the International Crimes (Tribunals) Act 1973
against the accused Ali Ahsan Muhammad Mujahid and fixed 23.2.2012 for
hearing the charge matter with direction to submit documents for providing
the same with the accused within 31.1.2012. Meanwhile, the defence filed an
application praying for shifting the date of privileged communication as
ordered earlier. The Tribunal [ICT-1] however, allowing the prayer rescheduled
25.2.2012 for having privileged communication.
(vi) Charge Hearing Matter [Commenced in ICT-1]
23. On 23.2.2012, prosecution prayed an adjournment of 04 weeks on charge
hearing matter. The Tribunal [ICT-1] allowing the prayer fixed 11.3.2012 for
hearing charge matter. Accordingly hearing on charge framing matter
commenced on 11.3.2012 and 20.3.2012 was fixed for further hearing on the
matter. On the date fixed prosecution concluded its hearing and considering
the submission made by the defence the Tribunal [ICT-1] fixed 22.3.2012 for
further hearing on charge matter. Argument, on charge framing matter, on part
of the accused took place on 22.3.2012, 28.3.2012, 02.4.2012.
Tribunal-2
(vii)Transmission of the case to ICT-2
24. At the stage of charge hearing matter the case record of ICT-BD Case No.
04 of 2011[ICT-1] was transmitted to this Tribunal [ICT-2] by its order dated
25.4.2012 under section 11A (1) of the Act, for expeditious trial and disposal
of the case, on prayer of Chief Prosecutor.
(viii) Charge Framing [In ICT-2]
25. This Tribunal [ICT-2] received the case record on 10.5.2012. Earlier, the
case was at stage of hearing the charge framing matter. Thus, this Tribunal
had to hear the matter afresh as required under section 11A (2) of the Act. The
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hearing took place on 16 May, 21 May, 24 May, 29 May,30 May , 31 May
and 05 June 2012. The Tribunal-2, on consideration of deliberations made by
both sides and the formal charge together with the materials and statement of
witnesses submitted by the prosecution, finally framed as many as 07 charges
against the accused Ali Ahsan Muhammad Mujahid on 21 June 2012 which
were read over and explained to the accused, in open court, to which he
pleaded not guilty and claimed to contest the charges so framed. At the same
time the Tribunal fixed 19.7.2012 for opening statement and examination of
witnesses by the prosecution with direction to the accused to submit a list of
witnesses along with documents which the defence intended to rely upon.
(ix) Review Application by the defence & Privileged Communication
26. The defence preferred review [application filed on 01.7.2012] of the order
framing charges under Rule 26(3) of the ROP on hearing which the Tribunal
by its order dated 15.7.2012 rejected the application with observations that the
issues raised at that stage would be better resolved at trial.
27. The Tribunal once again allowed privileged communication by its order
dated 14.8.2012 as prayed by the accused. Prosecution started examining its
witnesses on 26.8.2012 and on the same day Defence submitted a list of
witnesses along with documents which the defence intended to rely upon.
(x) Examination of prosecution Witnesses
28. On 07.4.2013 the Tribunal rejected an application initiated by the
prosecution under section 19(2) of the Act of 1973 with prayer to receive
statement of one witness on the grounds stated therein. However, prosecution
adduced and examined in all 17 witnesses including Investigating Officer and
two seizure list witnesses. Examination and cross-examination of prosecution
witnesses have been concluded on 22.4.2013. On the same day by a separate
order the defence was allowed to have privileged communication for third
occasion as prayed for.
(xi) Examination of Defence Witnesses
29. Meanwhile, the Tribunal [ICT-1] by its order dated 16.4.2013 allowed the
defence to adduce and examine three witnesses preferably from the list
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submitted under section 9(5) of the Act of 1973. It is to be noted that the
defence submitted a list of 1315 witnesses. However, keeping consonance
with the section 11(3) of the Act of 1973 and Rule 43(5) of the ROP the
Tribunal in exercise of its inherent powers contained in Rule 46A of the ROP
together with the powers given under section 22 of the Act of 1973 the
Tribunal considered it just and appropriate to pass such an order regulating the
number of defence witnesses.
30. 05 May 2013was fixed for examination of defence witnesses. Defence
duly produced and examined one witness who mainly proved and exhibited
some of documents and books which have been marked as well. As the
defence informed the Tribunal that it did not intend to examine any more
witness the Tribunal fixed 07.5.2013 for summing up of the prosecution case
as required under section 10(1)(i) of the Act of 1973.
(xii) Summing up of cases
31. The summing up of case by the prosecution continued for four days [ 07
May, 12 May, 15 may and 16 may 2013]. Defence placed it summing up for
couple of days starting from 22 May 2013 and it ended on 05 June 2013.
Prosecution was allowed to reply on law points only, for one hour. After
closing the summing up of cases the Tribunal kept the case under CAV for
rendering and pronouncement of its Judgment.
VIII. Applicable laws
32. The proceedings before the Tribunal shall be guided by the International
Crimes (Tribunals) Act 1973, the Rules of Procedure 2012 formulated by the
Tribunal under the powers given in section 22 of the Act. Section 23 of the
Act of 1973 prohibits the applicability of the Code of Criminal Procedure,
1898 and the Evidence Act 1872. Tribunal is authorized to take judicial notice
of fact of common knowledge which is not needed to be proved by adducing
evidence [Section 19(4) of the Act]. The Tribunal may admit any evidence
which it deems to have probative value [Section 19(1) of the Act]. The
Tribunal shall have discretion to consider hearsay evidence by weighing its
probative value [Rule 56(2)]. The defence shall have liberty to cross-examine
prosecution witness on his credibility and to take contradiction of the evidence
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given by him [Rule 53(ii)]. Defence shall have right to examine witnesses
[Section 10(1) (f) of the Act of 1973].
33. Cross-examination is significant in confronting evidence. The Act of 1973
provides right of accused to cross-examine the prosecution witnesses. The
Tribunal may receive in evidence statement of witness recorded by Magistrate
or Investigation Officer only when the witness who has subsequently died or
whose attendance cannot be procured without an amount of delay or expense
which the Tribunal considers unreasonable [Section 19(2) of the Act]. But in
the case in hand no such statement of witness has been received despite prayer
on part of the prosecution.
34. Both the Act of 1973 and the Rules (ROP) have adequately ensured the
universally recognised rights of the defence. Additionally, the Tribunal, in
exercise of its discretion and inherent powers as contained in Rule 46A of the
ROP, has adopted numerous practices for ensuring fair trial by providing all
possible rights of the accused. Since the Act of 1973 is meant to prosecute and
try the persons responsible for the offence of crimes against humanity,
committed in violation of customary international law, the Tribunal however
is not precluded from seeking guidance from international reference and
relevant jurisprudence, if needed to resolve legal issues related to adjudication
of charges and culpability of the accused.
IX. The Universally Recognised Rights of Accused Ensured by
the Act of 1973
35. Ensuring rights of accused is a pertinent issue involved in any criminal
trial. Fair trial concept stems from the recognized rights of accused. The
Tribunal [ICT-2], a domestic judicial forum constituted under our own
legislation enacted in the Parliament and is obliged to guarantee the rights of
the accused and key elements of fair trial which are (i) right to disclosure (ii)
public hearing (iii) presumption of innocence (iv) adequate time to prepare
defence (v) expeditious trial (vi) right to examine witness (vii) right to defend
by engaging counsel. All the rights including these ones have been provided to
the accused so that the fair trial requirements are satisfied.
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Right to Disclosure
36. Article 9(2) ICCPR contains-“Anyone who is arrested shall be informed,
at the time of arrest, of the reasons for his arrest and shall be promptly
informed of any charges against him.” This provision compatibly reflects in
the Rule 9(3) of ROP that provides-“At the time of executing the warrant of
arrest under sub-rule (2) or later on, copy of allegations is to be served upon
such person.” Further, Rule 18 (4) of ICT-BD provides “The Chief prosecutor
shall file extra copies of formal charge and copies of other documents for
supplying the same to the accused(s) which the prosecution intends to rely
upon in support of such charges so that the accused can prepare his defence.”
37. Thus, right to disclosure has been adequately ensured so that the suspect
person can have fair opportunity to defend his own interest. The Tribunal has
allowed privileged communications between the accused and his engaged
counsels, in prison as and when prayed for.
To be presumed innocent till found guilty
38. The right to be presumed innocent until proven guilty is one of the
cornerstones of fair trial proceedings and is related to the protection of human
dignity. It is universally accepted settled jurisprudence. In common law
system, defence is to prove nothing and he or she shall be presumed innocent
till found guilty. No one can be convicted unless the charge brought against
him is proved 'beyond reasonable doubt'. This is the standard and universally
settled criminal jurisprudence that all the courts constituted under valid
legislation will follow. In ICT-BD the provision that the burden of proving the
charge shall lie upon the prosecution (Rule 50) amply implicates the theory of
innocence of an accused until and unless he is held guilty through trial.
Besides, a person charged with crimes as described under section 3(2) of the
Act shall be presumed innocent until found guilty [Rule 43(2) of the ROP].
Adequate time to prepare defence
39. The key element of fair trial notion is the right of an accused to have
adequate time and facilities for the preparation of his defense during all stages
of the trial. What time is considered adequate depends on the circumstances of
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the case. The concept of fairness is the idea of doing what's best and levelheaded.
40. The ‘three weeks’ time is given to the defense to prepare. Section 9(3) of
the Act of 1973 explicitly provides that ‘at least three weeks’ before the
commencement of the trial, the Chief Prosecutor shall have to furnish a list of
witnesses along with the copies of recorded statement and documents upon
which it intends to rely upon. Additionally, what time is considered adequate
depends on the circumstances of the case. The ICT-BD is in practice not to
deny any of accused’s right to have time necessary for preparation of his
defense or interest.
Expeditiousness of the proceedings
41. The expeditiousness and fairness of the proceedings are intertwined. It is
an important element of the right to a fair trial, namely the right to be tried
without undue delay. Provisions contained in sections 11(3) and 13 of the Act
of 1973 require the Tribunal for ensuring expeditious proceedings. Tribunal
also notes that parties cannot cause setback the proceedings at will or by
seeking unjustified adjournments. In this regard we may recall the observation
made in the case of Kayishema and Obed Ruzindana by The ICTR Appeals
Chamber which is as below:
“Procedural time-limits are to be respected,
and . . . they are indispensable to the proper
functioning of the Tribunal and to the
fulfillment of its mission to do justice.
Violations of these time-limits, unaccompanied
by any showing of good cause, will not be
tolerated.” [Prosecutor v. Clément Kayishema
and Obed Ruzindana, Case No. ICTR-95-1-A,
Judgment (Reasons), 46 (June 1, 2001).]
42. In the case in hand, both parties were afforded adequate time in
conducting their respective case. The principle of equality of arms means that
the Prosecution and the Defence must be equal before the Tribunal. Keeping
the notion in mind the Tribunal was mindful in providing every practicable
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facility it was capable of granting under the Rules and the Act of 1973 when
faced with a request by either party for assistance in presenting its case.
Right to examine witnesses
43. Under section 10(1) (f) of the Act of 1973 defence shall have right to
examine witness, if any. In the case in hand, defence submitted a list of 1315
witnesses under section 9(5) of the Act of 1973 at the commencement of trial.
Submitting such a long list is indeed unheard of. However, eventually
considering the defence case extracted from the trend of cross-examination of
prosecution witnesses the Tribunal [ICT-2] permitted the defence to produce
and examine only 03 witnesses preferably from their list, in exercise of power
given in section 22 of the Act and Rule 46A of the ROP. But however,
defence produced and examined only one(01) witness who has mainly proved
and exhibits some documents.
44. Therefore the ICT-2 guarantees the required procedural protections of the
accused’s right to fair trial both in pre-trial phase and during trial as well. The
Act of 1973 and the Rules [ROP] framed there under are explicitly compatible
with the fair trial concept as contained in the ICCPR. We have given a
portrayal on compatibility of provisions in ICT Act with the ICCPR in the
case of Muhammad Kamaruzzaman [ICT-BD Case No.03 pf 2012, Judgement
09 May 2013, para 63].
45. Additionally, it will be evident from above procedural account that the Act
of 1973 does indeed adhere to most of the rights of the accused enshrined
under Article 14 of the ICCPR. However, from the aforementioned discussion
it reveals that all the key rights have been adequately ensured under the
International Crimes (Tribunals) Act, 1973 and we will find that those fairly
correspond to the ICCPR.
X. Universally Recognised Rights of Victims
46. The Tribunal notes that the State has an obligation to remedy serious
human rights violations. Bangladesh recognizes Article 8 of the Universal
Declaration of Human Rights [UDHR] and Article 2(3) of the International
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Covenant of Civil and Political Rights [ICCPR] which ensure the right to an
effective remedy for the violation of human rights.
47. We reiterate our reasoned observation recorded in the case of Muhammad
Kamaruzzaman [ICT-BD Case No.03 pf 2012, Judgement 09 May 2013, para
66, 67] with reference to Article 2(3) ICCPR that
“the victims of systematic and organised diabolical
atrocities committed in 1971 within the territory of
Bangladesh in violation of customary international
law need justice to heal. Bangladesh considers that
the right to remedy should also belong to victims
of crimes against humanity. It is also to be kept in
mind together with the rights of accused, for
rendering justice effectively”.
XI. Summing up of cases
a. Summing up of the Prosecution
48. Mr. Mukhlesur Rahman Badal, the learned Prosecutor in course of
summing up of prosecution case has submitted a brief portrayal of historical
background that had enthused the Bengali nation to the movement of selfdetermination
which eventually got shape of War of Liberation. The learned
prosecutor went on to submit that the then Pakistani government and the
occupation troops’ policy was to resist the war of liberation in its embryo and
as such ‘operation search light’ was executed in Dhaka causing thousands of
killing and mass destruction, with the aid and organizational support mainly
from Jamat-E-Islam (JEI), its student wing Islami Chatra Sangha (ICS) and
pro-Pakistan political bodies and individuals. Respecting the preamble of the
International Crimes (Tribunals) Act 1973 (The Act XIX of 1073) the
government has constituted this Tribunal for prosecution and punishment of
persons responsible for genocide, crimes against humanity committed in the
territory of Bangladesh in 1971.
49. Next, the learned Prosecutor, in continuation of his summing up
presentation, by drawing attention to the documents exhibited submitted that
the accused Ali Ahsan Muhammad Mujahid has been indicted for committing
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criminal acts forming part of systematic attack that resulted in the commission
of the offences of crimes against humanity and genocide, as listed in 07
charges framed. Al-Badar, an ‘auxiliary force’ was formed of workers of
Islami Chatra Sangha [ICS] the student wing of JEI and the accused, during
the war of liberation was in position of president of ICS, Dhaka district, then
secretary of the then East Pakistan ICS and finally was in position of
president of the then East Pakistan ICS till 16 December 1971. As the chief of
Al-Badar[AB] accused Ali Ahsan Muhammad Mujahid had acted in the
capacity of ‘superior’ of the Al-Badar force and was actively concerned with
the criminal acts for which he has been charged with.
50. It has been further submitted that oral testimony as well as the
documentary evidence presented will go to prove it beyond reasonable doubt
that the accused Mujahid as the head of Al-Badar and also a member of group
of individuals abetted, facilitated the actual commission of crimes as narrated
in charge nos. 1, 5 and 6 which happened in Dhaka. Prosecution has been able
to prove beyond reasonable doubt by adducing witnesses that the accused also
committed and actively participated the crimes as described in charge nos.
2,3,4 and 7 which took place in his home town Faridpur.
51. As regards charge no.1 the learned prosecutor submitted that notable
journalist was abducted and afterwards killed as a part of planned killing of
intellectuals. The accused by his acts, conducts and inciting statement and
speeches encouraged and abetted the commission of abduction by the
principals, the Al-Badar men.
52. Ms. Tureen Afroz in advancing an added argument on charge no.1 has
submitted that the event of Journalist Seraj Uddin Hossain abduction was a
part of pattern crime and in furtherance of common policy and design that
occurred at the verge of nation’s victory on 16 December. Conduct and act of
the accused coupled with his position of authority in ICS and culpable
association with the AB demonstrates beyond reasonable doubt that the
accused also had significant contribution to the commission of the crime under
charge no.1 which was actually perpetrated by AB men. A defence document [
a report: Defence Documents Volume 14, page 463-464] proves it too that the
accused Mujahid was in a position of authority of AB at the relevant period
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and as such it can be inferred validly that he was also a party to the common
plan and purpose of collective criminal enterprise in accomplishing the crime
of abduction of Seraj Uddin Hossain.
53. In respect of charge no.2 it has been argued that the accused accompanied
the group of perpetrators to the crime site and thereby he facilitated and
provided moral support to the commission of crimes of mass killing of
civilians belonging to Hindu community. Prosecution witnesses have testified
it and there is no reasonable ground to discredit their credibility. Some
relevant facts showing accused’s conduct as testified by P.W.8 and P.W.10
lends corroboration to the fact that the accused accompanied the group of
perpetrators to the crime site. Accused made inciting speech in Faridpur, his
home town, to target the Hindu community.
54. In making argument on charge no.3 the learned prosecutor has submitted
that the victim of the offence of confinement and torture himself has testified
the presence of the accused at the army camp where he [P.W.7] was brought
by the group of perpetrators and the accused by his conduct had encouraged
and facilitated to the commission of the crime narrated in charge no.3.
55. On arguing on charge no. 4 Ms. Tureen Afroz , the learned prosecutor
submitted that the event of confining and causing torture to Abu Yusuf Pakhi
has been proved in the case of Abul Kalam Azad. Tribunal’s finding made
therein together with statement of P.W.6 and P.W.8 on relevant facts made in
the present case sufficiently proves accused’s collective criminal association
and culpability.
56. In respect of charge no.5 it has been argued that P.W.2 Jahiruddin Jalal
testified that he was forcibly brought to the army camp set up at old MP hostel
at Nakahlpara, Dhaka city where he found accused Mujahid present who
physically tortured him and he also found him telling to liquidate the other
detainees whom he could recognize. This relevant fact together with the
conduct of accused as revealed from evidence of P.W.5 proves it beyond
reasonable doubt that the accused was linked with the event of killing of
persons detained at the army camp.
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57. As regards charge no. 6 which relates to ‘intellectuals killing’ it has been
argued by the prosecution that the event of abduction and killing took place in
between 10 to 16 December 1971. The principal perpetrators were the Al-
Badar men. It was an organized and planned killing intended to liquidate the
best sons of the soil to cripple the Bengali nation. As a leader of AB force
accused Ali Ahsan Muhammad Mujahid cannot evade liability of perpetration
of the event of killings. From evidence of P.W.5 Md. Rustom Ali Molla on
some relevant facts it would reveal that the accused was closely affiliated with
the activities carried out by the Al-Badar headquarters and the Al-Badar men.
He was a part of common purpose of the organization and accused’s conduct
demonstrates that he knew or hade reason to know about the commission of
the crime of large scale killing as alleged. At the same time the accused is
liable under section 4(1) of the Act of 1973 which conforms with the concept
of Joint Criminal Enterprise [JCE].
58. In advancing argument on charge no.7 the learned prosecutor Mr.
Mukhlesur Rahman Badal has submitted that it has been proved beyond
reasonable doubt by the evidence of P.W.12 and P.W.13 that the accused
accompanied the group of perpetrators to the crime village Bakchar and
actively participated to the commission of killing of Hindu civilians, by
sharing common intent. P.W.13 Shakti Saha, an eye witness, has narrated how
the event was committed and how the accused participated to its commission.
b. Summing up of case by the defence
59. Mr. Syed Mizanur Rahman, the learned defence counsel , on arguing on
charge no.1, has submitted that as Mujahid was not involved with Al-Badar,
responsibility of the force does not fall upon him. The Charge No.1 describes
that accused Mujahid wrote an article in the daily Sangram on September 16,
1971, countering a write-up of Seraj Uddin Hossain, the then executive editor
of daily Ittefaq terming Seraj Uddin Hossain an “agent of India” and thus
Seraj Uddin Hossain became the target of Al-Badar and was abducted by
seven to eight armed men on December 10, 1971. He had never returned and
his body could not be found even.
60. The learned defence counsel went on to submit that P.W.4 Shaheen Reza
Noor the son of victim Seraj Uddin Hossain had testified before the Tribunal
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that he did not know who wrote the ‘counter article’. Investigation officer
Abdur Razzaque Khan [P.W.17] also said that he did not “verify” the identity
of the article writer. Thus this part of narration made in the charge no.1 does
not go against the accused and as such the accused cannot be said to have
abetted and facilitated the commission of alleged abduction.
61. Mr. Mizanur further submitted that one Khalil was prosecuted tried and
convicted under the Collaborators Order 1972 for the offence of killing Seraj
Uddin Hossain and he was sentenced to imprisonment for life. But present
accused’s name was not even mentioned in that case. It indicates that 40 years
ago he [Mujahid] was an unfamiliar figure and he was a student leader of ICS
which was a merely name-only organization.
62. As regards charge no.1 the learned senior counsel has argued that
assuming that alleged counter article was written by the accused, as described
in charge no.1, it had no substantial effect on act of abduction of Seraj Uddin
Hossain and as such the accused cannot be held guilty for abetting the crime.
63. In respect of charge no.2 Mr. Mizanur submitted that three prosecution
witnesses had given testimonies supporting the charge. But of them Abdul
Malek Mia is an “anonymous hearsay witness” who testified that he had
visited the affected Hindu villages and heard about Mujahid and others from
the survivors. P.W.9 Narayan Chandra Sarkar had not mentioned before the
investigation officer what he testified before the Tribunal. His version made in
court is subsequent embellishment and cannot be relied upon. P.W.11 Fayez
Uddin’s testimony is contradictory to what he had stated during his crossexamination.
Thus the charge could not be proved at all.
64. In respect of charge no. 2 it has been submitted too that ‘mere presence’
of the accused at the crime site does not form part of attack Prosecution needs
to prove that accused’s presence had a significant effect on commission of the
crimes alleged. Similar argument has been presented to justify presence of the
accused at the army camp, Faridpur circuit house as narrated in charge no.3.
65. Inquiring the extent and nature of the alleged conduct of accused, in
relation to charge no.3 the learned defence counsel has submitted that
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‘involvement’ of accused should have been such that it significantly
contributed to the commission of the criminal act alleged. Act of alleged
utterance made by accused cannot be considered to have had ‘substantial
effect’ on actual commission of the offence. It could not be proved that being
aware of foreseeable consequence the accused made the alleged utterance.
Prosecution has failed to show that the accused by his alleged conduct
intended to perpetration of the criminal act of confinement of Ranjit Kumar
Nath. In support of this submission the learned defence counsel relied upon
the decision in the case of Prosecutor v. Radoslav Brdanin [ICTY Trial
Chamber, Judgment, 1 September 2004, para 263].
66. In respect of charge 4 the learned defence counsel argued that the
prosecution has failed to adduce and examine none in support of this charge.
The victim also did not come on dock, for no valid reason whatsoever.
67. The learned defence counsel Mr. Emran Siddique in advancing argument
in respect of charge no.5 has submitted that prosecution has failed to prove
that there was a common plan of causing murder of detainees at the army
camp, as alleged. Act of causing torture to the detainees at the camp cannot be
treated as part of activities carried out by JCE as there is no proof of nexus
between the alleged conduct of the accused and the actual commission of
murder of the detainees. Besides victims, manner of committing murder has
not been described and proved and as such the accused cannot be held to have
participated or contributed to the commission of murder, in furtherance of
concerted effort.
68. Mr. Abdur Razzak, the learned senior counsel, in respect of charge no.6,
also submitted that the prosecution has failed to prove that the accused was
with Al-Badar in 1971. Prosecution mainly relies upon Exhibit-2 a report
published in The daily Azad on 11.12.1971 [prosecution documents volume 9
page 2826-2829] and the book titled “Al-Badar”[ Bengali translated text] –
Material Exhibit-V [relevant page 135-138 of Bengali translated text]. But
excepting the caption of the photo published with the report the contents
thereof do not show that the accused Ali Ahsan Muhammad Mujahid was
addressing the rally as commander of Al-Badar. The report thus carries little
probative value.
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69. In respect of credibility of the book titled ‘Al-Badar’ the learned counsel
went on to submit that the alleged ‘last speech’ as narrated in the Bengali text
of the book titled “Al-Badar” is devoid of sufficient sources and it suffers
from inherent weaknesses e.g. the alleged ‘last speech’ does not cite any
reference, absence of disclosure as to identification of the Al-Badar men from
whom the author claims to have heard about the speech, and how, when and
where the ‘Nazem’[President] allegedly endorsed the so-called speech as one
he allegedly addressed at Al-Badar headquarters. Finally, accused’s name
does not find place anywhere in the book. Thus, the alleged book, though
admissible, does not carry probative value. Mere fact that the accused was a
leader of ICS cannot make him liable for the alleged atrocities committed by
the perpetrators over whom he had no ‘effective control’. The Prosecution has
utterly failed to prove any of charges brought by adducing ‘hard evidence’ and
witnesses’ testimony suffers from credibility.
70. It has been further submitted that the charge no.6 does not describe detail
particulars as to mode of liability which has caused deprivation to notice of
necessary for preparing defence. As regards ‘aiding’ and ‘abetting’ the learned
senior counsel has submitted that the act of abetment is to be directed to assist,
encourage or lend moral support which had substantial effect to perpetration
of crimes by the principals[ Prosecutor v. Blagojevic and Jokic, ICTY Trial
Chamber, Case No. IT-02-60-T, Judgment, 17 January 2005, para 726]. By
contrast, in the case of acting in pursuance of a ‘common purpose or design’,
it is sufficient for the participant to perform acts that in some way are directed
to the furthering of the ‘common plan or purpose’. But the prosecution has
failed to establish how and by which encouraging acts the accused
significantly abetted the perpetrators of the alleged killing of intellectuals.
Even it could not be proved how the accused participated to common plan or
purpose.
71. It has been argued, in respect of charge no.7 that the prosecution has
failed to prove by evidence or circumstance that there had been co-operation
between the members of the group and the accused; that mere presence of
accused, as stated by P.W.9 does not amount to his participation. Presence of
accused at the crime site with the group of perpetrators provides
‘encouragement’ or ‘support’ only when such presence is combined with the
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authority of accused. P.W.13’s version is not reliable and as such it cannot be
taken into account for corroborating testimony of P.W.9, the hearsay witness.
Prosecution’s Rebuttal
72. Ms. Tureen Afroz, the learned prosecutor, in reply to defence argument,
has submitted that ‘hard evidence’ concept is not applicable to prosecute and
try the crimes committed in violation of customary international law. The
Tribunal [ICT-2] is not bound by the technical rules of evidence and it is
obliged to assess the probative value of evidence presented and admitted.
Section 19 does not exclude ‘editorial’ published in newspapers and as such
the same is admissible.
73. Learned prosecutor went on to submit that the book titled ‘Ekattur er
Dinguli’ [Material Exhibit-VI] has been presented to substantiate the
incident of torture, detention of the author’s son and other detainees and not to
substantiate the involvement of the accused with the criminal activities. Thus
non description of accused’s involvement in the book does not ipso facto
discredit the evidence of P.W.2 who has testified what he witnessed and
experienced at the army camp set up at Nakhalpara MP hostel incriminating
the accused and his accomplice co-leader of the ICS
74. It has been further argued that assessment of witness’s credibility should
be done only to the extent of the oral testimony made by the witness on
relevant and material facts and not by incorporating facts irrelevant to the
charge framed. The translated text of the book titled ‘Al-Badar’ has been
questioned by the defence on two grounds: quality of translation [in Bengali]
and lack of sources of footnotes. But the contents of the translated Bengali text
could not be refuted. The research based book in its original Urdu version is a
publication of Jamat E Islami which has not been challenged.
75. The learned prosecutor has argued that the defence will not be prejudiced
if the Tribunal arrives at finding as to commission of the offence of
‘extermination’ as crimes against humanity on the same set of facts narrated in
charge no.6. Besides, there has been no substantial difference between the
offence of ‘murder’ as crimes against humanity and ‘extermination’ as
crimes against humanity. The only difference is the ‘scale of killing’ [Kristic,
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ICTY Trial Chamber, August 2, 2001, para 501 and see also Ntakirutimana,
ICTR Appeal Chamber, December 13, 2004, para 516].
76. On JCE doctrine, the learned prosecutor has submitted that section 4(1)
and first two parts of section 4(2) of the Act of 1973 incorporates the doctrine
of JCE in our legislation. Fundamentally the JCE requires that a group of
individuals had a common plan, design, or purpose to commit a crime, that the
accused participated in some way in the plan and that the accused intended the
accomplishment of common plan or purpose. JCE thus needs three elements
which are: (i) plurality of persons (ii) the existence of a common plan, design
or purpose and (iii) participation of the accused in the common design.
XII. The way of adjudicating the charges
77. The evidence produced by the prosecution in support of its respective case
was mainly testimonial. Some of prosecution witnesses allegedly directly
experienced the dreadful events and material facts they have narrated in court
and that such trauma could have an impact on their testimonies. Some of
witnesses were allegedly kept detained at the army camps in Dhaka and
Faridpur which provided them alleged occasion to experience the criminal
activities carried out by the camps and the accused and his accomplices.
However, their testimony seems to be invaluable to the Tribunal in its search
for the truth on the alleged atrocious events that happened in 1971 war of
liberation directing the Bangalee civilian population, after duly weighing
value, relevance and credibility of such testimonies.
78. We reiterate that it is required to examine whether the alleged facts
constituted the offences alleged and involvement of the accused therewith in a
most dispassionate manner, keeping in mind that the accused is presumed
innocent. In this regard the Tribunal (ICT-2) recalls the provisions contained
in section 6(2A) of the Act of 1973 together with the observation of US
Justice Frankfurter [Dennis v. United States (341 US 494-592) para 525] ,
as cited by the learned senior defence counsel which is as below:
“ Courts are not representative bodies. They
are not designed to be a good reflex of a
democratic society. Their judgemnt is best
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informed, and therefore most dependable,
within narrow limits. Their essential quality is
detachment, founded on independence. History
teaches that the independence of the judiciary is
jeopardized when courts become embroiled in
the passions of the day and assume primary
responsibility in choosing between competing
political, economic and social pressures.”
79. It should be kept in mind that the alleged incidents took place 42 years
back, in 1971 and as such memory of live witness may have been faded.
Invaluable documents could have been destroyed. Collecting and organizing
evidence was a real challenge for the prosecution. Therefore, in a case like
one in our hand involving adjudication of charges for the offence of crimes
against humanity we are to depend upon (i) facts of common knowledge (ii)
available documentary evidence (iii) old reporting of news paper, books etc.
having probative value (iv) relevant facts (v) circumstantial evidence (vi)
careful evaluation of witnesses’ version (vii) Political status, position and
conduct of the accused at the relevant time and (viii) the jurisprudence
evolved on these issues in the adhoc tribunals, if deemed necessary to
adjudicate any point of law.
80. We have already recorded our observation in the case of Muhammad
Kamaruzzaman [ICT-BD Case No.03 pf 2012, Judgement 09 May 2013, para
89] that
“in the prosecution of crimes against humanity,
principally accused’s status, position, association,
authority, conduct, activities, link with the state
organization, political party are pertinent issues
even prior to the alleged events. In determining
alleged culpability of the accused, all these factors
have to be addressed and resolved as well.”
81. The prosecution, in the light of the charges framed, is burdened to prove-
(i) commission of the crimes alleged (ii) who were the principal perpetrators
(iii) The accused had authority of position over the perpetrators (iv) mode of
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participation of the accused in committing any of crimes alleged (v) how he
acted in aiding or providing encouragement or moral support or approval to
the commission of any of alleged crimes (vi) was he a part of Joint Criminal
Enterprise[JCE] (vii) context of committing the alleged crimes (viii) the
elements necessary to constitute the offence of crimes against humanity (ix)
liability of the accused.
XIII Backdrop and Context
82. The backdrop and context of commission of untold barbaric atrocities in
1971 war of liberation is the conflict between the Bangalee nation and the
Pakistani government that pushed the Bangalee nation for self determination
and eventually for freedom and emancipation. War of Liberation started
following the ‘operation search light’ in the night of 25 March 1971 and lasted
till 16 December 1971 when the Pakistani occupation force surrendered. Ten
millions (one crore) of total population took refuge in India under compelling
situation and many of them were compelled to deport.
83. What was the role of the accused Ali Ahsan Muhammad Mujahid during
the period of nine months in 1971? What were his activities? What he did and
for whom? Had he link, in any manner, with the Pakistani occupation force or
pro-Pakistan political party Jamat E Islami (JEI) and the militia forces formed
intending to implement organizational policy or plan or common purpose?
84. We take into notice the fact of common knowledge which is not even
reasonably disputed that, during that time Razaker Bahini, Al-Badar Bahini,
Peace Committee, Al-Shams were formed as accessory forces of the Pakistani
occupation armed force for providing moral supports, assistance and they
substantially contributed to the commission of atrocious activities throughout
the country. In 1971 thousands of incidents happened within the territory of
Bangladesh as part of organized or systematic and planned attack. Target was
the pro-liberation Bangalee population, Hindu community, political group,
freedom fighters, civilians who provided support to freedom fighters and
finally the ‘intellectuals’ the best sons of the soil. The charges against the
accused arose from some particular events during the War of Liberation in
1971 and the accused Ali Ahsan Muhammad Mujahid is alleged to have
participated in different manner, by his act and conduct.
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XIV. Addressing legal issues agitated
85. The learned senior counsel for the defence, at the beginning of summing
up of case, has submitted that he did not intend to reiterate argument that he
made on the legal issues which have been resolved in the case of The Chief
Prosecutor v. Abdul Quader Molla [ICT-BD Case No. 02 of 2012: ICT-2:
Judgment 05 February 2013] and in the case of The Chief Prosecutor v.
Muhammad Kamaruzzaman [ICT-BD Case No. 03 of 2012: ICT-2, Judgment
09 May 2013, ] and thus he insisted to adopt his earlier argument on those
legal issues. Therefore, we prefer to reiterate our findings recorded in the said
case on the issues in brief, by adopting the argument made by the defence on
those legal issues in the above mentioned case.
Summary of Argument by the defence Counsel on legal aspects [as
adopted]
86. The argument on legal issues considered to have been reiterated by the
defence may be succinctly categorized as below, for the sake of convenience
of rendering our findings:
(i) Inordinate and unexplained delay of 40 years in prosecution
the accused creates doubt and fairness of the trial; (ii) that the
expression ‘individual’ and ‘group of individuals’ have been
purposefully incorporated in the Act of 1973 by way of
amendment in 2009 and as such the accused cannot be brought
to jurisdiction of the Tribunal as an ‘individual’; (iii) that the Act
of 1973 was enacted to prosecute , try and punish 195 listed
Pakistani war criminals who have been exonerated on the
strength of ‘tripartite agreement’ of 1974 and as such without
prosecuting those listed war criminals present accused cannot be
brought to justice as merely aider and abettor; (iv) that the
accused could have been prosecuted and tried under the
Collaborator Order 1972 if he actually had committed any
criminal acts constituting offences in concert with the Pakistani
occupation army; (v) that it is not claimed that the accused alone
had committed the offences alleged and thus without bringing
his accomplices to justice the accused alone cannot be
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prosecuted; (vi) that the crimes alleged are isolated in nature and
not part of widespread or systematic attack ; (vii) that the
offences have not been adequately defined in the Act of 1973
and for characterizing the criminal acts alleged for constituting
offence of crimes against humanity the Tribunal should borrow
the elements as contained in the Rome Statute as well as from
the jurisprudence evolved in adhoc Tribunals.
Summary of Prosecution reply to argument by the Defence on Legal
Points [as adopted]
87. In reply to the above reiterated argument on legal aspects, prosecution has
also submitted to adopt their earlier submission made in the above noted cases
[Chief Prosecutor v. Abdul Quader Molla and Chief prosecutor v. Muhammad
Kamaruzzaman]. Accordingly, prosecution’s argument on the legal issues
agitated by the defence may thus be categorized as below:
(i) there is no limitation in bringing criminal prosecution,
particularly when it relates to ‘international crimes’ committed
in violation of customary international law; (ii) that the
‘tripartite agreement’ which was a mere ‘executive act’ cannot
bung up in bringing prosecution under the Act of 1973 against
‘auxiliary force, an ‘individual’ or ‘group of individuals’; (iii)
the context of committing crimes proves that those were
committed as part of systematic attack committed against
civilian population; (iv) that even without prosecuting the 195
Prisoners of War [POWs] the person responsible can be brought
to book under section 3(2) of the Act of 1973; (v) that there is no
legal bar in prosecuting a person who acted to facilitate the
commission of the crimes even without bringing the principal
perpetrators or accomplices (vi) that the phrase ‘committed
against civilian population’ as contained in section 3(2)(a) of the
Act of 1973 itself patently signifies that acts constituting
offences specified therein are perceived to have been committed
as part of ‘systematic attack’. The context of war of liberation is
enough to qualify the acts as the offences of crimes against
humanity which were perpetrated in violation of customary
international law.
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XV. Determination of Legal Aspects
(i) Does Unexplained Delay frustrate prosecution case
88. There has been no controversy as to the settled legal proposition that mere
delay does not create any clog in bringing criminal prosecution. But the
defence argued that unexplained inordinate delay of long 40 years occurred in
prosecuting the accused impairs the truthfulness of the case. Such inordinate
delay of long 40 years should have been explained in the formal charge
submitted under section 9(1) of the Act which is the foundation of the case.
Such unexplained delay not only casts doubt on the allegations brought but
leads to acquittal of the accused as well.
89. The Tribunal first notes that 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 accession by
General Assembly resolution 2391 (XXIII) of 26 November 1968 provides
protection against even any statutory limitation in prosecuting crimes against
humanity, genocide etc. Thus, criminal prosecutions are always open and not
barred by time limitation.
90. Next, we have already recorded our reasoned finding in the case of
Muhammad Kamaruzzaman that
“Indubitably, a prompt and indisputable justice
process cannot be motorized solely by the painful
memories and aspirations of the victims. Indeed it
requires strong public and political will together
with favourable and stable political situation. Mere
state inaction, for whatever reasons, does not
render the delayed prosecution readily frustrated
and barred by any law. [The Chief Prosecutor v.
Muhammad Kamaruzzaman, ICT-BD(ICT-2)
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Case No. 03 of 2012, Judgment 09 May, 2013,
para 102]
91. We reiterate that there can be no recognised hypothesis 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. Considerations of material justice for the victims should prevail when
prosecuting crimes of the severe enormity is on the process. Justice delayed is
no longer justice denied, particularly when the perpetrators of core
international crimes are brought to the process of justice [Muhammad
Kamaruzzaman, ICT-BD(ICT-2) Case No. 03 of 2012, Judgment 09 May,
2013, para 102]
92. Finally we are persuaded to record our further observation that the mere
delay occurred in bringing prosecution, taking the context prevailed since last
couple of decades into account, does not lead accused’s acquittal or impairs
the prosecution case the effective adjudication of which fundamentally rests
on evaluation of totality of evidence presented.
(ii) Legislative Intention in enacting the Act of 1973 and subsequent
incorporation of ‘Individual’ or group of individuals’ to the Act by
amendment of the Act in 2009
93. Defense’s argument on this legal issue, by drawing attention to the
Parliamentary debate dated 13 July 1973 on the issue of passing the Bill for
promulgating the International Crimes (Tribunals) Act 1973, as already made
in the case of Abdul Quader Molla[ ICT-BD Case No. 02 of 2012, Judgement
05 February 2013] and also in the case of Muhammad Kamaruzzaman[ ICTBD
Case No. 03 of 2012, Judgment 09 May], is that the Act of 1973 and first
amendment of the constitution will go to show that intention of the framers of
the legislation was to prosecute and try the 195 listed war criminals of
Pakistan armed force and not the civilians as the phrase ‘including any person’
was replaced by the phrase ‘any person’ belonging to armed force or auxiliary
force. The first amendment of the constitution was brought so that no ‘civilian
person’ could be prosecuted and tried under the Act of 1973.
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94. On contrary, prosecution’s argument [as advanced in two earlier cases of
ICT-2] is that the Act of 1973 is meant to prosecute, try and punish any
‘individual’ or ‘group of individuals’ , or any member of armed, defence or
auxiliary force for the offences specified in section 3(2) of the Act of 1973.
Prosecuting the accused even in the capacity of an ‘individual’ is lawful even
if he is not found to have had membership of any ‘auxiliary force’.
95. The Tribunal first reiterates that it cannot shut its eyes to the history
which says, for the reason of state obligation to bring the perpetrators
responsible for the crimes committed in violation of customary international
law to justice and in the wake of nation’s demand the Act of 1973 has been
amended for extending jurisdiction of the Tribunal for bringing the local
perpetrator to book if he is found involved and concerned with the
commission of the criminal acts constituting offences of crimes against
humanity and genocide as enumerated in the Act of 1973 even in the capacity
of an ‘individual’ or member of ‘group of individuals’ .
96. Next, it is to be noted that it is rather admitted that even under
retrospective legislation (Act enacted in 1973) initiation to prosecute crimes
against humanity, genocide and system crimes committed in violation of
customary international law is quite permitted, as we have already observed.
97. We are to perceive the intent of enacting the main Statute together with
fortitude of section 3(1) of the Act. At the same time we cannot deviate from
extending attention to the protection provided by the Article 47(3) of the
Constitution to the Act of 1973 which was enacted to prosecute, try and
punish the perpetrators of atrocities committed in 1971 War of Liberation.
98. In the case of Muhammad Kamaruzzaman we have given our specific
and considered finding that
“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
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of ‘group of individuals’. 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.
[Muhammad Kamaruzzaman, ICT-BD(ICT-2)
Case No. 03 of 2012, Judgment 09 May, 2013,
para 110, 111]
99. Thus, we echo our earlier finding that 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.
(iii) Tripartite Agreement and immunity to 195 Pakistani war criminals
100. We may recall the argument advanced by the learned senior defence
counsel, on this legal issue, advanced in the case of Abdul Quader Molla [
ICT-BD case No. 02 of 2012, Judgment 05 February 2013] and also in the
case of Muhammad Kamaruzzaman[ ICT-BD case No. 03 of 2012, Judgment,
09 May 2013] that pursuant to the ‘tripartite agreement’ dated 09.4.1974, 195
listed war criminals belonging to Pakistani armed force have been given
clemency. Thus the matter of prosecuting and trying them under the Act of
1973 ended with this agreement. The local perpetrators who allegedly aided
and abetted the Pakistani occupation armed force in committing atrocities
including murder, rape, arson the government enacted the Collaborators Order
1972.
101. It is to be noted first that the Tribunal has already resolved this pertinent
issue by giving its reasoned finding, in the case of Abdul Quader Molla and
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also in the case of Muhammad Kamaruzzaman. Deliberations made therein, on
this issue, may briefly be reiterated in the case in hand too.
102. The backdrop of entering into the ‘tripartite agreement’ needs to be
considered. Bangladesh’s decision was to prosecute and try 195 Pakistani
POWs who were detained in India. Finally they were repatriated to Pakistan
followed by the ‘tripartite agreement’. N. Jayapalan, in his book titled ‘India
and Her Neighbours’ has attempted to give a light on it, by narrating
“……India left no stone unturned for helping
Bangladesh to get recognition from other
countries and its due place in the United
Nations. India gave full support to the August
9, 1972 application made by Bangladesh for
getting the membership of the United Nations.
However, the Chinese veto against Bangladesh
prevented success in this direction. In February
1974, Pakistan gave recognition to Bangladesh
and it was followed by the accord of recognition
by China. This development cleared the way of
Bangladesh’s entry into United Nations. In the
context of Indo-Pak-Bangladesh relations, the
April 1974 tripartite talks between India,
Pakistan and Bangladesh produced an
important agreement leading to the
repatriation of 195 Pakistani POWs who were
still being detained in India because of
Bangladesh’s earlier decision to try them on
charges of genocide and war crimes.”
[Source: India and Her Neighbours: N. Jayapalan:
Atlantic Publishers & Distributors, Jan 1, 2000: B-2,
Vishal Encalve, Opp. Rajouri Garden, New Delhi-27]:
ISBN 81-7156-921-9]
103. Besides, a closer look at the repatriation process of 195 Pakistani War
Criminals [tripartite agreement] suggests that the political direction of the day
had to put on hold the trial process at that time, but intended not to terminate
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the option of any future trial. The Tripartite Agreement visibly mentioned
Bangladesh’s position on the 195 Pakistani War Criminals in the Article 13 of
the agreement which is as below:
“There was universal consensus that persons
charged with such crimes as 195 Pakistani
prisoners of war should be held to account and
subjected to the due process of law”.
104. However, the Article 15 of the tripartite agreement says:
“Having regard to the appeal of the Prime
Minister of Pakistan to the people of
Bangladesh to forgive and forget the mistakes
of the past” Government of Bangladesh had
decided not to proceed with the trials as an act
of clemency.
105. Thus the scope of clemency is evidently limited to Bangladesh’s decision
on not to try them here. Rather, it keeps the option open for trial of those
Pakistani war criminals. Additionally, such agreement was an ‘executive act’
and it cannot create any clog to prosecute member of ‘auxiliary force’ or an
‘individual’ or member of ‘group of individuals’ as the agreement showing
forgiveness or immunity to the persons committing offences in breach of
customary international law was disparaging to the existing law i.e the Act of
1973 enacted to prosecute those offences.
106. It is thus not good enough to say that no ‘individual’ or member of
‘auxiliary force’ as stated in section 3(1) of the Act of 1973 can be brought to
justice under the Act for the offence(s) enumerated therein for the reason that
195 Pakistani war criminals belonging to Pak armed force were allowed to
evade justice on the strength of ‘tripartite agreement’ of 1974[[Muhammad
Kamaruzzaman, ICT-BD(ICT-2) Case No. 03 of 2012, Judgment 09 May,
2013, para 114]
107. It is now settled that one of the main justifications for prosecuting crimes
against humanity, or genocide is that they violate the jus cogens norms. As
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state party of Universal Declaration of Human Rights (UDHR) and Geneva
Convention Bangladesh cannot evade obligation to ensure and provide justice
to victims and sufferers of those offences and their relatives who still suffer
the pains sustained by the victims and as such an ‘executive act’ (tripartite
agreement) can no way derogate this internationally recognized obligation.
Thus, any agreement or treaty if seems to be conflicting and derogatory to jus
cogens (compelling laws) norms does not create any hurdle to internationally
recognized state obligation.
108. Amnesty shown to 195 listed war criminals are opposed to peremptory
norms of international 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] Jus cogens norms were first identified in
the international law of treaties. The Vienna Convention on the Law of
Treaties said that certain treaties should not be respected since these treaties
violated “peremptory norms of general international law.” The Vienna
Convention then said that “a peremptory norm of general international law is a
norm accepted and recognized by the international community of States as a
whole as a norm from which no derogation is permitted.” Here is what is said
in Article 53 of the Vienna Convention:
“A treaty is void if at the time of its conclusion
it conflicts with a peremptory norm of general
international law. For the purposes of the
present Convention, a peremptory norm of
general international law is a norm accepted
and recognized by the international community
of States as a whole as a norm from which no
derogation is permitted and which can be
modified only by a subsequent norm of general
international law having the same character.”
