Monday, July 2, 2012

19 Mar 2012: Kamruzzaman charging 3

Justice AKM Zaheer was not present during this hearing

Advocate Zead Al Malum, prosecutor, starting the hearing by saying, My Lord, I would like to draw your kind attention to the report of Daily Sangram. It has published a report titled ‘Again the Prosecution has failed to produce witness against Mawlana Sayedee.’ My Lord, is it not reporting from the negative corner of view?

Justice Nizamul Haq: We’re so tired to call up the reporters on the same issues. How many times we could call up on the same matters? We would not like to hear the same complaints again and again from both of the sides. Mr. Razzak (lawyer for the defence) yesterday you brought up an issue about another newspaper. But right now what should we do.

The Journalists must be very careful about these types of matters. We would like to have your cooperation from every aspect.

Barrister Abdur Razzak: My Lord, we would like to argue on the matter of Professor Golam Azam on another date

Justice Nizamul Haq: Okay the date is fixed on 25th March, 2012 . And as, Mr. AKM Zaheer is not present today, so it would be better to hear the matter in his presence on another day. So, let the date be fixed on 25th March, 2012.

Barrister Abdur Razzak: My Lord, we have another application about the matter of modification of the provision to allow home cooked food to Mr. Golam Azam.

Justice Nizamul Haq: We will hear the matter on the same day.

Advocate Tajul Islam: My Lord, I would like to say something about the media report which has been raised by the Prosecution team. My Lord, whatever they are expecting is not reasonable, because it will frustrate the principle of the freedom of press.

Advocate Saiful Islam, a prosecutor, then continued to read out the charge framing application relating to Mr. Md. Quamaruzzaman (carrying on from the previous day)
8.13 Superior status of the accused 
In measuring the responsibility of crime it is an established principle that the responsibility of the crimes committed by the subordinate workers will go directly to the superior personalities. This established idea is included in the 4(2) section of International Crimes (Tribunals) Act, 1973. According to this section: ‘Any commander or superior officer who orders, permits, acquiesces or participates in the commission of any of the crimes specified in the section 3 or is connected with any plans and activities involving the commission of such crimes or who fails or omits to discharge his duty to maintain discipline, or to control or supervise the actions of the persons under his command or his subordinates or any of them commit any such crimes, or who fails to take necessary measures to prevent the commission of such crimes, is guilty of such crimes.’

The above section is applicable to any civilian or military commander and superior officer.

8.14 In the light of proofs and events found in the investigation the accused Kamarujjaman’s superior status and liability under section 4(2) of the International Crimes (Tribunals) Act, 1973 for crimes committed under section 3(2) of the International Crimes (Tribunals) Act, 1973 are proved clearly.

8.15 The accused Kamarujjaman was the chairman of Mymensingh Islami Chaatro Shongho and an inhabitant of Sherpur. As the chief organizer, on 16th May, 1971 he provided a short military training for 47 workers at Sherpur( Mymensingh District). The training span was 7 to 12 days. The skills of using automatic weapons, dismantling and moving weapons from one place to another, disabling mines and explosives, receiving wireless message were developed in this training. In the practical field the under mentioned weapons were provided to Al Badr- Barabor gun, 303 rifle, light mortar gun, anti aircraft gun, hand grenade, mine and revolver. The association of Al Badrs was mentioned in the note of Major Gen. Rao Forman Ali Khan, the adviser to the governor general. Just after the formation of Rajakar and Al Badr force, camp was established at Ahmed nogor of Jhinaigati, Sherpur.

Brutal mass killings were committed at Jhaugora, Shurzadi of Sherpur, Kakorkandi, Shohagpur and Jogotpur village of Nolitabari area. Relation of Islami Chhatro Shongho with Al Badr force in the report of the Daily Shongram, published on 12th September, 1971 and the leaders of Islami Chhatro Shongho were told to form Al Badr force.

At page 5 column 6 of the Daily Shongram dated 16.08.1971 it is mentioned, “Last Saturday a procession and symposium were arranged at the local Muslim Institute of Momenshahi by Al Badr force commemorating the 25th Azadi Day. Mr. Kamarujjaman, chief organizer of Al Badr force presided over the symposium”. From the report of that news paper it is proved that the accused Muhammad Kamarujjaman is a high ranking organizer of Al Badr force who had the ability to plot conspiracy to agitate people to take strategic plan and to apply the strategic plans. Since, the accused Kamarujjaman is the chief organizer of Al Badr and in the context of determining the liabilities of activities performed by the workers of different statuses of the organization it is an established principle that the liabilities of the activities performed by the subordinates will go directly to the superior officer. Since the accused Kamarujjaman is the chief organizer of Al Badr force, as he had made plans to commit crimes being ordered by the Parent organization Jamaat E Islami and other associative forces like Rajakar force and Islami Chhatro Shongho and as he had taken all steps to apply all the orders and decisions and he had played important role to commit crimes that are defined under the section 4(1) and 4(2) of International Crimes (Tribunal) Act, 1973, the section is applicable to civilian or military commander and superior officer.