109. Therefore, we emphatically reiterate our finding [in the case of
Muhammad Kamaruzzaman, Judgment 09 May 2013, para, 122] that
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“…………..despite the immunity given to 195
listed war criminals belonging to Pakistani armed
force on the strength of ‘tripartite agreement’ the
Act of 1973 still provides jurisdiction to bring
them to the process of justice. Provisions 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 criminals belonging to Pakistani army a
unified, bold and national effort would be
required”.
110. Finally, we affirm our earlier observation that the perpetrators of crimes
against humanity and genocide are the enemies of mankind and the ‘tripartite
agreement’ is not at all a barrier to prosecute even a local civilian perpetrator
under the Act of 1973.
(iv) The accused could have been prosecuted and tried under the
Collaborators Order 1972 and prosecution under the Act of 1973 is
malafide
111. Defence avers [as presented in the case of Abdul Quader Molla] that the
cumulative effect of intention of enacting the Act of 1973, unexplained delay
in bringing instant prosecution and bringing amendment of the Act of 1973 in
2009 by incorporating the phrase ‘individual’ or ‘group of individuals’
inevitably shows that bringing prosecution against the accused under the Act
of 1973 is malafide and politically motivated. The accused could have been
prosecuted and tried under The Collaborators Order 1972, if actually he had
committed any offence of collaborating with the Pakistani army.
112. First, we reiterate that the Collaborators Order 1972 was a piece
legislation aiming to prosecute the persons responsible for the offences
enumerated in the schedule thereof. The offences punishable under the Penal
Code were scheduled in the Collaborators Order 1972. While the Act of 1973
was enacted to prosecute and try the ‘crimes against humanity’, ‘genocide’
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and other system crimes which are recognised as international crimes
committed in violation of customary international law. There is no scope to
characterize the offences underlying in the Collaborators Order 1972 to be the
‘same offences’ as specified in the Act of 1973.
113. We have given our considered finding in the case of Muhammad
Kamaruzzaman that
“The elementary truth and message that we have
got from the example of delayed prosecution of a
Nazi war criminal Maurice Papon that a person
whoever may be or whatever position he occupied
he cannot be relieved from being prosecuted for
the crimes committed in violation of customary
international law even after long lapse of time and
thus merely for the reason of delayed prosecution
it cannot be readily branded as political and
malafide prosecution”.
114. In the case in hand, the accused has been indicted for his alleged
participation to the perpetration of the offences enumerated in the 1973 Act, in
the capacity of head of Al-Badar force. The alleged offence took place in
1971, during the war of liberation. Accused’s present political status and
affiliation is of no consequence in adjudicating the charges and his alleged
culpability. Besides, a person accused of an offence cannot be relieved by his
subsequent act, and position or status.
115. Therefore, we reiterate our earlier view we have given in the case of
Muhammad Kamaruzzaman [ICT-BD 03 of 2012, Judgment 09 May 2013,
para 126] that merely for the reason that since the accused was not brought to
justice under the Collaborators Order 1972 now he is immune from being
prosecuted under the Act of 1973 and he has been prosecuted for malafide and
for political vengeance.
(v) Definition and Elements of Crime
116. On this legal aspect, defence argument is that the offences specified in
section 3(2) are not well defined and the same lack of elements. Section 3(2)
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of the ICTA 1973 does not explicitly contain the ‘widespread or systematic’
element for constituting the crimes against humanity. In this regard this
Tribunal may borrow the elements and definition of crimes as contained in the
Rome Statute. It has been further argued that an ‘attack’ may be termed as
‘systematic’ or ‘widespread’ if it was in furtherance of policy and plan. The
offence, if actually happened, in absence of context, and policy or plan, cannot
be characterized as crimes against humanity. Similar argument was made by
the defence, on this issue, in the case of Abdul Quader Molla and Muhammad
Kamaruzzaman. Thus we consider it appropriate to have glance to the finding
recoded in those cases, on this issue
117. First, it is now settled that ‘policy’ and ‘plan’ are not the elements to
constitute the offence of crimes against humanity. It is true that the common
denominator of a ‘systematic attack’ is that it is carried out pursuant to a
preconceived policy or plan. But these may be considered as factors only and
not as elements [Kamaruzzaman, Judgment 09 May 2013, para 128] .
118. The above view finds support from the observation made in paragraph 98
of the judgment in the case of Prosecutor v. Kunarac [Case No. IT-96-23/1-
A: ICTY Appeal Chamber 12 June 2002] which is as below:
“ Neither the attack nor the acts of the accused
needs to be supported by any for of “policy’ or
“plan’. …………Proof that the attack was
directed against a civilian population and that it
was widespread or systematic, are legal
elements to the crime. But to prove these
elements, it is not necessary to show that they
were the result of the existence of a policy or
plan……….Thus, the existence of a policy or
plan may be evidently relevant, but it is not a
legal element of the crime.”
119. Section 3(2) (a) of the International Crimes (Tribunals) Act, 1973 (as
amended in 2009) [henceforth, 1973 Act] defines the 'Crimes against
Humanity' in the following manner:
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'Crimes against Humanity: namely, murder,
extermination, enslavement, deportation,
imprisonment, abduction, confinement, torture,
rape or other inhumane acts committed against
any civilian population or persecutions on
political, racial, ethnic or religious grounds,
whether or not in violation of the domestic law of
the country where perpetrated.'
120. It is now settled that the expression ‘committed against any civilian
population’ is an expression which specifies that in the context of a crime
against humanity the civilian population is the primary object of the attack.
The definition of ‘Crimes against humanity’ as contemplated in Article 5 of
the ICTY Statute 1993 neither requires the presence of 'Widespread or
Systematic Attack' nor the presence of 'knowledge' thereto as conditions for
establishing the liability for 'Crimes against Humanity'. It is the jurisprudence
developed in ICTY that identified the ‘widespread’ or ‘systematic’
requirement [Kamaruzzaman, Judgment 09 May 2013, para 131].
121. We will find that the Rome Statute (a prospective statute) definition
differs from that of both ICTY and ICTR Statutes. However, the Rome Statute
says, the definition etc. contained in the Statute is ‘for the purpose of the
Statute’. So, use of the phrase “for the purpose of the Statute” in Article 10
of the Rome Statute means that the drafters were not only aware of, but
recognized that these definitions were not the final and definitive
interpretations, and that there are others.
122. Thus, our Tribunal (ICT-2) which is a domestic judicial body constituted
under a legislation enacted by our Parliament is not obliged by the provisions
contained in the Rome Statute. The Rome Statute is not binding upon this
Tribunal for resolving the issue of elements requirement to characterize the
offence of crimes against humanity [Kamaruzzaman, Judgment 09 May 2013,
para 132].
123. We reiterate that if the specific offences of 'Crimes against Humanity'
which were committed during 1971 are tried under 1973 Act, it is obvious that
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they were committed in the ‘context’ of the 1971 war. This context itself is
sufficient to prove the existence of a ‘systematic attack' on Bangladeshi selfdetermined
population in 1971. It is the ‘context’ that transforms an
individual’s act into a crime against humanity and the accused must be aware
of this context in order to be culpable of crime alleged.
124. The section 3(2)(a) of the Act states the 'acts' constituting the offences of
crimes against humanity is required to have been ‘committed against any
civilian population or 'persecution on political, racial, ethnic or religious
grounds'. To qualify as a crime against humanity, the acts enumerated in
section 3(2)(a) of the Act must be committed against the ‘civilian
population’.
125. We have already recorded our reasoned finding in the case of
Muhammad Kamaruzzaman that
“An “attack against a civilian population” means
the perpetration against a civilian population of a
series of acts of violence, or of the kind of
mistreatment referred to in sub-section (a) of
section 3(2) of the Act of 1973. Conducts
constituting ‘Crimes’ ‘directed against civilian
population’ thus refers to organized and systematic
nature of the attack causing acts of violence to the
number of victims belonging to civilian
population.”
126. Therefore, the claim as to the non-existence of a consistent international
standard for the definition of the offence of ‘crimes against humanity’ as
enumerated in the Act of 1973 is manifestly baseless[Kamaruzzaman,
Judgment 09 May 2013, para 135].
XVI. General Considerations Regarding the Evaluation of
Evidence in a case of Crimes against Humanity
127. The case, as it transpires, is founded on oral evidence and documentary
evidence as well. The evidence adduced by the prosecution is to be evaluated
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together with the circumstances revealed, relevant facts and facts of common
knowledge. It would be expedient to have a look to the facts of common
knowledge of which Tribunal has jurisdiction to take into its judicial notice
[Section 19(3) of the Act of 1973]. Inevitably determination of the related
legal issues will be of assistance in arriving at decision on facts in issues.
128. Section 22 of the Act of 1973 provides that the provisions of the Criminal
procedure Code, 1898 [V of 1898], and the Evidence Act, 1872 [I of 1872]
shall not apply in any proceedings under this Act. Section 19(1) of the Act
provides that the Tribunal shall not be bound by technical rule of evidence and
it shall adopt and apply to the greatest possible extent non-technical procedure
and may admit any evidence which it deems to have probative value. Reason
of such provisions is to be perceived from the preamble of the Act of 1973
which speaks that the Act has been enacted to provide for the detention,
prosecution and punishment of persons for genocide, crimes against humanity,
war crimes and other crimes under international law.
129. It is to be kept in mind that the term ‘context’ refers to the events,
organizational structure of the group of perpetrators, para militia forces,
policies that furthered the alleged crimes perpetrated in 1971 during the war of
liberation. Context prevailing in 1971 within the territory of Bangladesh will
adequately illuminate as to whether it was probable to witness the atrocities as
spectator. Totality of its horrific profile of atrocities committed in 1971
naturally leaves little room for the people or civilians to witness the events of
the criminal acts. Due to the nature of international crimes, their chaotic
circumstances, and post-conflict instability, these crimes are usually not welldocumented
by post-conflict authorities.
130. It is to be noted that the testimony even of a single witness on a material
fact does not, as a matter of law, require corroboration. The established
jurisprudence is clear that corroboration is not a legal requirement for a
finding to be made. “Corroboration of evidence is not necessarily required
and a Chamber may rely on a single witness’ testimony as proof of a material
fact. As such, a sole witness’ testimony could suffice to justify a conviction if
the Chamber is convinced beyond all reasonable doubt.” [ Nchamihigo,
(ICTR Trial Chamber), November 12, 2008, para. 14]. Similar view has been
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adopted in the case of Kordic and Cerkez, wherein it has been observed that,
“The Appeals Chamber has consistently held that the corroboration of
evidence is not a legal requirement, but rather concerns the weight to be
attached to evidence”. [Kordic and Cerkez ICTY Appeal Chamber
December 17, 2004, para. 274]
131. Undeniably hearsay evidence is admissible but it is to be corroborated by
‘other evidence’. That is to says, hearsay evidence is to be considered together
with the circumstances and relevant material facts depicted. Hearsay evidence
is admissible and the court can act on it in arriving at decision on fact in issue,
provided it carries reasonable probative value [Rule 56(2) of the ROP]. This
view finds support from the principle enunciated in the case of Muvunyi
which is as below:
“Hearsay evidence is not per se inadmissible
before the Trial Chamber. However, in certain
circumstances, there may be good reason for
the Trial Chamber to consider whether hearsay
evidence is supported by other credible and
reliable evidence adduced by the Prosecution in
order to support a finding of fact beyond
reasonable doubt.” [Muvunyi, (ICTY Trial
Chamber), September 12, 2006, para. 12]
132. It is to be noted too that an insignificant discrepancy does not tarnish
witness’s testimony in its entirety. Any such discrepancy needs to be
contrasted with surrounding circumstances and testimony of other witnesses.
In this regard, in the case of Nchamihigo it has been observed by the Trial
Chamber of ICTR that
“The events about which the witnesses testified
occurred more than a decade before the trial.
Discrepancies attributable to the lapse of time
or the absence of record keeping, or other
satisfactory explanation, do not necessarily
affect the credibility or reliability of the
witnesses……………………..The Chamber will
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compare the testimony of each witness with the
testimony of other witness and with the
surrounding circumstances.” [The Prosecutor v.
Simeon Nchamihigo, ICTR-01-63-T, Judgment,
12 November 2008, para 15]
133. Further, inconsequential inconsistency by itself does not taint the entire
evidence made by witness before the Tribunal. This principle adopted in trial
of crimes against humanity is compatible with the evolved jurisprudence as
well as with the Act of 1973. It has been observed by the ICTY trial Chamber
in the case of Prosecutor v.Mico Staisic & Stojan Jupljan that
“In its evaluation of the evidence, in assessing
potential inconsistencies, the Trial Chamber
took into account: the passage of time, the
differences in questions put to the witnesses at
different stages of investigations and in-court,
and the traumatic situations in which many of
the witnesses found themselves, not only during
the events about which they testified, but also in
many instances during their testimony before
the Trial Chamber. Inconsequential
inconsistencies did not lead the Trial Chamber
to automatically reject evidence as unreliable.”
[Prosecutor v.Mico Staisic & Stojan Jupljan
Case No. IT-08-91-T 27 March 2013]
134. The alleged events of atrocities were committed not at times of normalcy.
The offences for which the accused has been charged with occurred during
war of liberation. Requirement of production of body as proof to death does
not apply in prosecuting crimes enumerated under the Act of 1973. A victim’s
death may be established by circumstantial evidence provided that the only
reasonable inference is that the victim is dead as a result of the acts or
omissions of the accused constituting the offence.
135. It is to be noted that ‘participation’ may occur before, during or after the
‘act’ is committed. Second, the intent requirement may be well deduced from
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the mode of ‘participation’, by act or conduct of the accused forming part of
the ‘attack’, and it can consist of providing assistance to commit the crime or
certain acts once the crime has been committed. Physical presence or
participation to the actual commission of the principal offence is not
indispensable to incur culpable responsibility. It has been observed in the case
of Tadic, [Trial Chamber: ICTY, May 7, 1997, para. 691] that :
“Actual physical presence when the crime is
committed is not necessary . . . an accused can
be considered to have participated in the
commission of a crime . . . if he is found to be
‘concerned with the killing.”
136. However, according to universally recognised jurisprudence and the
provisions as contained in the ROP of the ICT-2 onus squarely lies upon the
prosecution to establish accused’s presence, acts or conducts, and omission
forming part of attack that resulted in actual commission of the offences of
crimes against humanity as enumerated in section 3(2) of the Act of 1973 for
which he has been arraigned.
137. In the case in hand, most of the prosecution witnesses have testified the
acts, conducts of the accused claiming him as the head of Al-Badar having
significant influence and effective control over the Al-Badar men. Naturally
considerable lapse of time may affect the ability of witnesses to recall facts
they heard and experienced with sufficient and consistent precision. Thus,
assessment of the evidence is to be made on the basis of the totality of the
evidence presented in the case before us and also considering the context
prevailing in 1971 in the territory of Bangladesh.
138. It would be thus appropriate and jurisprudentially logical if, in the
process of appraisal of evidence, we separate the grains of acceptable truth
from the chaff of exaggerations and improbabilities which cannot be safely or
prudently accepted and acted upon.
139. Both sides concede that hearsay evidence is to be weighed in context of
its credibility, relevance and circumstances. Keeping this legal position the
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Tribunal will take advantage to weigh the probative value of hearsay evidence
of witnesses made before the Tribunal in relation to charges framed against
the accused.
XVII. Relevant and Decisive Factual Aspect: Who Was Ali
Ahsan Muhammad Mujahid in 1971 and his activities
140. Who was Ali Ahsan Muhammad Mujahid in 1971? What was his role
during the period of nine months in 1971? What were his activities? What he
did and for whom? Had he link, in any manner, with the Pakistani occupation
force or pro-Pakistan political party Jamat E Islami (JEI) and the militia forces
formed intending to implement organizational policy or plan or common
purpose?
141. Admittedly Mujahid was the president of Islami Chatra Sangha [ICS] the
student wing of Jamat E Islami [JEI] of Faridpur district, his home town in
1970. Afterwards during early part of 1971 he became the president of ICS,
Dhaka district. In the month of July 1971 he became the secretary of the then
East Pakistan ICS and finally he occupied the position of president of the
organization [ICS] since October to 16 December 1971. Thus, the accused
was in a key position of ICS.
142. Admittedly, ICS was the student wing of JEI and thus naturally its stand
was against the war of liberation and self-determination of Bengali nation.
Choosing certain stand intending to preserve own political belief and Pakistan
itself was one’s own decision. But the criminal activities, carried out in the
name of establishing political belief, was crime, especially in context of war of
liberation that ensued followed by the ‘operation search light’.
143. Determination of the role played by the accused Mujahid in the capacity
of potential ICS leader is essentially required to assess his alleged culpable
attitude towards the pro-liberation Bangalee civilians. Accused Mujahid is
alleged to have acted as a mighty person having position of authority on Al-
Badar who collaborated with the Pakistani occupation army. The accused is
also alleged to have encouraged the activities carried out by Al-Badar by
substantially assisting and providing moral support to them, by exercising his
position of authority on it.
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144. Al-Badar was a para militia force formed of ICS workers. It is not
disputed. However, defence claims that all ICS members did not belong to
ICS. It is found proved that
“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’ , Mohi Uddin
Chowdhury , a leader of Peace committee , Noakhali
district in 1971 who left Bangladesh for Pakistan in
May 1972 [(Publisher’s note): Qirtas Publications,
1998, Karachi, Pakistan, paragraph two at page 97 of
the book]
145. We have already observed in the case of Chief prosecutor v. Muhammad
Kamaruzzaman that Al-Badar which was created by JEI and had acted as its
‘action section’, ‘fascist body’ and ‘armed wing’ in 1971[ICT-BD case
No.03 of 2012, Judgment 09 May 2013, para 605] . We also made our
observation in the case of Kamaruzzaman based on sourced information that
Jamat E Islami was thus indulged in indiscriminate massacre of their political
opponents belonging to Bengali nation, in the name of liquidating
‘miscreants’, ‘infiltrators’ for which they were using Razakars, Al-Badar
comprising with the workers of Islami Chatra Sangha [ICS], its student wing
[Muhammad Kamaruzzaman, ICT-BD case No.03 of 2012, Judgment 09 May
2013, para 601].
146. Material Exhibit-I [ the book titled ‘Ekattorer Ghatok Dalalra Ke
Kothai’, page 56, 57] offers undisputed information that head quarter of Al-
Badar was set up at Mohammadpur Physical training College, Dhaka and
potential leaders of JEI used to visit the HQ to coordinate training of Al-Badar
and Razakars. This fact appears to have been corroborated by evidence of
P.W.5 Md. Rustom Ali Molla.
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147. Referring a report published in The daily Sangram 24 April 1971 a
report titled ÒgyRvwn‡`i KzKxwZ© Mvuv Av‡Q ˆ`wbK msMÖv‡gi cvZvqÓ published in The
Daily Bhorer Kagoj, 31 October 2007 which speaks as below:
Ó‰`wbK msMÖv‡gi 24 GwcÖj Zvwi‡Li msL¨vq cÖKvwkZ
Le‡i Av‡iv ejv nq, 22 GwcÖj (1971) Zvwi‡L
gqgbwms‡n RvgvZ I Bmjvgx QvÎ ms‡Ni (eZ©gvb
Bmjvgx QvÎwkwei) †bZv I Kgx©‡`i GK mfv nq| Zv‡Z
mfvcwZZ¡ K‡ib gyn¤§` Avkivd †nvmvBb Ges mfvq
Dcw¯’Z wP‡jb gwZDi ingvb wbRvgx I Avjx Avnmvb
gyRvwn`| GB mfvq e³…Zv w`‡Z wM‡q Avjx Avnmvb
gyRvwn` e‡jb, ÕAvj-e`i GKwU bvg, GKwU we¯§q|
Avj-e`i GKwU cÖwZÁv| †hLv‡bB Z_vKw_Z
gyw³evwnbx, †mLv‡bB _vK‡e Avj-e`i| gyw³evwnbx Z_v
fviZxq Pi‡`i Kv‡Q Avj-e`i n‡e mvÿvr AvRivBjÕ|
148. The above report unerringly demonstrates that goals and activities of JEI,
ICS and Al-Badar were chained together. By delivering such inflammatory
and inciting speech accused Ali Ahsan Muhammad Mujahid, the then
President of East Pakistan ICS with the workers of which Al-Badar was
formed, categorically termed the pro-liberation people and freedom fighters as
the ‘agents of India’. The speech also triggered the Al-Badar to act as ‘Azrail’
[The Angel of Death] to liquidate pro-liberation Bangalee people and freedom
fighters wherever they [Al-Badar] get them.
149. In this way accused Mujahid explicitly disseminated the unholy
organizational purpose, objective and common intent to its [Al-Badar]
members, over whom he had authority and effective control. Common sense
goes to say that only a person holding superior position and authority can
deliver such inciting and infuriating speech to his followers. The accused
Mujahid was thus in leading position of Al-Badar in 1971.
150. Testimony of P.W.2 , P.W.5 and P.W.7 shows that accused Mujahid was
a close and active affiliate of Pakistani army and provided them substantial
support and assistance in carrying out criminal activities, in furtherance of
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common policy and plan. He is alleged to have participated in committing
crimes occurred in Faridpur, as narrated in charge no. 2, 3, 4 and 7.
Admittedly, Faridpur is the home town of accused Mujahid. From evidence of
P.W.7 Ranjit Kumar Nath it is found that the group of individuals forcibly
brought him [P.W.7] to army camp set up at Faridpur circuit house where he
found Mujahid [accused] sitting and holding meeting with army.
151. P.W.2 Jahir Uddin Jalal testified that on being forcibly brought to the
army camp set up at Nakhalpara MP hostel, Dhaka city he found there accused
Mujahid, Nijami having arms in hand and heard the accused uttering and
advicing to liquidate the detainees. P.W.2 could recognize the detainees and
they were subjected to unkind physical torture. P.W.2 also found the accused
having talk with army officials of the camp.
152. P.W.10 A.K.M Habibul Haque [64] was a student of Bangladesh
Agricultural University and had been staying at his residence in Faridpur
town. According to him on 14 August 1971 at about 11:00 am Pakistani army
raided their house and he saw the accused Mujahid with the army and the gang
eventually picked up his [P.W.10] brother Serajul Haque Nannu. The gang
came by a jeep and truck.
153. P.W.8 Mir Lutfar Rahamn has corroborated the fact of abducting Serajul
Haque nannu. P.W.8 further stated in cross-examination, in reply to question
put to him, that he and many other people saw the accused Mujahid moviong
by a jeep around Faridpur town having a sword in hand.
154. The above uncontroverted version of P.W.8 and P.W.10 offers unerring
inference that the accused Mujahid used to maintain active and culpable
affiliation with the Pakistani army which is fair indicia as to his role and act of
providing assistance and support in carrying out criminal activities in
Fairdpur.
155. The conducts of the accused Mujahid as depicted above explicitly
portrays his attitude, position, access to army camp and act of providing
assistance to the Pakistani occupation army not only in Dhaka city but also in
his home town Faridpur as well. Accused’s access to army and holding
meeting and sharing things are strong indicators of his culpable position and
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intent. It may be validly presumed that at war time situation a civilian cannot
be expected to be affiliated with army at war unless he is a part of policy and
plan of the army, in furtherance of common purpose.
156. Who can be called a leader? An individual is termed as a ‘leader’ when
his activity involves establishing a goal and common purpose by sharing the
vision with others so that they will follow or obey him willingly. Leadership
is a process whereby an individual influences a group of individuals to achieve
a common goal. Leadership is a process by which a person influences others
to accomplish an organizational objective.
157. From the book titled ‘Al-Badar’ [Material Exhibit-V: Bengali translated
text] authored by Selim Mansur Khalid and published from Pakistan describes
the formation of Al-Badar including its activities and speeches of some
leading Al-Badar men including the last speech of ‘Nazim’ [President] of ICS
addressed to Al-Badar men at Al-Badar HQ in Dhaka city` urging the AB
members to spread wherever they liked without being ‘ashamed’ of their
deeds. It is true that the speech does not state the name of accused. But who
was ‘Nazim’ [president] of the ICS at the relevant time? Admittedly, accused
Mujahid was the president of ICS till 16 December 1971.
XVIII. Al-Badar: Armed para militia force acted as ‘auxiliary force’
158. We reiterate that it is a fact of common knowledge now that Al-Badar
was an armed para militia force which was created for ‘operational’ and
‘static’ purpose of the Pakistani occupation army. Al-Badar was one of two
wings of Razakar force. Another wing was Al-Shams. Under the government
management and supervision Al-Badar and Razakars were provided with
training and allocated fire arms. Why these para militia forces were created?
Of course, objective was not to guard lives and properties of civilians. Rather,
it is reasonably undisputed that the Al-Badar force had acted in furtherance of
policy and plan of Pakistani occupation army and in so doing it had committed
atrocities in a systematic manner against the unarmed Bengali civilians
through out the territory of Bangladesh in 1971. Pro-liberation civilians,
intellectual group, Hindu community were their key targets.
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159. Exhibit-14 series, the attested photocopy of statements of Razakars of
Netrokona subdivision [prosecution documents volume 8, page 2493-2496,
2499] demonstrates the detail of allocation of fire arms and ammunitions to
Al-Badar and Razakar forces which is indicator that Al-Badar force was under
co-ordination of the government.
160. Al-Badar acted as the Pakistan army’s ‘death squads’ and exterminated
leading left wing professors, journalists, litterateurs, and even doctors
[Source: Pakistan Between Mosque And Military: Hussain Haqqani:
published by Carnegie Endowment For International Peace, Washington D.C,
USA first published in 2005, page 79]. Acting as ‘death squad’ of Pakistan
occupation army in furtherance of policy and plan unequivocally proves that
the Al-Badar force was a para militia force created to assist the Pakistan army
as its auxiliary force.
161. Lawrence Lifschultz in his book titled “Bangladesh: The Unfinished
Revolution” narrates that
“The Al-Badhr organization, a fanatical religious
group which operated as a paramilitary arm to the
Pakistan Army in 1971, was responsible for some
of the worst killings during the war, particularly of
nationalist intellectuals.” [Source: Bangladesh:
The Unfinished Revolution, Published in 1979,
London, page 126]
162. That is to say, Al-Badar was a ‘paramilitary arm’ to the Pakistan Army
and it acted as its ‘death squad, in furtherance of policy and plan to annihilate
the Bengali pro-liberation civilians, nationalist intellectuals, civilians
belonging to Hindu community and freedom fighters [whom they called
miscreants]. Additionally, by putting suggestion to the IO [P.W.17] defence
has re-affirmed it that Al-Badar and Al-Shams were two wings of Razakar
force. In reply to question elicited to him by the defence P.W.17 further stated
that salary and allowances were paid to Razakars and Al-Badar by the then
East Pakistan government. Exhibit-14 series, the attested photocopy of
statements of Razakars of Netrokona subdivision also shows that the Al-Badar
men were provided with arms under the supervision of the then East Pakistan
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government. These two facts are indicative to conclude that the Al-Badar
force too was an ‘auxiliary force’ as it acted for ‘operational’ and ‘static’
purpose of the Pakistani occupation army.
163. The freedom fighters and pro-liberation Bengali people were treated as
‘miscreants’. Even reward was announced for the success of causing their
arrest or to provide information about their activities. Objective of such
announcement was to wipe out the pro-liberation Bengali civilians to resist
and defy the war of liberation which was the core policy of the Pakistani
occupation armed forces. A report titled ÒmiKv‡ii wm×všÍ : `y®‹…wZKvix‡`i †MÖdZvi ev
Le‡ii Rb¨ cyi¯‹vi †`Iqv n‡eÓ published on 25 November 1971 in The Daily
Pakistan [‰`wbK cvwK¯Ívb] demonstrates it patently. The report, pursuant to a
government press note, classified the ‘miscreants’ in five categories as below:
`y®‹…wZKvix‡`i †kÖYxwefvM wb¤oeiæc n‡et
K. Z_vKw_Z gyw³evwnbxi wbqwgZ m`m¨, Z_vKw_Z gyw³evwnbx
fwZ©‡Z mnvh¨Kvixiv|
L. †¯^”Qvq we‡`vªnx‡`i Lv`¨, hvbevnb I Ab¨vb¨ `ªe¨
mieivnKvix|
M. †¯^”Qvq we‡`vªnx‡`i AvkÖq`vbKvix|
N. we‡`vªnx‡`i ÔBbdigviÕ ev evZ©vevnKiæ‡c hviv KvR K‡i Ges
O. Z_vKw_Z gyw³evwnbx m¤úwK©Z bvkKZvg~jK wjd‡jU,
c¨v¤ú‡jU cÖf„wZi †jLK ev cÖKvkK|
[Source: Sangbadpatre Muktijuddher Birodhita:
Ekattorer Ghatakder Jaban Julum Sharajantra:
Edited by Dulal Chandra Biswas: Bangladesh Press
Institute: March 2013 Page 324]
164. Therefore, we reiterate our earlier finding [in the case of Muhammad
Kamaruzzaman] that when it is established that the Al-Badar force was an
armed para militia force created under the active vigilance of Jamat E Islami
and Pakistani occupation army it may be unerringly concluded that it acted as
an ‘auxiliary force’ for ‘operational’, Static’ and ‘other purposes’ of the
occupation armed force. It is also found from the book titled ‘Muktijudhdhe
Dhaka 1971’ that in 1971, Jamat E Islami with intent to provide support and
assistance to the Pakistani occupation army formed armed Razakar and Al-
Badar force and obtained government’s recognition for those para militia
forces. The relevant narration reflected in the book is as below:
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ÒRvgvqv‡Z Bmjvgx gyw³hy‡×i ïiæ †_‡K †kl ch©šÍ mvgwiK
RvšÍv‡K mg_©b K‡i| Zv‡`i mnvqZvi Rb¨ Ab¨vb¨ agv©Ü
`j wb‡q cÖ gZ MVb K‡i kvwšÍ KwgwU| cieZx© mg‡q mk¯¿
evwnbx ivRvKvi I Avje`i MVb K‡i Ges miKvix ¯^xK…Zx
Av`vq e‡i| hyׇK ag©hy× wn‡m‡e cÖPviYv Pvwj‡q DMÖ agx©q
Db¥v`bv m„wói †Póv K‡i| Avi Gi Avov‡j ˆmb¨‡`i
mnvqZvq Pvjvq wbwe©Pv‡i b„ksm MYnZ¨v, jyU, bvix wbhv©Zb,
AcniY I Pvu`v Av`vq| me©‡kl RvwZi we‡eK eyw×Rxex‡`i
nZ¨v Kiv nq| Ó
[Source: Muktijudhdhe Dhaka 1971: edited by
Mohit Ul Alam, Abu Md. Delowar Hossain,
Bangladesh Asiatic Society , page 289 : Prosecution
Documents Volume 03 page 583]
165. The narrative extracted from the old report of Fox Butterfield published
in the New York Times- January 3, 1972 unambiguously establishes that the
Al-Badar was equipped and acted as directed by the Pakistani occupation
forces.
“………..There is growing evidence that Al Badar
was equipped and directed by a special group of
Pakistani army officers. Among papers found in
the desk of Maj-Gen. Rao Farman Ali, the military
adviser to the Governor of East Pakistan, were a
series of cryptic references to Al Badar…...
“Captain Tahir, vehicle for Al Badar”, and “use
of Al Badar”, one scrawled note said. Captain
Tahir is believed to have been the almost
legendary Pakistani Commander of the Razakars,
the Bihari militia used by the Pakistani army to
terrorise Bengalis.”
[Source: Bangladesh Documents Vol. II page
576, Ministry of External Affairs, New Delhi].
166. We have already recorded our reasoned finding in the case of
Muhammad Kamaruzzaman that
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“Since the Al-Badar force was an armed para
militia force and it acted in furtherance of policy
and plan of Pakistani occupation armed forces no
formal letter of document needs to be shown to
prove that it was under placement and control of
Pakistani occupation armed forces, for designating
it as ‘auxiliary force’. Relying on the old reports as
conversed above it can be safely concluded that
the ‘Al-Badar’ was an ‘auxiliary force’ as defined
in section 2(a) of the Act of 1973. Besides, the
information depicted from documents, as referred
to above, are considered to be the necessary
constituents of the phrases ‘placement under the
control’ of armed force.” [Muhammad
Kamaruzzaman, ICT-BD case No.3 of 2012,
Judgment 09 May 2013, para 495]
167. In the case in hand, we do not find any reason whatsoever to deviate from
our earlier finding. Al-Badar was created not to maintain peace and public
order. Rather it is proved beyond reasonable doubt that it had carried out
series of untold criminal activities, in furtherance of policy and plan of the
Pakistan occupation army in a systematic manner and the members of the
organisation were provided training and arms. Al-Badar, one of two wings of
Razakars, was thus acted as an auxiliary force of Pakistan army in 1971.
XIX. Had the Accused position of Authority or Superior
Position over the Al-Badar
168. The accused has been indicted to have incurred liability also as ‘superior’
i.e head or a leader of Al-Badar force, chiefly in respect of the crimes narrated
in charge no.1 and 6. The Tribunal notes that mere fact that the accused was a
‘superior’ or ‘leader’ of AB force does not make him responsible for the
alleged criminal acts unless the same are proved to have been committed by
the AB men. The pertinent question that who were the actual perpetrators and
whether the actual perpetrators belonged to AB force is an issue to be
addressed and resolved while adjudicating the charges framed independently.
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169. But however, the issue whether the accused was in a position of authority
of AB force is a single and common issue that may be conveniently addressed
and resolved separately which will be of assistance in determination of
accused’s culpability, if any, with the crimes alleged, before we enter into the
segment of adjudication of charges framed against him. In resolving this issue
it would be appropriate to evaluate relevant documentary evidence, sourced
information together with the testimony of oral witnesses on material facts and
circumstances.
Prosecution Argument
170. Ms. Tureen Afroz, the learned prosecutor went on to argue on how
accused Ali Ahsan Muhammad Mujahid incurred “superior responsibility” for
the crimes committed by the villainous Al-Badar force. She argued that Al-
Badar was formed of only the members of Islami Chatra Sangha [ICS], the
then student wing of Jamat E Islami [JEI]. Accused Mujahid as the president
of ICS was thus also in commanding position of Al-Badar, which was
especially responsible for the killings of intellectuals during the war of
liberation. In order to show one’s “superior responsibility” there should be a
superior-subordinate relationship and the superior should have “effective
control” over their subordinates. A superior might incur responsibility only
after having failed to take “necessary and reasonable measures” to prevent or
punish a crime committed by subordinates. But the accused Mujahid despite
having effective control over the Al-Badar men failed to prevent them in
committing crimes.
171. The learned prosecutor went on to argue that not necessarily the
‘superior-subordinate relationship’ must be formal. It may be informal as well
and can be well perceived from relevant facts and circumstances constituting
his de facto authority or commanding position over the perpetrators. In
portraying accused’s superior position Ms. Tureen Afroz, the learned
prosecutor mainly drew attention to the speech made by the accused on 22
April 1971 [published in The Daily Sangram 24 April, 1971] and the ‘closing
speech’ made to Al-Badar members at the AB headquarter in the city of
Dhaka [source: the book titled Al-Badar [translated text], page 135-138,
Salim Mansur Khalid, a Jamat leader [now in Pakistan]. Salim Mansur Khalid
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authored the book in Urdu. It has been proved that accused Mujahid provoked
and incited Al-Badar to play the role of “Azrail” during the nine-month-long
war and the killing of the intellectuals was a part of the organized and planned
atrocities committed by them.
Defence Argument
172. Mr. Abdur Razzak, the senior counsel for the accused has argued that
admittedly all the Al-Badar members were from ICS but all the ICS workers
were not Al-Badar members and there has been no evidence to show that the
accused was the head of Al-Badar or he was in a position of authority. Even
the book titled ‘Al-Badar’ does not describe accused’s name as Al-Badar. It
has been further argued that the superior-subordinate relationship must be
formal for holding an accused liable under the theory of superior
responsibility. Since the accused was a civilian section 4(2) of the Act does
not come into effect. Mere taking political stand by dint of his position in ICS
does not make him criminally liable under section 4(2) of the Act of 1973 for
the crimes allegedly committed by the Al-Badar men.
173. It has been further argued that the charges do not plead the detail
particulars as to the superior-subordinate relationship and the acts for which
the accused is allegedly responsible under the doctrine of superior
responsibility. As such the charges framed fail to reflect due notice to the
accused to prepare his defence. In support of this argument a decision in the
case of Muvunyi has been cited [Muvunyi, ICTR Appeal Chamber, Case No.
ICTR-2000-55A-A, Judgment 29 August 2008, para 19-22]
174. For holding liable under the doctrine of superior responsibility it must be
proved that the accused had material ability to control the actual perpetrators.
Effective control over the subordinate is a key requirement as well [Prosecutor
v. Delalic, ICTY Appeal Chamber, Case No.IT-96-21-A, Judgment 20
February 2001, para197]. ’Knowledge’ of a superior must be actual knowledge
and it may not be presumed [The Prosecutor v. Tihomir Blaskic, ICTY Trial
Chamber, Case No. IT-95-14-T, Judgment 3 march 2000, para 307-309: Defence
arguments pack-3].Prosecution has failed to prove too that the accused ‘had
reason to know’ about the perpetration of crimes alleged. In case of failure to
prove that the accused had ‘duty to know’ he cannot be liable as ‘superior’
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[Prosecutor v. Delalic & others, ICTY Appeal Chamber, Case No. IT-96-21-
A, Judgment, 20 February 2001, para 228-235]
Deliberations on the issue of Position of Authority
175. It appears that the accused has been arraigned to have incurred liability
under section 4(2) of the Act of 1973 which correspond to the notion of
‘superior responsibility’ chiefly in respect of charge nos. 1 and 6. Both the
charges relate to ‘intellectuals killing’. Admittedly accused Ali Ahsan
Muhammad Mujahid was a top ranking leader of the then East Pakistan Islami
Chatra Sangha [ICS]. Defence however denies the averment that the accused
was a commander of Al-Badar force.
176. It has been argued by the defence that section 4(2) of the 1973 Act only
provides for holding military commanders and superiors responsible for
criminal acts of subordinates; and it does not provide for civilian superiors to
be held similarly accountable.
177. But as per the amendment of section 3 of the Act of 1973, the Tribunal
now has jurisdiction to try and punish any non-military person [civilian],
whether superior or subordinate, who has direct or indirect involvement with
the relevant crimes. In other words, the Tribunal now has jurisdiction to try
any accused who is a non-military person, including a civilian superior. We
have already recoded our finding in the case of Muhammad Kamaruzzaman
that
“…………the Tribunal notes that a civilian
superior will be held liable under the doctrine of
superior criminal responsibility if he was part of a
superior-subordinate relationship, even if that
relationship was an indirect one. No formal
document is needed to prove this relationship. It
may be well inferred from evidence presented and
relevant circumstances revealed [ICT-BD Case
no. 03 of 2012, Judgment 09 May 2013, para 628]
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178. The doctrine of superior responsibility is applicable even to civilian
superiors of paramilitary organizations. As a matter of policy, civilians should
also be subject to the doctrine. The elements to be proven for a person to be
held responsible under the theory of superior responsibility are (1) crime has
been perpetrated (2) crime has been perpetrated by someone other than the
accused (3) the accused had material ability or influence or authority over the
activities of the perpetrators (4) the accused failed to prevent the perpetrators
in committing the offence.
179. We are not convinced with the contention that the charges especially
charge no.1 and charge no. 6 are defective for mere non description of details
as to acts of the accused for holding him liable under the theory of ‘superior
responsibility’. First, charges have been framed in compliance of provisions
contained in section 16(1). Second, after framing charges defence preferred
review and this question was not raised at that stage and the accused did not
contend as to why further specificity was required in this case to prepare his
defence and thus now we do not find any substantial reason to consider this
contention agitated at this stage.
180. Besides, the above charges have narrated as to why and how the accused
has been indicted and have incurred liability. Thus, in no way, defence cannot
be said to have been materially impaired. Neither the identification of the
principal perpetrators by their name nor the accused’s knowledge of their
identity and number are needed to be specified in the charge framed. It is to be
considered whether the individuals who are responsible for the actual
commission of the crimes were within a group or organisation under the
effective control of the accused for the purpose of ascribing criminal
responsibility under section 4(2) of the Act of 1973.
181. Next, it is now settled that the doctrine of superior responsibility extends
to civilian superiors only to the extent that they exercise a degree of control
over their subordinates [the principal perpetrators] which is similar to that of
military commanders. It cannot be expected that civilian superiors will have
disciplinary power over their sub-ordinates equivalent to that of military
superiors in an analogous command position. Even no formal letter or
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document is needed to show the status of ‘superior’. In the case of Blagojevic
and Jokic it has been observed that –
“A de facto commander who lacks formal
letters of appointment, superior rank or
commission but does, in reality, have effective
control over the perpetrators of offences could
incur criminal responsibility under the doctrine
of command responsibility.” [Trial Chamber:
ICTY, January 17, 2005, para. 791]
182. From the principle enunciated in the above decision of ICTY Trial
Chamber it is clear that for establishing de facto superior position no formal
letter of appointment or any such related document is needed. In this regard
we may recall the decision of the ICTR Trial Chamber in the case of
Zigiranyirazo which is as below:
“It is not necessary to demonstrate the
existence of a formal relationship of
subordination between the accused and the
perpetrator; rather, it is sufficient to prove that
the accused was in some position of authority
that would compel another to commit a crime
following the accused’s order.[ Zigiranyirazo,
ICTR Trial Chamber, December 18, 2008, para.
381]
[
183. Thus it suffices that the superior had effective control of his subordinates,
that is, that he had the material capacity to prevent the criminal conduct of
subordinates. For the same reasons, it does not have to be established that the
civilian superior was vested with ‘excessive powers’ similar to those of public
authorities.
184. It is true that ICS and AB [Al-Badar] were two distinct organizations. We
have already recorded our reasoned finding as to creation and organizational
nature of AB in the case of Muhammad Kamaruzzaman. AB was formed of
ICS workers. In 1971, accused Mujahid was the Secretary and subsequently
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the President of ICS the student wing of JEI. AB acted as an ‘action section’
of JEI and ‘death squad’ of army. A single chain was thus created through
the collective activities carried out by those organizations, in furtherance of
common purpose and policy.
185. P.W.4 Shaheen Reja Noor had testified that Mujahid [accused], as the Al-
Badar commander, ordered and supervised the killings of intellectuals at the
fag end of the war of liberation in 1971.He also said that Al-Badar, formed
with the activists of Islami Chatra Sangha [ICS], was then compared to
Hitler’s Gestapo.
186. P.W.1 Shahriar Kabir, a notable researcher, stated that Al-Badar was a
semisecret organization like Hitler’s Gestapo On 07 November 1971, accused
Mujahid addressed a rally on eve of ‘Badar day’ and administered oath to
liquidate the ‘enemies of Islam’, ‘agents of India’, as a leader of Al-Badar
force. In reply to question elicited to him P.W.1 stated that Islami Chatra
Sangha [ICS] was transformed to ‘Al-Badar’ and accused Ali Ahsan
Muhammad Mujahid was its deputy-chief.
187. Now we are to see how far the above versions conform to the
circumstances and facts for establishing accused’s position of authority or
superior position, as claimed by the prosecution. What is authority position? It
is the power to act. Position of authority is meant to enable its holder to
effectively carry out his aim and intention and position of authority includes a
right to command a situation by act or conduct. Synonyms of the expression
‘authority’ include ‘command’, ‘domination’, ‘influence’, ‘permit’ etc.
Accused Mujahid’s statement on “Daily Sangram” on October 15th ,1971
speaks that
“The youths of the Razakars and al-Badar forces
and all other voluntary organizations have been
working for the nation to protect it from the
collaborators and agents of India. But, recently it
was observed that a section of political leaders like
ZA Bhutto, Kawsar Niazi, Mufti Mahmud and
Asgar Khan have been making objectionable
remarks about the patriots.”
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188. Such statement is a fair indicator to conclude that the accused by virtue
of holding top position in the ICS was actively concerned with organizational
activities of Al-Badar and he even did not allow criticism against the Al-Badar
which was known as the ‘action section’ of JEI. Thus it may be said that it
was his ‘authority’ that permitted him to make such statement defending the
Al-Badar force which is significant to infer that he had a position of authority
on the Al-Badar force.
189. Accused’s commanding position in the ICS naturally placed him in a
position of authority even of AB the creation of JEI which was formed of ICS
workers. It appears that the sources of the accused’s power and authority were
twofold. First, the accused Mujahid possessed power by virtue of his political
position that he occupied during the war of liberation in 1971 within the
territory of Bangladesh. Second, it has been depicted from various sources,
reports and evidence that he was entrusted with political power of addressing
the Al-Badar men, although he was not the sole leader of the Al-Badar force.
190. Apart from this rationale there have been some relevant facts which
sufficiently offer fair indicative as to accused’s involvement with the activities
of AB. Thus, mere absence of formal designation referring to his commanding
position the accused cannot be held to be a person having no authority and
control over the AB. The IO P.W.17 in reply to question put to him by the
defence has re-affirmed that Al-Badar Head Quarter was set up at
Mohammadpur Physical Training Institute [now college] in 1971.
191. P.W.5 Md. Rustom Ali Molla son of an employee of the institute had
been staying at his father’s quarter inside the institute premises. P.W.5 stated
that accused Mujahid used to come to the Al-Badar head quarter, sometimes
being accompanied by the top brasses of JEI and ICS. Naturally it was not
possible for a civilian to know the purpose of accused’s visit to the Al-Badar
head quarter. But circumstances, other relevant facts and accused’s position in
ICS offer unambiguous notion that in exercise of his position of authority the
accused used to visit Al-Badar head quarter to co-ordinate the activities of Al-
Badar. We have found from evidence of P.W.5 that 6-7 months after the war
of liberation ensued Pakistani army, Razakars, Al-Badar started picking up
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intellectuals, artists, lawyers to the Al-Badar head quarter and they were
subjected to torture at the dining hall of the institute that resulted in their death
and afterwards their bodies were dumped at the mass grave at Rayer Bazar
and different places. This version portrays a transparent picture as to activities
carried out at the AB HQ and by its members. This barbaric portrayal
sufficiently offers the culpable purpose of visit of AB HQ by the accused Ali
Ahsan Muhammad Mujahid.
192. The learned senior counsel for the defence has submitted that superiorsubordinate
relationship must be formal to establish that the accused was
superior. We disagree. Now it has been a settled jurisprudence that such
relationship may be informal, particularly when the civilian superior
responsibility comes forward.
193. From the principle enunciated in the above decision of ICTY Trial
Chamber that for establishing de facto superior position no formal letter of
appointment or any such related document is needed. The ability to exercise
effective control is necessary for the establishment of de facto superior
responsibility, in civil setting. The superior-subordinate relationship need not
have been formalized or necessarily determined by formal status alone
[Celibici trial Judgment. Para 370].
194. Thus, the absence of formal appointment is not fatal to a finding of
criminal responsibility, under the theory of civilian superior responsibility,
provided certain conditions are met. Formal position or designation as a
commander is not required, particularly in case of a de facto superior. This
view finds support from the decision in the case of Prosecutor v. Milan
Milutinovic & others [ICTY Trial Chamber, Case No. IT-05-87-T, Judgment
26 February 2009, para 117] which is as below:
“Formal designation as a commander or a
superior is not required in order to trigger
Article7(3) responsibility: such responsibility
can arise by virtue of a superior’s de facto as
well as de jure power over those who
committed the crime or underlying
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offence.[Čelebići Appeal Judgement, paras. 191–
192; Kajelijeli Appeal Judgement, para. 85.]
195. The key to establishing the existence of a superior-subordinate
relationship for any accused superior—whether de facto or dejure, military or
civilian—is that he exercised effective control over the actions of the alleged
subordinates.[Bagilishema Appeal Judgement, para. 56] In other words, the
accused must have had the material ability to prevent or punish the alleged
subordinates’ commission of offences.[Kordić Appeal Judgement, para. 840]
196. Undeniably, effective control requirement is a key factor in determining
one’s superior position. The notion of ‘effective control’ to prove one’s
superior position on a particular group is to be perceived from circumstances
of each case. “The indicators of effective control are more a matter of
evidence than of substantive law [Blaskic (ICTY Appeals Chamber), July 29,
2004, para] as to whether the superior has the requisite level of control; this is
a matter which must be determined on the basis of the evidence presented in
each case.
197. It is now settled both in ICTR and ICTY jurisprudence that the definition
of a ‘superior’ is not limited to military superiors; it also may extend to de
jure or de facto civilian superiors. [Bagilishema, Appeals Chamber, July 3,
2002, para. 51]. It suffices that the superior had effective control of his
subordinates, that is, that he had the material capacity to prevent the criminal
conduct of subordinates. For the same reasons, it does not have to be
established that the civilian superior was vested with ‘excessive powers’
similar to those of public authorities.
198. The fortnightly Secret Report (April-November 1971) –Exhibit 18
series [prosecution documents volume 9, relevant page 2777, para 21-23] goes
to show that the accused Ali Ahsan Muhammad Mujahid at workers
conference of ICS held in Rangpur on 17.10.1971 urged the workers to form
Al-Badar at different levels asking them to ensure that no person of un-Islamic
attitude gets access in the Al-Badar bahini. The Tribunal notes that of course a
significant level of authority in position makes a person able to insist his party
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[ICS] workers. It also demonstrates that the accused had a substantial
authority and control over the Al-Badar force.
199. The inflammatory and extremely provoking speech by the accused Ali
Ahsan Muhammad Mujhaid as quoted above [in paragraph 147] that “Al-
Badar is a name! A wonder! A-Badar is a commitment! Where there is
the so called freedom fighter, there is the Al-Badar. Where there is the
miscreant, there is the Al-Badar. Al-Badar is the Azrail [Angel of death]
in presence to the ‘Indian agents’ or the ‘miscreants’ indeed offers
sufficient indication as to his significant poisiton of authority on the Al-Badar.
It is also evident from a report titled Òwn›`y¯’vbx nvgjvi weiy‡× MYmgv‡ekÓ and a
picture published in the Daily Azad on 11.12.1971- Exhibit 2 Series
[prosecution documents volume 9, page 2826] that the accused Ali Ahsan
Muhammad Mujahid as the ‘chief of Al-Badar’ addressed a public rally. The
caption of the photo published together with the report bears the name of the
accused Mujahid as the ‘Chief of Al-Badar’.
200. Next, it could not be refuted in any manner that ‘Nazem’ [President] of
ICS made the speech at Al-Badar headquarters on 16 December 1971
addressing the Al-Badar men. Who was ‘Nazem’ of ICS at the relevant time?
Admittedly, it was accused Mujahid who was in position of ‘Nazem’
[President] of the then East Pakistan ICS. Thus, it may be unerringly
concluded that the accused by virtue of his leading position of ICS, the student
wing of JEI exercised his authority of addressing the AB men.
201. The translated text of the book titled ‘Al-Badar’ has been questioned by
the defence on ground of quality of its Bangla translated text and lack of
sources of footnotes in this translated text. But the contents of the translated
Bengali text however could not be refuted and challenged. The book appears
to be research based and its original Urdu version is a publication of Jamat E
Islami which has not been challenged. Therefore, we are not agreed with
defence submission that the book titled ‘Al-Badar’ carries no value and its
worst than anonymous hearsay evidence. We do not find rationale to negate
the value of the book readily. Mere non disclosure of name of accused Ali
Ahsan Muhammad Mujahid in the alleged ‘last speech’ [Akhri Khitaab]
narrated in the book does not reverse the fact that the speech was made by
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accused himself on 16 December. The ‘last speech’ depicts that the Nazim’
[President] of the then East Pakistan ICS addressed the Al-Badar members at
Al-Badar headquarter. Admittedly, at the relevant time accused Mujahid was
the president of ICS. Be that as it may, we find no reason to say that the ‘last
speech’ was not made by the accused Mujahid.
202. We are not convinced with the defence argument that in absence of any
documentary evidence the accused cannot be termed as a ‘commander’ or
‘superior’ of Al-Badar. The Tribunal notes that considering the circumstances
of the case, it is to be shown that the accused was in a position of authority
and his position of ‘commander’ is not needed to be proved strictly. Such
position of authority can be well perceived from circumstances revealed.
203. For establishing accused’s ‘effective control’ over the Al-Badar force
which had acted as an ‘action section’ of JEI no formal document is needed.
Under the ‘effective control’ test, there is no requirement that the ‘control
exercised by a civilian superior must be of the same nature as that exercised
by a military commander. What is essential is that the de facto civilian
superior possessed the requisite degree of effective control. It could have been
well articulated from circumstances and relevant material facts revealed in a
particular case. This view finds support from the observation made by the
ICTR Appeal Chamber in the case of Nahimana which is as below:
“Effective control is primarily a question of
fact, not of law, to be determined by the
circumstances of each case [Nahimana ICTR
Appeal Judgement, para. 605].
204. Formal document may not necessarily be indicative of ‘actual authority’ of the
accused over the Al-Badar force. Tribunal notes that an individual is termed as a
‘leader’ when his activity involves establishing a goal and common purpose by
sharing the vision with others so that they will follow or obey him willingly.
Leadership is a process whereby an individual influences a group of individuals to
achieve a common goal. Leadership is a process by which a person influences others
to accomplish an organizational objective. We have already recorded our finding
that Al-Badar was an auxiliary force [ Muhammad Kamaruzzaman, ICT-BD Case
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No. 03 off 2012, Judgment 09 May 2013] and was formed of ICS workers and
it acted as ‘action section’ and ‘armed wing’ of JEI.
205. Why the accused preferred to address the AB men at its headquarters just
few hours before the Pakistani occupation army surrendered by sharing pains
and frustration and also with future guidelines? The fact of addressing the ‘last
speech’ and its substances demonstrate unmistakably that the accused was not
only concerned with the organizational policy of AB but he had a position of
authority on it too that made him enable to address such speech. Who can be
called a leader or a person of authority in position? The Tribunal notes that
authority is the position of control someone has over another person or group.
The word authority is used to give orders, support, and encouragement and
influence people what to do. If one has authority, he or she is in control and
able to make others listen.
206. The accused need not have a formal position in relation to the
perpetrator, but rather that he has the ‘material ability’ to prevent the crime [
Celibici Appeal judgment, ICTY Appeal Chamber, Judgment 20 February
2001, para 197,256,266 and 303] . The ICTY Trial Chamber in the case of
Celibici held that in the absence of direct evidence, circumstantial evidence
may be used to establish the superior’s actual knowledge of the offences
committed, or about to be committed, by his subordinates.[ Celibici Trial
Chamber, ICTY, Judgment 16 November 1998, para 386].
207. ‘Al Badar’ [AB] , an extremist Muslim group, carried out the heinous
crimes of intellectual killings just before the surrender of Pakistani forces in
Dacca. [Source: The Hindustan Times, New Delhi, 21 December, 1971:
published in Bangladesh Documents, Volume II, Ministry of External
Affairs, New Delhi, page 572]. It reflects a notorious organizational intent and
common purpose of the AB force’s ‘last speech’ addressed to the AB men at
its headquarters validly prompt us to conclude that he[accused] had reason to
know the activities carried out by the AB men.
208. Referring a report published in The daily Sangram 24 April 1971 a
report titled ÒgyRvwn‡`i KzKxwZ© Mvuv Av‡Q ˆ`wbK msMÖv‡gi cvZvqÓ published in The
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Daily Bhorer Kagoj, 31 October 2007 which speaks that accused Ali Ahsan
Muhammad Mujahid by making speech provoked the Al-Badar to act as
‘Azrail’ [The Angel of Death] to liquidate pro-liberation Bangalee people and
freedom fighters wherever they [Al-Badar] get them. In this way accused
Mujahid explicitly disseminated the unholy organizational purpose, objective
and common intent to its [Al-Badar] members, and thereby he exercised his
authority and effective control on them. Conceivably accused’s power of
authority stemmed from his leading position in the ICS.
209. The notion of ‘power or authority’ of an accused is to be assessed on a
case-by-case basis considering the cumulative effect of accused’s conduct and
attitude and activities together with his affiliation with the group or
organisation. It has been observed in the case of Prosecutor v. Brdanin that
“In all circumstances, and especially when an
accused is alleged to have been a member of
collective bodies with authority shared among
various members, it is appropriate to assess on
a case-by-case basis the power of authority
actually devolved on the accused, taking into
account the cumulative effect of the accused’s
various functions”[Prosecutor v. Brdanin, ICTY
Trial Chamber, case No. IT-99-36-T, Judgment, 1
September 2004, para277]
210. What we see in the case in hand? Total evaluation of evidence,
circumstances and conduct of the accused prompt us to conclude that the
accused was very much aware of the activities carried out by the AB force.
The conduct of the accused that he had started showing even since the
formation of Al-Badar force together with the fact of last moment killing of
intellectuals and other relevant circumstances inevitably establishes his level
of effective control on the Al-Badar force. Besides, his ‘last speech’ as
narrated in the book titled ‘Al-Badar’ demonstrates his position of authority
and material ability to control the Al-Badar force and that he failed to prevent
commission of atrocities by the AB men, despite his material ability.
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211. To establish superior responsibility under the Act of 1973 the prosecution
is not required to prove that the accused superior either had any 'actual
knowledge' (knew) or 'constructive knowledge' (should have known) about
commission of the subordinate's crime. The ‘knowledge’ requirement is not
needed to prove accused’s superior position within the ambit of the Act of
1973. However an individual’s superior position per se is a significant
indicium that he had knowledge of the crimes committed by his subordinates.
Additionally, ‘knowledge’ may be proved through either direct or
circumstantial evidence.
212. In view of above discussion based on relevant circumstances and conduct
of accused was not mere part of his innocent political activities. Mere taking
political stand by dint of his position in ICS cannot make the accused a person
of position of authority or a superior or a leader of the Al-Badar force , as
submitted by the defence, does not seem to be convincing . Might be there had
been some more persons having position of authority over the AB force. But it
cannot absolve the accused of his liability as a ‘superior’, particularly when he
is found to have acted as a leading person exercising his own authority of
position on AB force.
213. However, we are convinced to pen our finding that the prosecution has
been able to prove it beyond reasonable doubt that there had been a de facto
and informal superior-subordinate relationship between the accused Ali Ahsan
Muhammad Mujahid and the Al-Badar force and that he had effective control
on the AB men and had reason of being remained aware of the activities
carried out by them [Al-Badar], chiefly by virtue of his position in ICS.
XX. Adjudication of charges
214. Charge no.1 and charge no.6 relate to the event allegedly occurred in the
capital city of Dhaka in between 10 December to 14 December 1971. The
former involves the event of abduction and murder of notable journalist Seraj
Uddin Hossain, while the later one involves the tragic and barbaric atrocity of
large scale killing of notable intellectuals. Accused Ali Ahsan Muhammad
Mujahid has been indicted for abetting the commission of the crimes narrated
in these two charges framed which allege that the accused also incurs liability
as superior under section 4(2) of the Act of 1973. However, he is not alleged
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to have physically participated to the commission of crimes alleged. The
principal crimes described in two charges [charge nos. 1 and 6] are alleged to
have been actually committed by the armed Al-Badar men in furtherance of a
concerted plan and common purpose. The crimes are perceived to have been
accomplished in a similar pattern in between 10 December to 16 December
1971.
215. The events narrated in charge nos. 1, 5 and 6 allegedly took place in
Dhaka city. The accused has been indicted to have abetted, facilitated, and
involvement in designing plan to the commission of crimes alleged in charge
nos. 1,5 and 6. Charge nos. 2,3,4 and 7 relate to the events allegedly
committed in Faridpur, the home town of the accused and he has been indicted
to have abetted, facilitated, contributed substantially and participated to the
commission of crimes narrated in these four charges.
Adjudication of Charge No.1
[Event of notable Journalist Seraj Uddin Killing in Dhaka]
216. Summary Charge: Accused Ali Ahsan Mohammad Mujahid being the
leader of Islami Chatra Sangha and subsequently the head of Al-Badar Bahini
and or as a member of group of individuals wrote a counter article which was
published on 16th September 1971 in the ‘Daily Sangram’ opposing the
article written by Seraj Uddin Hossain, the then Executive Editor of the daily
‘Ittefaq’, portraying the untold sufferings caused to unarmed civilians by the
local agents of Pakistani Army and also criticizing Seraj Uddin Hossain as an
‘agent of India’ (fvi‡Zi `vjvj). During that period the Pakistan Government
had instructed to publish articles branding the freedom fighters as
‘miscreants’. Seraj Uddin Hossain, a notable journalist of the country being a
member of ‘group of intellectuals’, became target of the Jamat-E-Islami and
Al-Badar Bahini and as such at 03:00 am, in the night following 10 December
1971, 7/8 youths having their face covered by ‘monkey cap’ equipped with
rifles abducted Seraj Uddin Hossain from his rented house at 5, Chamelibag,
Dhaka and he never returned nor his body was found and thereby Ali Ahsan
Mohammad Mujahid has been charged for abetting, facilitating and
contributing the actual commission of offence of ‘ abduction as crime
against humanity’ or in the alternative, for abetting, facilitating and
contributing the actual commission of offence of ‘murder as crime against
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humanity, by his conduct which was part of attack against civilian
population and also targeting a notable member of ‘intellectuals’ as specified
in section 3(2) (a) (g) of the Act for which the accused has incurred liability
under section 4(1) and 4(2) of the Act.
Witnesses
217. P.W.4 Shahin Reja Noor, the son of martyr Seraj Uddin Hossain, a
notable journalist testified how his father was abducted from their house. The
accused has been indicted to have abetted, facilitated and contributed, in the
capacity of head of Al-Badar force, to the commission of ‘abduction’ or in the
alternative ‘murder’ of Seraj Uddin Hossain. The event took place on 10
December 1971. After the alleged abduction the victim never returned and his
dead body could not be found even. The charge describes that 7/8 youths
having their face covered by ‘monkey cap’ and equipped with rifles abducted
the victim Seraj Uddin Hossain. Thus, no one had occasion to witness the fate
of Seraj Uddin subsequent to his abduction. P.W.4 narrated how his father
Seraj Uddin was abducted from their home on the date and time.
Evidence
218. P.W.4 stated that his father went into journalism with the Daily Azad
during his student life and joined the progressive Daily Ittefaq as news editor
in 1954. In September 1971, his father wrote some articles in the daily and one
of these was "Thag Bachte Ga Ujar" [VM evQ‡Z Mvu DRvi], which was mainly a
criticism of the Pakistani military forces and their supporters. On September
16, 1971, an article was published in Daily Sangram, the mouthpiece of
Jamaat E Islami, countering his father's article, titled "Atoeb Thag Bachio
Na"[ AZGe VM evwQIbv] . This article, which was actually a threat attacking his
father terming him a collaborator of India and favouring Brahmanism.
219. The above version remained unshaken, in cross-examination and it fairly
demonstrates the reason of targeting Seraj Uddin Hossain as part of planned
attack. It is immaterial to deduce whether the alleged counter article was
written by the accused.
220. P.W.4, in describing the event of his father’s abduction stated that on
December 11, 1971, between 3:00and and 3:30am, someone knocked on their
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door vehemently and with this he woke up and he could hear the voice of their
house owner Dr. Shamsul Huda, who asked him to open the door. With this
when he opened the door, five or six gun barrels came through and then seven
or eight armed people stormed into the room shouting, 'Hands up'. He raised
his hands and his younger brother and a brother-in-law also raised their hands
over their heads. Almost all the faces were covered with monkey caps and
scarves. They were wearing shirts, trousers, jumpers and had tennis shoes on.
221. P.W. 4 further stated that at gun-point, they [the gang] took them to the
bedrooms and asked his [P.W.4] father to raise his hands after finding him in a
room. They [the gang] asked his father, 'What is your name? What do you do?'
and his father replied, 'Seraj Uddin Hossain and Executive Editor of Daily
Ittefaq.' With this, pointing a gun at his father's back they said, 'Come with us’
and they took his father. P.W.4 stated that the family after a few seconds
understood that his father was being taken away on a microbus. He [P.W.4]
informed barrister Moinul Hossain, the editor of Daily Ittefaq at the time, of
the matter and that the abductors were not from the military force as they were
not in any uniform.
222. The narration made on the event of abduction could not be refuted in any
manner. At the same time it remains undisputed too that the perpetrators were
not from Pakistani occupation army and definite target of the gang was his
[P.W.4] father.
223. P.W.4 stated that on 18 December 1971, after the independence on 16
December as advised by Advocate Aminul Haque [father’s friend] he [P.W.4]
rushed to ‘Rayer Bazar’ where he found numerous dead bodies, mostly
decomposed and the dead body of Dr. Fazle Rabbi, Selina Parveen and
possibly Munir Chowdhury could be identified. But he [P.W.4] did not find
his father’s dead body. He also found 10-15 dead bodies in a ditch. On
interaction with them who came there in search of their dear ones he knew that
the armed perpetrators who had abducted their near and dear ones were
dressed and equipped in similar pattern.
224. The fact of finding numerous dead bodies of notable intellectuals at
‘Rayer Bazar’, an outskirt of Dhaka city and the perpetrators while abducting
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the victims were similarly dressed and equipped, as stated by P.W.4 could not
be refuted by the defence. These unshaken facts demonstrate the existence of
common purpose and plan in furtherance of which the pattern crime of
abduction and large scale killing was accomplished in between 10-14
December 1971.
225. P.W.4 stated that they [killers] were members of Al-Badar Bahini and
the Al-Badar was formed with the leaders and activists of Jamat E Islami's
then student wing Islami Chatra Sangha [ICS]. Razakar, Al-Badar and Al-
Shams forces were formed as the collaborationist force of the Pakistani army
in besieged Bangladesh and Prof Ghulam Azam, then Ameer of East Pakistan
Jamat E Islam, played a vital role in this regard. The Al-Badar force was
known as a killer force or Gestapo force. Mujahid [accused] was its East
Pakistan president between October and December 1971.
226. P.W.4 further stated that Chwodhury Mueen Uddin was the ‘operationin-
charge’ and his accomplice Ashrafuzzaman Khan was an active member of
Al-Badar, an the auxiliary force of Pakistan occupation army, carried out the
operation to liquidate the intellectuals. Accused Ali Ahsan Muhammad
Mujahid was the Al-Badar commander and under his supervision, direction
and instruction the operation of killings of intellectuals were carried out.
227. On cross-examination, P.W.4 explained why he could not mention the
accused Mujahid as commander of Al-Badar earlier. However, the above
version could not be refuted.
Deliberations
228. The learned defence counsel argued that the prosecution has not been
able to prove that the ‘article’ alleged was written by Seraj Uddin Hossain. At
the same time the article which is alleged to have been published in The daily
Sangram to counter the former ‘article’ was not written by the accused and as
such the accused had no reason of being hostile to Seraj Uddin Hossain.
Prosecution has failed to prove that the accused abetted the group of unknown
persons who allegedly abducted Seraj Uddin Hossain. Besides, after
liberation, on lodgment of formal allegations on the event of abduction and
murder of Seraj Uddin Hossain one Khalil was prosecuted, tried and convicted
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and sentenced under the Collaborators Order 1972. The present accused also
could have been prosecuted together with the actual offender under the
Collaborators Order 1972. P.W.4 the son of Seraj Uddin Hossain did not bring
allegation in course of trial of the said case on the event of abduction and
killing his father. Now the accused has been arraigned for the same offence as
an abettor simply on political ground.
229. The learned Prosecutor in reply to above argument has submitted that the
present accused has not been accused of committing the actual offence. He has
been charged for the offence of abetting the commission of the offence of
abduction and murder as crimes against humanity and ‘abetting’ to the
commission of such offence is a distinct offence enumerated in the Act of
1973. The offence tried for the criminal acts under the Collaborators Order
1972 was ‘murder’ under the Penal law. But the offence of abetting to the
commission of abduction and murder is an internationally recognised crime
committed in violation of customary international law.
230. The Tribunal notes that the ultimate outcome of the criminal acts
narrated in the charge was murder of an intellectual. Dead body of the victim
could not be traced even. To prove the offence of murder as crime against
humanity locating dead body is not necessary, as such crime is committed in a
context and as a part of pattern based attack and not as an isolated crime. The
act of abduction was followed by murder of victim Seraj Uddin Hossain. The
commission of the alleged criminal event causing abduction and murder
remained totally undisputed.
231. According to charge framed the accused is alleged to have incurred
liability under section 4(1) and section 4(2) of the Act of 1973. The first
segment of description made in the charge refers to the reason of targeting
Seraj Uddin Hossain. The accused cannot necessarily be absolved of
responsibility even if he is not found to have written article countering the
ideas reflected in writings of Seraj Uddin Hossain. The accused has not been
arraigned for physical or direct commission of the crime alleged. The accused
may be held criminally liable if he is found to have had connection with any
plans and activities involving the commission of such crimes.
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232. In order to prove accused’s connection or involvement with the
perpetrators of activities committed by them, first it is to be identified who
were the perpetrators of the offence of abduction alleged. Next, it is to be seen
as to whether the perpetrators belonged to any particular group of
organization. And finally, it is to be resolved as to whether the accused
Mujahid had any relationship or link with the perpetrators and the group or
organization they belonged, and the accused had material ability to control or
position of authority on the principals.
233. Defence avers that the accused was not connected with the alleged
criminal acts , in any manner, as the prosecution failed to produce any
evidence in support of any conduct or act of the accused constituting the
offence of ‘abetment’ to the commission of principal crimes. Bedsides, P.W.4
Shahin Reja Noor, the son of martyr Seraj Uddin Hossain admits the fact of
lodgment of a case under the Collaborators Order 1972, for the same criminal
event and one Khalil was prosecuted and after trial he was sentenced to
imprisonment for life. The present accused could have been prosecuted and
tried together with Khalil under the Collaborators Order 1972, if actually the
accused had any link or participation to the actual commission.
234. The Tribunal notes that prosecuting an individual or individuals under the
Collaborators Order 1972 was for the event of abduction and murder of Seraj
Uddin Hossain [father of P.W.4], as defined in Penal Code. Prosecution does
not claim that the present accused Ali Ahsan Muhammad Mujahid directly
participated to the commission of the crimes. Conceivably for this reason he
was not brought to justice under the Collaborators Order 1972. Now he has
been arraigned for the charge of abetting the criminal acts that resulted in
abduction and murder of Seraj Uddin Hossain. And ‘abetting’ to commit an
offence of murder as crime against humanity enumerated in section 3(2)(a)(g)
of the Act of 1973 is a distinct offence under the Act of 1973. Thus, we are
not persuaded with the argument that the present accused cannot be
prosecuted and tried for abetting the commission of the criminal acts for
which one Khalil was prosecuted, tried and punished under a different law i.e
the Collaborators Order 1972.
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235. In finding culpability of the accused with the commission of the offence
of murder of Seraj Uddin Hossain and Intellectuals killing [ as narrated in
charge no.1 and charge no.6] we are to see (i) whether the event of alleged
killing of intellectuals took place(ii) who were the actual perpetrators (iii)
whether the perpetrators belonged to any organised group or force (iv) why
the perpetrators targeted the ‘intellectuals (v) Whether accomplishment of
such crimes was in implementation of common plan and design (vi) What was
the relationship of the accused with the perpetrators (vii) was the accused part
of such common plan and design (viii)had the accused effective control and
authority over the principal perpetrators (ix) how the accused acted in
encouraging, endorsing or approving the criminal acts causing the extreme
diabolic killing of intellectuals.
236. Seraj Uddin Hossain, father of P.W.4 was a notable journalist who
continued to contribute favouring and inspiring the war of liberation by his
valued writings. Indubitably he belonged to Bengali intellectual class
maintaining pro-liberation ideology. He was abducted at dead of night on 10
December from his home in Dhaka city. Defence does not dispute it. In fact,
event of abduction and killing of Seraj Uddin was a part of ‘intellectual
killing’ that took place in between 10 to 14 December although the accused
has been arraigned of this criminal acts as abettor and facilitator by framing a
distinct charge.
237. The event took place on 10 December 1971 i.e at the verge of victory on
16 December 1971. All these facts as narrated by P.W.4 remained unshaken
and the defence could not deny it even. Admittedly Khalil, an Al-Badar man ,
was prosecuted tried and punished under the Collaborators Order 1972 for the
murder of Seraj Uddin Hossain was a member of Al-Badar. Thus it leads us to
infer conclusively that the group of the perpetrators belonged to Al-Badar the
‘action section’ of JEI.
238. Naturally no one had least opportunity to recognize the perpetrators and
to know how the abducted victims were killed. At the time of event of
abduction they kept their faces masked having fire arms with them. Who were
they? Why they targeted the intellectuals like Seraj Uddin Hossain? Was
there any common design and plan in launching such attack?
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239. We have found it from evidence of P.W.4 that writing articles by his
father made him [Seraj Uddin Hossain] target of threat and attack and his
father Seraj Uddin Hossain through such writings had strong stand in favour
of war of liberation and self-determination of Bengali nation and with this the
local pro-Pakistan people who took stand to assist Pakistani army became
antagonistic to his father.
240. From the unimpeached version of P.W.4 it appears quite evident that on
asking, when the gang satisfied as to identity of Seraj Uddin Hossain they
abducted him without causing any kind of instant harm to any of his [victim]
family inmates. The manner the gang abducted Seraj Uddin Hossain and
conduct of the gang as testified by P.W.4, the eye witness son of the victim
unambiguously indicates that target of the armed gang’s attack was Seraj
Uddin Hossain.
241. According to P.W.4 on 18 December 1971 he [P.W.4] rushed to ‘Rayer
Bazar’ where he found numerous dead bodies, mostly decomposed and the
dead body of Dr. Fazle Rabbi, Selina Parveen and possibly Munir Chowdhury
could be identified. But he [P.W.4] could not find his father’s dead body. He
also found 10-15 dead bodies in a ditch there. On interaction with them who
came there in search of their dear ones he [P.W.4] learnt that the armed
perpetrators who had abducted their near and dear ones were dressed and
equipped in similar pattern.
242. First thing is found proved beyond reasonable doubt that the
intelligentsias were abducted particularly targeting them by the perpetrators
belonging to same group or organization [AB], in furtherance of common plan
and design and in similar way and pattern. Second, the abducted intellectuals
were then brought to the outskirt of the city where they were killed. Intention
of abduction was thus to kill. It is also proved from the above evidence that
the armed gang did not belong to Pakistani occupation army.
243. Referring a report published in The daily Sangram 24 November, 1971
the report titled ÒgyRvwn‡`i KzKxwZ© Mvuv Av‡Q ˆ`wbK msMÖv‡gi cvZvqÓ published in
The Daily Bhorer Kagoj, 31 October 2007 which speaks as below:
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Ò ‰`wbK msMÖv‡gi 24 b‡f¤^i , 1971 msL¨vq cÖKvwkZ
Z_¨ †_‡K Rvbv hvq, 23 b‡f¤^i cvwK¯Ív‡bi ZrKvjxb
mvgwiK kvmK †Rbv‡ij AvMv †gvnv¤§` Bqvwnqv Lvb mviv
†`‡k Riæix Ae¯’v †Nvlbvi ciciB Avjx Avnmvb †gvnv¤§`
gyRvwn` I gxi Kv‡kg Avjx GK hy³ wee„wZ‡Z fviZxq
¸ßPimn `ykb‡`i LZ‡gi Rb¨ ˆmwbK wn‡m‡e cÖ¯‘Z nv‡Z
hye mgv‡Ri cÖwZ AvnŸb Rvbvb| Zv‡`i G wewe„wZ cÖKv‡ki
ci †_‡K kyiæ nq wewfboe ¯’v‡b eyw×Rxex nZ¨v| G mgq XvKvi
eyw×Rxex‡`i Kv‡Q ûuwkqvwi †`Iqv Avj-e`i‡`i wPwVI
Avm‡Z ky„iæ K‡i|
244. Thus it becomes unequivocally proved even from a report published in
the Daily Sangram [the mouth piece of JEI] , 24 November 1971 that
instantly after issuing a joint statement by the accused and one other urging to
wipe out the ‘agents of India’, the horrific killing of intellectruals started and
at that time the intellectuals were getting note of thtreat from Al-Badar.
245. Rabindra Nath Trivedi authored a book titled Ò71 Gi `kgvmÓ [Ten
months in 1971] published in 1997. The author compiled the book mainly on
the basis of information obtained from various sources including the daily
news papers of the relevant time. The book reflects information narrating
events in brief including situation he experienced during the war of liberation.
The author joined as mass communication officer of the Bangladesh
government since 17 April 1971.
246. From the narration that relates to 10 December 1971 made in the book
titled Ò71 Gi `kgvmÓ [Ten months in 1971] it appears that curfew was imposed
in Dhaka city. The killers of Al-Badar and al-Shams abducted notable
journalist of the daily Ittefaq Seraj Uddin Hossain, journalist Nijam Uddin
Ahmed and journalist of Columbia Broadcasting System Syed Najmul Haque
from their homes and subsequently they could not be traced even. The Al-
Badar force formed of armed members of Jamat E Islami started abducting
Bangalee intellectuals selecting in furtherance of plan designed by General
Rao Farman Ali under the leadership of army Captain Qayum [Source: Ò71 Gi
`k gvmÓ, Rabindra Nath Trivedi, 1997, page 595,596].
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247. The act of ‘abetment’ and ‘facilitating’ to the actual commission of
crime may not always be tangible. It is to be inferred from facts and
circumstances. Naturally no one had least opportunity to recognize the
perpetrators and to know how the abducted victims were killed. At the time of
event of abduction they kept their faces masked having fire arms with them.
248. We have already concluded that the group of the perpetrators belonged to
Al-Badar the ‘action section’ of JEI. Now, relationship between the accused
and the perpetrators and the organization they belonged is to be determined. In
doing so, inevitably we are to take the activities of JEI, its student wing ICS
and Al-Badar together into account.
249. We have already observed in the case of Chief prosecutor v. Muhammad
Kamaruzzaman that Al-Badar which was created by JEI and had acted as its
‘action section’, ‘fascist body’ and ‘armed wing’ in 1971[ICT-BD case
No.03 of 2012, Judgment 09 May 2013, para 605] . We also made our
observation in the case of Kamaruzzaman based on sourced information that
Jamat E Islami was thus indulged in indiscriminate massacre of their political
opponents belonging to Bengali nation, in the name of liquidating
‘miscreants’, ‘infiltrators’ for which they were using Razakars, Al-Badar
comprising with the workers of Islami Chatra Sangha [ICS], its student wing
[Muhammad Kamaruzzaman, ICT-BD case No.03 of 2012, Judgment 09 May
2013, para 601].
250. Hussain Haqqani, in his book titled ‘Pakistan between mosque and
military’ citing sources narrated that
“The Jamaat-e-Islami and especially its student
wing, the Islami Jamiat-e-Talaba [IJT], joined
the military’s effort in May 1971 to launch two
paramilitary counterinsurgency units. The IJT
provided a large number of
recruits………….The two special brigades of
Islamists cadres were named Al-Shams[the sun,
in Arabic] and Al-Badr [the
moon]…………….A separate Razakars
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Directorate was established……..Two separate
wings called Al-Badr and Al-Shams were
recognized. Well educated and properly
motivated students from the schools and
madrasas were put in Al-Badr wing, where they
were trained to undertake “Specialized
Operations, where the remainder were grouped
together under Al-Shams, which was
responsible for the protection of bridges, vital
points and other areas………….Bangladeshi
scholars accused the Al-Badr and Al-Shams
militias of being fanatical. They allegedly acted
as the Pakistan army’s death squads and
“exterminated leading left wing professors,
journalists, litterateurs, and even doctors.”
[Source: Pakistan Between Mosque And
Military: Hussain Haqqani: published by
Carnegie Endowment For International Peace,
Washington D.C, USA first published in 2005,
page 79]
251. Thus it is found that the Al-Badar men were trained to carry out
‘Specialized Operations’ and it acted as a ‘death squad’ and exterminated
leading professors, journalists, litterateurs, and even doctors. The book titled
“Ekattorer Ghatok Dalalra Ke Kothai”[GKvˇii NvZK `vjjiv †K †Kv_vq] that
Ò‡m‡Þ¤^i gv‡mi 17 Zvwi‡L ivRvKvievwnbxi cÖavb I kvwšÍ
KwgwUi wjqv‡Rv Avwdmvi‡K wb‡q †Mvjvg AvRg
†gvnv¤§`cy‡i wdwRK¨vj †Uªwbs †m›Uv‡i ‡h ivRvKvi I Avje`
i wkwei cwi`k©b K‡iwQ‡jb †mwU wQj Avj-e`i‡`i
†nW‡KvqvU©i| ¯^vaxbZvgbv eyw×Rxex‡`i †ekxifvM‡K Avje`
iiv cÖ ‡g †PvL †eu‡a GLv‡bB wb‡h Av‡m| wbhv©Z‡bi ci
GLvb †_‡KB Zv‡`i iv‡qi evRv‡i I gxicy‡ii wkqvj
ewomn Ab¨vb¨ ea¨f~wg‡Z wb‡q wM‡q nZ¨v Kiv nq|
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[Source t GKvˇii NvZK I `vjvjiv †K †Kv_vq, cÖKvk
1989 ,c„ôv 56]
252. It is evident that abducting the intellectuals blindfolded the perpetrators
first brought them to the ‘Al-Badar Head Quarters’ set up at the
Mohammadpur Physical Training College and afterwards they were butchered
at the nearby mass graves. It is also revealed that JEI was actively involved
with the affairs carried out by the ‘headquarter’ of Al-Badar.
253. The narrative made in the book titled Ò71 Gi `kgvmÓ [Ten months in 1971]
published in 1997 authored by Rabindra Nath Trivedi further shows that
there had been a plan designed with intent to annihilate the selected
intellectuals in order to cripple the Bangalee nation and the criminal activates
were carried out by the fascist Al-Badar . The narrative states that
ÒcvwK¯Ívb evwnbxi mn‡hvMx Pig `wÿYcš’x DMÖ mv¤úª`vwqK
d¨vwm÷ †M÷v‡cv Avj-e`i evwnbxi NvZ‡Ki XvKv kn‡i
hy× I KviwdDi g‡a¨ 10 wW‡m¤^i †_‡K 14 wW‡m¤^‡ii g‡a¨
Luy‡R Luy‡R †miv evsMvjx Aa¨vcK, wPwKrmK, mvsevw`K,
mwnwZ¨K‡`i iv‡qievRvi I gxicyi AevsMvjx Aa¨ywlZ
GjvKvq wb‡q wM‡q b„ksmfv‡e nZ¨v K‡i| D‡jøL¨ cvK
mvgwiK Awdmvi‡`i Av‡`‡k G RNb¨ nZ¨vKÛ m¤úboe n‡jI
G nZ¨vi cwiKíbv ZvwjKv cÖYqb, AvZ¥‡MvcbKvix
eyw×Rxex‡`i Luy‡R †ei Kiv, Zv‡`i a‡i wb‡q b„ksm
AZ¨vPv‡ii ga¨ w`‡q nZ¨v Kivi KvRwU Avj-e`i I
ivRvKvi evwnbxi evsMvjx m`m¨ I Zv‡`i †bZv‡`i Øviv
m¤úboe nq|Ó [Source: Ò71 Gi `kgvmÓ, Rabindra
Nath Trivedi, 1997, page 620]
254. For the offence of abduction and killing of Journalist Seraj Uddin
Hossain a distinct charge has been framed alleging that the accused abetted
and facilitated the commission of the crimes alleged. The event took place on
10 December 1971. Predictably this criminal event was carried out as a part of
execution of same common design and plan of killing the intellectuals with
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intent to cripple the Bengali nation. Material Exhibit-I [GKvˇii NvZK `vjjiv
†K †Kv_vq , relevant page 124,125] narrates that
Ò‡mB AwZ b„ksm nZ¨vhÁ m¤úboe Kivi Rb¨ Avje`iiv
e¨vcKfv‡e eyw×Rxex‡`i AcniY Kiv ïiæ K‡i 10 wW‡m¤^i
†_‡K| Kvdz© Ges eøvK AvD‡Ui g‡a¨ Rx‡c K‡i Avje`iiv
w`b ivZ eyw×Rxex‡`i evox evox †h‡q Zv‡`i‡K cÖ ‡g mviv
Mv‡q Kv`v gvLv GKwU ev‡m †Zv‡j| Gici evm †evSvB
eyw×Rxex mn bvbv ¯Í‡ii e›`x‡K cÖ g †gvnv¤§`cy‡ii
wdwRK¨vj †Uªwbs K‡j‡Ri Avje`i †nW‡KvqvU©v‡i wbhv©Zb
I wRÁvmvev` Kivi Rb¨ wb‡q hvIqv nq| ...................
Avje`i‡`i GB AciniY †¯‹vqv‡Wi †bZ…Z¡ w`Z nq †Kvb
Avje`i KgvÛvi bZzev cvKevwnbxi AbwaK K¨v‡Þb ghv©`vi
†Kvb Awdmvi| m¤¢eZ t cvK ewnbxi wbR¯^ Uv‡M©U
eyw×Rxex‡`i Acni‡bi e¨vcv‡i wbwðZ nevi Rb¨B cvK
†mbv Awdmvi AcniY †¯^vqv‡Wi †bZ…Z¡ w`Z|Ó
255. Thus it is evinced from the above narration that the act of abducting the
intellectuals in Dhaka city started from 10 December 1971, in furtherance of
common design and plan. The gang of perpetrators was mostly led by Al-
Badar members. The victims were first brought to Al-Badar head quarter at
Mohammadpur Physical Training College where they were subjected to
torture. At the same time mere leading the gang by an army captain, a junior
level officer does not suggest to conclude that the Pakistani occupation army
command alone was aware of the plan and criminal activities carried out by
the Al-Badar to annihilate the intellectuals.
256. It is evident from the version made by P.W.4 that Chwodhury Mueen
Uddin was the ‘operation-in-charge’ and his accomplice Ashrafuzzaman
Khan was an active member of Al-Badar who carried out the ‘operations’ to
liquidate the intellectuals is suffice to infer that the ‘operations’ carried out
targeting the intellectuals in between 10 to 16 December were ‘planned and
designed’ with intent to execute ‘common purpose’.
257. Further, the version of P.W.4 that accused Ali Ahsan Muhammad
Mujahid was the Al-Badar commander and under his supervision, direction
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and instruction the operation of intellectuals killing were carried out lends
support further support to other circumstances and relevant facts depicted
from various reports, as discussed above.
258. A report titled “Country could not care less” published in a daily on
14.12.2010 [defence documents volume no. 14, page 463-464] if read and
examined in its entirety it would reveal that the armed gang who abducted
Seraj Uddin Hossain was led by the accused Ali Ahsan Muhammad Mujahid.
‘Leading’ a gang does not always necessarily need to show physical presence
of the ‘leader’ at the crime site with the group. A group of individuals or
perpetrators can be even led by many other means. Instruction, direction,
provocation or providing substantial instigation by a person who is reasonably
placed in position of authority may form the act of ‘leading’ a group or gang.
259. In view of above discussion it is quite evident that the group of
perpetrators who allegedly abducted Seraj Uddin Hossain belonged to Al-
Badar which was the ‘action section’ of Jamat E Islami and ‘death squad’ of
the army. Besides, prosecuting, trying and convicting one Khalil, an Al-Badar
man under the Collaborators Order 1972 lends further assurance to it. At the
same time it is lawfully presumed that for publishing write ups reflecting his
pro-liberation ideology journalist Seraj Uddin Hossain became one of targets
of the Al-Badar, the ‘killer group’ and as such it is immaterial whether any
counter article was really written by the accused terming the victim an ‘Indian
agent’ and ‘agent of Brahmanism’, as described in the charge no.1.
260. P.W.4 Shaheen had testified that Mujahid, as the Al-Badar commander,
ordered and supervised the killings of intellectuals at the fag end of the War of
Independence in 1971. He also said Al-Badar, formed with the activists of
Islami Chatra Sangha, was then compared to Hitler’s Gestapo. The above
discussion based on old authoritative reports unambiguously suggests that the
event of alleged abduction of Seraj Uddin Hossain took place on the date and
in the manner alleged and afterwards he was killed, although his dead body
could not be traced even. In this regard the Tribunal recalls the settled
jurisprudence that a victim’s death may be established by circumstantial
evidence provided that the only reasonable inference is that the victim is dead
as a result of the acts or omissions of the accused who was in a substantial
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position of authority of Al-Badar force, by dint of his leading position in ICS.
In the case in hand, totality of evidence and circumstances forces to lawfully
infer the death of Seraj Uddin Hossain which was the outcome of the criminal
act of his abduction.
261. It has been proved beyond reasonable doubt that Al-Badar men were the
actual perpetrators and the Al-Badar was an organised group or force. Al-
Badar, para militia force was formed by the leaders of ICS the strident wing of
JEI. It was formed purely of workers of ICS. [Sunset at Midday: Mohiuddin
Chowdhury, page 97] Activities of Al-Badar were carried out under the
control and co-ordination of Jamat E Islami. It is thus validly inferred that the
accused being the president of East Pakistan ICS was in a superior position of
AB. Additionally, by virtue of his top position in ICS he encouraged the AB
by his speech , statement to combat the ‘miscreants’ , ‘Indian agents’. We
have already recorded our reasoned finding [see this judgment: paragraph
nos. 212-213] that –
“………..Might be there had been some more
persons having position of authority over the AB
force. But it cannot make the accused absolved of
his liability as a ‘superior’, particularly when he is
found to have acted as a leading person exercising
his own authority of position on AB force.
………………………that there had been a de
facto and informal superior-subordinate
relationship between the accused Ali Ahsan
Muhammad Mujahid and the Al-Badar force and
that he had effective control on the AB men and
had reason of being remained aware of the
activities carried out by them [Al-Badar], chiefly
by virtue of his position in ICS [ see this judgment,
Para 212-213].
262. It is to be noted that on vivid discussion made in earlier segment of this
judgment we have given our considered and reasoned finding which is as
below:
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“Total evaluation of evidence, circumstances and
conduct of the accused prompt us to conclude that
the accused was very much aware of the activities
carried out of the AB force. The above conduct of
the accused that he had started showing even since
the formation of Al-Badar force together with the
fact of last moment killing of intellectuals and
other relevant circumstances inevitably establishes
his level of effective control on the Al-Badar
force. Besides, his ‘last speech’ as narrated in the
book titled ‘Al-Badar’ demonstrates his position of
authority and material ability to control the Al-
Badar force and that he failed to prevent
commission of atrocities by the AB men, despite
his material ability”. [See this judgment, para 210]
263. Since the defence does not dispute the event of abduction followed by
murder and it has been proved beyond reasonable doubt that the perpetrators
were the AB men who carried out the common planned and designed
operation directing the intellectuals with intent to cripple the Bengali nation
the accused Mujhaid being the person in position of authority of Al-Badar had
sufficient reason to know the common purpose and plan and also the
commission of crime alleged. He was thus a part of the common plan and
design in execution of which series of events of intellectual killing was
accomplished As such he cannot be absolved of criminal responsibility.
264. It has been proved beyond reasonable doubt that the alleged pattern of
criminal acts was accomplished in implementation of common plan and
design. We have already given our finding, by resolving the issue
independently, that accused Mujahid by virtue of his position in the ICS had a
substantial position of authority over the Al-Badar force and thus he can
lawfully be said to have approved, endorsed and encouraged and provided
moral support to the actual commission of criminal acts including the
abduction of Seraj Uddin Hossain who was admittedly killed afterwards,
instead of preventing crimes committed by Al-Badar men. Accordingly the
accused incurs liability as ‘superior’ of Al-Badar the principal perpetrators of
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the criminal act of abduction followed by killing of Seraj Uddin Hossain, as
part of systematic plan and design , with intent to accomplish common
purpose.
265. Besides, Conduct, act, behaviour and the level of influence and authority
of the accused together, which have been convincingly proved, are thus
qualified to be the constituent of ‘participation’ too, in furtherance of common
purpose, the accomplishment of the crimes as it substantially contributed to, or
have had a substantial effect on the perpetration of the crimes for which the
accused has been charged with. Section 4(1) refers to Joint Criminal
Enterprise [JCE] .
266. It is not necessary to show that the JCE members explicitly agreed to
expand the common objective to other crimes. JCE is an agreement or
understanding to execute a “common criminal plan. For joint criminal
enterprise [JCE] liability an accused can participate in a joint criminal
enterprise by passive, rather than active, conduct. Accused’s conduct, as
discussed above, lends us to infer that he as a person in position of authority or
superior of Al-Badar came to an understanding or agreement, express or
implied that a planned crime of killing selected intellectuals would be
committed. The accused was thus a part of collective criminality and as such
he also incurs liability under section 4(1) of the Act. Therefore, the accused
Ali Ahsan Muhammad Mujahid, as superior of the principals [Al-Badar], is
held responsible for abetting the criminal acts committed against the journalist
Seraj Uddin Hossain, an unarmed civilian by the Al-Badar men causing his
murder as crimes against humanity as enumerated in section 3(2)(a)(h) of the
Act of 1973 and thus the accused incurs criminal liability under sections 4(1)
and 4(2)of the Act of 1973.
Adjudication of Charge No. 02
[Mass killing (Persecution or in the alternative Genocide) at village
Baidyadangi, Bhangidangi, Baladangi, Majhidangi, Faridpur]
267. One day in the middle of May 1971 during the War of Liberation
accused Ali Ahsan Mohammad Mujahid being the leader of Islami Chatra
Sangha and subsequently the head of Al-Badar Bahini and or as a member of
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group of individuals being accompanied by one Hammad Moulana of Faridpur
town, 8-10 non Bengalese including one Isahaque and Pakistani Army, with
discriminatory and persecutory intent, launched attack directed against the
Hindu Populated villages e.g. Baidyadangi, Majhidangi , Baladangi with
intent to destroy the ‘Hindu Community’ either whole or in part and caused
killing of 50/60 Hindus by indiscriminate gun firing and also burnt their
houses by setting fire and thereby Ali Ahsan Mohammad Mujahid has been
charged for abetting and substantially contributing the actual commission of
offence of ‘persecution as crime against humanity’ by directing attack against
the Hindu civilian population as specified in section 3(2) (a) (g) of the Act or
in the alternative, for abetting and substantially contributing the commission
of offence of ‘ genocide’ with intent to destroy the ‘Hindu Community’, either
whole or in part as specified in section 3(2)(c)(g) of the Act which are
punishable under section 20(2) read with section 3(1) of the Act for which he
is alleged to have incurred liability under section 4(1) of the Act.
Witnesses
268. Prosecution, in support of this charge, produced three witnesses who
have been examined as P.W.6, P.W.9 and P.W.11. They claim to have
witnessed the event and P.W.9 and P.W.11 further claim to have seen the
accused Ali Ahsan Muhammad Mujahid accompanying the group of
perpetrators towards the crime site.
Evidence
269. PW 6 Abdul Malek Mia [75] stated that on a Jaistha morning, his wife
informed him that the Pakistani army was approaching towards their village
and with this he hid himself in a ditch beside his home. Their village was
Muslim-dominated. They [attackers] didn't do any harm to their village. But
they [group of perpetrators] entered the Hindu-dominated Bhangidangi,
Baidyadangi, Baladangi and Majhidangi nearer to his own village, set the
houses on fire and killed people shooting indiscriminately. The fact of
committing massacre as stated remained unshaken in cross-examination.
270. P.W.6 further stated that on the following day Aftab Uddin, a Muslim
league leader and the then chairman of their union, whilst going past their
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home asked him [P.W.6] to go to the affected crime villages with him. With
this, he accompanied him and visited the affected areas and found all houses
of the villages were burnt down; dead bodies were lying here and there. When
they reached the villages some 50-60 people came out of hiding. The
chairman ordered the people to bury the bodies and they followed his order.
There were approximately 30-40 bodies there. These facts also remained
undenied and unimpeached in cross-examination. No inherent inconsistencies
are found on the above statement and even it does not appear to be materially
contradictory to what has been stated to the Investigation officer.
271. P.W.6 also stated that he came to know from the locals that the Pakistani
army along with armed Razakars, some Biharis, one Hammad Moulana and
Mujahid [accused] had gone to the crime villages from Faridpur and these
people were involved in committing looting, arson and killings.
272. P.W.9 Narayan Chandra Sarker [54] an inhabitant of crime village
Baladangi in 1917 stated what he experienced on the event of alleged attack
causing massacre. He stated that on morning in the mid of Jaistha in 1971
while he was going on the road for tying up his cow he found the people
running around and telling that military was coming. With this one Siddeswar
brought him inside a bush to hide and asked not to speak as Razakars were
coming. Siddeswar identifying Mujahid [accused] and Gafur Razakar along
with the Pakistan army told that Mujahid was going. P.W.9 further stated that
they remained in hiding for two hours and then coming out of the bush he
found the villages Bhangidangi, Baidyadangi, Majhidangi burnt and heard
gun firing and with this one Prafulla of their locality was killed and about 200-
300 houses were burnt. However, their [P.W.9] village was not burnt.
273. In cross-examination, P.W.9 stated that two days after the event he found
a dead body when was coming to his house through the bank of the river and
the locals were telling that numerous dead bodies were buried but they could
not say their name. With this the fact of alleged attack causing numerous
killings has been re-affirmed.
274. P.W.11 Fayezuddin [80], was a resident of village Char Harirampur,
neighbouring to crime villages. He came to his native village 7-8 days after
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the Pakistani army rolled into Faridpur town on 21 April 1971. One day he
saw a group of people including Biharis, Hammad Moulana, Ali Ahsan
Muhammad Mujahid, peace committee members coming from the end of
Hindu populated crime villages i.e Baidyadangi, Majhidangi, Baladangi,
Sarkerdangi and he [P.W.11] saw the crimes villages set on fire and in
conjunction with the event of massacre they killed 15-20 Hindu civilians when
they attempted to flee by crossing river Padma.
275. P.W.11 further stated that he knew Ali Ahsan Muhammad
Mujahid[accused] since earlier and he exchanged ‘salam’ with Mujahid when
he saw them moving forward.
276. On cross-examination, P.W.11 stated that he conveyed his ‘salam’ to
Hammad Moulana and others of the group when they were on move at a
distance of 25-30 hands from him. He [P.W.11] could not recognise anybody
of the group excepting Hammad Moulana.
Deliberations
277. The learned defence counsel has argued that P.W.6’s testimony as
regards involvement of the accused with the alleged event is anonymous
hearsay evidence which needs to be corroborated by other evidence. P.W.9
claims to have seen the accused accompanying the group of perpetrators as
identified by one Siddeswar while they were in hiding. Siddeswar is now
dead, as stated by P.W.9. But P.W.9 has made intelligent improvement by
stating it that he saw the accused accompanying the gang, as identified by said
Siddeswar. Because, P.W.9 omitted to state it to the IO. The IO has stated
while contradicting to P.W.9’s above piece of evidence that he [P.W.9] did not
state it to him. Thus, it is a glaring omission amounting to serious
contradiction on material particular and as such P.W.9’s testimony cannot be
relied upon as credible. P.W.11 has made self contradictory statement before
the Tribunal on material particular i.e, as regards his seeing the accused
accompanying the group of perpetrators. Thus, his testimony deserves
exclusion.
278. The learned prosecutor has submitted that hearsay evidence is admissible
and such the Tribunal can act on P.W.6’s hearsay evidence, provided if it
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carries probative value and relevance. P.W.9 is an eye witness who had
occasion of seeing accused, as identified by one Siddeswar, accompanying the
gang towards the crime site which is indicative as to accused’s participation to
the commission of the crimes alleged in charge no.2. It cannot be discarded
merely for the reason that he omitted to state it to IO. Statement made to IO is
not evidence and the Tribunal is to act on sworn testimony. Evidence of
P.W.11 so far it relates to recognition of accused is not materially
contradictory and can be relied upon.
279. It is to be noted that the prosecution is to prove it beyond reasonable
doubt that (i) the event of alleged murder as crimes against humanity was
committed against civilian population belonging to Hindu population, with
discriminatory intent (ii) that the accused abetted and facilitated the
commission of crimes alleged by accompnaying then group of perpetrators.
As regards first part i.e the commission of crimes causing murders, arson,
looting has not been challenged by the defence.
280. It is not alleged that the accused directly participated to the perpetration
of the crimes committed. The charge framed alleges that the accused
accompanied the group of perpetrators to the crime site as a leader of ICS the
student wing of JEI and subsequently a leader of Al-Badar and abetted the
commission of crimes alleged. Defence however cross-examined the P.W.6,
P.W.9 and P.W.11 who have stated the involvement of the accused with the
commission of criminal acts as he [accused] allegedly accompanied the group
of perpetrators.
281. The event of massacre and killing Hindu civilians of the crime villages is
not disputed. P.W.11, according to him, saw the crime villages in ablazing
condition. But he does not claim to have witnessed actually by whom and how
the massacre and killing the Hindu civilians were committed. From evidence
adduced by P.W.6, P.W.9 and P.W.11 it stands proved that the attack was
launched with discriminatory intent and also with intent to destroy the Hindu
community, a religious group, in part, in furtherance of policy and plan.
Neighbouring Muslim dominated villages remained untouched by the group of
attackers. This significant feature of the attack demonstrates further that only
the Hindu dominated villages were attacked with discriminatory intent. Thus,
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committing the offence of persecution as crimes against humanity and the
offence of genocide as narrated in the charge no. 2 has been proved beyond
reasonable doubt.
282. Now the question is whether the accused participated to the commission
of crimes by accompanying the group of attackers to the crime sites and
provided any act of abetment which had substantial effect to the commission
of crimes. The charge framed does not speak of accused’s physical
participation to the commission of crime. Mainly for the act of accompanying
the group the accused has been arraigned for abetting the commission of
crimes alleged. Now let us see what the P.W.s have stated as regards this
pertinent fact.
283. P.W.6’s testimony involves three parts. First part relates to experiencing
the event of setting the Hindu dominated villages ablaze and indiscriminate
gun fire that resulted numerous killing of Hindu civilians. The second part
relates to the fact that their village which was not Hindu dominated was free
from any harm. It fairly indicates that the target of the perpetrators was the
civilians belonging to Hindu community. The third part speaks of his
experience of seeing 30-40 dead bodies at the crime village, on the following
day and learning about the perpetrators from the local people.
284. As to first two parts, P.W.6 is the eye witness. But as to involvement of
the accused with the perpetration of the crimes alleged his testimony is
anonymous hearsay evidence. P.W.6 was an inhabitant of a neighbouring
village and for the reason of reigning massive terror naturally he also could
not know the detail of the event readily. On the following day, as stated by
him, on making visit to the crime village he found numerous dead bodies of
Hindu civilians and had heard about the perpetrators whom the accused
Mujhaid accompnaied. We do not find to discard and disbelieve his hearsay
testimony in this regard. Admittedly, hearsay evidence is admissible. But it is
to be corroborated by ‘other evidence’.
285. P.W.9 Narayan Chandra Sarker’s testimony involves three parts. The first
part relates to attacking the crime villages which were Hindu dominated. The
second part speaks of the fact of his hiding inside a bush along with one
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Siddeswar. The third part relates to his learning from Siddeswar who
identified the accused Mujahid and Gafur Razakar had accompanying the
attackers towards the crime villages.
286. Now we are to see whether evidence of two other P.W.s i.e P.W.9 and
P.W. 11 have provided corroboration to the hearsay evidence of P.W.6. It
appears that P.W.9 did not know the accused since earlier.
287. It appears that at the time of the alleged attack P.W.9 remained in hiding
with one Siddeswar and he [P.W.9] saw accused Mujahid accompanying the
gang as told and identified by Siddeswar. Seeing the accused Mujahid
accompanying the gang of perpetrators as stated by P.W.9 is significantly
pertinent for determination of accused’s culpability. But it appears that the IO
[P.W.17] while contradicting to the above piece of evidence of P.W.9 has
stated that he [P.W.9] did not state it to him.
288. It is true indeed that earlier statement made to IO is not ‘evidence’ and
only sworn testimony is to be evaluated. Rule 53(ii) of the ROP of the ICT-2
provides provision that the accused shall be at liberty to take contradiction of
the evidence given by a witness. Intent of such Rule is to assess truthfulness
and credibility of evidence presented before the Tribunal. In absence of any
reasonable explanation we consider such omission to be a glaring and fatal
contradiction on material particular. P.W.9, to our cautious consideration, has
made intelligent improvement and embellishment on material particular. It
would not be safe to act and rely upon this piece of evidence incriminating the
accused.
289. What about evidence of P.W.11 so far it relates to seeing the accused
accompanying the group of attackers, as stated by him? It appears that on this
material particular P.W.11 has made self contradictory version and thus
statement made in examination-in-chief become reasonably unreliable and
unsafe. Surprisingly P.W.11 did not state anything as to the means of moving
of the attackers towards the crime sites. That is to say, he remained silent as to
whether the group was moving on foot or by any mechanized vehicle.
Presumably they were moving on foot. Be that as it may, P.W.11 had fair
occasion to recognise the accused if really he knew him since earlier. But his
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glaringly contradictory statement made on cross-examination makes his
statement made in examination-in-chief tainted by reasonable doubt.
290. That is to say, P.W.11 made a grave self-contradictory version as to the
fact of seeing the accused accompanying the group of individuals approaching
towards the crime sites. Such glaring contradiction makes his version narrated
in examination-in-chief rationally suspicious and we consider it precarious to
rely upon such self-contradictory version, on material particular to determine
accused’s culpability.
291. According to P.W.9 he saw the accused accompanying the group of
attackers including Mujahid [accused] and Gafur Razakar and the Pakistan
army. But P.W.11 surprisingly has not stated to have seen the group was also
accompanied by the Pakistan army, although he claims to have seen the group
moving within the range of his sight.
292. It is now settled that hearsay evidence is admissble and deserves
consideration if it is corroborated by other evidence. The phrase ‘other
evidence’ includes direct evidence, circumstantial evidence and material
relevant fact inspiring credence to such hearsay evidence. But from above
discussion it appears that anonymous hearsay evidence of P.W.6 remains
uncorroborated as evidence of P.W,.9 and P.W.11, for reasons stated above ,
deserves exclusion. As a result unanimous hearsay evidence of P.W.6 stands
uncorroborated and as such desrves exclusion. In this regard we find
substance in what has been argued by the defence. Prosecution has failed to
prove accused’s involvement with the event of committing the crimes alleged
under charge no.2. Although the commission of the event of massacre, and
killing directing the Hindu civilians, as part of systematic attack, has been
proved beyond reasonable doubt.
293. Of three witnesses P.W.9 and P.W.11 claim to have witnessed the
accused accompanying the group of attackers towards the crime villages. And
P.W.6’s testimony on material particular is anonymous hearsay evidence. But
in view of above evaluation we find that anonymous hearsay evidence of
P.W.6 remains uncorroborated and prosecution failed to corroborate it by
‘other evidence’. Evidence of P.W.9 on material particular seems to be
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glaringly contradictory and thus inspires no reasonable credence. Evidence of
P.W.11 is patently and significantly self contradictory on material particulars.
294. On total and rational evaluation of evidence of the witnesses it appears
that the event of mass killing directing the Hindu unarmed civilians
constituting the offence alleged has been proved. From evidence it stands
proved too that a group of Razakars, peace committee members, Pakistani
army committed the crimes alleged. But prosecution has failed to prove that
the accused Ali Ahsan Muhammad Mujahid accompanied the group towards
the crime sites. Reasonable doubt has been created as to the fact of
accompanying the group of perpetrators by the accused the benefit of which
goes in favour of him. Apart from the fact of accompanying the group of
attackers prosecution does not allege that the accused by his any other act or
conduct had abetted the principals in perpetration of the crimes alleged.
Therefore, the accused Ali Ahsan Muhammad Mujahid cannot be held liable
under section 4(1) of the Act for the offence under charge no.2 enumerated in
section 3(2)(c)(g) of the Act of 1973 and thus he be accordingly acquitted
thereof.
Adjudication of Charge 03
[Event of confinement of Ranjit Kumar Nath in Faridpur]
295. Summary Charge: One morning in the first week of June 1971 during
the War of Liberation the Razakars, as a part of attack against the civilian
population and also with discriminatory intent, apprehending one Ranjit Nath
@ Babu Nath son of late Ramesh Chandra Nath of Rathkhola under Kotwali
Police station, district Faridpur from near the Khabashpur mosque of Faridpur
town brought him to Pakistani Major Akram at Faridpur Old Circuit House
where accused Ali Ahsan Muhammad Mujahid being the leader of Islami
Chatra Sangha and subsequently the head of Al-Badar Bahini and or as
member of group of individuals were also present and then on getting signal
from you, after having your talk with that Major, some Razakers and nonbengaleese,
with intent to kill brought him to the house of one Abdur Rashid
situated to the eastern side of the ‘Bihari camp’ wherein he was kept confined
and tortured . Later on, during night Ranjit Nath @ Babu Nath managed to
escape. Therefore, Ali Ahsan Mohammad Mujahid has been charged for
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abetting and facilitating the commission of offence of ‘confinement as crime
against humanity’ by his conduct which was part of attack against the Hindu
civilian population as specified in section 3(2) (a) (g) of the Act which are
punishable under section 20(2) read with section 3(1) of the Act and thereby
he incurs liability under section 491) of the Act.
Witness
296. Victim Ranjit Kumar Nath has testified as P.W.7. Prosecution relies only
upon his testimony together with what has been stated by P.W.8, on some
relevant facts. Considering the nature of offence and context in which it
occurred, no one had occasion to witness the event. The accused is not alleged
to have physically participated to the crime. Rather, he is alleged to have
abetted and facilitated the perpetration of the criminal act of confinement of
the victim Ranjit Kumar Nath, as described in the charge.
Evidence
297. P.W.7 Ranjit Kumar Nath [58] narrated how he was abducted and
brought to army camp at Faridpur circuit house. He stated that during first
week of June 1971, he went to the town to collect information about the
Liberation War. When he [Ranjit] was approaching the town, one Habi
Matabbar, terming him a freedom fighter, handed him over to Abul Kalam
Azad, Abul Mia and Kalu Bihari at East Khabashpur and they by beating him
up took him to Faridpur Circuit House where he saw Major Koraishi, a
Pakistani army official, Mujahid [accused], Afzal and other Razakars were
holding a meeting there. Getting a signal [Bm‡Kv nUvI] from Mujahid
[accused], Azad [accused of ICT-BD Case No. 05 of 2012, Judgement, 21
January, 2013] and his associates blindfolded him [Ranjit] and took him to
Faridpur Zilla School ground and put him under a palm tree. P.W.7 continued
to narrate how he was tortured and confined in a house inside the Bihari
colony and finally and around midnight he [Ranjit] escaped there from
breaking through a window.
298. Defence does not appear to have been able to impeach what has been
stated by P.W.7, on material facts. Even his statement does not suffer from
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inherent inconsistencies. There has been no glaring or material contradiction
bwteeen the statement made in Tribunal and that he made to the IO.
299. P.W.8 Mir Lutfar Rahman [58] narrated some facts relevant to activities
of accused Mujahid in Faridpur. He stated that since after arrival of Pakistani
army in Faridpur town accused Ali Ahsan Mohammad Mujahid, Abul Kalam
Azad @ Bachchu Razakar, Kalu Bihari started providing assistance to the
army.
300. He [P.W.8] found the accused Ali Ahsan Mohammad Mujahid [accused]
moving around the town by a jeep. He [accused] used to conspire with the
army at Faridpur circuit house camp as to who were to be apprehended and he
[accused] used to carry a sword with him and move like a villain. This version
has been re-affirmed in cross-examination when the P.W.8 replied to question
put to him that many people of Faridpur town saw the accused carrying a
sword when he used to get down from the jeep.
Deliberations
301. Admittedly, for the self same event and criminal acts Abul Kalam Azad
@ Bachchu Razakar was also charged and tried in an earlier case [ICT-BD
Case No. 05 of 2012, Judgment 21 January 2013] and he was found guilty and
convicted for physical participation and also for providing substantial
contribution to the commission of offence of abduction, confinement and
causing torture to victim Ranjit Kumar Nath as crime against humanity as
specified in section 3(2) (a) of the Act.
302. It has been found proved beyond reasonable doubt in the case of Abul
Kalam Azad that “on direction of Mujahid [present accused] the accused Abul
Kalam Azad @ Bachchu and his associates blindfolded him (P.W.5 Ranjit)
and took him to Faridpur Zilla School ground and put him under a palm tree
and had beaten him up for one hour and then he was kept confined in a house
inside the Bihari colony” [ Abul Kalam Azad @ Bachchu, ICT-BD Case No.
05 of 2012, Judgement 21 January 2013, para 183.]
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303. In the case of Abul Kalam Azad @ Bachchu victim Ranjit Kumar Nath
while testifying as P.W.5 stated that he was, on abduction, brought to Faridpur
Circuit House where he saw Major Akram Koraishi, a Pakistani army official,
Mujahid [accused], Afzal and other Razakars holding a meeting there. On
seeing him Mujahid[accused] had told “ he is a freedom fighter, he is a
Hindu” and asked Azad (accused of earlier case) to take him away and then
Azad and his associates blindfolded him (P.W.5 Ranjit) and took him to
Faridpur Zilla School ground and put him under a palm tree. After a few
minutes a jeep went there and someone in the jeep said in Urdu: “Don't shoot
him. Hand him over to the Biharis and slaughter him in the morning”.
304. In the earlier case, accused Abul Kalam Azad was found to have
‘physically participated’ to the commission of the offence of torture,
confinement and inhuman acts [Abul Kalam Azad, Judgment 21 January
2013, para 184]. But in the case in hand accused Ali Ahsan Muhammad
Mujahid has been arraigned for ‘abetting’ and ‘facilitating’ the commission of
offence of ‘confinement’ only. He is not alleged to have participated to the
actual commission of the offence.
305. As we see from Evidence of victim Ranjit Kumar Nath made in both
cases on same event, the victim was not kept confined at the circuit house
army camp. Rather he was taken out of the camp on ‘direction’ of the present
accused Ali Ahsan Muhammad Mujahid and following such direction the
victim Ranjit Kumar Nath was subjected to the criminal acts of ‘confinement’
and ‘torture’. Therefore, accused Mujahid also cannot evade liability of
mistreatment done to Ranjit Kumar Nath.
306. Evidence of victim Ranjit Kumar Nath made before us clearly
demonstrates that accused Ali Ahsan Muhammad Mujahid was also present at
the army camp at Faridpur circuit house when he [victim] was brought there.
In fact P.W.7 has echoed the statement he made in the earlier case being ICTBD
Case No.5 of 2012 [Abul Kalam Azad @ Bachchu, Judgment 21 January
2013]. Why accused Mujahid was there? It is proved that Mujahid was the top
brass of Islami Chatra Sangha [ICS], the student wing of Jamat E Islami [JEI]
and it started assisting the Pakistani occupation army in committing atrocities,
in furtherance of policy and plan to annihilate the Bangalee nation, Hindu
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community, and pro-liberation people, intellectual, since the war of liberation
ensued.
307. Holding meeting with army officials at the army camp is a fair indication
as to extent of accused’s position and authority even over the occupation army
and connection of the accused with the common purpose as well. ‘Order’ may
be verbal or written. It may also, however, be expressed through signs and
gestures. It is possible, therefore, to distinguish two tiers of orders. The first
tier would include formal orders, so defined because they take the form of
provisions, directives, and commands. A second tier, in contrast, includes
orders based on real effectiveness, in other words signals, gestures, concrete
actions, or various similar expressions. It is important to note that the accused
may, depending on the case and the circumstances of his intervention, express
his orders in either of the two ways described herein.
308. The very utterance [Bm‡Kv nUvI] by accused Mujahid at the army camp,
on sseing the victim there, was not an ‘ionocent utternace’. Rather, it was a
signal providing an ‘order’ or ‘instruction’. If the utternace was really an
innocent one, the victim would have been released at once from the camp. But
Mujahid’s cohorts on getting the signal [Bm‡Kv nUvI] brought the victim out of
the camp, inflicted torture and kept him confined at Bihari colony which
manifestly demonstrates that to the principal perpetrators such utterance was
an ‘order’ or ‘instruction’. Therefore, the accused Mujahid knowing the
forseeable consequence of such ‘order’ or ‘instruction’ he made through the
utterance [Bm‡Kv nUvI] abetted the comission of criminal act of ‘confinement’
of the victim.
309. It is true that mere presence at the army camp and position of authority
alone are not constitutive of the act of aiding and abetting unless it is shown to
have a significant encouraging and approving effect on the principals. It is
thus indispensably pertinent to assess the impact of the accused’s presence and
conduct at the army camp to determine whether it had a substantial effect on
the perpetration of the criminal acts occurred after the victim was taken out of
the camp, on accused’s ‘order’ or ‘direction’.
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310. Conceivably for the reason of his access even to the army camp by dint
of his position in his party and political ideology accused Mujahid uttered the
words ‘Bm‡Kv nUvIÕ forming ‘direction’ when he found the victim brought at
the camp. The very utterance, considering the context in its entirety and
position of the accused, tantamount to ‘ordering’ which substantially
facilitated the principals to commit the criminal act of confinement of the
victim at the ‘Bihari colony’ as narrated in the charge. In a particular
circumstance and context, ‘ordering’ entailed a person in a position of
authority using that position to convince or instigate or encourage another to
commit an offence; and it was not necessary that the order be issued in some
special form. The accused’s ‘subjective intent’ need not be explicitly
expressed, but can be derived from circumstances. The criminal acts done to
the victim after he was taken out of the camp amply shows the subjective
intent of the accused Mujahid.
311. The Tribunal reiterates that one of the requirements of the actus reus of
abetting is that the support or endorsement or provocation of the abettor had a
substantial effect upon the actual perpetration of the crime and the abettor is
considered to have had awareness of consequence of his act or conduct of
‘abatement’. Conduct of accused that he had shown being present at the army
camp, in light of the positions of authority that he held, amount to
encouragement and moral support to the physical perpetrators of crimes.
Therefore, the accused by his conduct abetted the criminal activities by the
principals causing unlawful confinement of victim Ranjit Kumar Nath.
312. Why Ranjit Kumar Nath was targeted by the Pakistani army and their
local aides? The reply is simple. Ranjit Kumar Nath was targeted as a part of
attack with discriminatory intent on religious and political ground as well. It is
a fact of common knowledge that Pro-liberation Bengali civilians, Hindu
Community, were the main target of the perpetrators in 1971. This was the
reason of atrocious acts of accused forming part of attack targeting P.W.5
Ranjit Kumar Nath.
313. We have already given our view that the context itself as reflected from
policies adopted by the Pakistani army and its local pro-Pakistan political
organization , chiefly the Jamat E Islami (JEI) and ‘auxiliary forces’ is
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sufficient to prove the existence of the notion of ‘systematic attack’ on
Bangladeshi self-determined population in 1971, during the War of
Liberation. This context unerringly prompts us in arriving at decision that the
criminal acts committed to P.W.7 Ranjit Kumar Nath, a member of civilian
population belonging to Hindu community was a part of systematic attack
constituting the offences of crimes against humanity as specified in section
3(2)(a) of the Act of 1973.
314. It has been stressed by the defence that the testimony of P.W.7 has not
been corroborated by other evidence. But we reiterate that the Tribunal may
arrive at decision even on the basis of single testimony and ‘corroboration’ is
simply one of factors to be considered in assessing witness’ credibility. It has
been held by the ICTR trial chamber that :
“There is no requirement that convictions be
made only on evidence of two or more
witnesses. …………………….Corroboration is
simply one of potential factors in the
Chamber’s assessment of a witness’ credibility.
If the Chamber finds a witness credible, that
witness’ testimony may be accepted even if not
corroborated. [Nyiramasuhuko, ICTR Trial
Chamber, 24 June 2011, para 174]
315. The Tribunal thus comes to a finding that the fact of abducting Ranjit
Kumar Nath and causing torture to him by keeping confined has been proved
beyond reasonable doubt. Besides, on the same event this Tribunal has given
its finding in its earlier case [Abul Kalam Azad @ Bachchu Razakar, ICTBD-
05 of 2012, Judgment 21 January 2013] that Ranjit Nath was abducted,
confined and subjected to torture and for physical participation to the
commission of crimes Abul Kalam Azad @ Bachchu Razakar was found
guilty and convicted.
316. It would be wrong to argue that no other person can be prosecuted and
tried separately and held liable for abetting and facilitating the commission of
the same criminal acts. In the case in hand accused Ali Ahsan Muhammad
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Mujahid has been charged for abetting and facilitating the commission of
offence of ‘confinement’ as crime against humanity and not on allegation of
abduction and causing torture.
317. The Tribunal notes that the offence of crimes against humanity is known
as ‘system crime’ or ‘group crime’ which is committed not by a single
individual. This type of crime is committed by group of individals and not
necessarily all the individuals have to be shown to have physically particpated
to the actual commission of crime. The attack formed of individual’s distinct
act eventually causes the accomplishment of crime. Therefore, there has been
no bar in prosecuting and trying a person separately for the same offence for
which another person has already been prosecuted and tried for his own
responsibilty.
318. The evidence presented before us, in the case in hand, together with the
earlier finding on the same event and pattern of culpability of Abul Kalam
Azad @ Bachchu in the earlier case we are persuaded to conclude that the
accused Ali Ahsan Muhammad Mujahid too incurs liability for ‘abetting’ and
‘facilitating’ the commission of the offence of ‘confinement’ of Ranjit Kumar
Nath. Testimony of P.W.7 gets further assurance from the testimony of P.W.8
Mir Lutfar Rahman, on significant relevant conduct of accused in Faridpur
town. Accused Ali Ahsan Mohammad Mujahid is thus criminally liable under
section 4(1) of the Act of 1973 for abetting and facilitating the commission of
offence of ‘confinement’ as crime against humanity as specified in section
3(2)(a)(g) of the Act which are punishable under section 20(2) read with
section 3(1) of the Act
Adjudication of Charge No. 04
[Confinement of Abu Yusuf @ Pakhi]
319. Summary Charge: on 26 July in the morning during the War of
Liberation in 1971 the local Razakars abducted Md. Abu Yusuf @ Pakhi of
east Goalchamat Khoda Bakshpur PS Kotwali district Faridpur from the
locality of Alfadanga under district Faridpur and brought him to the army
camp set up in Faridpur Stadium suspecting him to be a freedom fighter. On
the same day, at about 11:00 am accused Ali Ahsan Muhammad Mujahid
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being the leader of Islami Chatra Sangha and subsequently the head of Al-
Badar Bahini and or as a member of group of individuals came to the camp
and saw Abu Ysusf @ Pakhi confined there with other detainees and then he
told something to the army Major following which Abu Ysusf @ Pakhi was
subjected to torture severely. The victim Abu Yusuf @Pakhi was kept
confined there for 01 month and 03 days and during the period of such
confinement he was subjected to inhuman torture that resulted severe physical
injury causing fracture of bones and at one stage he was shifted to the Jessore
cantonment. Therefore, Ali Ahsan Mohammad Mujahid has been charged for
abetting and facilitating the commission of offence of ‘confinement as crime
against humanity’ by his conduct which was a part of attack against the
civilian population or in the alternative, for abetting and facilitating the
commission of offence of ‘other inhuman act as crime against humanity’ as
specified in section 3(2) (a) (g) of the Act which are punishable under section
20(2) read with section 3(1) of the Act for which the accused incurs liability
under section 4(1) of the Act.
Witnesses
320. Victim Abu Yusuf @ Pakhi could not be produced and examined by the
prosecution and it however chiefly depends on victim’s statement made in
earlier case together with statement made by P.W.6 Abdul Malek Mia and
P.W.8 Mir Lutfar Rahman, on relevant fact. The learned prosecutor insisted to
consider the testimony of P.W.6 and P.W.8 made on relevant facts together
with Tribunal’s earlier finding [ Abul Kalam Azad @ Bachchu, ICT-BD
Case No. 05 of 2012, Judgment 21 January 2013] on commission of the event
of criminal acts narrated in charge no. 4 which was based on testimony of
victim Abu Yusuf @ Pakhi and thus the cumulative evaluation will effectively
enable the Tribunal in arriving at finding as to involvement of the accused Ali
Ahsan Muhammad Mujahid.
Evidence
321. P.W.6 Abdul Malek Mia[75] an inhabitant of Faridpur in 1971 stated that
after the Pakistan army entered into Faridpur town they had set up camps at
Police Line, Stadium, Rajendra college and started committing atrocious
activities by engaging Biharis and Razakars.
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322. P.W.8 Mir Lutfar Rahman [58] an inhabitant of Faridpur town in 1971
stated that Ali Ahsan Muhammad Mujahid[accused], Abul Kalam Azad @
Bachchu Razakar, Kalu Bihari used to assist the Pakistan army and he saw
accused Mujahid moving around the town by a jeep.
Deliberations
323. Ms. Tureen Afroz, the learned Prosecutor submitted that liability mode
contained in section 4(1) of the Act of 1973 refers to ‘common plan of
collective criminality’ which corresponds to ‘systematic form of JCE’.
Exhibit- 20 shows common plan and deliberate policy of Al-Badar the
criminal organisation. Accused, being the leader and one of superiors was part
of common plan and the criminal organisation. The event of confining and
causing torture to Abu Yusuf Pakhi has been proved in the case of Abul Kalam
Azad. Tribunal’s finding made therein together with statement of P.W.6 and
P.W.8 who have proved accused’s collective criminal association with the
army camp renders the accused liable for the event narrated in charge no. 4
324. The Tribunal notes that prosecution could not produce and examine the
victim Abu Yusuf @ Pakhi as witness. As submitted by Ms. Tureen Aforz, the
learned Prosecutor, in order to prove this charge, prosecution relies upon the
finding given by this Tribunal in the case of Abul Kalam Azad @ Bachchu
[ICT-BD Case No. 05 of 2012, judgment 21 January 2013, para, 191.193 and
208] together with statement made on relevant facts by the P.W. 6 and
P.W.8.Drawing attention to the judgment in the case of Abul Kalam Azad @
Bachchu the learned Prosecutor has further argued that the event of abduction,
confinement and causing torture to Abu Yusuf @ Pakhi has been found
proved[ ICT-BD Case No. 05 of 2012, Judgment 21 January 2013, para 213]
although Abul Kalam Azad @ Bachchu was not found guilty and liable for the
criminal acts .
325. Admittedly, for the same event of criminal acts [for which Abul Kalam
Azad @ Bachchu was prosecuted and tried in the ICT-BD Case No. 05 of
2012] Ali Ahsan Muhammad Mujahid has also been charged in the case in
hand. In the former case the commission of the offence was found proved,
although accused’s guilt was not proved.
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326. The victim has not been examined by the prosecution. Evidence of P.W.6
and P.W.8 suffers from specificity as to the event under charge no.4. Hardly it
demonstrates a general conduct of the accused but does not link him with the
commission of any part of the offence alleged in any manner. Merely on the
basis of earlier finding as to commission of the event of alleged criminal acts
of which Abul Kalam Azad @ Bachchu was also found not guilty the present
accused Ali Ahsan Muhammad Mujahid cannot be tied with it, particularly in
absence of evidence or relevant indicative facts and circumstances.
327. True, even a single act of an accused forming part of attack is sufficient
to impact substantially to the commission of the principal crime. But such act
must be shown to have been done by accused. In the case in hand, the
prosecution has utterly failed to show by evidence as to which act of the
accused abetted and facilitated the commission of the offence of abduction,
confinement and torture to Abu Yusuf @ Pakhi.
328. Tribunal notes that Abu Yusuf @ Pakhi was allegedly subjected to
torture and degrading treatment at the camp army camp set up at Faridpur
stadium. It is quite impractical to think that it was really possible to see such
event by any one else, excepting the detainee victim himself. Thus he [victim]
could have been the best and competent witness to prove the arraignment
brought against the accused. We are , in no way, persuaded by the argument
advanced by the learned prosecutor that even failure to produce and examine
the victim in support of the charge the accused Ali Ahsan Muhammad
Mujahid is liable to be found guilty of the criminal acts narrated in the charge
no.4.
329. We disagree with the argument that the accused, being the leader and one
of superiors of Al-Badar was part of common plan and the criminal
organisation [Al-Badar] his [accused] collective criminal association with the
army camp renders the accused liable under section 4(2) of the Act of 1973.
Accused has been specifically charged for abetting and facilitating the
commission of the offence alleged and the charge framed describes specific
acts on part of the accused which allegedly abetted and facilitated the
principals in committing the crimes. The fact that accused in exercise of his
political position made a substantial contribution towards creating a climate of
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terror in Faridpur does not give rise to an unerring conclusion that he
facilitated or abetted the commission of all crimes occurred at the army
camps set up in Faridpur.
330. The finding given on an issue adjudicated in earlier case may be
considered as relevant in a subsequent case. But it is not suffice to prove the
guilt of the accused. Prosecution is obliged to prove accused’s involvement
beyond reasonable doubt by adducing evidence and materials. Prosecution has
utterly failed to discharge the burden. As a result the accused Ali Ahsan
Muhammad Mujahid is not found guilty of the offence of confinement as
crimes against humanity as specified in section 3(2) (a) (g) of the Act of 1973
[as listed in the charge no.4] and therefore he be accordingly acquitted thereof.
Adjudication of Charge No. 05
[Killing of Badi, Rumi, Jewel, Azad, Altaf Mahmud at Nakhalpara
Army camp, Dhaka]
331. Summary charge: That on 30 August at about 08:00 pm during the War
of Liberation in 1971 accused Ali Ahsan Muhammad Mujahid being the
Secretary of East Pakistan Islami Chatra Sangha and subsequently the head of
Al-Badar Bahini and or as a member of group of individuals being
accompanied by Matiuir Rahman Nizami the Al-Badar Chief came to the
army camp at old MP Hostel, Nakhalpara, Dhaka where you started scolding
Altaf Mahmud, Jahir Uddin Jalal, Badi, Rumi, Jewel and Azad who were kept
confined there and then you told one army captain that before proclamation of
clemency by the President the detainees would have to be killed . Following
this decision you with the assistance of your accomplices killed the above
civilian detainees by causing inhuman torture. Dead bodies of the victims
could not be traced even. Therefore, accused Ali Ahsan Mohammad Mujahid
has been charged for participating, abetting and facilitating the commission of
offence of ‘murder as crime against humanity’ by his conduct forming part
of attack against the civilian population as specified in section 3(2) (a) (g) of
the Act which are punishable under section 20(2) read with section 3(1) of the
Act has incurred criminal liability for the above offences under section 4(1)
and 4(2) of the Act.
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Witnesses
332. For proving the charge, prosecution produced and examined P.W.2 Jahir
Uddin Jalal who allegedly had occasion to witness the victims detained at the
army camp at Nakhlapara old MP hostel, Dhaka as he [P.W.2] was also taken
there and kept detained for couple of hours. He [P.W.2] also allegedly found
the accused and his accomplices present there when he [accused] had
mistreated him [P.W.2]. Apart from P.W.2, prosecution relies upon P.W.5 and
P.W.3 who have testified some facts relevant to establish accused’s activities
and position of authority on the Al-Badar force. Now let us see what these
P.W.s have testified before the Tribunal.
Evidence
333. P.W.2 Jahir Uddin Jalal(57) son of Haji Alauddin used to live at his
father’s government residence at Eskaton Garden, New Circuit House,
Dhaka. According to him, in 1971 his father was Superintendent of Police
[SP], Special Branch, Dhaka. Top ranking bureaucrats and police officials had
been the residents of the same building. In 1971, P.W.2 was about 15 years of
age. He made a vivid description what he witnessed during the early part of
war of liberation. A Panjabi ADC was their neighbor in the same building.
334. One day he [P.W.2] found some people having cap on head coming from
the army camp set up at opposite to the main gate of their building were
entereing into the residence of SP Azizul Haque Bachchu [of Pabna] and later
on they came out there from and then his [P.W.2] father indicating two
persons told that they were Matiur Rahman Nijami and Ali Ahsan
Mujahid[accused] and they were men of infamous nature, according to
intelligence report and they had started acting as agents of army and thus
his[P.W.2] father cautioned him to be aware of those men.
335. From above versions, it appears that one Panjabi ADC was their
neighbor in the same building and that he [P.W.2] saw the accused Mujahid
and his accomplice Nijami during the early part of war of liberation when he
was continuing his staying with his parents at his father’s governmental
residence.
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336. P.W.2 stated that on 12 April he went to Ashuganj 4th and 2nd Bengal
Regiment and joined the freedom fight and on 14 April, crossing Tripura
border joined ‘Moti Nagar’ camp organized by Sector Commander Khaled
Mosharraf, Sector-2. Abdul Aziz of Dhaka College, Maya, Ulfat, Badi, Rumi,
Jewel, Azad, Tultul, Gaji, Alam and many others joined the camp. He also
found Captain Haider at the camp who directed them to carry out operation in
Dhaka city. Thus, they received guerilla and commando training and got
prepared. Thereafter, P.W.2 added, on planning of Major Khaled Mosharraf
he[P.W.2] and some other freedom fighters splitted into small groups entered
Dhaka city during the first part of June, 1971 and started creating fright by
hurling furtive attack , adopting ‘heat and run’ technique, directing the army
and their accomplice Razakars on their way and camps. They continued their
guerilla operations in Dhaka city.
337. Defence could not refute the above narration. Thus, it stands proved that
P.W.2 received guerilla training in India under Major Khaled Mosharraf,
Sector Commander, Sector-2 and victims were his co- guerilla fighters. It also
remained unshaken that the P.W.2 backed to Dhaka city during first part of
June, 1971 to carry out guerilla actions.
338. P.W.2 in describing the event of his abduction and confinement at army
camp at Nakahlpara old MP hostel has stated that on 30 August, 1971 in the
evening on instruction of his company commander Abdul Aziz he [P.W.2]
moved towards 200 yards north to their own residence for preparation of
carrying an action at the residence of one Dolly Asad at 19, New Eskaton
Road as the Razakars were about to sit for meeting with the army there.
Suddenly some armed Razakars surrounded him and army also came there by
a jeep from Mogbazar end. The Razakars handed him [P.W.2] to army by
scolding him using slangs. The army brought him to one building through the
MP hostel lane at Tejgaon, P.W.2 added. Later on, he knew that it was 112,
Nakhalpara. Some army entered his room and after a short while 8-10
detainees were also brought there and on seeing them he [P.W.2] became
disbelieved as they were freedom fighters who also received training at ‘Moti
Nagor’ camp in India with him. Among them he could recognize Badi, Jewel,
Azad, Rumi and Altaf Mahmud in tortured and wounded condition.
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339. The above is the version that has been made by P.W.2 as to how he was
abducted and taken up to the army camp where he found some of his coguerilla
fighters detained in severely wounded and mistreated condition. It is
also found that they were so kept detained to extract information.
340. Rather, on cross-examination, P.W.2 has re-affirmed the fact of
apprehending and bringing the victims to police station first. In reply to
question put to him P.W.2, on cross-examination, stated that 29 August 1971
on seeing a news published in the Daily Sangram that some Al-Badar men
apprehended some ‘miscreants [ freedom fighters] and brought them to
Ramna police station he [P.W.2] went there [police station] and found 20-25
detainees including Badi, Jewel, Azad, Rumi and Altaf Mahmud. The fact of
bringing the victims to the police station first remains totally undisputed.
341. P.W.2 further stated that it was about 08:00 pm when Jewel told him
[P.W.2] not to disclose anything despite torture and Jewel described how he
was subjected to torture and mistreatment. At that time i.e at about 08:00 pm
Jewel showing Captain Qayum accompanied by Mujahid [accused], Nijami
and 3-4 armed men, while they were moving to Captain’s room passing
through their room, told that they mistreated and tortured them and Mujahid ,
Nijami might have killed them any time.
342. Defence merely denied the above version. But it could not impeach it in
any manner by cross-examining P.W.2. As a result what the P.W.2 has
testified as regards his seeing the accused Mujahid, Nijami and 3-4 armed men
accompanying the army Captain Qayum at the camp remians admitted, in
other words.
343. Next, P.W.2 further stated that he was taken to Captain Qayum’s room
and his signature was obtained on a plain paper and they started him scolding
indecently and asked since when and how he [P.W.2] knew the detainees and
had hit on his wrists by a pistol. But he [P.W.2] remained quiet. At that time
Mujahid[accused] standing there called some Mueen Uddin who entered into
the room and then Mujahid[accused] snatching the sten gun from him[Mueen
Uddin] started hitting on back of his head. With this he fell down on floor and
he [Mujahid] started kicking him. Afterwards, Mujahid [accused] and Nijami
took him to the room of detainees and coerced to disclose as to who were with
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him in carrying out operation on 25 August targeting army and which arms
they had carried with them.
344. From the above unimpeached version it has been depicted that object of
abducting P.W.2 was to extract information in respect of guerilla operations
carried out in Dhaka city by causing torture and accused Mujahid also
participated actively in mistreating him. At that time another top brass of ICS
Nijami was with the accused.
345. P.W.2 also heard Mujahid [accused] telling Captain Qayum that traitor
Badi, Rumi, Jewel, Azad, Altaf Mahmud would have to be killed before the
President’s clemency that would come into effect from 05 September 1971.
Within a short while Captain Qayum with his two army men brought him to
the room of Lt. Col. Hejaji at MP Hostel where he [P.W.2] found Panjabi
ADC Afzal [neighbour of P.W.2]. Lt. Col. Hejaji obtained his signature on a
plain paper and handed him over to ADC Afjal who brought him back to
home by his vehicle. He [P.W.2] learnt that ADC Afjal saw him [P.W.2]
taking by an army jeep after picking him up at a place ‘Bangla Motor’ and
thus he rushed to rescue him. However, he [P.W.2] stayed two days at the
residence of ADC Afjal and then again went to Sector-2 head quarter in
Meghalaya, India and described what he witnessed at the army camp, old MP
hostel, Dhaka. And they again came back to Dhaka but could not have any
trace of the victims he saw detained at the army camp.
346. Thus the P.W.2 has narrated what he witnessed and experienced during
his confinement at the army camp at Nakhalpara MP Hostel since his picking
up by the army as handed over by Razakars. Punjabi ADC Afjal was their
close neighbour and naturally he might have affection to P.W.2 and thus he
rushed to the army camp to get him back. This version could not be dislodged
by the defence. Therefore, according to P.W.2 he had occasion to see the
presence of accused Mujahid and his accomplices one of whom was armed
Mueen Uddin.
347. P.W.3 Mahbub Kamal [59] used to live at their rented house at 210[old]
Fakirapul, Dhaka during 1971. In between 19 April to 30 June he had been at
his native village and on 30 June 1971 he came back to Dhaka. In 1971, he
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was student of Notre Dame College. P.W.3 stated that Razakar camp was set
up at Firoz member’s house, 150-200 yards far from their [P.W.3] house. He
[P.W.3] knew accused Mujahid who was a leader of Islami Chatra Sangha
[ICS] as he used to come at the said Razakar camp.
348. Defence could not refute the above version. Besides, on crossexamination,
P.W.3 has re-affirmed that at the house of Firoz member a
Razakar camp was set up in July 1971. It is a fact of common knowledge that
Razakar was an auxiliary force created to assist the Pakistani occupation army
to further their policy and plan and Al-Badar formed of members of ICS. At
the relevant time the accused had been in a leading position of ICS, the
student wing of JEI.
349. P.W.5 Md. Rustom Ali Molla [58] used to stay at his father’s quarter
inside the premises of Mohammadpur Physical Training College, Dhaka. His
father Md. Raham Ali Molla was a fourth class employee of the college. In
narrating what he experienced and witnessed occasionally for the reason of his
staying at the college premises with his parents. P.W.5 stated that training
activity for Razakar and al-Badar was started in the college field since 3-4
months after the war of liberation ensued. One day he saw Ghulam Azam,
Nijami and Muhammad Mujahid [accused] were getting down at college gate
from a vehicle of Punjabi [army]. He could not recognise them. But he heard
the Razakars, Al-Badar men guarding the college gate telling that they were
Ghulam Azam, Nijami and Mujahid [accused] and they moved towards the
Al-Badar, Razakar office inside the college.
350. Defence could not dislodge the above version showing the link of
accused with the Al-Badar and its activities. Such link was mainly by virtue of
his leading position in the ICS. Visiting the Al-Badar head quarter by
accompanying the top brass of JEI Ghulam Azam and Top leader of ICS
speaks a lot. A person without authority or influence or position surely would
not have accompanied Ghulam Azam the top brass of JEI in visiting the Al;-
Badar head quarter which was known as ‘torture center’.
351. On cross-examination, P.W.5 has re-affirmed it that the accused Mujahid
used to visit the college [Al-Badar head quarter] frequently. P.W.5 also stated
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in reply to question put to him that he heard that the persons who were
subjected to torture at the ‘torture cell’ at the college were intellectuals.
Deliberations
352. The learned prosecutor has argued that P.W.2 Jahir Uddin Jalal testified
that he was forcibly brought to the army camp set up at old MP hostel at
Nakahlpara, Dhaka city where he found accused Mujahid present who
physically tortured him and he [P.W.2] also found him telling the army
official at the camp to liquidate the detainees whom he could recognize,
before the President’s clemency came into effect. The body of victims could
not be traced even. This fact together with the culpable conduct of accused as
revealed from evidence of P.W.5 proves it beyond reasonable doubt that the
accused was linked with the event of killing of persons detained at the army
camp, in furtherance of common plan and design.
353. The learned defence counsel Mr. Emran Siddique in advancing argument
in respect of charge no.5 has submitted that prosecution has failed to prove
that there was a ‘common plan’ of causing murder of victim detainees at the
army camp, as alleged. Act of causing torture to the detainees at the camp
cannot be treated as part of activities carried out by JCE as there is no proof of
nexus between the alleged conduct of the accused and the actual commission
of murder of the detainees. P.W.2 is not a credible witness and his statement is
contradictory and inconsistent. Besides, his evidence does not show
involvement of the accused with the actual commission of the alleged killing.
354. Mr. Abdur Razzak, the learned senior counsel for the defence has
submitted that there has been no evidence whatsoever to show participation of
accused with the commission of killing of persons kept detained at the army
camp at old MP hostel, Nakhalpara, Dhaka. P.W.2 claims to have witnessed
accused’s presence at the said camp. He could have disclosed it to Jahanara
Imam, the mother of victim Rumi and author of the book titled ‘Ekattorer
Dinguli’. Non-disclosure of this fact in the said book naturally makes version
of P.W.2 untrue.
355. At the outset, the Tribunal notes that from the evidence it is found that
the victims were valiant and brave guerilla fighters and at the relevant time
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they were in Dhaka city for the purpose of carrying out guerilla actions
targeting army and its auxiliary forces. This was the reason of apprehending
the victims, the bright and brave sons of the soil, and presumably on failure to
extract information from those bravest sons even by causing extreme torture
and inhuman treatment they were killed. Their body could not be traced even.
356. There has been no evidence who committed the offence of actual killing
of victims kept captive at the army camp. In absence of evidence, we thus
conclude, on the basis of circumstances and relevant facts revealed that the
victims were liquidated by the army either at the camp or some where else.
The actual commission of crime might have been perpetrated by the army
alone or by the army with the assistance and support of non-military
individual or group of individuals.
357. Accused Ali Ahsan Mohammad Mujahid has been charged for
participating, abetting and facilitating the commission of the offence of
‘murder’ of the victims kept detained and tortured at the army camp at
Nakhlapara old MP hostel, Dhaka constituting the offence of crimes against
humanity’ by his conduct forming part of attack. Why accused Ali Ahsan
Mujahid was at the army camp at Nakhalpara old MP Hostel. During war time
situation the army usually does not act with the encouragement and ideas of
civilians, true. But in 1971 the situation prevailing in the territory of
Bangladesh was quite different. A segment of Bengali civilians belonging to
pro-Pakistan ideology and religion based political parties had their stand to
further the policy and plan of Pakistan army, in the name of preserving
Pakistan. This situation compelled the army to invite and receive assistance,
support from such segment of civilians, by infringing the norms of a
disciplined force. Next, accused Ali Ahsan Mujahid at the relevant time was in
a leading position [secretary] of the ICS the student wing of JEI. Nijami was
the president of ICS, at that time.
358. We have recorded our findings in the case of Muhammad
Kamaruzzaman that the Al-Badar was formed of workers of ICS, the student
wing of JEI and it acted as its ‘action section’. We have also observed that
“Since the Al-Badar force was an armed para
militia force and it acted in furtherance of policy
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and plan of Pakistani occupation armed forces no
formal letter of document needs to be shown to
prove that it was under placement and control of
Pakistani occupation armed forces, for designating
it as ‘auxiliary force”
[Muhammad Kamaruzzaman, Judgment 09
May, 2013, para 495]
359. We consider it relevant to retell our earlier reasoned observation in the
case of Muhammad Kamaruzzaman that
“ It is quite coherent from the facts of common
knowledge involving the backdrop of our war of
liberation for the cause of self determination that
the Pakistani occupation armed force, in execution
of government’s plan and policy in collaboration
with the local anti liberation section belonging to
JEI and its student wing ICS and auxiliary forces
and other religion based pro-Pakistan political
parties , had to deploy public and private resources
and target of such policy and plan was the
unarmed civilian Bangalee population, proliberation
people, Hindu community, intellectuals
and pursuant to such plan and policy atrocities
were committed to them as a ‘part of a regular
pattern basis’ through out the long nine months of
war of liberation in 1971”.
[Muhammad Kamaruzzaman, Judgment 09
May, 2013, para 515]
360. Thus it stands proved that Al-Badar was a para militia auxiliary force and
reasonably it had close and active and culpable affiliation with the Pakistan
occupation army which enabled the accused and his accomplices belonging to
ICS having substantial position of authority on Al-Badar to provide assistance,
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support to the accomplishment of criminal activities, in furtherance of plan
and policy.
361. What is meant by ‘participation’? ‘Participation’ encompasses
‘approval’ or ‘instigation’ or ‘encouragement’ or ‘aiding’ or ‘abetment’. The
acts of the accused do not always need to be committed in the midst of the
attack provided that if they are sufficiently connected to the attack. This view
finds support from the decision of Trial Chamber, ICTY in the case of Limaj
[November 30, 2005, para 189]. The judicial pronouncements of adhoc
tribunals have established that the accused himself need not have participated
in all aspects of the alleged criminal conduct. The actus reus of aiding and
abetting a crime may occur before, during, or after the principal crime has
been perpetrated. It is thus not needed to prove that the accused himself
directly participated to the actual commission of crimes.
362. In the case in hand, conscious conduct, act and behaviour of the accused
Ali Ahsan Muhammad Mujahid knowing the foreseeable consequence, which
have been convincingly proved, are thus qualified to be the constituent of
‘participation’ to the actual accomplishment of the crimes as it substantially
contributed to, or have had a substantial effect on the perpetration of the
principal crimes for which the accused has been charged with. The principal
offence of murder remains unimpeached. Thus by act of being present at the
army camp and behaving brutally with detained victims even in presence of
army official and providing ‘advice’ to liquidate the victims before the
President’s clemency came into effect, as stated by P.W.2, inevitably formed
part of attack which had substantial effect to the actual commission of the
crime committed by the principals and as such he [accused] was ‘concerned
with the commission’ of the killing alleged in charge no. 5.
363. Testimony of P.W.2 as to hearing the accused Ali Ahsan Muhammad
Mujahid telling that detainee Rumi, Badi Jewel and others would have to be
killed before President’ clemency seems to be reliable, relevant and consistent
to what he stated to IO in this regard. Such utterance providing ‘advice’ by the
accused at the army camp signifies accused’s influence and susbtantial moral
support over the activities carried out by the army.
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364. The Tribunal notes that the act of providing ‘advice’, in other word, was
a substantial kind of assistance and explicit approval of orchestrating a
common plan to facilitate the actual commission of the crime. The act of
providing ‘advice’ entails a person in a position of authority using that
position to convince and approve another to commit an offence. We are
convinced to pen our finding, considering the facts and context, that involving
with designing plan or providing ‘advices’ constitutes the act of ‘abetment’
and ‘instigation’ which makes him [accused] liable for being ‘concerned’ with
the commission of substantive crime.
365. It is now settled that the acts of aiding and abetting need not be tangible,
but may consist of moral support or encouragement of the principals in the
commission of the crime. His [accused] acts and conducts at the army camp
displayed towards the detained victims clearly constitute instigation or
abetment to the principal perpetrators of the crime. For holding the accused
Mujahid criminally responsible for the crimes it is immaterial to show that he
physically participated to the actual commission of crimes. We have observed
in the case of Muhammad Kamaruzzaman that
“It is immaterial to argue that the accused was not
the actual perpetrator or he himself physically
participated to the commission of the criminal
acts. It is to be noted that in furtherance of attack
directed against the civilian population the alleged
crimes as enumerated in section 3(2)(a) of the Act
of 1973 were committed. It is not the ‘act’ but the
‘attack’ is to be systematic in nature and even a
single act forms part of the ‘attack’.”
[Muhammad Kamaruzzaman, Judgment 09
May, 2013, para 533].
366. It is now settled that earlier statement made to Investigation officer is not
evidence and any non significant omission in stating any fact to the IO which
does not necessarily affect wetness’s sworn testimony is not fatal and cannot
be treated as glaring contradiction. Additionally, failure to describe precise
detail about an event that took place four decades back rather makes witness’
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testimony more reliable. However, On perusal of cross-examination of the
Investigation Officer P.W.17 it appears that the version made by P.W.2 that
he saw the victims who were his co-guerilla fighters of Sector-2 in his room at
the army camp does not seem to be contradictory, on material particular, to
what he stated to him [IO]. Thus the P.W.2 cannot be said to have made any
exaggeration or intelligent improvement in his testimony before the Tribunal.
367. Besides, defence could not refute the narration as made by P.W.2 as to
when he went to India and under whom he received guerilla training and who
were his co-fighters. Thus, it stands proved that P.W.2 on receipt guerilla
training in India under Major Khaled Mosharraf, Sector Commander, Sector-2
backed to Dhaka city during first part of June, 1971 to carry out guerilla
actions targeting the army and their accomplices on their way and at camps as
well. The above version also patently demonstrates that Badi, Rumi, Jewel,
Azad the victims of the criminal events narrated in charge no.5 were his coguerilla
fighters.
368. On cross-examination, P.W.2 has re-affirmed the fact of apprehending
and bringing the victims to police station first. In reply to question put to him
P.W.2, on cross-examination, stated that 29 August 1971 on seeing a news
published in the Daily Sangram that some Al-Badar men apprehended some
‘miscreants [ freedom fighters] and brought them to Ramna police station
he[P.W.2] went there [police station] where he found 20-25 detainees
including Badi, Jewel, Azad, Rumi and Altaf Mahmud. Might be the P.W.2,
due to memory failure could not state the exact date of his seeing the victims
at police station. But it stands proved that prior to taking the victims at the
army camp they were apprehended by Al-Badar men and handed over to the
police station. It patently demonstrates that Al-Badar played a significant role
which had substantial effect to the act of their confinement, torture and
murder. The accused Mujahid cannot evade responsibility of such acts of Al-
Badar as already he has been found to have had substantial position of
authority on Al-Badar force, by virtue of his position in ICS. The fact of
bringing the victims to the police station first remains totally undisputed.
Additionally, it gets support from the defence document a book titled Òiygx
¯§viK MÖš’Ó [Defence documents volume 14, relevant page 324,325; Book’s
relevant page 89-90].
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369. The above relevant and pertinent fact lends support to the statement of
P.W.2 that at the army camp he found the accused Ali Ahsan Muhammad
Mujahid and his accomplices and that the accused ‘advised’ to liquidate them
[victims] before President’s clemency came into effect. Both the facts are
chained together and conclusively offer indicia of substantial contribution of
the accused Mujahid to the actual perpetration of the killing.
370. Defence merely denied the above version. But it could not impeach it in
any manner by cross-examining P.W.2. As a result what the P.W.2 has
testified as regards his seeing the accused Mujahid, Nijami and 3-4 armed men
accompanying the army Captain Qayum at the camp stands proved. The
version also depicts the object of apprehending and causing torture to guerilla
fighters by keeping them captive at the army camp was to extract information
from them and that armed civilian people even had access to the army camp
for assisting to carry out their activities, in furtherance of policy and plan.
371. The unimpeached version of P.W.2 demonstrates that the object of
abducting P.W.2 and bringing him at the army camp was also to extract
information in respect of guerilla operations carried out in Dhaka city by
causing torture. Accused’s conduct, as stated by P.W.2, even in presence of
army official at the army camp is a significant indicium to prove accused’s
authority, active affiliation with army and that he was in a position of
providing effective assistance to the army, in carrying out its criminal
activities.
372. The P.W.2 has narrated what he witnessed and experienced during his
confinement at the army camp at Nakhalpara MP Hostel since his picking up
by the army as handed over by Razakars. Punjabi ADC Afjal was their close
neighbour and naturally he might have affection to P.W.2 and thus he rushed
to the army camp to get him back. Getting release, in any way, even after
being confined and tortured at the army camp may not always be incredible.
From the documents submitted by the defence [Defence Documents volume
no. 14, page 240] it appears that extremely mistreated father of martyr Rumi
was finally released from the clutches of army, and not Rumi. Thus it is not
correct to presume that P.W.2 also would have been killed if actually he was
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so abducted and confined for couple of hours at the army camp where he was
subjected to mistreatment. Therefore, the evidence of P.W.2 that he had
occasion to see the presence of accused Mujahid and his accomplices one of
whom was armed Mueen Uddin is credible and relevant.
373. Defence could not refute the version made by the P.W.3 Mahbub Kamal
that the accused Mujahid used to visit the Razakar camp set up at Firoz
member’s house, 150-200 yards far from their [P.W.3] house at 210[old]
Fakirapul, Dhaka. It has not been denied even. Besides, on cross-examination,
P.W.3 has reaffirmed that at the house of Firoz member a Razakar camp was
set up in July 1971. Be that as it may, why the accused opted to make frequent
visit to the said Razakar camp? It is a fact of common knowledge that Razakar
was an ‘auxiliary force’ created to assist the Pakistani occupation army to
further their policy and plan and Al-Badar was an wing of Razakar force and
acted as ‘death squad’ of Pakistani army. It is now decided that Al-Badar was
formed of members of ICS. At the relevant time the accused Mujahid had
been in a leading position of ICS, the student wing of JEI. Presumably, to
coordinate the activities of Razakars, the accused used to visit the Razakar
camp, by virtue of his position in the ICS.
374. P.W.5, on cross-examination, has re-affirmed it that the accused Mujahid
used to visit the Al-Badar headquarter at Mohammadpur Physical training
College. P.W.5 also stated in reply to question put to him that he heard that the
persons who were subjected to torture at the ‘torture cell’ at the college were
intellectuals. It could not be refuted that P.W.5 at the relevant time had been
residing at his father’s quarter inside the college premises as his father was a
fourth class employee there. We do not find any reason to disbelieve P.W.5.
Rather, we consider that he had rare occasion to see and experience horrific
activities carried out by Al-Badar men inside the camp and culpable affiliation
of top brasses of JEI and ICS with the Al-Badar.
375. The above relevant fact as to role and position of the accused Mujahid by
virtue of his position in ICS inevitably adds further and strong impression that
he [accused] had been at the army camp at Nakhalpara old MP Hostel with
culpable intent to assisst the army in carrying out the criminal acts the
outcome of which was killing of some brave civilians detained there.
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376. It is true that P.W.2 is the sole witness who came on dock testifying what
he witnessed and experienced during his confinement at the army camp for
couple of hours. But his testimony together with other material facts
sufficiently inspires credence as to presence of accused at the army camp and
his culpable conduct and acts which truly formed part of attack in perpetration
of the actual commission of the killing. It is to be noted that the testimony of a
single witness on a material fact does not, as a matter of law, require
corroboration. The established jurisprudence is clear that corroboration is not
a legal requirement for a finding to be made. It has been observed by the
IVTR Trial Chamber that
“Corroboration of evidence is not necessarily
required and a Chamber may rely on a single
witness’ testimony as proof of a material fact.
As such, a sole witness’ testimony could suffice
to justify a conviction if the Chamber is
convinced beyond all reasonable doubt.”
[Nchamihigo, ICTR Trial Chamber, November
12, 2008, para. 14]
377. Thus, we are persuaded to conclude that the accused Mujahid’s act of
‘presence’ at the army camp and providing ‘advice’ to liquidate the detainees
formed part of ‘attack’ that resulted in commission of the principal criminal
acts directing the non combatant civilians, the detained victims. Prosecution
even is not required to identify the actual perpetrator. This has been now a
settled jurisprudence and it finds support from the principle enunciated in the
case of Akayesu which is as below:
“A person may be tried for complicity in
genocide “even where the principal perpetrator
of the crime has not been identified, or where,
for any other reasons, guilt could not be
proven.” [Akayesu, ICTR Trial Chamber,
September2, 1998, para. 531: See also Musema,
ICTR TrialChamber, January 27, 2000, para 174 ]
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378. It is to be seen whether the accused’s acts and conduct at the army camp
provided substantial assistance and moral support for accomplishment of the
crime, although his acts had not actually caused the commission of the crime
of killing alleged. In this regard, we may rely upon the decision of the Trial
Chamber of ICTR in the case of Kamubanda [January 22, 2004, para 597]
which runs as below:
“Such acts of assistance……. Need not have
actually caused the commission of the crime by
the actual perpetrator, but must have had a
substantial effect on the commission of the
crime by the actual perpetrator”.
379. The Tribunal notes that the individual actor accused of crime against
humanity is not required to be the one who directs the attack on the civilian
population. Rather it is enough to show that his act or conduct formed part of
the attack. It appears that the accused Mujahid was certainly a heinous
individual, as proved from evidence of P.W.2 and P.W.5, who was
substantially concerned with the commission of truly horrific acts narrated in
charge no.5. Accused Mujhaid for his acts which were part of the specific
context identified above and which substantially contributed to committing a
crime against civilians might be recognized as guilty of a crime against
humanity.
380. We are convinced with the argument advanced by Ms. Tureen Afroz the
learned prosecutor that the book titled ‘Ekattur er Dinguli’[ Material
Exhibit VI] presented by the prosecution to substantiate the incident of
torture, detention of the author’s son Rumi and other detainees and not to
substantiate the involvement of the accused with the criminal activities that
formed part of attack which resulted in killing of detainees. Thus non
description of accused’s involvement in the book does not ipso facto discredit
the evidence of P.W.2 who has testified what he witnessed and experienced at
the army camp set up at Nakhalpara old MP hostel incriminating the accused
and his accomplice co-leader of the ICS and their culpable conduct.
381. Considering the facts narrated in the charge and evidence presented and
circumstances revealed we are not convinced to conclude that the accused had
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a superior position over the said army camp. Perceptibly it is found to have
been proved that the accused used to maintain a close, active and culpable
affiliation with the army. However, it stands proved that by virtue of his
position in ICS and Al-Badar he [accused] had ‘access’ and affiliation to the
army camp and used to act providing assistance in carrying out activities of
the army, in furtherance of plan and policy. As already observed, it remains
not proved as to who actually committed the offence of killing. There has been
no evidence to show that afterwards the victims were handed over to any other
group. Since the victims were kept captive at the army camp wherein they
were subjected to brutal torture and mistreatment ,as stated by P.W.2, the eye
witness it may be lawfully presumed that the actual killing might have been
perpetrated by the army. Thus, the accused cannot be held liable as a
‘superior’ under section 4(2).
382. But in committing such crimes, the accused had played a significant role,
as stated above. Accused’s culpable presence at the army camp and his
conduct and antagonistic utterance and ‘advice’ to liquidate the victims before
the President’s clemency came into effect are quite fair indicative as to
accused’s participation to the commission of crime alleged by ‘abetment’ and
providing facilitation. The accused was thus ‘concerned with the commission’
of actual commission of the event of killing. It has been observed in the case
of Tadic, [ICTY Trial Chamber), May 7, 1997, para. 69] that
“Actual physical presence when the crime is
committed is not necessary . . . an accused can
be considered to have participated in the
commission of a crime . . . if he is found to be
‘concerned with the killing.’
383. Cumulative effect of the conduct of the accused prior to the event of
killings witnessed by P.W.2 and that of the accused at different times and
place i.e Al-Badar head quarters and Razakar camp are the unequivocal
corroboration of his [accused] complicity to the actual commission, beyond
reasonable doubt and thus the accused Ali Ahsan Muhammad Mujahid had
‘participated’ to the commission of the crimes alleged.
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384. It is to be noted that section 4(1) of the Act of 1973 refers to the concept
of JCE. Fundamentally the JCE requires that a group of individuals had a
common plan, design, or purpose to commit a crime, that the accused
participated in some way in the plan and that the accused intended the
accomplishment of common plan or purpose. We have found that the
accused’s culpable conduct and acts at the army camp and directing the
victim detainees are sufficient indicative as to the fact that he was part of the
‘common plan and design’ in furtherance of which the crimes were
committed.
385. Prosecution has been able to prove beyond reasonable doubt that the
accused, for his substantial act and culpable conduct of providing abetment is
equally accountable for the crimes as listed in charge no.5 in the same manner
as if it were done by him alone. Thus, he is held to have participated to the
actual commission of the offence of killing of numerous unarmed civilians
most of whom were valiant and brave guerilla fighters constituting the offence
of murders as crimes against humanity as enumerated in section 3(2)(a)(g) of
the Act of 1973 and thus the accused Ali Ahsan Muhammad Mujahid incurs
criminal liability under section 4(1) of the Act of 1973.
Adjudication of Charge No. 06
[Event of Intellectuals Killing in Dhaka]
386. Summary Charge: During the War of Liberation in 1971 the members
of Razaker and Al-Badar Bahini used to receive their ‘training’ at the camp
known as ‘torture camp’ set up at Mohammadpur Physical Training Institute,
Dhaka. Accused Ali Ahsan Muhammad Mujahid being the Secretary of the
then East Pakistan Islami Chatra Sangha and subsequently the head of Al-
Badar Bahini and or as member of group of individuals used to visit the camp
regularly with his co-leaders with intent to annihilate the ‘Bangalee
population’, used to design planning and conspired with the senior army
officers at the camp and following such conspiracy and planning, ‘intellectuals
killing’ was started from 10 December and thereby accused Ali Ahsan
Mohammad Mujahid has been charged for abetting and facilitating the
commission of offence of ‘murder as crime against humanity’ by his conduct
which was a part of planned attack against the civilian population as specified
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in section 3(2) (a) (g) of the Act or in the alternative, for abetting and
facilitating the commission of offence of ‘genocide’ committed targeting the
‘intellectual group’ with intent to destroy it either whole or in part as
specified in section 3(2) (c) (g) of the Act which are punishable under section
20(2) read with section 3(1) of the Act for which the accused has incurred
liability under section 4(1) and 4(2) of the Act.
Witness
387. P.W.1, P.W.2 and P.W.5 have testified on some martial facts in relation
to charge no.6. None of them claims to have witnessed the commission of any
of criminal acts constituting the offence of mass killing. Thus, their statement
made before the Tribunal refers to circumstances and relevant facts. P.W.4 the
son of martyr Seraj Uddin Hossain, a notable journalist testified how his father
was abducted from their house. Independent charge has been framed on this
event [charge no.1]. But the event was a part of mass killing [charge no.6] in
furtherance of same organized plan. That is why testimony of P.W. 4 is also
relevant to have a portrayal about the pattern of the crime of intellectuals
killing.
Evidence
388. P.W.1 Shahriar Kabir, a researcher stated that planned intellectuals
killing was most atrocious criminal acts committed by Al-Badar in 1971. In
between 15 November to 15 December 1971 the killers of Al-Badar wiped out
thousands of intellectuals and professionals. University teachers, journalists,
writers, doctors, engineers, lawyers the best scholars of Bangladesh were the
listed targets of the killers and of them Professor Munir Chowdhury, Professor
Anwar Pasha, Professor Mofazzal Haider Chowdhury were his [P.W.1] direct
teachers. P.W.1 stated in cross-examination that accused Ali Ahsan
Muhammad Mujahid was the deputy chief of Al-Badar formed of ICS workers
and Al-Badar was a semi-secret organisation.
389. P.W2. Jahir Uddin Jalal a guerilla fighter who had occasion to see the
tortured victims [his co-guerilla fighters] detained at army camp at Nakhalpara
old MP hostel as he was also picked up there and kept confined for couple of
hours stated that on 04 December 1971 he saw the Al-Badar commander
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accused Mujahid addressing a rally at the locality of Chwakbazar, Dhaka city
and he[accused] was threatening not to spare the supporters of war of
liberation, intellectuals, doctors, journalists.
390. P.W.2 further stated that following his headquarters’ plan they targeted
the AB HQ at Mohammadpur Physical Training College as Al-Badar
Commander Mujahid, Nijami and others used to provide training to Al-Badar
men there. Intellectuals, journalists, freedom fighters, artists were brought
there and subjected to torture and afterwards killing them their dead bodies
were dumped at Rayer Bazar. Rustom [P.W.5] of physical college provided all
these secret information to them [P.W.2]. However, they could not carry out
operation at AB HQ as there had been Pakistan army. On 17 December, the
following day of victory he [P.W.2] came to Physical Training College where
he found nine human skulls and clotted blood at western side of college
gymnasium. The above pertinent version relating to activities carried out by
the Al-Badar at their headquarter at Mohammadpur Physical Training College
remains unshaken.
391. P.W.4 Shaheen Reja Noor while testifying the event of his father’s
[Journalist Seraj Uddin Hossain] abduction on 10 December, 1971 stated that
they [killers] were members of Al-Badar Bahini and the Al-Badar was formed
with the leaders and activists of Jamat E Islami's then student wing Islami
Chatra Sangha [ICS]. Razakar, Al-Badar and Al-Shams forces were formed as
the collaborationist force of the Pakistani army in embattled Bangladesh and
Professor Ghulam Azam, then Ameer of East Pakistan Jamat E Islami, played
a vital role in this regard. The Al-Badar force was known as a ‘killer force’ or
Gestapo force. Mujahid [accused] was its [ICS] East Pakistan president
between October and December 1971.
392. P.W.5 Md. Rustom Ali Molla son of an employee of Mohammadpur
Physical training Institute had been residing at his father’s quarter inside the
institute campus. Naturally he had opportunity to see and experience the
activities carried out at the AB HQ set up there.
393. P.W.5 stated that some intellectuals, artists, freedom fighters were
brought to college camp[AB HQ] by Al-Badar, Razakar and army, 7-8 days
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before the victory. He [P.W.5] found hundreds of gouged human eyes
abandoned at the brick field behind the Physical College [AB HQ]. Defence
could not refute this version by cross-examining the P.W.5. Besides, since
P.W.5 had been staying at his father’s quarter inside the college campus it was
rather possible of being aware of the activities carried out there [AB HQ].
394. P.W.5 stated too that Al-Badar, Razakars before fleeing from the camp at
Physical College, after the victory, had slaughtered the Bengali doctor who
used to live inside the camp and he [P.W.5] recovered his body. On the
following day of independence he [P.W.5] found nine distorted human skulls
at a place nearer to the college gymnasium.
395. The above versions made by the P.W.5 could not be impeached by crossexamining
him. Defence, drawing attention to these versions, suggests that he
[P.W.5] did not state it to IO which P.W.5 denied. But it has not been
contradicted by the IO [P.W.17], as it appears. As such the above natural
version made by the P.W.5 inspires fullest credence.
Deliberations
396. The ultimate outcome of the criminal acts was causing death of large
number of intellectuals which was truly ‘mass killings’ as narrated in the
charge. Dead body of most of the victims could not be traced even. To prove
the offence of murder as crime against humanity locating dead body is not
necessary. For such crime is committed in a context and as a part of pattern
based attack in furtherance of common plan and design and not as an isolated
crime. In adjudicating charge no.1 we have found that the act of abduction
was followed by murder of victim Seraj Uddin Hossain. The commission of
the alleged criminal event causing abduction and murder remained totally
undisputed and it was a part of ‘intellectuals killing’, as already observed.
397. Defence does not dispute the tragic event of ‘intellectuals killing’ that
took place in between 10-14/15 December 1971. But it has been submitted
that the charge does not narrate as to which intellectuals were so abducted and
killed and where the actual commission of crimes took place. However,
defence avers that the accused was not connected with the alleged criminal
acts , in any manner as the prosecution failed to produce any evidence in
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support of any conduct or act of the accused constituting the offence of
‘abetment’ to the commission of principal crimes. There has been no
evidence to show that the accused was concerned with designing plan and he
had no link and affiliation with Al-Badar. Mere visit to AB HQ [Al-Badar
Headquarter] at Mohammad Physical Training Institute does not prove that the
accused was connected with the activities carried out by AB.
398. The Tribunal notes that an act of ‘abetment’ may not always be tangible.
It is to be inferred from facts and circumstances. It is alleged that Al-Badar
men committed the offence of abduction and murder of intellectuals following
a common plan and design. Considering context and situation prevailing at the
relevant time it was not possible to see or know where the victims were
brought by picking them up from their residence. Since the fact of
‘intellectuals killing’ is a part of our undisputed history, we are to see, in the
case in hand, whether the accused abetted, planned and facilitated the actual
commission of killings. He need not be shown to have physically participated
to the commission of crimes alleged.
399. In finding culpability of the accused with the commission of the offence
of intellectuals killing we are to adjudicate
a. The commission of the killing of intellectuals
b. Who or which group of individuals or organisation committed
the crimes
c. Whether the accused had affiliation with perpetrator
organisation
d. The extent and nature of accused’s affiliation with the
organisation that could sufficiently prompt a person of normal
prudence to infer his involvement with the activities of the
organisation.
e. Whether such involvement makes the accused criminally liable
for the crimes committed
Intellectuals Killing
400. It is quite undisputed that our history remorse 14th December 1971 with
highest tribute for the killings of numerous intellectuals, the best sons and
daughters of Bangladesh. At the fag end of war of liberation, sensing the
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inevitable defeat the killers the local collaborators of Pakistani occupation
army in furtherance of common plan and design strived to snap the
psychological potency of freedom fighters and to cripple the Bengali nation as
well by carrying out brutal killing of numerous intellectuals of Bangladesh.
401. It is now the history of common knowledge that particularly in between
10 -14 December 1971 a group of notable intellectuals belonging to diverse
professions were picked up forcibly from their homes by armed men
belonging to Al-Badar, an auxiliary force created of workers of ICS the
student wing of JEI for collaborating with the Pakistani army. It stands proved
that Mohammadpur Physical Training Institute was the AB HQ and it was
known as ‘torture camp’. Most of the great sons and daughters did not return
and their dead body could not be identified and traced even, although many of
the distorted corpses were barely recognizable at different killing fields at
outskirts of Dhaka city. The nation with highest and solemn tribute still
remembers their sacrifice, their contribution for the cause of independence and
liberation of our motherland.
402. It is now well settled that in a case of ‘mass killing’ or large scale killing’
proof beyond reasonable doubt that a person was murdered does not
necessarily require proof that the dead body of that person has been recovered.
The fact of a victim’s death can be inferred circumstantially from all of the
evidence presented to the Trial Chamber.
403. The event of intellectuals killing which was a ‘large scale killing’ and
culpability of the accused Mujahid with its perpetration mostly depend on
documentary evidence including old reports, sourced information and the
relevant facts as testified by the witnesses. At the outset let us evaluate the
oral testimony made on some material facts.
404. The unshaken fact of discovering nine distorted human skulls at a place
nearer to the college gymnasium at the AB HQ and 100-150 gouged human
eyes behind the camp[AB HQ], on 17 December 1971 i.e on the following day
of independence after the Al-Badars and Razakars had fled from the camp, as
stated by P.W.5, are considered to be vital and material which prove beyond
reasonable doubt that the Al-Badar men exterminated the intellectuals with
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extreme brutality at their HQ at Mohammadpur Physical Training Institute in
Dhaka city. The fact of discovering nine human skulls at western side of
Institute gymnasium as stated by P.W.5 [AB HQ] has been corroborated by
P.W.2.
405. P.W.4 Shaheen Reja Noor stated that the Al-Badar force was known as a
‘killer force’ or Gestapo force. Mujahid [accused] was its [ICS] East Pakistan
president between October and December 1971.According to P.W.1 Shahriar
Kabir, a researcher that University teachers, journalists, writers, doctors,
engineers, lawyers the best scholars of Bangladesh were the listed targets of
the killers.
406. The unimpeached versions made by the P.W.5 inspiring fullest credence
proves that intellectuals were brought to the AB HQ at Mohammadpur
Physical training Institute where they were subjected to torture and many of
them were brutally killed there and afterwards their bodies were dumped to
nearby killing fields or mass grave.
407. Cumulative evaluation of above evidence unerringly proves that (i) Al-
Badar headquarter was set up at Mohammadpur Training College (ii)
Intellectuals were brought to the AB HQ after picking them up from their
residence and were subjected to torture (iii) After causing their death their
dead bodies were dumped nearer to AB HQ (iv) Gouging eyes shows the
untold and barbaric pattern of mass killing (v) Many killings took place inside
the AB HQ.
408. The report titled ‘Butchery By Al-Badar’ published in PATRIOT, New
Delhi, 23 December 1971 also demonstrates an appalling depiction of the role
of Jamat E Islam[JEI] and its ‘armed wing’ Al-Badar that perpetrated the
murder of leading intellectuals, the best sons of our soil. The report speaks
that
“When the Pakistanis were overpowered, they
left the killing to the fascist ‘Al Badar’, the
armed wing of the Jamat-e-Islami. This fascist
body has already butchered about 200 leading
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intellectuals, doctors, professors and scientists,
including such eminent men like Sahidulla
Kaiser and Munir Chowdhury.”
[Source: PATRIOT, New Delhi, 23 December,
1971: see also, Bangladesh Documents, Volume
II, Ministry of External Affairs, New Delhi, page
573]
409. Mr. John Stonehouse, British Labour M.P told to PTI in an interview in
New Delhi on 20 December 1971 as to who were responsible for organising
the murders of large number of intellectuals in Dacca, although he declined to
name the officers responsible for the murders. Mr. John Stonehouse however
told that
“…..during his visit to Dacca yesterday
(December 19), he got the names of these
Pakistani army officers who organised the
murders, and members of ‘Al Badar’, an
extremist Muslim group, who carried out these
heinous crimes just before the surrender of
Pakistani forces in Dacca.”
[Source: The Hindustan Times, New Delhi, 21
December, 1971: published in Bangladesh
Documents, Volume II, Ministry of External
Affairs, New Delhi, page 572]
410. It is thus proved that about 200 leading intellectuals, doctors, professors
and scientists, including such eminent personalities were brutally murdered.
Al-Badar the fascist body of JEI committed such untold butchery. Thus, it
stands proved beyond reasonable doubt that the Al-Badar men were the
perpetrators of the horrific and untold pattern of intellectuals killing which
took place in between 10 December to 16 December 1971.
Al-Badar ‘Headquarter’ & how the intellectuals were abducted
411. Where the Al-Badar ‘head quarter’ situated in Dhaka city in 1971? Who
used to coordinate and control its activities? What activities were carried out
at this ‘head quarter? Material Exhibit-I [ the book Ekattorer Ghatok Dalalra
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ke Kothai, page 56, 57] offers undisputed information in this regard. Referring
to reports describing barbaric atrocities published in the dailies of the relevant
time it has been narrated in the book titled “Ekattorer Ghatok Dalalra Ke
Kothai” that
Ò‡m‡Þ¤^i gv‡mi 17 Zvwi‡L ivRvKvievwnbxi cÖavb I kvwšÍ
KwgwUi wjqv‡Rv Avwdmvi‡K wb‡q †Mvjvg AvRg
†gvnv¤§`cy‡i wdwRK¨vj †Uªwbs †m›Uv‡i ‡h ivRvKvi I Avje`
i wkwei cwi`k©b K‡iwQ‡jb †mwU wQj Avj-e`i‡`i
†nW‡KvqvU©i| ¯^vaxbZvgbv eyw×Rxex‡`i †ekxifvM‡K Avje`
iiv cÖ ‡g †PvL †eu‡a GLv‡bB wb‡h Av‡m| wbhv©Z‡bi ci
GLvb †_‡KB Zv‡`i iv‡qi evRv‡i I gxicy‡ii wkqvj
ewomn Ab¨vb¨ ea¨f~wg‡Z wb‡q wM‡q nZ¨v Kiv nq|
[Source t GKvˇii NvZK I `vjvjiv †K †Kv_vq, cÖKvk
1989 ,c„ôv 56]
412. It is evident that abducting the intellectuals blindfolded the perpetrators
first brought them to the ‘Al-Badar Head Quarters’ set up at the
Mohammadpur Physical Training College and afterwards they were butchered
at the nearby mass graves. It is also revealed that JEI was actively involved
with the affairs carried out by the ‘headquarter’ of Al-Badar.
413. Charge no.6 describes the Mohammadpur Physical Training College as
the Al-Badar headquarters. Prosecution witnesses especially P.W.5 by
testifying before us has proved it. He is a competent witness in this regard. For
at the relevant time he along with his parents had been staying in the staff
quarter inside the college premises. Naturally he had occasion to see and
experience many things happened there. P.W.5 testified the visit of the camp
which was known as ‘torture camp’ by the accused Mujahid accompanied by
other high profile JEI and ICS leaders.
414. Rabindra Nath Trivedi authored a book titled Ò71 Gi `kgvmÓ [Ten
months in 1971] published in 1997. The author compiled the book mainly on
the basis of information obtained from various sources including the daily
news papers of the relevant time. The book reflects information narrating
events in brief including situation he experienced during the war of liberation.
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The author joined as mass communication officer of the Bangladesh
government since 17 April 1971.
415. From the narration that relates to 10 December 1971 made in the book
titled Ò71 Gi `kgvmÓ [Ten months in 1971] it appears that curfew was
imposed in Dhaka city. The killers of Al-Badar and Al-Shams abducted
notable journalist of the daily Ittefaq Seraj Uddin Hossain, journalist Nijam
Uddin Ahmed and journalist of Columbia Broadcasting System Syed Najmul
Haque from their homes and subsequently they could not be traced even. The
Al-Badar force formed of armed members of Jamat E Islami’s student wing
ICS started abducting Bangalee intellectuals selecting in furtherance of plan
designed by General Rao Farman Ali under the leadership of army Captain
Qayum [Source: Ò71 Gi `kgvmÓ, Rabindra Nath Trivedi, 1997, page
595,596].
416. From the narrative made in the above book further shows that there had
been a plan designed with intent to annihilate the selected intellectuals in order
to cripple the Bangalee nation and the criminal activities were carried out by
the fascist Al-Badar. The narrative states that
ÒcvwK¯Ívb evwnbxi mn‡hvMx Pig `wÿYcš’x DMÖ mv¤úª`vwqK
d¨vwm÷ †M÷v‡cv Avj-e`i evwnbxi NvZ‡Ki XvKv kn‡i
hy× I KviwdDi g‡a¨ 10 wW‡m¤^i †_‡K 14 wW‡m¤^‡ii g‡a¨
Luy‡R Luy‡R †miv evsMvjx Aa¨vcK, wPwKrmK, mvsevw`K,
mwnwZ¨K‡`i iv‡qievRvi I gxicyi AevsMvjx Aa¨ywlZ
GjvKvq wb‡q wM‡q b„ksmfv‡e nZ¨v K‡i| D‡jøL¨ cvK
mvgwiK Awdmvi‡`i Av‡`‡k G RNb¨ nZ¨vKÛ m¤úboe n‡jI
G nZ¨vi cwiKíbv ZvwjKv cÖYqb, AvZ¥‡MvcbKvix
eyw×Rxex‡`i Luy‡R †ei Kiv, Zv‡`i a‡i wb‡q b„ksm
AZ¨vPv‡ii ga¨ w`‡q nZ¨v Kivi KvRwU Avj-e`i I
ivRvKvi evwnbxi evsMvjx m`m¨ I Zv‡`i †bZv‡`i Øviv
m¤úboe nq|Ó
[Source: Ò71 Gi `kgvmÓ, Rabindra Nath
Trivedi, 1997, page 620]
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417. Referring to information made in the book titled “Bangladesh: Birth by
fire” [page 277], Rabindra Nath Trivedi in his book titled Ò71 Gi `kgvmÓ
narrated that
“…………….Squads of al badar, armed Bihari
irregulars, toured the city in buses and rounded
up Bengali intellectuals. At gun point, doctors,
lawyers, University professors, and writers
were taken from their homes and driven to a
swamp on the edge of the city. There they were
tortured and killed………….It seemed that the
Pakistani military was determined to destroy
the future of Bengal”.
[Source: Ò71 Gi `kgvmÓ, Rabindra Nath Trivedi,
1997, page 615, 616]
418. We have thus got picture as to how the intellectuals were picked up from
their homes and by individuals of which criminal organisation. Considering
the context and pattern of designed collective criminality it was not possible
for the inmates of the victim intellectuals to witness the activities of the
perpetrators after committing the act of abduction. Besides, from evidence of
P.W.4 who saw the event of his father’s [Seraj Uddin Hossain] abduction it is
found that the armed perpetrators kept their face masked. In this backdrop the
Tribunal considers it appropriate to rely mostly upon the documentary
evidence particularly the reports published in the dailies during that period
together with relevant circumstances and material facts. This effort may
constitute a reasonable chain of facts that could ably portray the events and
accused’s culpability therewith.
Who were perpetrators?
419. Naturally the crimes were perpetrated in organized manner by a group of
individuals who acted in unison or in pursuance of common plan and purpose.
Who were the participants in the collective criminal enterprise? In case of a
crime carried out by collective criminal enterprise the participants do not act
in the same manner. The principal crimes committed by collective criminal
enterprise are the outcome of different acts and roles played by the
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participants aiming to the accomplishment of a common purpose. In the case
in hand the accused Mujahid has been charged of having involvement in
designing plan and for abetting and facilitating the offence of intellectuals
killing. The accused is alleged to have participated in such manner to the
collective criminal enterprise in the capacity of leader of AB.
420. We have already observed in the case of Chief prosecutor v. Muhammad
Kamaruzzaman that Al-Badar which was created by JEI and had acted as its
‘action section’, ‘fascist body’ and ‘armed wing’ in 1971[ICT-BD case No.03
of 2012, Judgment 09 May 2013, para 605] . We also made our observation in
the case of Kamaruzzaman based on potential sourced information that Jamat
E Islami was thus indulged in indiscriminate massacre of their political
opponents belonging to Bengali nation, in the name of liquidating
‘miscreants’, ‘infiltrators’ for which they were using Razakars, Al-Badar
comprising with the workers of Islami Chatra Sangha [ICS], its student wing
[Muhammad Kamaruzzaman, ICT-BD case No.03 of 2012, Judgment 09 May
2013, para 601].
421. 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].
422. How the Al-Badar bahini was formed and manned with? Al-Badar was
formed with the workers of Islami Chatra Sangha [ICS] the student wing of
Jamat E Islami [JEI] and it provided support to the occupation armed forces. A
report published in The Economist 01 July, 2010 speaks as below:
“Bangladesh, formerly East Pakistan, became
independent in December 1971 after a ninemonth
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 Bangladesh's largest
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Islamist party, which has a student wing that
manned a pro-army paramilitary body, called
Al Badr.”
[Source: The Economist: 01 July 2010: see also
http://www.economist.com/node/16485517?zid=309&ah=8
0dcf288b8561b012f603b9fd9577f0e]
423. The vital role of jamat E Islami [JEI] in creating the Al-Badar is also
reflected from the narrative of the book titled ‘Sunset at Midday’ [Material
Exhibit-III] which articulates as below:
“To face the situation Razakar Force,
consisting of Pro-Pakistani elements was
formed. This was the first experiment in East
Pakistan, which was a successful experiment.
Following this strategy Razakar Force was
being organized through out East Pakistan.
This force was, later on Named Al-Badr and Al-
Shams and Al-Mujahid. 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 Urduspeaking
generally known as Bihari were called
al-Mujahid.”
[Source: ‘Sunset at Midday’ , Mohi Uddin
Chowdhury , a leader of Peace committee , Noakhali
district in 1971 who left Bangladesh for Pakistan in
May 1972 [(Publisher’s note): Qirtas Publications,
1998, Karachi, Pakistan, paragraph two at page 97 of
the book]
424. Why should we place reliance on the book titled ‘Sunset at Midday’?
Mostly the profile and credential of the author may be considered as a key
indicator for determination of authoritativeness of narration made in a book.
Mohiuddin Chowdhury the author, in his book has narrated about himself as
below:
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“I decided to join Jamaat-e-Islami after my
education is over. In 1962 I did my M.A and
joined Jamaat-e-Islami in January, 1963 as a
supporter [page 65 of the book]. …………I was
selected Secretary of District PDM and then
District DAC. I was selected Secretary and then
elected as Amir of District Jamaat-e-Islami in
1968. I was holding the post of District Jamaat till
dismemberment of East Pakistan in 1971. In 1971
when peace committee had been formed to
cooperate with Pakistan Army to bring law and
order in East Pakistan, I was again elected
Secretary, District Peace Committee.” [ page 66 of
the book]
425. Thus it is quite evident that the Al-Badar was formed of ICS workers.
The ICS was the student wing of JEI. Hussain Haqqani, in his book titled
‘Pakistan between mosque and military’ citing sources narrated that
“The Jamaat-e-Islami and especially its student
wing, the Islami Jamiat-e-Talaba [IJT], joined
the military’s effort in May 1971 to launch two
paramilitary counterinsurgency units. The IJT
provided a large number of
recruits………….The two special brigades of
Islamists cadres were named Al-Shams[the sun,
in Arabic] and Al-Badr [the
moon]…………….A separate Razakars
Directorate was established……..Two separate
wings called Al-Badr and Al-Shams were
recognized………….,…….Bangladeshi scholars
accused the Al-Badr and Al-Shams militias of
being fanatical. They allegedly acted as the
Pakistan army’s death squads and
“exterminated leading left wing professors,
journalists, litterateurs, and even doctors. AlICT-
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Badr reportedly killed 10 professors of Dacca
Universtity, five leading journalists including
the BBC correspondednt, two literateures and
26 doctors in Dacca alone”
[Source: Pakistan Between Mosque And Military:
Hussain Haqqani: published by Carnegie Endowment
For International Peace, Washington D.C, USA first
published in 2005, page 79]
426. Hussain Haqqani, the author of the above cited book was the former
adviser to Pakistani Prime Ministers Ghulam Mustafa Jatoi, Nawaz Sharif and
Benazir Bhutto. He also served as Pakistan’s ambassador to Sri Lanka from
1992 to 1993. The book is an authoritative and comprehensive account of the
origins of the relationship between Islamist groups and Pakistani army.
However, the above cited sourced account also offers a portrayal of active
affiliation and alliance of Jamat E Islami with Pakistani army and also in
establishing the Al-Badar, the death squad, in execution of common policy
and plan.
427. It is thus found that as one of wings of Razakar force, Al-Badar a
fanatical militia force acted as the death squad of Pakistan army aiming to
exterminate the intellectuals belonging to Bengali nation. Hamoodur Rahman
Commission Report says “ we consider, therefore, that unless the Bangladesh
authorities can produce some convincing evidence, it is not possible to record
a finding that any intellectuals or professionals were indeed arrested and
killed by the Pakistan Army during December 1971.” [ Hamoodur Rahman
Commission Supplementary Report, page 31 , para 27].
428. Hamoodur Rahman the then Chief Justice of Pakistan was appointed as
the head of the commission by the President of Pakistan in December, 1971 to
inquire into and find out "the circumstances in which the Commander, Eastern
command, surrendered and the members of the Armed Forces of Pakistan
under his command laid down their arms and a cease-fire was ordered along
the borders of West Pakistan and India and along the cease-fire line in the
State of Jammu and Kashmir. After having examined 213 witnesses the
Commission submitted its report in July 1972.
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429. The above finding of Hamoodur Rahman Commission Supplemntary
Report, in absence of anything contrary, echoes further the fact of non
involvement of the Pakistani army with the event of intellectuals killing that
took place in between 10 December to 16 December 1971. The dreadful and
barbaric event of intellectuals killing is not disputed. Therefore, conceivably
relying upon evidence presented before us together with the sourced
authoritative information we are convinced in recording our finding that it has
been proved beyond reasonable doubt that the Al-Badar men and only the Al-
Badar men were the perpetrators who committed the diabolical collective
criminal acts, in furtherance of common design and plan endorsed by its
creator JEI and its student wing ICS that resulted abduction and killing of
more than 200 hundred intellectuals, the best sons and daughters of the nation.
The collectivity of such criminal acts was aimed to cripple the nation when the
perpetrators’ organisation and their masterminds started feeling that the
Bengali nation was about to achieve it’s heard earned victory.
Was there any common Plan and design and whether the
Accused was connected with it
430. Accused Ali Ahsan Muhammad Mujahid has been indicted to have
connection with designing plan. Act of designing plan usually not tangible and
cannot be explicitly known to persons other than the persons involved with it.
Prosecution alleges that the intellectual killing was implemented in execution
of a plan and it was of pattern of selective mass killing. Thus two pertinent
issues are to be resolved and these are (i) existence of designed plan and (ii)
involvement of accused to further the plan.
431. Relying on circumstances and relevant facts revealed we are to arrive at a
rationale finding on it. We stress upon the expression ‘rationale finding’.
Direct evidence is not required to prove the act of designing ‘plan’ and
abetment provided pursuant to it. In this regard we may recall the decision of
ICTY Trial Chamber decision in the case of Prosecutor v. Milan Milutinovic
& others [ICTY Trial Chamber, Case No. IT-05-87-T, Judgment 26 February
2009, para 91] which is as below:
The accused may aid and abet at one or more of
three possible stages of the crime or underlying
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offence—“planning, preparation or
execution”—and the lending of practical
assistance, encouragement, or moral support
may occur before, during, or after the crime or
underlying offence occurs. No evidence of a
plan or agreement between the aider and
abettor and the physical perpetrator or
intermediary perpetrator is required [Tadić
ICTY Appeal Judgement, para. 229; Brđanin ICTY
Appeal Judgement, para. 263; Simić , ICTY Trial
Judgement, para. 162.]
432. Designing plan to implement and carry out criminal activities cannot be a
tangible act. So it is quite immaterial to ask for proof to establish as to where,
when who and how the plan was designed. It is fairly assumed that without a
common design and plan such organized pattern of collective annihilation of
‘intellectual class’ could not have been initiated and executed. What was the
plan and who were affiliated with it and why? Designing plan to implement
and carry out criminal activities cannot be a tangible act. So it is quite
immaterial to ask for proof to establish as to where, when who and how the
plan was designed. There may not be documentary evidence as to designing
such plan. Existence of plan is to be inferred from totality of circumstances
and relevant facts. We are not agreed with the defence submission that
conclusion as to existence of plan cannot be taken from circumstances. It may
be well inferred and perceived from relevant circumstantial proof, especially
depicted from the reports published in the dailies, at the relevant time together
with the authoritative books. The book titled ÒGKvˇii NvZK I `vjvjiv †K
†Kv_vqÓ [Material Exhibit-I, relevant page 100] narrates that
Ò .................27/12/71 Zvwi‡Li ˆ`wbK AvRv‡` weivU †nW jvB‡b eo eo ni‡d †jLv
ÒAvi GKUv mßvn †M‡jB Iiv evsMvjx eyw×Rxex‡`i mevB‡K †g‡i †djZ ---e`i evwnbxi
gv÷vi cøvbÓ kxl©K `xN© cÖwZ‡e`bwUi Ask we‡kl GLv‡b D×…Z nj--
Õ...................nvbv`vi cvwK¯Ívbx evwnbxi wbe©Pvi MYnZ¨vq
mwμq mn‡hvMxZv K‡iB Rvgv‡Z Bmjvgx ÿvšÍ nqwb---
evsjv‡`‡ki eyw×Rxex m¤úª`vq‡K m¤ú~Y©fv‡e wbg~©j Kivi
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D‡Ï‡k¨ Zviv M‡o Zz‡jwQj GK mk¯¿ ¸ß mš¿vmev`x msMVb
---e`i evwnbx bv‡g hv me©mvavi‡Yi Kv‡Q cwiwPZ wQj|
cwKw¯Ívbx nvbv`vi evwnbxi AvZ¥mgc©‡bi †kl gyû‡Z© GB
e`i ewnbx eûmsL¨K eyw×Rxex‡K iv‡Zi Avuav‡i a‡i wb‡q
b„ksmfv‡e nZ¨v K‡i‡Q---G Lei GLb mevB ‡R‡b
†MQ|.............Ó
433. Why the Al-Badar targeted the notable members of ‘intellectual class’ of
Bangladesh, particularly at the fag end of war of liberation? What was their
policy and plan and what devilish intent fueled them to encourage and support
in carrying out such barbaric mass killing? In tracing reply to these pertinent
questions we are to concentrate attention to some facts and circumstances
showing conduct and attitude of the accused as depicted from the reports
published in the daily news papers, particularly in the daily Sangram, the
mouthpiece of JEI that could make it clear as to the understanding of the
present accused with the perpetrators Al-Badar men and his link to the
commission of the criminal acts by them as narrated in the charge.
434. For the offence of abduction and killing of Journalist Seraj Uddin
Hossain a distinct charge has been framed alleging that the accused abetted
and facilitated the commission of the crimes alleged. The event took place on
10 December 1971. Predictably this criminal event was carried out as a part of
execution of same common design and plan of killing the intellectuals with
intent to cripple the Bengali nation. Material Exhibit-I the book titled
ÒGKvˇii NvZK I `vjvjiv †K †Kv_vqÓ [relevant page 124,125] narrates that
Ò‡mB AwZ b„ksm nZ¨vhÁ m¤úboe Kivi Rb¨ Avje`iiv
e¨vcKfv‡e eyw×Rxex‡`i AcniY Kiv ïiæ K‡i 10 wW‡m¤^i
†_‡K| Kvdz© Ges eøvK AvD‡Ui g‡a¨ Rx‡c K‡i Avje`iiv
w`b ivZ eyw×Rxex‡`i evox evox †h‡q Zv‡`i‡K cÖ ‡g mviv
Mv‡q Kv`v gvLv GKwU ev‡m †Zv‡j| Gici evm †evSvB
eyw×Rxex mn bvbv ¯Í‡ii e›`x‡K cÖ g †gvnv¤§`cy‡ii
wdwRK¨vj †Uªwbs K‡j‡Ri Avje`i †nW‡KvqvU©v‡i wbhv©Zb
I wRÁvmvev` Kivi Rb¨ wb‡q hvIqv nq| ...................
Avje`i‡`i GB AciniY †¯‹vqv‡Wi †bZ…Z¡ w`Z nq †Kvb
Avje`i KgvÛvi bZzev cvKevwnbxi AbwaK K¨v‡Þb ghv©`vi
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†Kvb Awdmvi| m¤¢eZ t cvK ewnbxi wbR¯^ Uv‡M©U
eyw×Rxex‡`i Acni‡bi e¨vcv‡i wbwðZ nevi Rb¨B cvK
†mbv Awdmvi AcniY †¯^vqv‡Wi †bZ…Z¡ w`Z|Ó
435. Thus it is evinced from the above narration that the act of abducting the
intellectuals in Dhaka city started from 10 December 1971, in furtherance of
common design and plan. The gang of perpetrators was mostly led by Al-
Badar commander. The victims were first brought to Al-Badar head quarter at
Mohammadpur Physical Training College where they were subjected to
torture. At the same time mere leading the gang by an army captain, a junior
level officer does not suggest to conclude that the Pakistani occupation army
command was aware of the plan and criminal activities carried out by the Al-
Badar to annihilate the intellectuals. This probability is found to have been
discarded by the finding of Hamoodur Rahman Commission
Supplementary Report, [Report, page 31 , para 27], as already discussed.
436. History accuses this group [Al-Badar force] of working like ‘death
squad’---killing, looting and disgracing Bengalis whom they accused of being
‘anti-Islam’. Thus the brutality of their contribution, as found, to the
perpetration of systematic atrocities indeed was no lesser than that of the
Pakistan occupation army. But did the atrocities committed against unarmed
civilians, killing of targeted intellectuals and abetting and providing support to
its commission conform to the ‘spirit of holy religion Islam’ and humanity?
437. Referring a report published in The daily Sangram 24 April 1971 a
report titled ÒgyRvwn‡`i KzKxwZ© Mvuv Av‡Q ˆ`wbK msMÖv‡gi cvZvqÓ published in The
Daily Bhorer Kagoj, 31 October 2007 which speaks as below:
Ó‰`wbK msMÖv‡gi 24 GwcÖj Zvwi‡Li msL¨vq
cÖKvwkZ Le‡i Av‡iv ejv nq, 22 GwcÖj (1971)
Zvwi‡L gqgbwms‡n RvgvZ I Bmjvgx QvÎ ms‡Ni
(eZ©gvb Bmjvgx QvÎwkwei) †bZv I Kgx©‡`i GK
mfv nq| Zv‡Z mfvcwZZ¡ K‡ib gyn¤§` Avkivd
†nvmvBb Ges mfvq Dcw¯’Z wP‡jb gwZDi ingvb
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wbRvgx I Avjx Avnmvb gyRvwn`| GB mfvq e³…Zv
w`‡Z wM‡q Avjx Avnmvb gyRvwn` e‡jb, ÕAvj-e`i
GKwU bvg, GKwU we¯§q| Avj-e`i GKwU cÖwZÁv|
†hLv‡bB Z_vKw_Z gyw³evwnbx, †mLv‡bB _vK‡e
Avj-e`i| gyw³evwnbx Z_v fviZxq Pi‡`i Kv‡Q
Avj-e`i n‡e mvÿvr AvRivBjÕ|
438. By delivering such inflammatory and inciting speech accused Mujahid
who was a potential leader of East Pakistan ICS with the workers of which Al-
Badar was formed, categorically termed the pro-liberation people and freedom
fighters as the ‘agents of India’. The speech also provoked the Al-Badar to act
as ‘Azrail’ [ The Angel of Death] to liquidate pro-liberation Bangalee people
and freedom fighters wherever they[Al-Badar] get them. In this way accused
Mujahid explicitly disseminated the organizational unholy purpose, objective
and common intent to its [Al-Badar] members, over whom he had authority
and effective control. Common sense goes to say that only a person holding
superior position and authority can deliver such inciting and provoking speech
to his followers.
439. We have found that the accused was the President of East Pakistan ICS,
the student wing of JEI. It is proved that AB , a para militia force was formed
of workers of ICS [ Source: Sunset at midday: Mohiuddin Chowdhury]. It
is also established that AB acted as ‘action section’ of JEI and ‘death squad’
of Pakistan army. We have already given our reasoned finding that the
accused Ali Ahsan Muhammad Mujahid had a substantial position of authority
on Al-Badar force and he had reason to know the activities carried out by this
semi secret organisation. The authoritative documents demonstrate beyond
reasonable doubt that AB used to carry out criminal activities in furtherance of
common plan and design, in a regular pattern basis.
Joint Criminal Enterprise [JCE]
440. On Joint Criminal Enterprise [JCE] Ms. Tureen Afroz, the learned
Prosecutor submitted that liability mode contained in section 4(1) of the Act of
1973 refers to ‘common plan of collective criminality’ which corresponds to
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JCE’. Accused Mujahid, being the leader and one of superiors was part of
common plan and and deliberate policy of AB, a criminal organisation.
441. The learned prosecutor has further submitted that section 4(1) of the Act
of 1973 fundamentally corresponds to the concept of JCE and the statute of
1973 does not contemplate categories of JCE. It is the jurisprudence evolved
that characterizes JCE into three categories. The Tribunal constituted under
the domestic legislation can only accumulate the jurisprudence when any
ambiguity or gap is found in our own statute. Thus, according to section 4(1)
if an accused is found to have participated to the commission of offence
enumerated in the statute of 1973 he incurs liability under section 4(1). At the
same time accused incurs liability under section 4(2) of the Act if he is found
to have permitted or participated in the commission of the crime specified in
section 3(2) or if he is found to have connection with any plans and activities
involving the commission of such crimes .
442. The learned Prosecutor went on to submit, that the accused Mujahid was
a potential leader of AB at the relevant period and as such it can be inferred
validly that he was also a party to the common plan and purpose of collective
criminal enterprise in accomplishing the crime of abduction of intellectuals for
causing their death.
Deliberation on JCE
443. The Tribunal notes that JCE is a form of co-perpetration that establishes
personal criminal liability. In fact section 4(1) of the Act of 1973 refers to JCE
liability, although it has not been categorized in our Statute, as evolved
through judicial pronouncement in the case of Tadic [ICTY]. It is admitted.
The expression ‘common purpose’, ‘awareness of foreseeable consequence’ of
act or conduct, ‘intent’ are the key factors involved with the notion of JCE
liability.
444. The expression ‘committed’ occurred in section 4(1) of the Act includes
participation in JCE. Section 4(1) tends to cover the necessary elements of
JCE, especially JCE category 1 and 3. In line with the recognized principles
almost common to all legal systems, a person who takes ‘consenting part’ in
the commission of the crime or who is found to be ‘connected with plans or
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enterprise’ involved in the commission of crime [as enumerated in section
4(2) of the Act] or who is found to ‘belong an organisation or group’ engaged
in the activities of committing crime, is guilty together with the ‘principals’.
445. In the case in hand, we are to see whether (i) the accused took
‘consenting part’ in the commission of the crime(ii) the accused was
‘connected’ with plans or enterprise(iii) the accused ‘belonged to’ the
perpetrator organisation or group.
446. If the answer is yes then it can be lawfully concluded that the accused
Mujahid was ‘concerned in the commission’ of the alleged event of
intellectual killing as narrated under charge 6. The Tribunal notes that
‘concerned in the commission’ refers to an indirect degree of ‘participation’
and a person can be held concerned in the commission of an act of criminal
offence by an organisation or group of individuals even he is not found to be
present at the crime site but took such a part in the preparation of such crime
by his act or conduct providing abetment with intent to further its [plan of
attack] object.
447. The act of ‘consenting part’ in the commission of the crime alleged and
‘connection’ with plans or enterprise or activities involving commission of
crimes can be well inferred and perceived from circumstances. The matter of
‘belonging’ to the perpetrator group or enterprise and occupying position of
authority on it need to be inferred from circumstances revealed.
448. We have found it proved from the report of Fox Butterfield that Al-
Badar had acted as a secret, commando-like organization that murdered
several hundred prominent Bengali professors, doctors, lawyers and
journalists in a Dhaka brickyard. The event under the charge 6 relates to
killing of innumerable intellectuals that took place in Dhaka city in between
10 to 16 December 1971. Intellectuals’ killing was a part of calculated policy.
Commission of killing targeting specific class of national group perceivably
was the outcome of common plan and purpose of the perpetrators. Inherent
nature and extent of killing and the class the victims belonged to suggest to
conclude that the crimes were perpetrated by a collective enterprise or group
i.e Al-Badar.
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449. We agree that the liability mode contained in section 4(1) of the Act of
1973 refers to ‘common plan of collective criminality’ which corresponds to
JCE’. The concept of JCE incorporates three elements: (i) plurality of persons
(ii) the existence of a common plan, design or purpose and (iii) participation
of the accused in the common design. Professor Antonio Cassese in the
case of Kaing Guek Eav alias Duch [ECCC Pre-trial Chamber, Case No.
001/18-07-2007-ECCC/OCIJ (PTG 02), Date of Document, 27 October 2008]
made an Amicus Curiae Brief on ‘Joint Criminal Enterprise’ [JCE] doctrine.
Paragraph 30-32 of the brief relates to ‘the import of JCE theory in
international criminal law’. Paragraph 32 of the ‘brief’ states that
“To obscure responsibility in the fog of collective
criminality and let the crimes go unpunished
would be immoral and contrary to the general
purpose of criminal law of protecting the
community from deviant behavior that causes
serious damages to the general interest. This
damage is often all the more severe in the context
collective criminality. JCE doctrine, as the
systematization of principles of customary
international law in existence since the post-World
War II period, is a vehicle of accountability
against such harm.”
450. This mode of liability need not involve the physical commission of a
specific crime by all the members of JCE but may take the form of assistance
in, or contribution to, the execution of the common purpose [Stakic´ (IT-97-
24-A), ICTY Appeals Chamber, 22 March 2006, para. 64] Thus, ‘once a
participant in a joint criminal enterprise shares the intent of that enterprise, his
participation may take the form of assistance or contribution with a view to
carry out the common plan or purpose [Krnojelac (IT-97-25-A), Appeals
Chamber, 17 September 2003, para 81].
451. ‘Participation’ may occur in various manners, in furtherance of common
plan and design. Obviously the pattern and extent of crimes narrated in charge
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no.6 was carried out by a criminal organisation Al-Badar under a common
plan to which the accused Mujahid was also a part as at the relevant time he
was in leading position of ICS. Making statement in public encouraging to
annihilate the ‘Indian agents, ‘miscreants’, visiting the AB HQ, writing article
countering the ideology and views of pro-liberation journalist, urging to join
Al-Badar force, frequent and easy access to army camps and providing advice
even to army [as found in charge no.5] are fair indicative circumstances which
amounted to provide ‘moral support’ and ‘assistance’ to target the intellectual
group for causing their death. It offers valid and unerring indication that the
accused had exercised his position of authority on AB the actual perpetrators
of the killing of intellectuals, in furtherance of a common plan and design to
liquidate the nationalist intellectuals, anticipating the inevitable defeat.
452. In adjudicating charge no.1 which relates to abduction and murder of
Journalist Seraj Uddin Hossain we have recorded finding that it was a part of
intellectuals killing which was committed by Armed Al-Badar men. In
determining accused’s liability and culpability in respect of the criminal acts
narrated in charge no1. We have already recorded our reasoned finding that
“A report titled “Country could not care less”
published in The Daily Star on 14.12.2010
[Defence Documents volume no. 14, page 463-
464] if read and examined in its entirety it would
reveal that the armed gang who abducted Seraj
Uddin Hossain was led by the accused Ali Ahsan
Muhammad Mujahid. ‘Leading’ a gang does not
always necessarily needs to show physical
presence of the ‘leader’ at the crime site. A group
of individuals or perpetrators can be even lead by
many other means. Instruction, direction,
provocation or providing substantial instigation by
a person who is reasonably placed in position of
authority may form the act of ‘leading’ a group or
gang”.
453. Since the criminal act of abduction and murder as narrated in charge no.1
was a part of planned and designed intellectuals killing the above finding
offers assurance as to culpability and connection of the accused Mujahid with
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the killing of intellectuals for which he has been indicted in charge no.6 as
well.
454. In essence, to establish superior responsibility under the Act of 1973 the
prosecution is not required to prove that the accused superior either had any
'actual knowledge' (knew) or 'constructive knowledge' (should have known)
about commission of the subordinate's crime. Under the 1973 Act, a superior
is always responsible for the activities of his subordinates, whether he had any
kind of knowledge or not.
455. It would be evident from the report below that the intent of targeting
intellectuals was the ending of an ‘organized plan’ designed and the killer
force Al-Badar was assigned to execute the plan. A report titled ÓG‡`i awi‡q
w`b Rjøv` evwnbxi m`m¨‡`i Av‡iv K‡qKwU bvgÓ published in The Daily ‘Dainik
Pakistan’, 29 December 1971 narrates that
Ó(÷vd wi‡cvUv©i) evsjv‡`‡ki eyw×Rxex‡`i wbg~©j Kivi
R‡b¨ evsjvi RNb¨Zg kÎæ d¨vwm÷ Rvgv‡Z Bmjvgx †h
gnvcwiKíbv MÖnb K‡iwQj Ges †h cwiKíbv ev¯Íevq‡b
Avj e`i bv‡g Rjøv` evwnbx MVb K‡iwQj Zv‡`i m¤ú‡K©
Av‡iv Z_¨ Avgv‡`i nv‡Z G‡m‡Q| GB Rjøv`‡`i †Uªwbs
‡K›`ª wn‡m‡e cwiwPZ jvjgvwUqvi kixiPPv© †K›`ª †_‡K D×vi
Kiv GBme Z‡_¨ e`i Rjøv`‡`i Av‡iv K‡qKR‡bi bvgcwiPq,
wVKvbv cvIqv †M‡Q...............Ó
456. Another report titled ÓAvj-e`i msÎvšÍ bw_cÎ Awej‡¤^ msMÖn Kiv cÖ‡qvRbÓ
published in The Daily ‘Dainik Pakistan’, 29 December 1971 narrates that
Ó(÷vd wi‡cvUv©i)- e`i Rjøv`‡`i b„ksmZg nZ¨vhS&R
m¤ú‡K© cÖ‡qvRbxq bw_cÎ Awej‡¤^ msMÖn Kiv cÖ‡qvRb| G
m¤úwK©Z KvMRcÎ webó n‡q hv”Q| BwZnv‡mi GB RNb¨Zg
nZ¨vhÀ m¤ú‡K© wewÿßfv‡e †hme KvMRcÎ GLv‡b ILv‡b
cvIqv †M‡Q Zv‡Z m‡›`nvZxZfv‡e GB mZ¨B cÖgvwbZ
n‡q‡Q †h, ¯^vaxb evsjv‡`k‡K cs¸ K‡i †djvi R‡b¨ Ges
G‡`‡ki wkí-mvwnZ¨-ms¯‹…wZi Ici GKwU giYvNvZ nvbvi
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R‡b¨ G †`‡ki gvby‡li RNb¨Zg kÎæ Rvgv‡Z Bmjvgx
mvgwiK P‡μi mn‡hvwMZvq GKwU mywbw`©ó cwiKíbv MÖnb
K‡iwQj Avi †m cwiKíbv ev¯Íevq‡b Zviv wb‡qvM K‡iwQj
Zv‡`i Rjøv` evwnbx Avj-e`i‡K|Ó
457. Thus it is proved that Al-Badar was deployed in furtherance of organised
master plan designed by the fascist Jamat E Islami to wipe out the ‘sociocultural
intellectual’ group of Bangladesh with intent to paralyze the Bangalee
nation. Al-Badar had acted as ‘killing squad’ of Jamat E Islami in
accomplishing the plan. Al-Badar, para militia force was formed by the
leaders of ICS the student wing of JEI. It was formed purely of workers of
ICS. [Sunset at Midday: Mohiuddin Chowdhury, page 97] Activities of Al-
Badar were carried out under the control and co-ordination of Jamat E Islami.
458. Another report titled Óe`i w`e‡mi mgv‡e‡k Bmjvgx QvÎmsN mfvcwZi fvlYÓ
published in The Daily Ittefaque , 8 November 1971 narrates that
Ó Gwcwc I wcwcAvB cwi‡ewkZ Le‡i ejv nq, Avj e`i
w`em Dcj‡ÿ MZKvj(iweevi) weKv‡j evqZzj †gvKiig
cÖsM‡b Bmjvgx QvÎms‡Ni D‡`¨v‡M Av‡qvwRZ GK mgv‡e‡k
cvwK¯Ív‡bi msnwZ I ALÛZv iÿvq RbM‡Yi `„p msK‡íi
cybiæw³ Kiv nq|............................fviZxq I
`y®‹„wZKvix‡`i nvgjv cÖwZ‡iv‡a `„p msKí †Nvlbv Kwiqv
wewfboe †køvMvb †`Iqv nq|....................mfvcwZ Rbve
Avjx Avnmvb †gvnv¤§` †gvRvwn` e³…Zv cÖms‡M e‡jb †h,
AvR (†mvgevi) nB‡Z †Kvb cvVvMvi wn›`y †jLK I wn›`y
cÖfvweZ gymwjg †jLK‡`i wjwLZ †Kvb cy¯ÍK ivwL‡Z †`Iqv
nB‡e bv| wZwb e‡jb †h, Bmjvgx QvÎ ms‡Ni
†¯^”Qv‡meKMY A‰bmjvwgK cÖfve nB‡Z gymjgvb‡`i iÿvi
Rb¨ cvVvMv‡i H me eB cvB‡j Zvnv cyovBqv w`‡e| Rbve
gyRvwn` e‡jb, we‡k¦i gvbwPÎ nB‡Z fvi‡Zi bvg gywQqv bv
†djv ch©šÍ msMªvg Ae¨vnZ _vwK‡e|..............Ó
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459. All the above materials facts, and conduct and act and inciting statement
of accused Mujhaid together with his position of President in ICS the student
wing of JEI offer an unambiguous inference that he was connected with plans
and activities involving the commission of the mass killing of intellectuals. It
is to be noted that the accused’s act need not directly cause any single victim’s
death, but as revealed from the above deliberation, accused’s acts and conduct
and his superior position on Al-Badar as well substantially contributed to the
accomplishment of the mass killing event. The accused Ali Ajhsan
Muhammad Mujhaid being a person having position of authority on Al-Badar
had thus reasonable awareness that the principals’ actions were targeting the
defined [victim] group of intellectuals. And as such the accused as one of
superiors of the perpetrators incurs liability for the crimes perpetrated
Intent of killing targeting Intellectuals
460. Already we have found that under a designed plan with intent to cripple
the Bengali nation the Al-Badar force had carried out the criminal acts of
abducting, torturing and killing of hundreds of intellectuals of various
professions. A report of Fox Butterfield speaks as below:
“Dressed in the black sweaters and khaki pants,
members of the group, known as Al-Badar,
rounded up their victims on the last three
nights of the war………………………. Their
goal, captured members have since said, was to
wipe out all Bengali intellectuals who advocated
independence from Pakistan and the creation of
a secular, non-Moslem state………………If the
war had not ended when it did, many Bengalis
believe, Al-Badar would have succeeded. The
bodies of 150 persons, many with their fingers
chopped off or finger nails pulled out, were
found in the brickyard. Hundreds more are
believed buried in 20 mass graves nearby
fields.[ Source: Fox Butterfield, ‘A Journalist is
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Linked to Murder of Bengalis’, New York Times,
Monday, January 3, 1972]
461. Laurence Stern, in a report narrates quoting Enayet Ullah Khan,
Editor of weekly Holiday that had the war not ended on the 16th, the city of
Dhaka would be founded without a politically conscious or educated element.
The report states as below:
“One of them was Enayet Ullah Kahn, editor of
a left-list weekly called Holiday. Khan said he
was contacted by Jamat-e-Islam, the
nationalist organisation which had worked in
concert with the former government in
Dacca………………….They said I was an
Indian collaborator and did not believe in
Islam. They told me, ‘we will eliminate you’. I
didn’t take them too seriously at the
time.”………………………..But Khan
discovered this month that he, too, was on the al
Badar execution list drawn up on the eve of
surrender……………..” had the war not ended
on the 16th, you would find the city of Dacca
without a politically conscious or educated
element.” He said.
[Source: Report titled ‘Family of Slain Professor
Tells of Massacre in Dacca, By Laurence Stern,
Washington Post, Dec 27, 1971]
462. In a report on killing of some 150 of Dacca’s leading intellectuals The
Washington Post accused squarely the al Badar-the extremist action front of
the right wing Moslem political party Jamat E Islami of the intellectuals
killing. The report says
“Right wing religious fanatics have now been
accused of the mass murder of Bengali
intellectuals at Mohammadpur on the outskirts
of Dacca two days before the surrender of the
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Pakistan forces……………..Pakistani troops
were originally blamed for the killing of some
150 of Dacca’s leading intellectuals including
doctors, lawyers, professors, teachers and
journalists………………But student groups
and local news papers have now laid the blame
squarely on the al Badar-the extremist action
front of the right wing Moslem political party
Jamaat-e-Islam.”
[Source: Report titled “Dacca Massacre Laid to
Fanatics” The Washington Post, Dec 26, 1971]
463. The event of killing of intellectuals is found to have been proved beyond
reasonable doubt. It was selective large scale killings. It is established that AB
men were the perpetrators. Already we have recorded our specific finding that
the accused Ali Ahsan Muhammad Mujahid was a person in position of
authority of Al-Badar, by virtue of his leading position in ICS. Presumably
and in view of facts and circumstances revealed it is proved that the accused
had significant influence and effective control on AB force. The book titled
gyw³hy‡× XvKv 1971 narrates that
Ò Avje`iiv wQj †gav m¤úboe mk¯¿ ivR‰bwZK K¨vWvi|
Bmjvgx QvÎ ms‡Ni †bZ…e„‡›` G evwnbx MVb K‡i Ges
†K›`ªxqfv‡e Rvgvqv‡Z Bmjvgxi wbqš¿‡Y G evwnbx
cwiPvwjZ nq| 17 †m‡Þ¤^i c~e© cvwK¯Ívb Rvgvqv‡Z
Bmjvgxi Avgxi †Mvjvg AvRg †gvnv¤§`cyi wdwRK¨vj
†Uªwbs K‡j‡R Aew¯’Z Gi †nW †KvqvU©vi I cÖwkÿY
†K›`ª cwi`k©b K‡ib|
[Source: gyw³hy‡× XvKv 1971 : c„ôv 284, m¤úv`K
†gvnxZ Dj Avjg, Avey †gv: †`‡jvqvi †nv‡mb: evsjv‡`k
GwkqvwUK †mvmvBwU]
464. From evidence of P.W.5 it has been proved that the accused Mujahid had
control on Al-Badar by virture of his poisiton of President in ICS the student
wing of JEI. Additionally the accused Mujahid had incited and encouraged the
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149
AB by his speech , statement to combat the ‘miscreants’ , ‘Indian agents’ and
‘enemies of Islam’.
465. Referring a report published in The daily Sangram 24 November, 1971
the report titled ÒgyRvwn‡`i KzKxwZ© Mvuv Av‡Q ˆ`wbK msMÖv‡gi cvZvqÓ published in
The Daily Bhorer Kagoj, 31 October 2007 which speaks as below:
Ò ‰`wbK msMÖv‡gi 24 b‡f¤^i , 1971 msL¨vq cÖKvwkZ
Z_¨ †_‡K Rvbv hvq, 23 b‡f¤^i cvwK¯Ív‡bi ZrKvjxb
mvgwiK kvmK †Rbv‡ij AvMv †gvnv¤§` Bqvwnqv Lvb mviv
†`‡k Riæix Ae¯’v †Nvlbvi ciciB Avjx Avnmvb †gvnv¤§`
gyRvwn` I gxi Kv‡kg Avjx GK hy³ wee„wZ‡Z fviZxq
¸ßPimn `ykb‡`i LZ‡gi Rb¨ ˆmwbK wn‡m‡e cÖ¯‘Z nv‡Z
hye mgv‡Ri cÖwZ AvnŸb Rvbvb| Zv‡`i G wewe„wZ cÖKv‡ki
ci †_‡K kyiæ nq wewfboe ¯’v‡b eyw×Rxex nZ¨v| G mgq XvKvi
eyw×Rxex‡`i Kv‡Q ûuwkqvwi †`Iqv Avj-e`i‡`i wPwVI
Avm‡Z ky„iæ K‡i|
466. The report titled “knx` eyw×Rxex‡`i NvZKÓ published in The Daily Bhorer
Kagoj, 30 October 2007 which speaks as below:
ÒgyRvwn` †h ïay wbôzi NvZK evwnbxiB cÖavb wQ‡jb bv wZwb
†h weK„Z gvbwmKZv m¤úboeI wQ‡jb BwZnv‡m ZviI A‡bK
cÖvgvb¨ bwRi Luy‡R cvIqv †M‡Q| ˆ`wbK c~e©‡`k cwÎKvi 19
Rvbyqvix, 1971 Gi msL¨vq cÖKvwkZ GK cÖwZ‡e`‡b
gyRvwn` MwVZ Avj-e`i ewnbx‡K Awek¦vm¨ b„ksm D‡jøL
K‡i ejv nq, nvbv`vi cvwK¯Ívwb evwnbxi AvZ¥mgc©‡bi ci
Zv‡`i mn‡hvMx Avj-e`i evwnbx hLb cvwj‡q †M‡jv ZLb
Zv‡`i †nW‡KvqvU©v‡i cvIqv †M‡jv GK e¯Ív †PvL| G‡`‡ki
gvby‡li †PvL| Avj-e`‡ii Lzbxiv wbwin mvaviY gvbyl‡K
nZ¨v K‡i Zv‡`i †PvL Zz‡j Zz‡j e¯Ív †evSvB K‡i‡Q|
............................P~ovšÍ weR‡qi 4 w`b ci ˆ`wbK
evsjvi 20 wW‡m¤^i, 1971 msL¨vq Kv‡jv eWv©i †`Iqv
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†nwW‡O †gvUv ni‡d cÖKvwkZ GKwU cÖwZ‡e`‡bI gyRvwn` I
mvsMcvsM‡`i exfrmZvi wPÎ dz‡U I‡V| IB cÖwZ‡`‡eb ejv
nq, Rvgv‡Z Bmjvgxi ee©i evwnbx Avj-e`‡ii wbôziZg
Awfhv‡b hviv knx` n‡q‡Qb Zv‡`i jvk kbv³nxb Ae¯’vq
ea¨f~wg‡Z c‡o i‡q‡Q| Gme jvk kbv‡³i A‡hvM¨|Ó
467. It is not correct to argue that since co-perpetrators identity could not be
described and as such it cannot be said with whom the accused participated to
the commission of crimes. We have already observed that the accused has not
been indicted for physical participation to the commission of the crimes
alleged. Participation may occur in different ways. Not necessarily that the
accused is to be shown to have participated in all aspects of the criminal acts.
A single act or conduct may form part of attack facilitating and abetting the
actual commission of a crime.
468. An act which is committed before or after the main attack against the
civilian population or away from it could still, if sufficiently connected, be
part of that attack. Ali Ahsan Muhammad Mujahid has been accused of being
part in designing plan and connected with activities involving the commission
of crimes. Besides, already it has been proved that the principal perpetrators
were the Al-Badar men and the crimes were perpetrated by them in
furtherance of common plan and design to which the accused was a party, by
virtue of his acts, conduct, behaviour, inciting statement, culpable affiliation
with Al-Badar and as such the accused being a member of the ‘enterprise’ is
liable for that crime in the same manner as if it were done by him alone.
469. The sourced information as elicited above forces us to conclude that the
accused Ali Ahsan Muhammad Mujahid was of course a part of common plan
and design and he had reason to be aware of it as he was a person in potential
position of authority of the AB. At the relevant time accused Mujahid was the
President of the then East Pakistan ICS. A report published in The Daily
Azad on 11 December 1971 [Prosecution documents, Volume No.9 , page
2826] issue shows that accused Mujahid, as the President of East Pakistan
ICS, addressed a public meeting organised by Al-Badar bahini at Baitul
Mukarram premises making a call to resist and liquidate ‘Hindustan’ and
‘Hindu’. The caption of the photo of the meeting published together with the
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report also shows that Mujahid had addressed the meeting as the ‘chief’ of Al-
Badar. Another report published in The Daily ‘Dainik Pakistan’ of 08
November 1971[Prosecution documents, Volume No.9 , page 2823] issue also
demonstrates that accused Mujahid addressed a public meeting on the eve of
‘Badar day’ organised by the ICS in the Baitul Mukarram premises in the
capacity of the President, the then East Pakistan ICS.
470. It is clear that being aggravated and incited in response to such devilish
call, Al-Badar which was known as the ‘action section’ of Jamat E Islami and
‘death squad’ of Pakistan army had intrigued in taking evil steps to
exterminate the ‘intellectuals’, as apart of common design and plan.
471. Accused Ali Ahsan Muhammad Mujahid being the secretary general and
subsequently President of the then East Pakistan Islami Chatra Sangha [ICS],
the student wing of the JEI was one of key leaders of Al-Badar and used to
effectively coordinate its activities even till 16 December 1971 , the moment
of victory of Bangalee nation.
472. It will be patently evinced from the narration of the book titled “Al-
Badr” authored by Salim Mansur Khalid published in 1985 from Lahore,
Pakistan by Idarah-I Matbu’at –I Talabah. The original book written in Urdu
has been translated in Bangla by a professor of Dhaka University, on
requisition of the investigation agency. The translated Bangla text duly
endorsed by the translator has been submitted and exhibited as Material
Exhibit-V by the prosecution.
473. Ms Tureen Afroz drawing attention to page 135-138 [official Bangla
translation] corresponding to page 176-178 of the Urdu version of the book
‘Al-Badar’ has submitted that the accused as the president [Nazim] of the then
East Pakistan ICS even in his ‘last speech’ [Akhri Khitaab] addressed to Al-
Badar on 16 December 1971 at the Al-Badar headquarter set up at
Mohammadpur Physical Training Institute known as ‘torture camp’ proved his
superior position having command and authority on the para militia force ‘Al-
Badar’ and his active affiliation with it too.
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474. Why accused Mujahid, in his ‘last speech’ considered 16 December 1971
a ‘painful day’ [Alamnaak din] when the nation achieved its victory after
nine months’ war of liberation? Why the Al-Badar men in Dhaka city
assembled at their headquarter in the city just immediate two hours before the
surrender of the Pakistani occupation army and why they were worried and
tensed considering the event of ‘surrender’ a ‘tragedy’? In early part of war
of liberation accused by his inciting speech encouraged the Al-Badar men to
act as ‘Azrail’, in the name of protecting Islam and Pakistan from the hands of
‘India’s agents’, ‘enemies of Islam’, ‘miscreants’ and pro-liberation Bangalee
people.
475. Are the acts of killing unarmed civilians, looting their properties,
infringing their fundamental rights, reigning coercive climate by causing
physical and psychological harms, in furtherance of common design and plan
compatible to the spirit of ‘Islam’ and ‘humanity’? The holy religion ‘Islam’
never suggests such barbaric atrocities and antagonistic and violent attitude to
be shown towards human being. But the accused preferred confessing in his
‘last speech’ [Akhri Khitaab] that they were ‘not ashamed’ of the ‘last days’
[deeds of Al-Badar]. The speech also depicts that the leaders of Al-Badar
since its creation provided substantial encouragement, moral support,
approval to the commission of criminal activities by the Al-Badar, in
furtherance of organised and designed common plan and accused himself was
one of persons who was in superior position of Al-Badar force.
476. Conceivably the accused and his parent organisation JEI meant the proliberation
Bangalee civilians who took stand in favour of liberation war as
‘miscreants’ , ‘Indian agents’ and ‘enemies of Islam’. JEI, its student wing
ICS and AB by their activities aimed to liquidate ‘miscreants’, ‘Indian agents’
and ‘enemies of Islam’. The then Pakistan government also had acted in
support of the wipe out process. Government press note also speaks as to
whom they considered as ‘miscreants’ and ‘Indian agents.
477. From totality of evaluation of relevant facts and circumstance it is
lawfully inferred that the plan involved action which was part of ‘murderous
enterprise’ in which a large number of individuals were systematically marked
for killing and eventually killed. From the above discussed sourced
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information it is proved that the attack were carried out in an ‘organized
manner’ which presupposes the existence of plan. Circumstances depicted
from accused’s conduct, act, behaviour, visiting Al-Badar headquarter,
maintaining active and culpable affiliation with the army strongly suggest that
the accused Mujahid had an unspoken understanding or arrangement with the
Al-Badar in committing the killing of listed intellectuals
478. It is now settled that the fact of ‘encouragement’ is to be inferred
depending on facts and circumstances of particular case. In the case in hand,
form the circumstances revealed from old reports published in 1971 it is thus
naturally inferred that such encouraging and provoking statement of accused
who was AB leader fueled and enthused the AB members in doing whatever
criminal acts they felt necessary , in the name of ‘crusade’ and to save
Pakistan. Such acts of accused had shown approving attitude that encompasses
the act of ‘encouragement’, ‘abetment’ and ‘contribution’ to the commission
of criminal acts directing the pro-liberation segment of Bangalee civilians, as
part of systematic and planned attack.
479. In the case in hand, accused Mujahid , as it appears, was one of persons
having superior position who had authority and control over the AB members.
But accused alone cannot be said to have had exclusive control over the AB.
There were many other significant persons belonging to JEI and its student
wing ICS who had considerable control and authority over the AB members.
But merely on this ground the present accused, one of persons having position
of authority on AB force, cannot be absolved of the responsibility as he has
been found to have encouraged prompted and provided moral support and
approval to the atrocious activities carried out by AB, even being aware of the
foreseeable consequence of his act and conduct of encouragement and
approval to the perpetrators AB.
480. In the first place, the accused Mujahid possessed power by virtue of his
political position that he occupied in the then East Pakistan ICS, the student
wing of JEI. In the second place, he enjoyed a great measure of power to
coordinate the activities of AB. Thus it stands proved that the accused was
situated near the highest echelons of the AB and JEI leadership and thus
wielded great power in the AB.
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481. The accused Mujahid’s act of conscious encouragement provided
substantial support constituting ‘abetment’ to the AB members to cripple the
Bengalis in the area of education and culture. Making frequent visit to ‘torture
camp’ [Mohammadpur AB HQ and training center] accompanied by other
senior leaders of JEI and ICS lends unerring assurance that the accused had
sufficient reason of being aware of activities and plan of carrying out criminal
acts by the AB men, by virtue of his superior position. And thereby he
[accused] participated to the commission of organized crimes and failed to
prevent crimes, despite his superior position on the AB force.
482. Additionally, the defence document submitted under section 9(5) of the
Act of 1973 a report published in The Daily Star narrates about the plan,
intellectual killing and involvement of the accused Ali Ahsan Muhammad
Mujahid provides further support to prosecution case. The report narrates that
“Sensing defeat, Pakistan occupation forces with
the help of their collaborators -- Razakar, Al-Badr
and Al-Shams -- prepared an execution list of
progressive intellectuals and professionals five
months after the start of the Liberation War, said
experts quoting the diary of the then Pakistan
Army general Rao Farman Ali.
They began executing the list on November 15 in
1971 and killed nearly 12,000 intellectuals and
professionals across the country.
The martyred intellectuals include Prof Muneir
Chowdhury, Dr Alim Chowdhury, Prof
Muniruzzaman, Dr Fazle Rabbi, Shahidullah
Kaiser, Prof GC Dev, JC Guhathakurta, Prof
Santosh Bhattacharya, Mofazzal Haider
Chowdhury, journalists Khandaker Abu Taleb,
Nizamuddin Ahmed, SA Mannan (Ladu Bhai),
ANM Golam Mustafa and Syed Nazmul Haq.
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The then commander-in-chief of Al-Badr and
Jamaat Ameer Matiur Rahman Nizami, Jamaat
Secretary General Ali Ahsan Mohammad
Mojahid, its assistant secretary general
Muhammad Kamaruzzaman and Mir Kashim Ali
led the killings, according to accounts of both
victims and collaborators, various publications and
secret documents of Pakistan home department.
[Source: Report titled ‘Country could not care less’, The
Daily Star December 14, 2010: Defence Documents
Volume 14, page 463-464]
483. In the case in hand, we have found it proved beyond reasonable doubt
that the accused Ali Ahsan Muhammad Mujahid had a ‘consenting part’ and
understanding with the Al-Badar the principal perpetrators in the commission
of the crime and thus he was ‘connected’ with plans or enterprise. Finally it
has also been proved that the accused ‘belonged to’ the perpetrator
organisation or group i.e Al-Badar, by virtue of his position of authority on it.
484. We agree that there must be a degree of control for holding one liable as
‘superior’. But, in respect of informal superior-subordinate relationship such
degree of control is to be assessed from circumstances together with the act,
conduct, behaviour, extent of affiliation with the group or organisation.
485. Further, it is not correct to say that the accused had no scope to assert his
control and authority over the Al-Badar. We have already found that the
accused used to make frequent visit to AB headquarters at Mohammadpur
Physical training College, he urged the ICS workers to join Al-Badar, he
incited the Al-Badar men to liquidate ‘miscreants, ‘ agents of India’ ‘enemies
of Islam’, he addressed his last speech with immense pain and frustration to
the Al-Badar men at their headquarters. All these unerringly demonstrate that
the accused had significant degree of control and he was in position to assert
it. Chiefly, addressing the ‘last speech’ and visiting Al-Badar headquarter
frequently are substantial indicia of his ‘commanding position’ of Al-Badar
which was formed of workers of ICS to which accused was President, at the
relevant time.
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486. Tribunal notes that Nazi war criminal Adolf Eichmann didn’t kill anyone
with his own hand but was one of the main organiser of Nazi atrocities during
World War II. Eichmann was charged with membership in criminal
organization--the Storm Troopers (SA), Security Service (SD), and Gestapo
(all of which had been declared criminal organizations at the 1946 Nuremberg
Trial). As head of the Gestapo, Eichmann coordinated with Gestapo chief
Heinrich Mueller in various Nazi activities. Adolf Eichmann was enacted a
death sentence after his trial.
487. The paper cuttings of reports published in daily news papers during last
part of December 1971 and January 1972 [Exhibit-10, 12 series: rosecution
Documents Volume 7 , page 2232, 2271-2277, 2297-2298] demonstrate a
terrible depiction of abduction and killing of hundreds of distinguished
intellectuals belonging to various professions. Twenty two days after the
abduction on 14 December numerous dead bodies of worthy sons of the land
could be found at killing fields and mass graves at outskirts of the city of
Dhaka. The Daily Observer [05 January 1972] in a report titled “ Al-Badar
victims: Bodies of 4 DU teachers identified”[Exhibit-10] narrates that
“Four of seven bodies recovered by the police
on Tuesday were identified as those of Dacca
University teachers Dr. Serajul Huq Khan, Dr,
Fazul Mahi, Mr. Santosh Chandra
Bhattacharjee and Dacca University Medical
Officer Dr. Murtaza……………………….They
were among many intellectuals kidnapped and
taken to unknown destination by Pakistan
Army-backed Al-Badar goondas on the eve of
the surrender of the occupation forces in
Bangladesh” [Prosecution Documents Volume 7,
page 2232]
488. This report too suggests that the perpetrators were members of infamous
Al-Badar. They first kidnapped their targets from their residence and took
them to unknown place. Finally hundreds of dead bodies could be found at
different mass graves nearer to the city of Dhaka. In a same pattern the
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infamous Al-Badar men committed the criminal act of such abduction in
between 10 to 14 December.
489. A report published in The Daily Ittefaque, 19 December 1971 and in
the Daily Ovserver, 19 December 1971. The report narrates that
“The world news, T.V and radio network
representatives visited the spot and came across the
horrowing scene of brutality. They also located the
prison camp at the Physical Training Instuitute where
rooms are still blood-stained and instruments for
torturing the victims scattered around.”
[Source: Report titled “Intellectual murderd in cold blood”
published in the Daily Ovserver, 19 December 1971]
490. The above two reports prove again that the AB HQ at Mohammadpur
Physical Training Institute was actually a ‘killing camp’ and addressing ‘last
speech’ on 16 December 1971 at this ‘killing camp’ by the ‘Nazim’
[President] of the East Pakistan ICS robustly demonstrates his intense
infamous role and conduct. Who was president of ICS, at the relevant time? It
is none but the accused Ali Ahsan Muhammad Mujahid. In his ‘last speech’
Mujahid urged his fellow Al-Badar men to go away [Hijrat] wherever they
like.
491. The above reports and conduct of accused together suggest to conclude
that the accused Ali Ahsan Muhammad Mujahid made his ‘last speech ,
standing on pull of saintly blood of martyrs and thus he was quite aware of the
criminal activities carried out by the Al-Badar to cause death of selected
intellectuals. The numb revenge and abhorrence which led to these killings in
an organized pattern causing death of large number of selected intellectuals, in
the final stages of the war of liberation was a dismal epilogue to the record of
systematic brutality carried out by Al-Badar in between 10 to 16 December
1971, in Bangladesh.
492. There can be no room to deduce that the accused Mujahid did not have
contribution to the commission of crime alleged in any manner and thus he
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deserves to walk free. True that evidence does not suggest that accused Ali
Ahsan Muhammad Mujahid himself physically participated to the actual
perpetration of the substantial crime of intellectual killing. But the Tribunal
notes that even a single or limited number of acts on the accused’s part would
qualify as crimes against humanity, unless those acts may be said to be
isolated or random. The accused Mujahid cannot absolve of criminally
responsibility for the crime alleged as he has been found to have had
‘understanding’ and ‘connection’ with plans and activities involving the
commission of such crimes, by his acts or conducts, behaviour, culpable
speeches and statement.
493. The learned prosecutor Ms. Tureen Afroz submitted that the defence
would not be prejudiced if the offence under charge 6 is termed as
‘extermination’ as crimes against humanity, instead of ‘murder’ as crimes
against humanity. Apart from the ‘question of scale, the core elements of
murder or willful killing are same in both cases. In fact the killing of
numerous intellectuals was a mass killing targeting a particular class.
494. The accused has been charged for abetting and facilitating the
commission of the offence of ‘murder’ as crimes against humanity or in the
alternative for abetting and facilitating the commission of the offence of
‘genocide’. No cumulative charge has been framed in relation to the facts
narrated in charge no.6. In fact there has been significant difference between
‘murder and ‘extermination’. For proving the offence of ‘murder’ it is to be
shown that it was committed on ‘large scale’. That is to say that the event of
murder was ‘mass killing’. It is now settled that murder as a crime against
humanity does not contain a materially distinct element from extermination as
a crime against humanity; each involves killing within the context of a
widespread or systematic attack against the civilian population, and the only
element that distinguishes these offences is the requirement of the offence of
extermination that the killings occur on a ‘mass scale’. The ICTR Appeal
Chamber has observed in the case of Ntakirutimana and Ntakirutimana that
“The Trial Chamber followed the Akayesu
Trial Judgement in defining extermination as ‘a
crime which by its very nature is directed
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against a group of individuals. Extermination
differs from murder in that it requires an
element of mass destruction, which is not
required for murder.” [Ntakirutimana and
Ntakirutimana, (Appeals Chamber), December 13,
2004, para. 516]
495. By its very nature, extermination is a crime which is directed against a
‘group’ of individuals as distinct from murder in that it must be perpetrated on
a ‘large scale’. It is now settled that in order to give practical meaning to the
offence of ‘extermination’, as distinct from ‘murder’, there must in fact be a
large number of killings, and the attack must be directed against a ‘group’. In
the case in hand, it has been proved that the large number of killing under
charge no.6 was aimed to annihilate the ‘Bangali intellectual group’, a part
of ‘national group’. However, the expression ‘large scale’ or ‘large number’
does not suggest a numerical minimum. Extermination may be committed
intending to bring about the death of a large number of individuals. Mens rea
of the offence of ‘extermination’ refers to measures against individuals
intending to cause their death.
496. In the case in hand, in light of discussion as made above it has been
found proved that the perpetrators Al-Badar, pursuant to plan and list, caused
death of hundreds of intellectuals of various professions. The pattern and
feature of the killings lead us to conclude that it was a ‘large scale killing’
having all the required elements to constitute the offence of murder as crime
against humanity. Therefore, we are convinced with the argument advanced
by the learned prosecutor. Since no prejudice would be caused to defence, the
offence of ‘murder’ as crimes against humanity as described in charge no.6 is
thus termed as the offence of ‘extermination’ as crimes against humanity,
under the same set of fcats.
497. In view of above discussion and on totality of evaluation based on
evidence, old reports and sourced information together with rationales we
come to a finding that it has been proved beyond reasonable doubt that the
accused Ali Ahsan Muhammad Mujahid who was a part of designing plan and
activities involving the commission of the ‘mass killing’ of intellectuals
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constituting the offence of ‘extermination’ as crimes against humanity as
enumerated in section 3(2)(a)(g) of the Act of 1973.
498. It is thus validly inferred that the accused Ali Ahsan Muhammad
Mujahid who was in superior position[President] of ICS which transformed
into Al-Badar was aware of consequence of his act and conduct that
substantially encouraged, endorsed, approved, provided moral support to the
Al-Badar men in committing the intellectuals killing. The accused’s
authoritative position on Al-Badar is a fair indicia that he had ‘effective
control’ and ability over the members of Al-Badar the ‘action section’ of JEI
and thus he cannot be relieved from responsibility of planned crimes
committed by Al-Badar men with whom he had a ‘relationship’. Accused’s
act, conduct, inflammatory and provoking speech had substantial impact on
the Al-Badar the criminal organisation, in carrying out its activities and
‘operation’ in between 10 to 16 December 1971 directing the selected
intellectuals in Dhaka city.
499. Section 4(1) refers to Joint Criminal Enterprise [JCE]. For joint criminal
enterprise [JCE] liability an accused can participate in a joint criminal
enterprise by passive, rather than active conduct. The Tribunal is convinced to
record its finding that the accused Ali Ahsan Muhammad Mujahid, for his
acts, conduct, inciting statement, speech and culpable association with Al-
Badar is criminally responsible for all the criminal acts resulting from the
criminal design of this Al-Badar force and shall be punished as if he himself
committed them, irrespective of whether and in what manner he himself
directly participated in the commission of any of these acts. This view is in
conformity of provisions in respect of liability contained in section 4(1) of the
Act of 1973. Accused Ali Ahsan Muhammad Mujahid, by his acts, conducts
and act of common ‘understanding’ abetted and facilitated the commission of
such crimes. Therefore, the accused who was a part of collective criminality
incurs liability under section 4(1) of the Act of 1973 and as ‘superior’ or a
‘person of position of authority’ of the principals [Al-Badar], is held
responsible also under section 4(2) of the Act of 1973 for the offence of
‘extermination’ as crimes against humanity as enumerated in section
3(2)(a)(g) of the Act of 1973 which are punishable under section 20(2) read
with section 3(1) of the Act.
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Adjudication of Charge No. 07
[Bakchar Killing of Hindu Civilians and persecution]
500. On 13 May at about 02:00-02:30 pm during the War of Liberation in
1971 accused Ali Ahsan Muhammad Mujahid being the Secretary of the then
East Pakistan Islami Chatra Sangha and subsequently the head of Al-Badar
Bahini and or as a member of group of individuals being accompanied by
Razaker Kalubihari, Ohab, Jalal and others came to the office of the peace
committee at Kahlilpur Bazar Community Center, P.S Kotwali district
Faridpur by a jeep where you attended a meeting. At the end of meeting
accused along with his accomplices, with discriminatory and persecutory
intent, launched attack upon the village ‘Bakchar’ under Kotwali PS directing
against the ‘Hindu Community’. By causing such attack villagers namely
Birendra Saha, Nripen Sikder, Sanu Saha, Jogobandhu Mitra, Jaladhar Mitra,
Satya Ranjan Das, Norod Bandhu Mitra, Prafulla Mitra, Upen Saha were tied
up. Wife of Upen Saha requested to release her husband even in exchange of
money and jewelries but the attempt became futile. Rather, following
accused’s instruction his accomplices (Razakars) killed all the apprehended
civilians belonging to ‘Hindu Community’. The Razakars, during the same
transaction of the incident, committed rape upon Jharna Rani , daughter of
Sushil Kumer Saha’s sister. The accused and his accomplices looted and burnt
the house of one Anil Saha and by such discriminatory and persecutory
conducts the accused compelled the villagers to deport to India. Therefore, the
accused Ali Ahsan Mohammad Mujahid has been charged for participating
and facilitating the commission of offence of ‘murder as crime against
humanity’ or in the alternative, for participating and facilitating the
commission of offence of ‘persecution as crime against humanity’ by his
conduct which was a part of attack against the ‘Hindu Community’, belonging
to the civilian population as specified in section 3(2) (a) (g) of the Act which
are punishable under section 20(2) read with section 3(1) of the Act and thus
he is liable for the above offences under section 4(1) and 4(2) of the Act.
Witnesses
501. Prosecution produced and examined two witnesses as P.W.12 and P.W
13, in support of this charge. P.W.12 Chittaranjan Saha [80] and P.W.13
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Shokti Saha [57] have made an account of the event which they claim to have
witnessed. P.W.12 was a resident of the crime village Bakchar and P.W.13
allegedly remained at the crime site. The charge alleges that the accused
participated and facilitated the commission of the offence of murder as crimes
against humanity or in the alternative of the offence of persecution as crimes
against humanity. Apart from testimony of these two witnesses prosecution
also relies upon some relevant material facts as testified by other witnesses.
Evidence
502. P.W.12 Chittaranjan Saha [80] from Bakchar of Faridpur was involved
in the Language Movement in 1952 and took part in the election campaign for
an Awami League candidate in the 1970's elections, as he stated.
503. P.W.12 went on to state that the Pakistani army had entered Faridpur
town on April 21, 1971 and afterwards, Mujahid[accused] and some other
people initiated formation of the Peace Committee and after some days,
Razakar and Biharis launching attack burned down houses of their village
Bakchar. With this he [P.W.12] left the village and started staying at Deben
Ghosh’s house at village Laxmipur, although his elder brother remained at
village Bakchar. He [P.W.12] used to carry business at Khalilpur Bazar.
504. This part of version that accused Ali Ahsan Muhammad Mujahid was
involved with the formation of peace committee in Faridpur and since then the
members of peace committee and Razakar started committing atrocities
remained unshaken, on cross-examination.
505. In narrating the alleged event P.W.12 stated that around 10:00 to
11:00am on May 13, 1971 he saw 10-12 people passing through his shop by
an uncovered jeep towards the nearby board office. With this he got panicked
and asked some prominent persons of the market about the matter and identity
of those persons. They [prominent persons of the market] informed him that a
meeting over formation of Machchar Union Peace Committee will be held at
Khalilpur and that's why Peace Committee men Ali Ahsan Muhammad
Mujahid, Advocate Afzal, Alauddin Kha, Kalu Bihari and some other people
came from Faridpur. On hearing it he [P.W.12] being feared went to Laxmipur
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leaving the market [Khalilpur] and afterwards came back to Kahlilpur market
around 3:00pm to get information about the Peace Committee meeting. He
[P.W.12] was informed by Lokman Kha, Abdus Salam Mollah and Sohrab
Sarder that members of the Peace Committee being accompanied by Al-Badar
and Biharis had gone to their Bakchar Hindu village.
506. The fact that P.W.12 saw 10-12 people passing through his shop by an
uncovered jeep towards the nearby board office appears to have been reaffirmed
in cross-examination. Defence, as it appears, could not shake the
version of learning from Lokman Kha, Abdus Salam Mollah and Sohrab
Sarder of Khalilpur market that members of the Peace Committee being
accompanied by Al-Badar and Biharis had gone to their Bakchar Hindu
village. This piece of hearsay evidence is admissible and it may be considered
together with other evidence, either direct or circumstantial in arriving at a
finding. The version that Peace Committee men Ali Ahsan Muhammad
Mujahid, Advocate Afzal, Alauddin Kha, Kalu Bihari and some other people
came to Kahlilpur Bazar from Faridpur by a jeep also remained unimpeached.
507. P.W.12 stated further that afterwards he got information that the group
had gone to their Bakchar Hindu village killed many people. He started for
Bakchar to enquire about his brother. When he reached his house, his
brother’s wife informed him that he was killed [P.W.12 started shedding tears
in narrating it before the Tribunal]. Then he found dead body of 8-10 lying at
the courtyard of their house including his brother Biren Saha , Prafulla Mitra,
Nripen Sikder, Upen Saha, Sanu Saha, and some others who were killed that
day. They were shot dead at Bakchar Shree Angan. One of his [P.W.12]
cousins' female relative named Jharna, who had taken shelter at his house, was
also brutally tortured before being shot dead by the members of the group as
he mentioned. On being feared and asked by his brother’s wife he [P.W.12]
started coming back to Khalilpur market and on the way he found Haider Kha
and Monindra Pal and some other people whom he asked to bury his brother’s
dead body and they accordingly buried his brother’s dead bodies at the
southern part of ‘Sreeangon’. P.W.12 further stated that with such atrocious
activities they were forced to be displaced from their own houses.
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508. The event of killing civilians belonging to Hindu community of Bakchar
village including one Jharna who took shelter there on the date and time
alleged and displacement from own village in fear of terror reigned could not
be shaken by the defence . Rather this pertinent fact has been re-affirmed on
cross-examination.
509. Before narrating the main event P.W.13 stated that camps were set up at
different places in Faridpur town followed by entrance of Pakistani army on
21 April 1971 and seven days after some Biharis and other people looted his
sister’s house at Bakchar village before setting it on fire and with this being
terrorized they left the village and afterwards came back.
510. The above version remained unimpeached and as such it indicates fairly
that Hindu community was the target of Pakistani army and their affiliate, as a
part of systematic policy and plan.
511. P.W.13 Shokti Saha [57] testified that 10-12 people including his father
were shot following a signal by Ali Ahsan Mohammad Mujahid near his
sister's house at Bakchar village in Faridpur during the war of liberation. He
stated that on 29 Baishakh in 1971[corresponding to mid of may 1971] at
about 10-11 am he came to Khalilpur Bazar and he had seen
Mujahid[accused], Alauddin Khan, Chairman Jalil Moulavi coming to the
board office by an open jeep to form Peace Committee. Afterwards he
returned back to his sister’s house at Bakchar village and climbed up a tree [
Mve MvQ] to eat fruits and then he saw the people he have mentioned earlier
[Mujahid, Alauddin Khan, Jalil Moulavi] getting down from a jeep near the
house of Binoy Sarker of Bakchar village around 2:00-2:30pm, after their
meeting . At that time, he [P.W.13] saw Mujahid [accused] carrying a revolver
in hand and his accomplices the Biharis were carrying rifles. They tied his
father Upendra Narayan Saha and some others.
512. In cross-examination, P.W.13 replied to question put to him that his
sister’s house at Bakchar village was about one to one and half miles far from
Khalilpur Bazar and he found pulling cart, Rickshaw and jeep moving through
the road of Shibrampur-Khalilpur and there had been an wooden bridge on it
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at that time. Thus the possibility of moving by jeep through the road to the
crime site has been re-affirmed.
513. P.W.13 went on to narrate that when his mother and sister begged his
father's life offering their gold ornaments to them, they said his father would
be released. But instead of releasing him, they lined up 10-12 people at
‘Sreeangon’ and then Mujahid made some signal and with this sounds of
gunshots were heard."
514. Bullets hit his father and others and they fell down on the ground. After
half an hour, he [P.W.13] getting down from the tree went there and found his
father's body lying on the ground [in narrating it P.W.13 became emotionchocked
with tears]. One Ohab Bihari, who was a Razakar, hurt his mother
with the butt of his rifle.
515. On cross-examination, in reply to question elicited by the defence
P.W.13 replied that Razakars, Al-Badars, Mujahid[accused], Ohab killed
his[P.W.13] father and others beneath the ‘Panchabati tree’ near the ‘Beri
badh’ and he saw the event climbing at the top of the fruit tree [ Mve MvQ].
Thus the fact of his seeing the event, as stated by him has been re-affirmed.
516. P.W.13 stated that he knew Ali Ahsan Muhammad Mujahid since his
childhood as his [P.W.13] brother Khirod Lal Saha was classmate of Mujahid
[accused]. This piece of version remained unshaken. As such the witness had
reason to recognise the accused accompanying the group of perpetrators at the
crime site.
517. P.W.13 further stated that after the event of killings, his family and many
other Hindu families of their locality left the country and took shelter in
different refugee camps in India. Thus we find that the witness and other
dwellers of the crime village were, in other words, were forced to deport.
518. Prosecution relies upon statement made by P.W.8 and P.W.10 on relevant
material fact which it claims to have lent assurance to the principal fact that
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the accused accompanied the group of perpetrators to the crime village
Bakchar.
519. P.W.8 Mir Lutfar Rahman [58] stated that Ali Ahsan Muhammad
Mujahid, Abul Kalam Azad @ Bachchu Razakar, Kalu Bihari used to provide
assistance to the Pakistan army. Ali Ahsan Muhammad Mujahid used to move
around the Faridpur town by a jeep. This version on material and relevant fact
remained unimpeached.
520. P.W.10 A.K.M Habibul Haque also stated that on 14 August 1971 at
about 01:00 pm one jeep of army and a truck arrived in front of his house and
he, at that time might have seen Mujahid in the army jeep. He managed to
escape but the Pakistan army apprehended his brother Serajul Haque Nannu
and brought him to Faridpur Stadium camp where he was kept confined and
subjected to torture. This P.W.10 seems to be natural and credible. He could
tell lie by saying that he saw the accused on the army jeep. But he did not
make any exaggeration. He simply stated what he saw at the time of alleged
raid. His version is to be evaluated together with that of P.W.8.
Deliberations
521. Mr. Mukhlesur Rahman Badal, the learned prosecutor has argued that it
has been proved beyond reasonable doubt from the evidence of P.W.12 and
P.W.13 that the group of 10-12 perpetrators accompanied by the accused Ali
Ahsan Muhammad Mujahid first went to Khalilpur Bazar for forming local
peace committee. There from the group approached towards the crime site by
a jeep i.e. Bakchar village. Admittedly the crime village was Hindu
dominated. At Bakchar village the group of perpetrators committed
destructive atrocities including killings, looting, arson, rape and deportation.
The attack was intended directing the Hindu community with intent to destroy
it in part and thereby committed the offence of genocide and the offence of
persecution as crimes against humanity. The destructive criminal acts were
carried out with discriminatory intent on religious ground, infringing the
fundamental rights of the civilians belonging to the Hindu community.
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522. It has been further submitted by the learned prosecutor that the evidence
of P.W.8 and P.W.10 made on relevant fact goes to show the close affiliation
of the accused with the local pro-liberation people and the Pakistan army in
carrying out ‘operations’.
523. On contrary, the learned defence counsel argued that there has been no
credible evidence to show that the accused accompanied the group of
perpetrators and physically participated to the commission of crimes alleged.
Evidence of P.W.12 is hearsay in nature and thus cannot be considered
without corroboration by other evidence. P.W.13 who claims to have seen the
event and presence of accused at the crime site is not a credible witness and
his statement made before the Tribunal is contradictory and inconsistent to
what he stated to the IO.
524. The Tribunal notes that the charge describes two segments. The first
segment of narration made in the charge involves the coming of the group
accompanied by the accused at Khalilpur Bazar for forming peace committee.
And the second segment that occurred on the same day, after holding meeting
at Khalilpur Bazar relates to moving the group there from towards the crime
village Bakchar for launching the attack directing the civilians belonging to
Hindu community, with discriminatory and persecutory intent that resulted in
numerous killings, rape, looting, arson and infringement of fundamental rights
of civilians.
525. P.W.13 testified as regards both segments narrated in the charge. While
P.W.12 testified as to coming of the group accompanied by the accused to
Khalilpur Bazar and afterwards the group had left Khalilpur Bazar, and
afterwards on getting information he rushed to the crime site and found his
brother and others lying dead and heard that the group that came to Khalilpur
Bazar had committed the crimes. But the P.W.13 allegedly witnessed the
killing by the group accompanied by accused Mujahid.
526. The Tribunal notes that hearsay evidence is admissible and it may be
considered together with other evidence, either direct or circumstantial in
arriving at a finding. The version of P.W.12 that Peace Committee men, Ali
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Ahsan Muhammad Mujahid, Advocate Afzal, Alauddin Kha, Kalu Bihari and
some other people came to Khalilpur Bazar from Faridpur by a jeep remained
unimpeached.
527. The prominent persons of the market informed him [P.W.12] about a
meeting over formation of Machchar Union Peace Committee to be held at
Khalilpur and that's why Peace Committee men, Ali Ahsan Muhammad
Mujahid, Advocate Afzal, Alauddin Kha, Kalu Bihari and some other people
came to Khalilpur Bazar from Faridpur.
528. The fact that P.W.12 saw 10-12 people [the group of perpetrators]
passing through his shop [at Khalilpur Bazar] by an uncovered jeep towards
the nearby board office appears to have been re-affirmed in cross-examination.
Hearsay evidence is admissible and thus when a piece of hearsay evidence
remains unshaken, no further corroboration may be needed for taking it into
consideration depending upon the facts and circumstance of the case.
Additionally, in the case in hand, hearsay evidence of P.W.12 appears to have
been corroborated by evidence of P.W.13, an eye witness to the event.
529. On 29 Baishakh in 1971[corresponding to mid of may 1971] at about 10-
11 am he came to Khalilpur Bazar and he had seen Mujahid[accused],
Alauddin Khan, Chairman Jalil Moulavi coming to the board office by an
open jeep to form Peace Committee. P.W.13 stated that he knew Ali Ahsan
Muhammad Mujahid since his childhood as his [P.W.13] brother Khirod Lal
Saha was classmate of Mujahid [accused]. This piece of version remained
unshaken. As such the witness had reason to recognise the accused
accompanying the group of perpetrators at the crime site.
530. Therefore, the hearsay evidence of P.W.12 together with the statement of
P.W.13 amply proves that accused Mujahid accompanied the group to the
Khalilpur Bazar for forming peace committee. What happened afterwards?
531. It is found that later on P.W.12 was informed by Lokman Kha, Abdus
Salam Mollah and Sohrab Sarder [of Khalilpur market] that members of the
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Peace Committee being accompanied by Al-Badar and Biharis had gone to
their Bakchar Hindu village. Why they moved to the village Bakchar?
532. P.W.12 does not claim to have witnessed the event. But he instantly after
getting information rushed to Bakchar village and found dead body of his
brother including some other Hindu civilians namely Biren Saha , Prafulla
Mitra, Nripen Sikder, Upen Saha, Sanu Saha lying at the courtyard of their
house who were killed that day. In conjunction of the event, as revealed from
evidence of P.W.12 that one of his [P.W.12] cousins' female relative named
Jharna, who had taken shelter at his house, was also brutally tortured before
being shot dead by the members of the group [ the group which came to
Khalilpur Bazar on the same day prior to the event].
533. Sequence and time of events as narrated by P.W.12 unmistakably go to
prove that no other group but it was the group accompanied by accused
Mujahid, Kalu Bihari, Razakars which first came to Khalilpur Bazar for
forming peace committee and afterwards raided the crime village Bakchar
with common intent and criminal purpose. The event of Bakchar massacre is
not disputed. Defence however does not claim or suggest that some other
group of perpetrators and not the group which came to Kahlilpur Bazar
afterwards attacked the crime village on the same day and committed the
alleged killings and destructive criminal acts.
534. It is P.W.13 who has proved significantly the commission of the event
and participation of the accused therewith. On the day of event, returning
from Khalilpur Bazar to his sister’s house at Bakchar village he climbed up a
tree [ Mve MvQ] to eat fruits and then he saw Mujahid, Alauddin Khan, Jalil
Moulavi getting down from a jeep near the house of Binoy Sarker of Bakchar
village around 2:00-2:30 pm, after their meeting[at Khalilpur Bazar] . P.W.13
saw Mujahid [accused] carrying a revolver in hand and his accomplice the
Biharis were carrying rifles. Defence could not refute this version .Thus the
presence of the accused being armed at the crime site becomes proved.
535. It is also proved beyond reasonable doubt from the unimpeachable
evidence of P.W.13 that instead of begging life of his father by offering his
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mother’s gold ornaments to them, the perpetrators lined up 10-12 people at
‘Sreeangon’ and then Mujahid [accused] made some signal and with this
sounds of gunshots were heard. With this his father and others fell down on
the ground. After half an hour, he [P.W.13] getting down from the tree went
there and found his father's body lying on the ground [in narrating it P.W.13
became emotion-chocked with tears].
536. In conjunction with the event one Ohab Bihari, who was a Razakar
accompanying the group, hurt his [P.W.13] mother with the butt of his rifle.
On cross-examination, in reply to question elicited by the defence P.W.13
replied that Razakars, Al-Badars, Mujahid [accused], Ohab killed his [P.W.13]
father and others beneath the ‘Panchabati tree and he could saw the event
climbing at the top of the fruit tree [ Mve MvQ]. Thus the fact of his seeing the
event, as stated by him has been re-affirmed. We do not find any earthy
reason to disbelieve this witness.
537. Apart from evaluation of evidence of P.W.12 and P.W.13 as above, on
totality of appraisal of statement made by P.W.8 and P.W.10 the relevant facts
which have been proved beyond reasonable doubt are: (i) Abul Kalam Azad
@ Bachchu, Kalu Bihari and Razakars were the accomplices of the accused in
Faridpur (ii) accused Mujahid used to move around the town by a jeep and
(iii) the accused used to accompany the Pakistan army wherever it used to
move.
538. The act of moving of accused by a jeep around the town in Fairdpur as
stated by P.W.8 Mir Lutfar Rahamn further indicates his position and
authority. And his access to the Pakistani army camps set up in town makes it
quite believable that the accused used to accompany the local Razakars, peace
committee members and army when they intended to carry out any operation,
directing the civilian population, in furtherance of policy and plan.
539. We have already recorded our finding that accused Mujahid was in
superior position of ICS [Dhaka district] the student wing of JEI and the Al-
Badar was formed of workers of ICS. Although he [accused] was not in
position of secretary of the then East Pakistan ICS at the time of committing
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the crimes narrated in charge no.7. But however, by his act of making
statement and speech he encouraged, provoked the Al-Badar and other pro-
Pakistan elements to act as ‘Azrail’ in annihilating the ‘miscreants’, ‘Indian
agents’.
540. We have already found from the evidence of a detainee witness Ranjit
Kumar Nath that he found the accused Mujahid present at the army camp at
Faridpur circuit house and holding meeting with the army. This is sufficient
indicia that the accused used to maintain a close affiliation even with the
occupation army and he did so by dint of his substantial and leading position
in the ICS. Objective of such affiliation was to provide assistance and support
to army in carrying out criminal activities targeting the civilian population, in
furtherance of policy and common criminal purpose. It is proved that in
committing the event narrated in charge no.7 the accused and his accomplices
selected the civilians of village Bakchar because of their membership in
specific community i.e. the Hindu community.
541. Evidence of P.W.12 and P.W.13 does not appear to have been suffered
from any material contradiction or inconsistencies. It is to be noted too that
mere inconsistencies on insignificant particulars occurred in sworn testimony
does not necessarily tarnish the credibility of statement before a court of law
in its entirety. Statement made to Investigation Officer is not evidence. And a
witness is never expected to have stated in detail precision about what he
knew or experienced on the fact in issue. Usually it happens due to non-asking
the witness on the matter by the IO.
542. We are not persuaded with the argument advanced by the defence that for
the reason of mere inconsistencies between sworn testimony and statement
made to IO materially impairs the credibility of evidence made before the
Tribunal in its entirety. We are to evaluate the evidence presented before us
keeping some inevitable factors in mind together with the settled
jurisprudence.
543. We reiterate that where a significant period of time has elapsed between
the acts charged in the indictments and the trial, it is not always reasonable to
expect the witness to recall every detail with precision. Besides, lack of
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precision or minor discrepancies between the evidence of different witnesses,
or between the testimony of a particular witness and a prior statement, while
calling for cautious consideration, is not regarded in general as necessarily
discrediting the evidence. Tribunal notes that mere inter and intra consistency
in testimony does not make a witness unreliable and the entire testimony of
witness cannot be excluded from consideration.
544. However, on evaluation of evidence presented shows that the cumulative
effect of criminal acts by launching attack to Bakchar village the perpetrators
caused rape and removal of Hindu civilians from their houses on
discriminatory ground constituting the offence of persecution. The total event
of attack was destructive in pattern infringing fundamental rights of civilians
belonging to Hindu community. We have found that after the event the
civilians belonging to Hindu community of the crime village being feared for
the reason of reigning terror around the crime village were compelled to
deport to India. It amounts to the offence of persecution. This view finds
support from the decision of the ICTY appeal chamber in the case of Blaskic
wherein it has been observed that deportation, forcible transfer and forcible
displacement could amount to persecution as a crime against humanity
[Blaskic, ICTY Appeal Chamber, July 29, 2004, paras, 152-153].
545. The Tribunal reiterates that the discriminatory intent of the author of the
crime was not only to harm an individual, but also to cause massive damage to
the collectivity to which the later belongs. Offenses of such gravest nature
bring harm not only to human rights, but also and most especially they
undermine the fundamental basis of the social order of a particular group of
civilian population [Abul Kalam Azad, ICT-BD 05 of 2012, Judgment 21
January 2013, para, 152].
546. We are persuaded to conclude that under the same set of facts narrated in
charge no.7 the offence of genocide and offence of ‘persecution’ as crime
against humanity were committed. It is found patent that the victims were
targeted because on discriminatory grounds. It was part of policy and plan of
the Pakistan occupation army in execution of which the local perpetrators
assisted and supported them. The minorities of Bangladesh, especially
the Hindus, were specific targets of the Pakistan army. [Source: U.S.
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Consulate (Dacca) Cable, Sitrep: Army Terror Campaign Continues in
Dacca; Evidence Military Faces Some Difficulties Elsewhere, March 31,
1971, Confidential, 3 pp and see also Telegram 978 from the Consulate
General in Dacca to the Department of State, March 29, 1971, 1130Z].
547. There was widespread killing of Hindu males, and rapes of women. More
than 60% of the Bengali refugees who fled to India were Hindus.[ Source: US
State Department, "Foreign Relations of the United States, 1969-1976",
Volume XI, South Asia Crisis, 1971", Page 165]. R.J. Rummel has stated that
“The genocide and gendercidal atrocities were also
perpetrated by lower-ranking officers and ordinary
soldiers. These “willing executioners” were fueled by an
abiding anti-Bengali racism, especially against the Hindu
minority. “Bengalis were often compared with monkeys
and chickens. Said General Niazi, ‘It was a low lying
land of low lying people.’ The Hindus among the
Bengalis were as Jews to the Nazis: scum and vermin that
[should] best be exterminated. As to the
Moslem Bengalis, they were to live only on the
sufferance of the soldiers: any infraction, any suspicion
cast on them, any need for reprisal, could mean their
death. And the soldiers were free to kill at will. The
journalist Dan Coggin quoted one Punjabi captain as
telling him, "We can kill anyone for anything. We are
accountable to no one." This is the arrogance of Power.”
[Source: DEATH BY GOVERNMENT, By R.J. Rummel New
Brunswick, N.J.: Transaction Publishers, 1994[1] and Link:
http://www.thefullwiki.org/1971_Bangladesh_atrocities]
548. We have already recorded our finding in the case of Abul Kalam Azad @
Bachchu that “the East Pakistan Police Abstract of Intelligence [Vol XXV
No. 18] dated May 1, 1971, so far it relates to ‘Faridpur’ in serial 431 says :
431,Faridpur.—At the instance of the Pakistan
democratic Party, Faridpur, a ‘Peace Committee”
has been formed on 27th April , 1971, with
Mohammad Afzal Husain (PML), Advocate,
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Faridpur town, as convener and 38 others, as
members.” It is thus also established that within
week the Pakistani army rolled into Faridpur, local
peace committee was formed on 27 April with
Mohammad Afzal Husain (PML), Advocate,
Faridpur town, as convener and 38 others, as
members. [Chief Prosecutor v. Abul Kalam
Azad @ Bachchu , ICT-BD case No. 05 of 2012,
Judgment 21 January 2013, para 86, 87].
549. It is not claimed that accused alone himself committed the crimes. The
pattern and extent of horrendousness of atrocities adequately demonstrates
that the accused joined the gang of perpetrators with actus reus of aiding and
substantially contributing to the accomplishment of crimes.
550. In the case in hand, it has been proved from evidence of P.W.12 that
accused Mujahid being accompanied by Advocate Afzal [Convener of
Faridpur Peace Committee], Alauddin Kha, Kalu Bihari and some other
people first came to Khalilpur Bazar from Faridpur by a jeep and there from
they rushed to crime village Bakchar. And this group has been arraigned to
commit the mass killing and destructive criminal activities directing the
unarmed civilians belonging to Hindu community.
551. It has been proved beyond reasonable doubt from evidence of P.W.3 that
accused Mujahid was present at the crime site having arms in hand and on his
signal the act of killing was executed. The accused Ali Ahsan Muhammad
Mujahid was a person in a position of authority of ICS the student wing of
JEI. Al-Badar the ‘action section’ and ‘armed wing’ of JEI was formed of
workers of ICS. Peace committee was also formed under significant coordination
of JEI. Therefore, the group consisting of peace committee
members accompanied by the accused Mujahid launched the attack in
furtherance of a common criminal purpose and all the persons forming the
‘group’ with a collective objective and being aware of consequence of their
acts had launched the attack to village Bakchar.
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552. It is immaterial which member of the group acted in which manner. Even
mere accompanying the group and presence at the crime site are sufficient to
convey approval for those crimes committed. Presence of accused at the crime
site having arms in hand and his position of authority in ICS obviously had
significant amount of encouraging and decisive effect on actual commission of
the crimes. However, accused’s position of authority [potential leader of ICS]
may also be perceived as significant indicia of his act of encouragement or
moral support to the fellow perpetrators. It is now settled that ‘presence’,
when combined with authority, may constitute ‘assistance’ (the actus reus of
the offence) in the form of moral support. Presence of accused Ali Ahsan
Muhammad Mujahid at the crime sites with the perpetrators itself conveyed
tacit approval for those crimes which amounted to aiding and abetting.
Accused’s position in ICS lent an encouraging effect too on the principals in
committing the crimes.
553. The cumulative effect of the atrocities including killings, rape,
deportation and causing mental harms to the Hindu community of the crime
village inevitably imprints an unmistakable notion that the aim and intent of
the perpetrators was to destroy the ‘Hindu group or community’. Thus,
targeting a particular community qualifies as substantial, for the purpose of
inferring the ‘discriminatory intent’.
554. Destruction as transpired from the evidence of P.W.12 and P.W.13 was
patently indiscriminate targeting the members of a ‘group’ i.e Hindu
community because they belong to Hindu religion. Indiscriminate and
systematic destruction of members of a group because they belong to that
group may be lawfully perceived to be the objective for an inference as to
constitution of the offence of ‘persecution’.
555. It has been argued by the defence that mere presence at the crime site
does not constitute ‘participation’ to the commission of crimes. What we see
in the case in hand? We see that the accused accompanied the gang of peace
committee members and Razakars. Why? What was the purpose of such
accompanying the gang of attackers to the crime sites? No explanation has yet
been presented on part of the defence.
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556. It is true that presence of an individual at the crime site or the fact that he
accompanied the criminal group may not always lead to infer that such acts
had substantial effect on the commission of the criminal acts. But we have
found that at the relevant time accused Mujahid was a potential leader of ICS,
the student wing of JEI. In adjudicating charge no.3 we have found that the
accused had access to the army camp and had authority of holding meeting
with the army. All these precisely suggest that by sharing intent of the gang of
perpetrators the accused accompanied them for providing them moral support,
encouragement and approval to the commission of criminal acts. The
circumstances depicted from evidence offer unerring conclusion that the
accused by his act of accompanying the group of perpetrators to the crime site
and his presence there substantially encouraged and contributed on
commission of the crimes which is sufficient indicium of his conscious
participation.
557. Accused was a potential leader of the then East Pakistan ICS who made
inflammatory speeches in Mymensingh expressing explicit hatred to the
Hindu community, freedom fighters [whom they termed as ‘miscreants’ and
‘agents of India], pro-liberation people. A report published in The Daily
Bhorer Kagoj[ Exhibit- 20 series ] , which quoted a report of the Daily
Sangram published on April 24, 1971 that says the Al-Badar force was formed
in greater Mymensingh on April 22, 1971 and Mujahid [accused] addressed a
meeting of Jamat E Islami and its student wing ICS in Mymensingh on April
22, 1971 where he said, ‘Al-Badar is a name, a surprise. Al-Badar is a
promise. Wherever the so-called freedom fighters are, Al-Badar will be there.
Al-Badar will work as ‘Azrail’ [Angel of death] for the freedom-fighters and
Indian-agents’.
558. Therefore, it cannot be said that the accused was a mere ignorant
spectator at the crime site. Accused’s antagonistic attitude together with the
totality of evidence and the relevant facts indisputably demonstrates that
knowing the foreseeable consequence he [accused] accompanied the group of
perpetrators to the crime site, the Hindu dominated village, and consciously
and aggressively participated to the commission of criminal acts constituting
the offence of murder of Hindu civilians, rape and forcible deportation.
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559. It is not necessary to prove that cause-and-effect relationship existed
between the act of his accompanying the group to the crime site and the
commission of the crime. Rather it is sufficient to establish that the act of
accompanying the group and remaining present at the crime site significantly
amounts to facilitation to the perpetration of the crime. Considering the event
in its entirety, it is obvious that the accused is also responsible for the criminal
offense of rape committed in conjunction with the attack by his accomplices,
as an accessory. On this score, he incurs accessory liability too. In this way the
accused participated to the accomplishment of criminal activities, it has been
proved beyond reasonable doubt. The test for proof beyond reasonable doubt
is that “the proof must be such as to exclude not every hypothesis or
possibility of innocence, but every fair or rational hypothesis which may be
derived from the evidence, except that of guilt. We do not find any reason to
exclude the hypothesis of accused’s guilty, on evaluation of totality of
evidence and circumstances.
560. Thus the displacement of the Hindu civilians that resulted from the attack
was not a mere side-effect of the event but rather a primary objective of the
attacks. The attacks created such a coercive atmosphere that the Hindu
civilians were left with no option but to flee to India. The evidence is clear
that accused had acted together with other participants to fulfill the objective
of Pro-Pakistan local people belonging to JEI, ICS and their creation Peace
committee, Razakars collaborating the Pakistani army, in the name of
preserving Pakistan, something which the accused expressed publicly on
several occasions in 1971.
561. The abettor needs only be aware of the criminal intent of the principals
whom he provides assistance or encouragement. In the case in hand, the
accused accompanied the group of perpetrators to the crime site. It is proved.
By act of accompanying the attackers the accused substantially approved and
contributed to the commission of the event massacre and thereby it is validly
inferred that the accused Ali Ahsan Muhammad Mujahid in doing such act
shared the intent of the group of perpetrators. Therefore, the accused is
criminally liable both as a co-perpetrator and as an abettor.
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562. Ms. Tureen Afroz, the learned Prosecutor has contended that the attack
was intended directing the Hindu community with ‘discriminatory intent’. Not
only the offence of murder of Hindu community took place, but in conjunction
with the event women belonging to Hindu community were raped, their
properties were destructed and members of the community were forced to
deport in fear of brutal mistreatment. All these criminal acts infringed the
fundamental rights of the Hindu community. Coercive climate culminating
from the attack caused psychological harassment to the Hindu community
which was in fact infringement of their recognised fundamental rights.
Therefore, two distinct offences i.e ‘murder’ and ‘persecution’ as crime
against humanity could be found to have been committed. In support of this
argument the learned Prosecutor has cited a decision of ICTY Trial Chamber [
Blagojevic & Jokic ].
563. The Tribunal notes that forced character of displacement of the
inhabitants of specific community of a territory gives rise to criminal
responsibility. The expression “forcible” describes a situation where
individuals of such specific community do not have a free or ‘genuine’ choice
to remain in the place where they were present. Discriminatory intent may be
inferred from the context of the acts as long as, in view of the facts of the case,
circumstances surrounding the commission of the alleged acts substantiate the
existence of such intent.
564. Persecution, under the customary international law, is defined as an act or
omission which (i) discriminates in fact and which denies or infringes upon a
fundamental right laid down in international customary or treaty law (the
actus reus); and (ii) was carried out deliberately with the intention to
discriminate on one of the listed grounds, specifically race, religion or politics
(the mens rea). Besides, “although persecution often refers to a series of acts,
a single act may be sufficient, as long as this act or omission discriminates in
fact and was carried out deliberately with the intention to discriminate on one
of the listed grounds”[Blaskić Appeal Judgement, para. 135, referring to
Vasiljevic Appeal Judgement, para. 113.].
565. It is now settled that the mens rea for persecutions is the specific intent to
cause injury to a human being because he belongs to a particular community
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or group. Thus, an individual who acts with the awareness of a substantial
likelihood that persecution as a crime against humanity will be committed in
the execution of the plan or common purpose may be liable for the crime of
persecution.
566. In the case in hand, it is quite clear and has been proved beyond
reasonable doubt that the target of the attack was the civilians belonging to
Hindu community. The attack resulted not only in killing of individuals. It has
been proved that rape, destructive activities were also committed, in
conjunction with the attack and finally the remaining inhabitants of the
community were compelled to deport in fear of coercive climate reigned by
such attack. Such atrocities were committed to further the policy and plan.
Paragraph 18 of the Hamoodur Rahman Commission Supplementary
Report demonstrates patently that Hindu community was a key target of the
Pakistani occupation armed force and in execution of annihilation of civilians
belonging to Hindu community the para militia forces Razakar and its two
wings Al-Badar and Al-shams the creations of JEI actively collaborated and
assisted the army. The relevant paragraph of the report states that
“The statements appearing in the evidence of Lt.
Col. Aziz Ahmed Khan (Witness no 276) who was
Commanding Officer 8 Baluch and then CO 86
Mujahid Battalion are also directly relevant.
"Brigadier Arbbab also told me to destroy all
houses in Joydepur. To a great extent I executed
this order. General Niazi visited my unit at
Thakurgaon and Bogra. He asked us how many
Hindus we had killed. In May, there was an order
in writing to kill Hindus. This order was from
Brigadier Abdullah Malik of 23 Brigade."
567. Evidently such criminal activities were carried out with discriminatory
intent as well. Infringement of fundamental rights of remaining at own place
was done with discriminatory intent. The discriminatory intent of the author of
the crime was not only to harm an individual, but also to cause massive
damage to the collectivity to which the later belongs. Offenses of such gravest
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nature bring harm not only to human rights, but also and most especially they
undermine the fundamental basis of the social order of a particular group of
civilian population. This view finds support from the following observation
made in the case of Kupreškić [ICTY Trial Chamber] and Blaskić [ICTY
Appeal Chamber]:
The comprehensive destruction of homes and
property” that constitutes “a destruction of the
livelihood of a certain population” and may
have the “same inhumane consequences as a
forced transfer,” could constitute a blatant
denial of fundamental rights, and if committed
on discriminatory grounds, could amount to
persecutions.[ Kupreškić Trial Judgement, para.
631; Blaskić Appeal Judgement, para. 146]
568. Thus we are convinced with the submission advanced by Ms. Tureen
Aforz that all these criminal acts infringed the fundamental rights of the Hindu
community of the crime villages. Such discrimination resulted not only in
killing and bodily harm but it caused severe psychological harassment to the
Hindu community which was in fact infringement of their recognised
fundamental rights. It is found that the group of perpetrators preferred to
launch the attack targeting only the locality or village which was Hindu
dominated. On this score, two distinct offences i.e ‘murder’ and ‘persecution’
as crime against humanity are found to have been committed by launching the
alleged attack directed against the civilians of Hindu community.
569. We consider that finding commission of two distinct offences under the
same set of facts narrated in the charge framed does not cause prejudice to the
defence, in any manner. Cumulative convictions for ‘murder’ and
‘persecution’ as crimes against humanity based on the same conduct are
permitted.
570. In conclusion, it has been proved beyond reasonable doubt that (i) the
event of the attack directing the civilians belonging to Hindu community of
the crime village resulted in killing of numerous civilians, destruction of
properties, sexual violence and deportation (ii) the group perpetrators was
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accompanied by the accused Ali Ahsan Muhammad Mujahid (iii)accused’s
position in the ICS the student wing of JEI together with his presence at the
crime site had a substantial effect in committing the crimes (iv) the accused
being aware of the foreseeable consequence, actively accompanied the group
of perpetrators to the crime site (v) accused’s conduct as stated by P.W.13
offers fair indication of his explicit approval to the commission of the crimes.
Therefore, the accused cannot be absolved of liability of committing the
criminal activities carried out by the group which he consciously
accompanied.
571. However, the accused, for the criminal acts committed cannot be held
liable under the theory of superior responsibility. Because, prosecution has
failed to prove that the group of perpetrators was led by the accused. The
group of perpetrators, as it appears, consisted of Razakars, Biharis and peace
committee men and the accused accompanied it. Prosecution could not be able
to show that accused had substantial authority and effective control over them.
Rather as an individual member of the group of perpetrators the accused Ali
Ahsan Muhammad Mujahid by his conduct and act substantially facilitated
and participated to the perpetration of the crimes, by sharing common intent.
572. It is not necessary to prove that cause-and-effect relationship existed
between the act of his [accused] accompanying the group to the crime site and
the commission of the crime. Rather it is sufficient to establish that the act of
accompanying the group and remaining present at the crime site significantly
amounts to facilitation to the perpetration of the crime. The facts,
circumstances and evidence presented inspire us to conclude that the accused
Ali Ahsan Muhammad Mujahid had an understanding with the group of
perpetrators to commit the alleged crimes by launching attack directing Hindu
civilians of Bakchar village because of their membership of specific
community and the crimes eventually perpetrated by the physical perpetrators
was a natural and foreseeable consequence of the ‘understanding’ between
the accused and the principal perpetrators of the group in furtherance of which
he participated and substantially facilitated the commission of crimes narrated
in charge no.7 and thereby the accused Ali Ahsan Mohammad Mujahid is held
criminally liable under section 4(1) of the Act of 1973 for the offence of
‘murder’ and ‘persecution’ as crimes against humanity enumerated in section
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3(2)(b) of the Act of 1973 cumulatively which are punishable under section
20(2) read with section 3(1) of the Act.
XXI. Contextual requirement to qualify the offences proved
as crimes against humanity
573. The reason for the inclusion of a context element in crimes against
humanity is to distinguish ordinary crimes under national law from
international crimes which are criminal under international criminal law even
if national law does not punish them. The definition of crimes against
humanity requires that the individual criminal act, for example, a murder, be
committed within a broader setting of specified circumstances and context.
574. To qualify as a crime against humanity, the crimes enumerated in section
3(2)(a) of the Act of 1973 must be committed against the ‘civilian population’.
An “attack against a civilian population” means the perpetration against a
civilian population of a series of acts of violence, or of the kind of
mistreatment referred to in sub-section (a) of section 3(2). Conducts
constituting ‘Crimes’ committed against ‘civilian population’ refers to
organized and systemic nature of the attack causing acts of violence to the
number of victims. A particular conduct forming part of ‘attack’ may
constitute one or more crimes. It leaves no doubt that the attack need not be a
military attack and an attack need not consist of a multiplicity of the same
crimes(for example murder) but can also consist of an accumulation of
different crimes.
575. The ‘attack’ is the event in which the enumerated crimes must form part.
Indeed, within a single attack, there may exist a combination of the
enumerated crimes, for example murder, rape and deportation.[ Prosecutor v.
Kayishema & Ruzindana (Case no. ICTR-95-1-T, Judgment, 12 May1999, para.
122] In the case in hand , so far it relates to charge no.7 we have found that in
conjunction with the ‘attack’ directed against the Hindu dominated villages
there had been a combination of offences enumerated in the Act of 1973 i.e.
murder, rape and persecution.
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576. The accused Ali Ahsan Muhammad Mujahid has been prosecuted and
tried for the offences enumerated in section 3(2)(a)(g)(h) of the Act of 1973
which are not punishable under the normal penal law of the country. The
offences enumerated in the Act of 1973 are known as ‘system crimes’
committed in violation of customary international law. Murder punishable
under Penal law is isolated crime and needs no ‘contextual requirement’. But
murder as ‘crime against humanity’ must be shown to have been committed
within a context so that it can be distinguished form isolated crime. In the
commission of an offence of crimes against humanity ‘attack’ is the event of
which the enumerated crimes must form part of ‘attack’ to be committed
against ‘civilian population’ and the ‘attack’ must be systematic, in
furtherance of policy or plan. These requirements make the offence of crimes
against humanity distinguished from the offences punishable under normal
penal law.
577. The offences proved as narrated in charge nos. 1,3,5,6 and 7 took place
during the period of war of liberation in 1971 directing the unarmed Bengali
civilians belonging to pro-liberation ideology.
578. It has been proved that the accused Ali Ahsan Muhammad Mujahid a
potential leader of Islami Chatra Sangha (ICS) and was one of persons in
command or in position of authority of Al-Badar. It is also proved that he was
concerned with the commission of crimes alleged in charge nos. 1 and 6 in the
capacity of a ‘superior of Al-Badar and he acted and urged significantly in the
formation of Al-Badar. We have also found from the book titled ‘Sunset at
Midday’ [paragraph two at page 97] that “The workers belonging to purely
Islami Chatra Sangha were called Al-Badar”.
579. We have already deduced that Al-Badar was an ‘auxiliary force’ within
the meaning of section 2(a) of the Act of 1973. Therefore, it becomes patent
that the accused Ali Ahsan Muhammad Mujahid had participated to the
commission of crimes proved by his acts, culpable conducts, statements
encouraging the Al-Badar an ‘armed wing’ meant to provide aid and
assistance in committing atrocities, by exercising his authority and influence
over the members of Al-Badar. Next we need to have look to the ‘contextual
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backdrop’ of perpetration of such crimes in furtherance of ‘operation search
light’ on 25 March 1971.
580. From reading and interpretation of section 3(2) of the Act of 1973 a
crime must not, however, be an isolated act. A crime would be regarded as an
“isolated act” when it is so far removed from that ‘attack’. Now, it is to be
considered whether the alleged criminal acts committed in violation of
customary international law constituting the offences enumerated in section
3(2)(a) of the Act of 1973 were connected to policy or plan of the government
or an organization. It is to be noted too that such policy and plan are not the
required elements to constitute the offence of crimes against humanity. These
may be taken into consideration as factors for the purpose of deciding the
‘context’ upon which the offences were committed.
581. The expression ‘committed against civilian population’ as contained in
section 3(2) of the Act of 1973 itself is an expression which specifies that in
the context of a crime against humanity the civilian population is the primary
object of the ‘attack’. As regards elements to qualify the ‘attack’ as a
‘systematic character’ the Trial Chamber of ICTY in the case of Blaskic
[ICTY Trial Chamber , March 3, 2000, para 203] has observed as below:
“The systematic character refers to four
elements which………may be expressed as
follows: [1] the existence of a political objective,
a plan pursuant to which the attack is
perpetrated or an ideology, in the broad sense
of the word, that is, to destroy, persecute or
weaken a community; [2] the perpetration of a
criminal act on a very large scale against a
group of civilians or the repeated and
continuous commission of inhuman acts linked
to one another; [3] the perpetration and use of
significant public or private resources, whether
military or other; [4] the implementation of
high-level political and/or military authorities
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in the definition and establishment of the
methodical plan’”
582. Thus, the term ‘context’ stemmed from ‘policy or plan’ in furtherance of
which ‘attack’ was committed in ‘systematic’ manner which characterizes the
offence, the outcome of the attack, as crime against humanity.
XXII. Context prevailing in 1971 in the territory of
Bangladesh
583. We reiterate our reasoned finding given in the case of Muhammad
Kamaruzzaman that the Pakistani occupation army with the aid of its auxiliary
forces, pro-Pakistan political organizations implemented the commission of
atrocities in 1971 in the territory of Bangladesh in furtherance of following
policies:
(i) Policy was to target the self-determined
Bangladeshi civilian population
(ii) High level political or military authorities,
resources military or other were involved to
implement the policy
(iii) Auxiliary forces were established in aiding the
implementation of the policy
(iv) The regular and continuous horrific pattern of
atrocities perpetrated against the targeted non
combatant civilian population.
[ Muhammad Kamaruzzaman, Judgment 09
May 2013, para, 513]
584. The above facts in relation to policies are beyond reasonable dispute. The
context itself reflected from above policies sufficiently suggests that the
offences of crimes against humanity as specified in section 3(2)(a) of the Act
of 1973 were the predictable effect of part of ‘systematic attack’ ‘committed
against civilian population’.
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585. We reiterate that it is quite coherent from the facts of common
knowledge involving the backdrop of our war of liberation for the cause of
self determination that the Pakistani occupation armed force, in execution of
government’s plan and policy in collaboration with the local anti liberation
section belonging to JEI and its student wing ICS and auxiliary forces and
other religion based pro-Pakistan political parties , had to deploy public and
private resources and target of such policy and plan was the unarmed civilian
Bangalee population, pro-liberation people, Hindu community, intellectuals
and pursuant to such plan and policy atrocities were committed to them as a
‘part of a regular pattern basis’ through out the long nine months of war of
liberation in 1971[Muhammad Kamaruzzaman, Judgment 09 May 2013, para
515] .
586. It is fact of common knowledge that the basis for planning of the
‘operation search light’ master plan, which was carried out with brute force by
Pakistan army to annihilate the Bengalis reads as below:
‘OPERATION SEARCH LIGHT’
BASIS FOR PLANNING
1. A.L [Awami League] action and reactions to be treated as
rebellion and those who support or defy M.L[Martial Law]
action be dealt with as hostile elements.
2. As A.L has widespread support even amongst the E.P
[East Pakistan] elements in the Army the operation has to be
launched with great cunningness, surprise, deception and speed
combined with shock action.
[Source: A Stranger In my Own Country: East Pakistan, 1969-1971,
Major General (Retd) Kahdim Hussain Raja, Oxford University Press,
2012, page 114. See also ‘Songram Theke Swadhinata’(msMªvg †_‡K ¯^vaxbZv)
: Published in December 2010, By ; Ministry of Liberation War Affairs,
Bangladesh; Page 182]
587. Anthony Mascarenhas in a report titled ‘Genocide’ published in
The Sunday Times, June 13, 1971 found as below:
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“SO THE ARMY is not going to pull out. The
Government’s policy for East Bengal was spelled
out to me in the Eastern Command headquarters at
Dacca. It has three elements: (i) The Bengalis have
proved themselves “unreliable” and must be ruled
by West Pakistanis (ii) The Bengalis will have to
be re-educated along proper Islamic lines. The
“Islamisation of the masses” – this is the official
jargon – is intended to eliminate secessionist
tendencies and provide a strong religious bond
with West Pakistan (iii) When the Hindus have
been eliminated by death and flight, their property
will be used as a golden carrot to win over the
under-privileged Muslim.”
[Source:http://www.docstrangelove.com/uploads/1971/forei
gn/19710613_tst_genocide_center_page.pdf : See also:
Bangladesh Documents Volume I, page 371: Ministry of
External Affairs, New Delhi]
588. Therefore, the crimes for which the accused has been found guilty were
not isolated crimes. Those were part of ‘systematic’ and ‘planned’ ‘attack’
intended to the accomplishment of offence of crimes against humanity as
enumerated in section 3(2) of the Act, in furtherance of policy and plan. It is
thus quite evident that the atrocious criminal acts proved were ‘committed
against civilian population’ within a context forming part of ‘systematic
attack’. The context element is the “international element” in crimes against
humanity which renders certain criminal conduct a matter of international
concern. Thus, the rationale of the context element can be summarized as the
protection of human rights against the most serious and most dangerous
violations. This rationale at the same time serves to distinguish crimes against
humanity from the less serious national law crimes.[ KAI AMBOS and
STEFFENWIRTH, THE CURRENT LAW OF CRIMES AGAINST HUMANITY,
An analysis of UNTAET Regulation 15/2000, PAGE 13,15]
589. The notion of ‘attack’ thus embodies the notion of acting purposefully to
the detriment of the interest or well being of a civilian population and the
‘population’ need not be the entire population of a state, city, or town or
village. Thus a single act of an accused forming part of attack committed
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against even a single unarmed civilian causing criminal act constituting the
offence enumerated in the Act of 1973 is sufficient for holding him criminally
responsible.
590. The phrase ‘acts committed against any civilian population’ as occurred
in section 3(2)(a) clearly signifies that the acts forming attack must be directed
against the target population to the accomplishment of the crimes against
humanity and the accused need only know his acts are part thereof .Therefore,
the facts and circumstances unveiled before us unmistakably have proved the
‘contextual requirement’ to qualify the offences for which the accused has
been charged with as crimes against humanity.
XXIII. The accused need not participate in all aspects of the crime
591. As regards participation of accused Ali Ahsan Muhammad Mujahid to
the commission of crimes alleged it has been argued by the learned defence
counsel that prosecution has not been able to establish that the accused Ali
Ahsan Muhammad Mujahid was directly involved with the commission of any
of principal criminal acts constituting the offence as narrated in the charges.
No witness claims to have witnessed the accused committing the criminal acts
constituting the offences alleged. Without proving participation of accused in
the commission of offences as listed in the charges he cannot be held guilty.
592. The Tribunal notes that to incur criminal liability, in a case of crimes
against humanity, the accused himself need not have participated in all aspects
of the alleged criminal conduct. [ Stakic, ICTY Trial Chamber, July 31, 2003,
para. 439]. The actus reus of aiding and abetting a crime may occur before,
during, or after the principal crime has been perpetrated [Blaskic, ICTY
Appeals Chamber, July 29, 2004, para. 48]. Participation may occur before,
during or after the act is committed.
593. We reiterate that the case relates to trial of internationally recognised
crimes committed in violation of customary international law. The offences
are alleged to have been committed in context of war of liberation in 1971.
Section 22 of the Act of 1973 provides that provisions of the Criminal
Procedure Code, 1898(V of 1898), and the Evidence Act, 1872(I of 1872),
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shall not apply in any proceedings under the Act of 1973. Thus, in the case in
hand, if we keep the provision of section 22 together with section 19 of the
Act of 1973 in mind it would be clear that the task of determination of
culpability of a person accused of offences enumerated in section 3 of the Act
of 1973 involves a quite different jurisprudence. Proof of all forms of criminal
responsibility, through participation in any manner can be given by direct or
circumstantial evidence. It is now settled jurisprudence.
594. It is now settled that the offence of crimes against humanity is considered
as ‘group crime’ and it is not perpetrated by a single individual. But however,
an individual may participate to the actual commission of the principal crime
by his act or conduct, before or midst or after the crime committed. In this
regard, the Tribunal notes that in adjudicating culpability of the person
accused of criminal acts , context and situations prevailing at the relevant time
i.e the period of war of liberation in 1971[ March 25 to December 16 1971]
together with acts, conducts of the accused is to be considered.
595. The acts of the accused do not always need to be committed in the midst
of the attack provided that if they are sufficiently connected to the attack. This
view finds support from the decision of Trial Chamber, ICTY in the case of
Limaj[ November 30, 2005, para 189]. The judicial pronouncements of adhoc
tribunals have established that the accused himself need not have participated
in all aspects of the alleged criminal conduct. The actus reus of aiding and
abetting a crime may occur before, during, or after the principal crime has
been perpetrated.
596. ‘Participation’ includes both direct participation and indirect
participation. It has been observed in the case of Kvocka that
“It is, in general, not necessary to prove the
substantial or significant nature of the
contribution of an accused to the joint criminal
enterprise to establish his responsibility as a coperpetrator:
it is sufficient for the accused to
have committed an act or an omission which
contributes to the common criminal purpose.”
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[Kvocka et al., (Appeals Chamber), February
28, 2005, para. 421]
597. In the case in hand, conscious conduct, culpable act, behaviour or
omission to act of the accused Ali Ahsan Muhammad Mujahid knowing the
foreseeable consequence, which have been convincingly proved, are thus
qualified to be the constituent of ‘participation’ too to the actual
accomplishment of the crimes as it substantially contributed to, or have had a
substantial effect on the perpetration of the crimes for which the accused has
been charged with.
598. The criminal act of abduction and killing of journalist Seraj Uddin
Hossain as listed in charge no.1 was committed by the gang of armed Al-
Badar men on 10 December 1971, as a part of concerted plan. Accused
Mujahid by his speeches and statement and acts substantially encouraged the
perpetrators by endorsing the concerted plan to the commission of the crime
and he as a person having position of authority on Al-Badar cannot be
absolved of responsibility for the crimes as he failed to prevent its
commission. Besides, on consideration of the defence document a report
titled “Country could not care less” published in a daily on 14.12.2010
[defence documents volume no. 14, page 463-464] in its entirety together with
other relevant facts and circumstances it reveals that the armed gang who
abducted Seraj Uddin Hossain was led by the accused Ali Ahsan Muhammad
Mujahid and the accused was ‘concerned’ with the criminal acts that resulted
in abduction and death of Seraj Uddin Hossain.
599. It has been proved, in relation to charge no.3, that the accused Ali Ahsan
Muhammad Mujahid by his explicit acts approved or instigated or abetted the
perpetrators in committing the offence of confinement of Ranjit Kumar Nath
by taking him out of the army camp at Faridpur circuit house where the
accused was found holding meeting with the army. ‘Participation’
encompasses ‘approval’ or ‘instigation’ or ‘encouragement’ or ‘aiding’ or
‘abetment’. The accused who was a potential leader of ICS having influence
even over the army thus had substantially contributed to the commission of
offence narrated in charge no.3, by his culpable acts.
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600. As regards charge no.5 [killing of numerous civilians at the army camp
at Nakahlpara old MP hostel] the actual perpetrators could not be identified.
The accused is not alleged to have physically participated to the actual
perpetration of killing the detainees. But the accused, as already proved, by his
acts, culpable conduct rendered substantial support, encouragement in
committing the principal crimes. By remaining present at the army camp the
accused advised to kill the detainees before president’s clemency came into
effect On this score too, the accused is equally liable for participating to the
commission of the crimes as listed in charge no.3 in the same manner as if it
were done by him alone.
601. We have already found it proved that the accused Ali Ahsan Muhammad
Mujahid has incurred criminal liability for the crimes as listed in charge no.6
[intellectuals killing] mainly for his position of authority on Al-Badar and his
culpable affiliation with the Al-Badar head quarter in Dhaka city. Besides, in
different times he had made inciting speech urging to join Al-Badar for
annihilating ‘miscreants’ [freedom fighters] ‘Indian agents’ [pro-liberation
Bengali civilians]. By addressing ‘last speech’ at AB HQ on 16 December the
accused expressed that they were ‘not ashamed’ of their ‘deeds’ [atrocities].
602. The accused is proved to have acted consciously and in such a manner in
exercise of his influence and authority over the members of Al-Badar that
eventually facilitated and contributed to the actual commission of the crimes
of intellectuals killing, in furtherance of a concerted plan and common
purpose. His acts and culpable conducts clearly constitute instigation or
abetment to the perpetrators of the crime which makes him to be coperpetrators
under section 4(1) of the Act. At the same time he incurs liability
under section 4(2) of the Act as he as a superior or a person in position of
authority of Al-badar by virtue of position in ICS was a part of the concerted
plan and concerned with activities involving the commission of crimes by the
Al-Badar men.
603. In respect of charge no. 7 which relates to Hindu civilians killing at
Bakchar village in Faridpur, the accused has been indicted for his physical
participation. By accompanying the group of individuals to the crime site and
remaining present there tantamount to tacit approval constituting
‘participation’ which has been found proved beyond reasonable doubt by
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direct evidence and thus the accused has incurred liability under section 4(1)
of the Act.
604. Thus by act of accompanying the gang in the capacity of potential leader
of ICS the student wing of JEI, as part of attack, the accused is found to have
substantially contributed and facilitated the actual commission of the crime
committed by the principals and as such he was ‘concerned with the
commission’ of the offence of murder alleged. The conscious act of
accompanying and leading the gang of perpetrators signifies common intent
and is a constituent of ‘participation’.
605. It is immaterial to argue that the accused was not the actual perpetrator or
he himself physically participated to the commission of the criminal acts. It is
to be noted that the alleged crimes as enumerated in section 3(2)(a) of the Act
of 1973 were committed in furtherance of attack directed against the civilian
population. It is not the ‘act’ but the ‘attack’ is to be systematic in nature and
even a single act forms part of the ‘attack’. Thus, we are to see how the
accused acted or conducted forming part of ‘attack’ that resulted in
commission of the principal criminal acts directing the non combatant
civilians. Prosecution even is not required to identify the actual perpetrator.
606. In the case in hand, prosecution has been able to prove that the accused
Ali Ahsan Muhammad Mujahid was related to a scheme or system and
concerted plan which had a criminal outcome. The evidence indisputably
suggests that the accused consciously and being aware of the foreseeable
consequence of his acts and conducts aided, encouraged and provided moral
supports and approval to the principals for committing crimes alleged.
XXIV. Investigation Procedure
607. No substantial argument has been advanced on part of the defence
attacking legality of investigation procedure. On question of fairness the
learned defence counsel submitted that the Investigation Officer did not make
any effective investigation and he took significantly short span of time in
carrying investigation as regards events allegedly took place in Faridpur; that
the IO did not prefer to examine the case record of Seraj Uddin Hossain
Killing brought under the Collaborators Order 1972; that the IO did not find
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accused’s name in any list of Al-Badar; that he did not examine some vital
witnesses.
608. However, we deem it expedient to address the issue, in light of provisions
contemplated in the Act of 1973 and the ROP together with the deposition
made by the IO before the Tribunal. Investigation officer [P.W.17] is a mere
formal witness. Any procedural flaw even if found in the task of investigation
does not necessarily impair the entire investigation and in no way affects the
merit of the case. Besides, it is to be remembered that the investigation under
the Act of 1973 is a quite unique job for the officer assigned with it. The
‘report’ submitted by the Investigator arraigning the accused does not relate to
the offence under the normal Penal Law. In fact the Investigation Officer had
to deal with the alleged offence of crimes against humanity committed in
violation of customary international law and prima facie involvement of the
accused therewith.
609. P.W.17 Md. Abdur Razzak Khan PPM, an Investigation Officer of the
Investigation Agency constituted under section 8(1) of the Act of 1973 was
entrusted with the task of investigation. As stated by P.W.18 the information
obtained through the record of Pallabi Police Station case no. 60 dated
25.1.2008 and Keraniganj Police Station case No. 34 dated 31.12.2007 was
registered as ‘complaint’ on 21.7.2010 by the Investigation Agency of the
Tribunal under Rule 5 of the ROP. During investigation P.W.18 prayed
through the Chief Prosecutor for detention of the accused Ali Ahsan
Muhammad Mujahid for the purpose of effective and proper investigation;
visited the crime sites; examined the witnesses and recorded their statement;
seized documents and materials from different organisations. On conclusion of
investigation he [P.W.18] submitted report on 30.10.2011 in the office of the
Chief Prosecutor.
610. Non perusal of the case record of Seraj Uddin Hossain Killing brought
under the Collaborators Order 1972 is not a flaw and does not affect the
present prosecution brought under the Act of 1973, a quite different
legislation. The offence of murder tried in that case was punishable under
Penal Code. Besides, we may have idea about the said case from a defence
document, a report published in the Daily Star [Defence Documents Volume
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14, page 463,464]. It cannot be treated as a flaw of the task of investigation
that the IO did not find accused’s name in any list of Al-Badar. It is to be seen
whether the prosecution has been able to prove that accused belonged to Al-
Badar or had a position of authority on it by evidence and circumstances.
611. Rule 2(6) of the ROP defines; ‘complaint’ on the basis of which
investigation is to be done. Under Rule 2(6) a ‘compliant’ is defined as “any
information oral or in writing obtained by the Investigation Agency including
its own knowledge relating to the commission of a crime under section 3(2) of
the Act”. That is to say, the Investigation Agency is authorized to initiate
investigation predominantly on information it obtains. There has been no legal
bar in obtaining information even from the said compliant petitions of Pallabi
and Keraniganj police stations cases, as stated by P.W.17. But that does not
mean that those compliant petitions were the sole foundation of investigation
into the alleged criminal acts of the accused allegedly committed during the
war of liberation in 1971. Information obtained however merely allows the
investigation agency to initiate the investigation process.
612. For the reason of absence of any legal sanction of transferring those two
cases to ICT the same, after receiving by the Registry of ICT, were in fact
simply sent to the Investigation Agency of the ICT as the information relating
to allegations brought therein falls within the jurisdiction of the Act of 1973,
as observed by the Magistrate Court. Rule 5 of the ROP speaks of procedure
of maintaining ‘complaint register’ and not the procedure of initiating
investigation. Rather Section 8 and Rule 4 contemplate the procedure of
holding investigation and it appears that the IO (P.W.17) accordingly has done
the task of investigation. The ‘report’ submitted by the Investigation Agency
before the Chief Prosecutor under Rule 11 of the ROP, in true sense, is the
foundation of the case. On receipt of such ‘report’ the Chief Prosecutor is
authorized to examine it and documents , materials submitted therewith and to
decide whether ‘Formal Charge’ is to be submitted under section 9(1) of the
Act of 1973.
613. On total appraisal, we do not find anything flawed in the investigation
task. Fundamentally, investigation under the Act of 1973 on information
obtained relates to the process of procuring documentary evidence, recording
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statement of witnesses if found available and identifying the event[s], crime
site[s] and casualty caused by the alleged criminal acts and also to identify
whether the criminal acts alleged fall within the definition as enumerated in
section 3(2) of the Act of 1973. The Tribunal notes that the Investigation
Officer [P.W.17] , in compliance with the norms and provisions contemplated
in the Act of 1973 and the ROP, carried out its investigation on completion of
which he duly submitted ‘report’ before the Chief Prosecutor.
XXV. Defence Documents and Witness
614. Defence in fact has not pleaded any specific case excepting ‘innocence’.
No plea of alibi has been taken on part of the accused. However, defence
adduced and examined only one witness, Ali Ahmad Mabrur, the son of the
accused who simply proved and exhibited some books and paper cuttings
submitted as required under section 9(5) of the Act of 1973. But however no
argument has been extended by the defence, drawing attention to the exhibited
documnts.
615. Understandably, the alleged books and paper cuttings have been
submitted and exhibited in support of ‘negative assertion’. The narrative of
atrocities in those books does not appear to have been exploited from
authoritative sources.
616. The effort on part of the accused by proving those documents aims to
aver that the accused Ali Ahsan Muhammad Mujahid was ‘not involved ‘with
any of crimes alleged. That is to say, merely in support of a ‘negative
assertion’ those documents have been proved and exhibited. But an assertion
relating to ‘innocence’ shall have to be adjudicated on weighing prosecution
evidence.
617. We have already recorded our considered finding in the case of
Muhammad Kamaruzzaman that
“First, according to settled norms of criminal
jurisprudence, a negative assertion is not needed to
be proved by adducing evidence. Second, the
history of the war of liberation of Bangladesh and
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atrocities committed during 1971directing
unarmed civilians is not a mere piece of petite tale
that it can be narrated or documented in couple of
paragraphs of a book containing hundred
pages.”[Muhammad Kamaruzzaman, Judgment 09
may 2013, para 551]
618. Therefore, mere non description of accused’s involvement with any of
crimes alleged does not necessarily confront the prosecution case for
excluding complicity of the accused. Defence is not needed to prove
innocence and any negative assertion. But the settled jurisprudence does not
require a ‘negative assertion’ to be proved by adducing evidence. The
Tribunal notes that mere non-describing the name of the accused involving
him with the commission of the event in those books and reports published in
news papers from Faridpur does not ipso facto helps the defence to disprove
prosecution case.
XXVI. Role of JEI in 1971
619. We deem it indispensable to get a scenario on the role and stand of Jamat
E Islami [JEI] in 1971, particularly when it has already been established that
the Al-Badar was an ‘action section’, ‘armed wing’ of Jamat E Islami and the
Al-Badar was formed mainly of the workers of its student wing Islami Chatra
Sangha [ICS].
620. Already we have made intricate deliberation on the role of JEI in 1971 in
the case of Muhammad Kamaruzzaman based on various impending
sourced information and evidence. Without reiterating vivid discussion on it
we prefer to endorse the observation we have rendered in the case of
Muhammad Kamaruzzaman, in brief. We have observed in the said case that
“ Jamat E Islami [JEI] had played substantial role
in organising and establishing its two wings
conceivably to join the military’s efforts.
Therefore, it is now history based on old
authoritative documents that chiefly it was Jamat E
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Islami (JEI) that played substantial role in
formation of Al-Badar, Razakar, Al-Shams and
Peace Committees and of course not with intent to
guard the civilians and their property”.
621. We consider it expedient to endorse further observations made in the said
case [Muhammad Kamaruzzaman] that
“Jamat E Islami was thus indulged in
indiscriminate massacre of their political
opponents belonging to Bengali nation, in the
name of liquidating ‘miscreants’, ‘infiltrators’ for
which they were using Razakars, Al-Badar
comprising with the workers of Islami Chatra
Sangha [ICS], its student wing”.[Muhammad
Kamaruzzaman, Judgment 09 May 2013 para 601]
622. We have already recorded our observation based on sourced information
and documents that
“……………………..Jamat E Islami [JEI] had
allowed their creation Al-Badar and Razakars to
operate an assembly line of incalculable atrocities
in the territory of Bangladesh in 1971. The nation
will be failing to acknowledge the sacrifices of
millions of people who laid their lives and honour
for the cause of our heard earned independence if
individuals like the present accused are not
brought to book for their notorious role and active
contribution and endorsement for committing the
systematic atrocities in 1971, in the territory of
Bangladesh. ”[Muhammad Kamaruzzaman,
Judgment 09 May 2013 para 607]
623. It was Jamat E Islami [JEI] and its student wing which joined the
military’s effort to launch two paramilitary counterinsurgency units [Musa
Khan Jalalzai, Sectarianism and Politico-Religious Terrorism in Pakistan,
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Lahore: Tarteeb Publishers, 1993, page 258]. By September, a force of fifty
thousand razakars had been raised. Secular West Pakistani politicians
complained about “an army of Jamaat-e-Islami nominees”[Source: Salik,
Witness to surrender, page 105]. The above sourced information offers a
picture as to stand the JEI opted to wipe out the pro-liberation Banglee people
terming them ‘miscreants’ ‘agents of India’, ‘enemies of Islam’, simply in the
name of preserving Pakistan. Jamat E Islami [JEI] cannot be relieved from the
accountability of unspeakable mayhem, atrocities and murders committed by
the Al-Badar which was created by it and had acted as its ‘action section’,
‘fascist body’ and ‘armed wing’ in 1971. Though JEI used to preach that
Islam was its ideology, the slightest proof of humanity and tolerance which
the great and holy religion Islam acknowledges could not have been witnessed
in its acitivities in 1971. The victims and sufferers of the diabolical atrocities
do have right to know the role of Jamat E Islami played in 1971. And that is
why considering it quite pertinent; we have preferred to endorse our
observations, in brief, rendered in the former case.
XXVII. Conclusion
624. Despite lapse of long 40 years’ time the testimony of P.W.s of whom
some had fair occasion to see and experience actual commission of criminal
event including the acts and conducts of accused, and the activities carried out
by the Al-Badar men and at the Al-Badar head quarter in Dhaka city, army
camps in Dhaka and in Faridpur on approval and encouragement of accused,
the then potential leader of ICS and a person of in position of authority on Al-
Badar leader. Some of P.Ws have also testified on substantial facts relevant
and material to the event of atrocities and culpability of the accused and their
testimony does not appear to have been suffered from any material infirmity.
Besides, no significant inconsistencies between their testimony made before
the Tribunal and their earlier statement made to the Investigation Officer
could be found that may smash their credibility.
625. Section 3(1) provides jurisdiction of trying and punishing even any
‘individual’ or ‘group of individuals’ including any ‘member of auxiliary
force’ who commits or has committed, in the territory of Bangladesh any of
crimes mentioned in section 3(2) of the Act, apart from member of armed or
defence forces. We have already resolved in our foregoing deliberations that
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‘Al-Badar’ was an ‘auxiliary force’ and the accused Ali Ahsan Muhammad
Mujahid was a potential leader of Al-Badar having position of authority which
makes him criminally liable also under the theory of superior responsibility as
contemplated in section 4(2) of the Act of 1973, in relation to charge nos. 1
and 6.
626. We are convinced from the evidence, oral, documentary and
circumstantial, led by the prosecution and the sourced documents that the
accused, at the relevant time had acted as an atrocious and potential leader of
Al-Badar to the actual accomplishment of the crimes charged and his access to
the army camps is a fair indicative of his active and culpable affiliation even
with the Pakistan occupation army. Accused's conscious and culpable
conduct---antecedent, contemporaneous and subsequent, as have been found--
-all point to his guilt and are well consistent with his 'complicity' and
'participation' in the commission of the crimes proved. As a result, we
conclude that the accused Ali Ahsan Muhammad Mujahid was ‘concerned’
with and had ‘complicity’ to the commission of the offences in relation to
charge nos. 1, 3,5,6 and 7 for which he has been charged in the capacity of
leader/head of Al-Badar which was truly an ‘action section’ of Jamat E
Islami[JEI].
627. According to section 4(1) of the Act of 1973 the accused Ali Ahsan
Muhammad Mujahid, being equally responsible, has incurred individual
criminal liability for the commission of crimes proved, in relation to charge
nos. 1, 3, 5,6 and 7. It also stands proved that the accused, by his acts and
conduct, also incurs superior responsibility under section 4(2) of the Act of
1973 for the crimes described in the charge nos. 1 and 6. However, we refrain
from convicting him cumulatively for both mode of liability, in relation to
charge nos. 1 and 6, excepting taking it into account as an aggravating factor.
Accordingly, the accused is held criminally responsible under section 4(1) of
the Act of 1973 for the commission of crimes proved as listed in charge nos.
1,2,3,4 and 7.
628. The Tribunal [ICT-2] is not precluded from considering both forms of
responsibility in order to get a full reflection of culpability of the accused, in
light of the facts revealed from evidence and materials. But however, we
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consider that ‘cumulative convictions’ under section 4(1) and 4(2) of the Act
of 9173 is inappropriate for the same conduct or act forming part of attack that
resulted in actual commission of the crimes alleged.
[
629. We reiterate that ‘no innocent person be convicted, let hundreds guilty be
acquitted’—the principle has been changed in the present time. In this regard
it has been observed by the Indian Supreme Court that
“A judge does not preside over a criminal trial,
merely to see that no innocent man is punished.
A Judge also presides to see that a guilty man
does not escape. Both are public duties.”
[Per Viscount Simon in Stirland vs. Director of Public
Prosecution: 1944 AC (PC) 315: quoted in State of U.P Vs.
Anil Singh : AIR 1988 SC 1998]
630. C.L. Sulzberger wrote in the New York Times, June 16, 1971
describing the horrific nature and untold extent of atrocities committed in the
territory of Bangladesh. It shakes the conscious of mankind. It imprints
colossal pains to the Bangalee nation. C.L. Sulzberger wrote that-
“Hiroshima and Nagasaki are vividly
remembered by the mind’s eye primarily
because of the novel means that brought
holocaust to those cities. Statistically
comparable disasters in Hamburg and Dresden
are more easily forgotten; they were produced
by what we already then conceived of as
“conventional” methods. Against this
background one must view the appalling
catastrophe of East Pakistan whose scale is so
immense that it exceeds the dolorimeter
capacity by which human sympathy is
measured. No one can hope to count the dead,
wounded, missing, homeless or stricken whose
number grows each day. “
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[Source: Bangladesh Documents: Volume I, page 442:
Ministry of External Affairs, New Delhi]
631. The above observation made on 16 June 1971 reflects an impression as
to the tragic scale and dreadful nature of atrocities which were carried out
through out the war of liberation in 1971. The offences for which the accused
Ali Ahsan Muhammad Mujahid has been found responsible are the part of
such atrocities committed in context of the war of liberation 1971 in the
territory of Bangladesh, in collaboration with anti-liberation and antagonistic
political organisations namely Jamat E Islami, Muslim League, Nejam E
Islami, group of pro-Pakistan people and the Pakistani occupation army with
objective to annihilate the Bengali nation by resisting in achieving its
independence.
632. Therefore, bearing it in mind the Tribunal notes that no guilty man
should be allowed to go unpunished, merely for any faint doubt, particularly in
a case involving prosecution of crimes against humanity committed in 1971 in
violation of customary international law during the War of Liberation.
Because, wrong acquittal, merely for any faint or unreasonable doubt, has its
chain reactions, the law breakers would continue to break the law with
impunity.
XXVIII. VERDICT ON CONVICTION
633. For the reasons set out in this Judgement and having considered all
evidence and arguments, the Tribunal unanimously finds the accused Ali
Ahsan Muhammad Mujahid
Charge No.1: GUILTY of the offence of ‘abetting’ and
facilitating the commission of the offence of ‘murder’ as
‘crime against humanity’ as specified in section 3(2)(a)(g) of
the Act of 1973 and he be convicted and sentenced under
section 20(2) of the said Act.
Charge No.2: NOT GUILTY of the offence of ‘abetting’ to
commit ‘genocide’ as specified in section 3(2)(c)(g) of the
Act of 1973 and he be acquitted thereof accordingly.
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Charge No.3: GUILTY of the offence of ‘abetting’ and
facilitating the commission of offence of ‘confinement’ as
‘crime against humanity’ as specified in section 3(2)(a)(g)
of the Act of 1973 and he be convicted and sentenced under
section 20(2) of the said Act.
Charge No.4: NOT GUILTY of offence of ‘abetting’ and
‘facilitating’ the commission of offence of confinement and
causing inhuman act as ‘crimes against humanity’ as
specified in section 3(2)(a)(g) of the Act of 1973 and he be
acquitted thereof accordingly.
Charge No.5: GUILTY of the offence of ‘abetting’ and
facilitating the commission of offence of murders as ‘crimes
against humanity’ as specified in section 3(2)(a)(g) of the Act
of 1973 and he be convicted and sentenced under section
20(2) of the said Act
Charge No.6: GUILTY of the offence of ‘abetting’ and
‘planning’ and facilitating the commission of offence of
‘extermination’ as ‘crimes against humanity’ as specified in
section 3(2)(a)(g) of the Act 1973 and he be convicted and
sentenced under section 20(2) of the said Act
Charge No.7: GUILTY of offence of ‘participating’ and
‘facilitating’ the commission of offence of ‘murders’ and
‘persecution’ as ‘crimes against humanity’ as specified in
section 3(2)(a)(g) of the Act of 1973 and he be convicted and
sentenced under section 20(2) of the said Act
XXIX. VERDICT ON SENTENCING
634. Mr. Mukhlesuer Rahamn Badal and Ms. Tureen Afroz, the learned
Prosecutors finally insisted that accused Ali Ahsan Muhammad Mujahid
should face the highest sentence, being a sentence of death, as he is proved to
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have abetted, facilitated and participated to the commission of barbaric
criminal acts constituting the offence of crimes against humanity and
genocide. Accused’s superior position of authority on the Al-Badar force
together with the intrinsic gravity and degree and pattern of criminal acts
constituting the offence of extermination of civilians belonging to intellectual
class [charge no.6] and killing and persecution of civilians belonging to Hindu
community as crimes against humanity [charge no.7] deserves to be
considered as an ‘aggravating factor’ in awarding the highest sentence. The
act of remaining present at the army camp and providing ‘advising’ to the
army to liquidate the detainees [charge no.5] constitutes substantial
contribution to the killing of some brave sons of the land. Abduction and
murder of Seraj Uddin Hossain, a notable journalist [charge no.1] was a part
of intellectuals killing which carries similar gravity. For only such sentence
would be just and appropriate to punish those crimes at such a level that
corresponds to their overall magnitude. Only the highest sentence shall reflect
the extent of the untold torment inflicted upon the millions of victims in 1971.
635. It is now settled that determination of gravity predominantly requires
consideration of the particular circumstances of the case, as well as the form
and degree of the accused’s participation.The Tribunal notes that gravity of
offence is to be considered together with aggravting circumstnaces, in arriving
at a finding in respect of sentence. In the case in hand, considering the charges
proved and facts relevant thereto we take some factors into account as the
key requirement of aggravating circumstances for the purpose of sentence to
be imposed and these are (i) the position or leadership of the accused on Al-
Badar and his level of influence and control on the Al-Badar and their
headquarter at Dhaka city(ii) the accused’s role and mode of participation as
fellow perpetrator (iii) culpable affiliation with the army and holding meeting
with them at the army camp, and (iii) the violent, and humiliating nature of the
acts and the vulnerability of the victims.
636. The Tribunal notes that the forms of punishment must reflect both the
calls for justice from the persons who have directly or indirectly been victims
and sufferers of the crimes, chiefly considering the gravity of crimes. The
crimes proved were massive human rights violations committed during the
war of liberation 1971.
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637. However, with due respect for the letter of the law, in order to ensure the
legitimacy of the decisions, the Tribunal solely respects to the legal nature of
the offences committed, their scale, the role and position of the accused played
and exercised in their commission, and the shock sustained by the victims and
their families together with the preamble of the Act of 1973.
638. The preamble of the Act of 1973 unequivocally demonstrates that this
piece of legislation was enacted for the detention, prosecution and punishment
of persons for genocide, crimes against humanity, war crimes and other crimes
under international law. Thus the accused has been arraigned not for
committing any isolated offence as codified in normal penal law and as such
the charge brought under the Act of 1973 itself portrays magnitude, gravity
and diabolical nature of the crime and in the event of success of prosecution in
proving the charge the accused must and must deserve just and highest
punishment.
639. At the same time a sentence must always reflect the inherent level of
gravity of a crime which requires consideration of the particular circumstances
of the cases, as well as the form and degree of the participation of the accused
in the crime. Active abuse of a position of authority, which would presumably
include participation in the crimes of subordinates, can aggravate liability
arising from superior authority. The conduct of the accused in the exercise of
his superior authority could be seen as an aggravating circumstance.
640. We have already recorded our finding that the event of Abduction
followed by murder of journalist Seraj Uddin Hossain [charge no.1] took place
on 10 December 1971 which was predictably an atrocious event carried out
as a part of execution of same common design and plan of killing the
intellectuals[charge no.6] . And the accused Ali Ahsan Muhammad Mujahid
having position of authority on the Al-Badar men, the principal perpetraors,
was thus a part of the common plan and design and as such he cannot be
absolved of criminal responsibility.
641. Charge no.6 relates to killing of numerous intellectuals by picking them
up from their residence on gun point. However, an independent charge being
charge no.1 has been framed on the event of abduction and murder of
journalist Seraj Uddin Hossain and the accused has been found guilty of
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abetting the commission of the crimes under charge no.1. It is not alleged that
the accused himself physically participated to the perpetration of crimes as
narrated under charge no.1.
642. Additionally, admittedly one Kahlil was prosecuted, tried, convicted and
sentenced to imprisonment for life under the Collaborators Order 1972 for the
event of same criminal acts, as narrated in charge no.1. But this fact does not
preclude the Tribunal’s jurisdiction in finding the accused guilty of the
offence of abetting the principal crimes under the International Crimes
(Tribunals) Act, 1973, a different legislation. However, this admitted fact
deserves to be taken into account together with the fact that the event under
charge no.1 which is found proved to be a part of ‘intellectuals killing’ as
narrated in charge no. 6.
643. Since the event as narrated in charge no. 1 justifiably deserves to be
merged with the event of ‘intellectuals killing’ as listed in charge no.6, as a
part of planned and selective killing, in fiurtherance of common purpose we
do not deem it indispensable to award break up sentenec despite finding the
accused Mujahid guilty of the crimes narrated in charge no. 1, on independent
adjudication.
644. As regards crimes narrated in charge no.5, the accused is not alleged to
have physically participated to the commission of crimes. But we have found
it proved beyond reasonable doubt that the accused Ali Ahsan Muhammad
Mujahid substantially encouraged and supported to the commission of the
offence of murder of numerous brave unarmed guerilla fighters and civilians
who were kept detained at the army camp. The event was enormously
appalling indeed. However, mode of participation of the accused, as has been
found, deserves justifiable consideration, in awarding sentence in respect of
charge no.5.
645. Therefore, we deem it apposite to render our agreed decision that justice
would be met if for the crimes as listed in charge no. 5 the accused Ali Ahsan
Muhammad Mujahid who has been found guilty beyond reasonable doubt is
condemned to the sentence of ‘imprisonment for life ’ under section 20(2) of
the Act of 1973.
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646. Considering the gravity of offence and mode of participation of the
accused for the offence of ‘confinement’ narrated in charge no.3 accused Ali
Ahsan Muhammad Mujahid deserves to be condemned to the sentence of
‘imprisonment for five years’ under section 20(2) of the Act of 1973.
647. Now let us have a glance to the gravity of the crimes under charge nos. 6
and 7 together with mode of particpation of the accused therewith. We have
already deduced that the accused has incurred criminal liability also under the
‘theory of civilian superior responsibility’, in respect of charge no. 6 which is
covered by section 4(2) of the Act of 1973 and it may legitimately be taken
into account as an ‘aggravating factor’, for the purpose of determining the
degree of accused’s culpability and awarding sentence.
648. We have taken the intrinsic magnitude of the offence of ‘extermination’
[charge no. 6] and ‘murders’ and ‘persecution’ [charge no.7] as ‘crimes
against humanity’ being offences which are predominantly shocking to the
conscience of mankind into our consideration. We have also carefully
considered accused’s position of authority through which he asserted his
effective influence and control over the Al-Badar men and the Al-Badar
headquarter in Dhaka city and also the mode of participation of the accused to
the commission of crimes proved and the the gravity of offences.
649. The fierceness of the event of the ‘intellectuals killing’ and the attack
which was launched directing the unarmed civilians belonging to Hindu
community causing numerous death, rape, persecution were grotesque and
diabolical in nature and extremely detrimental to basic humanness. The
accused by his acts, conducts, inciting statement, and speech substantially
encouraged and abetted the Al-Badar men the principal perpetrators of
intellectuals killing [charge no.6] to further an organized plan and common
purpose, by virtue of his substantial position of authority on Al-Badar force .
650. The accused has been proved to have accompanied the principals to the
crime sites and thereby participated by subtantially contributing to the
horrendous systematic attack that resulted in murder and persecution of
numerous unarmed civilians belonging to Hindu civilians [charge no.7] and
also creating a coercive climate with discriminatory intent. Accused Ali
Ahsan Muhammad Mujahid consciously opted to participate in the systematic
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killings of civlians belonging to Hindu comminuity and he actively supported
and encouraged the commission of killings, rape and persecution through his
presence and acts at the crime sites. These crimes deserve to be evaluated as
‘crimes of serious gravity’.
651. Next, particularly the event of ‘large scale killing of intellectuals’ to
further a common purpose under a designed plan that took place just few days
before the victory on 16 December 1971 terribly shocks the conscience of
humankind and the Bangalee nation . The martyr intellectuals were the best
sons and daughters of the soil. Intent to kill the listed intelligentsias was to
cripple the Bangalee nation. Designed plan, pattern of such selective but large
scale killing of intellectuals belonging to different professions inescapably
aggravate the extent of the criminal acts and liability of the accused as well.
Letters of law cannot remain non responsive to the relatives of hundreds of
martyr victims and the nation too who have been still carrying colossal and
unspeakable trauma.
652. As for extermination, a particularly large number of victims can be an
aggravating circumstance in relation to the sentence for this crime. Mass
killing of large number of individuals belonging to the intelligentsia class of
Bengali nation was ‘extremely serious’ offence of crimes against humanity
indeed, as the attack was systematic, planned and designed which was aimed
to cripple the Bengali nation just at the verge of victory on 16 December
1971. Such ‘extreme seriousness’ inevitably is considered as an aggravating
factor in awarding sentence for the crimes of extremiantion.
653. The nation pays its humble homage and tribute to the martyr intellectuals
on 14 December each year for the sacrifice they laid for the cause of our
independence. If this act forming systematic attack directed against civilian
population causing ‘large scale killing of intellectuals’ [charge no.6] and the
attack directing the Hindu community with discriminatory intent causing
killing of numerous civilians and persecution [charge no.7] are not repellent
or dastardly, it is beyond comprehension as to what other act can be so.
654. Superior position in itself does not constitute an aggravating factor, true.
But abuse of a position of influence and authority on Al-Badar force and it’s
headquarter can be legitimately taken into account as an aggravating factor in
awarding sentence. Additionally, the manner in which the accused exercised
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his position of authority on Al-Badar men, the principal perpetrators in
executing the planned and designed mass killing of intellecrtuals can justify a
finding of accused’s substantial position of authority as an aggravating
circumstance. The authority the accused Ali Ahsan Muhammad Mujahid
therefore exercised over the Al-Badar men and their headquarter which was
known as ‘torture camp’, and his active role in encouraging them to liquidate
the pro-liberation Bangali civilians terming them ‘miscreants’, ‘agents of
India’ are indeed aggravating factors.
655. Therefore, accused’s ‘superior position’ or ‘position of authority’ on
infamous Al-Badar force and it’s headquarter at Dhaka city [as listed in
charge no.6] and his mode of participation in committing the crimes [as listed
in charge nos. 7] justifiably increase his culpability which deserves to be
taken into account as tangible ‘aggravating factor’.
656. In view of above discussion , we are of the unanimous view that there
would be failure of justice in case ‘capital punishment’ is not awarded for the
crimes, as listed in charge nos. 6 and 7 as the same indubitably falls within
the kind of such gravest crimes which tremble the collective conscience of
mankind.
657. Keeping the factors as conversed above in mind we are of agreed view
that justice would be met if for the crimes as listed in charge nos. 6 and 7 the
accused Ali Ahsan Muhammad Mujahid Muhammad who has been found
guilty beyond reasonable doubt is condemned to a ‘single sentence of death’
under section 20(2) of the Act of 1973.
658. Accordingly, we do hereby render the following ORDER on
SENTENCE.
Hence, it is
ORDERED
That the accused Ali Ahsan Muhammad Mujahid son of late Moulana
Abdul Ali and late Begum Nurjahan of ‘Paschim khabashpur’ under Kotwali
police station district Faridpur, at present Road No. 10, House No. -05, Flat
No. 2/A, Sector-11, Police Station Uttara, Dhaka Metropolitan Police, Dhaka
found guilty of the offences of ‘crimes against humanity’ enumerated in
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section 3(2) of the International Crimes (Tribunals) Act, 1973 as listed in
charge no.s 1, 3,5,6 and 7.
The accused Ali Ahsan Muhammad Mujahid be convicted and condemned
to the sentence of ‘imprisonment for 05 (five) years’ for the crimes as listed
in charge no. 3 and to the sentence of ‘imprisonment for life’ for the crimes
as listed in charge no. 5 under section 20(2) of the Act of 1973.
The accused Ali Ajsan Muhammad Mujahid be convicted and condemned
to a ‘single sentence of death’ for the crimes as listed in charge nos. 6 and 7
and he be hanged by the neck till he is dead under section 20(2) of the
International Crimes (Tribunals) Act, 1973.
However, as the convict Ali Ahsan Muhammad Mujahid is ‘sentenced to
death’, the sentence of ‘imprisonment for life’ and the sentence of
‘imprisonment for 05 years’ will naturally get merged into the ‘setntence of
death ’. This sentence shall be carried out under section 20(3) of the Act of
1973.
Accused Ali Ahsan Muhammad Mujahid is found not guilty of offences as
listed in charge nos. 2 and 4 and thus he be acquitted thereof.
The sentence awarded shall commence 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 accordingly.
Let copy of the judgment be sent to the District Magistrate, Dhaka for
information and causing necessary action.
Let certified copy of the judgment also be furnished to the prosecution and the
accused at once.
Justice Obaidul Hassan, Chairman
Justice Md. Mozibur Rahman Miah, Member
Judge Md. Shahinur Islam, Member
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