8.16 On 29th June 1971 at about 11 pm Martyr Bodiujjaman son of Md. Fojlul Huq inhabitant of Kalinogor village under Nalitabari police station of Sherpur district was arrested by a team of Al Badr whose leader was Kamarujjaman from the residence of Ahammod member of Ramnogor village under Jhinaigati police station and was taken to Ahammod nogor camp and there they tortured him all night and the next day they shot him and killed him on the street. They dragged the body and threw it in the water from the wooden bridge. Muhammod Kamarujjaman as a leader of Al Badr force used to go to the camp by military jeep and deliberately killed many people in this area.

8.17.1 The accused Kamarujjaman was the chairman of Mymensingh Islami Chaatro Shongho and an inhabitant of Sherpur. As the chief organizer, on 16th May, 1971 he provided a short military training for 47 workers at Sherpur (Mymensingh District). The training span was 7 to 12 days. The skills of using automatic weapons, dismantling and moving weapons from one place to another, disabling mines and explosives, receiving wireless message were developed in this training. In the practical field the under mentioned weapons were provided to Al Badr- Barabor gun, 303 rifle, light mortar gun, anti aircraft gun, hand grenade, mine and revolver. The association of Al Badrs was mentioned in the note of Major Gen. Rao Forman Ali Khan, the adviser to the governor general. Just after the formation of Rajakar and Al Badr force, camp was established at Ahmed nogor of Jhinaigati, Sherpur. (Source: Relation of Islami Chhatro Shongho with Al Badr force in the report of the Daily Shongram, published on 12th September, 1971 and the leaders of Islami Chhatro Shongho were told to form Al Badr force.)

At page 5 column 6 of the Daily Shongram dated 16.08.1971 it is mentioned, “Last Saturday a procession and symposium were arranged at the local Muslim Institute of Momenshahi by Al Badr force commemorating the 25th Azadi Day. Mr. Kamarujjaman, chief organizer of Al Badr force presided over the symposium”. From the report of that news paper it is proved that the accused Muhammad Kamarujjaman is a high ranking organizer of Al Badr force who had the ability to plot conspiracy to agitate people to take strategic plan and to apply the strategic plans. Since, the accused Kamarujjaman is the chief organizer of Al Badr and in the context of determining the liabilities of activities performed by the workers of different statuses of the organization it is an established principle that the liabilities of the activities performed by the subordinates will go directly to the superior officer. Since the accused Kamarujjaman is the chief organizer of Al Badr force, as he had made plans to commit crimes being ordered by the Parent organization Jamaat E Islami and other associative forces like Rajakar force and Islami Chhatro Shongho and as he had taken all steps to apply all the orders and decisions and he had played important role to commit crimes that are defined under the section 4(1) and 4(2) of International Crimes (Tribunal) Act, 1973, the section is applicable to civilian or military commander and superior officer.

8.17.2 On 29th June 1971 at about 11 pm Martyr Bodiujjaman son of Md. Fojlul Huq inhabitant of Kalinogor village under Nalitabari police station of Sherpur district was arrested by a team of Al Badr whose leader was Kamarujjaman from the residence of Ahammod member of Ramnogor village under Jhinaigati police station and was taken to Ahammod nogor camp and there they tortured him all night and the next day they shot him and killed him on the street. They dragged the body and threw it in the water from the wooden bridge. Muhammod Kamarujjaman as a leader of Al Badr force used to go to the camp by military jeep and deliberately killed many people in this area.

8.17.3 The anti liberation activities of Kamarujjaman during the liberation war have been known from the historical books on the liberation war and from the tortured people. On 22nd April, 1971 as the chairman of then Islami Chhatro Shongho of Mymensingh district Kamarujjaman first organized Al Badr with some loyal and selected members of Islami Chhatro Shongho of Ashek Mahmud College as the killing squad of Jammat E Islami. Kamarujjaman was the main organizer of this squad.

9. Specific Allegations against the accused-

Allegation no-1: Conspiracy to commit genocide. Refers to paragraphs 6, 7, 8.1- 8.17.
Accused Muhammad Kamarujjaman: Events described in Paragraph 8.8; 8.9; 8.13; 8.14; 8.15; 8.17.1; 8.17.2; 8.17.3 under the sections 3(2) (a) (g) (h) and 4(1) 4(2) of International Crimes (Tribunal) Act, 1973. The accused is liable to commit genocide by giving inciting, revengeful, hateful speech to eradicate the populace of a specific ethnicity by mass killing at the procession and symposium Momenshahi commemorating the 25th Azadi day of Pakistan. For this kind of attitude, the accused is personally liable by the section 4(1). The accused has committed crime which is worthy of the highest punishment by the section 20 of International Crimes (Tribunal) Act, 1973. 
Allegation no-2: Genocide. Refers to paragraphs between 8.1-8.17 above
Accused Muhammad Kamarujjaman: Events described in Paragraphs 8.1; 8.2; 8.3; 8.5; 8.7; 8.15 under the sections 3(2)(c)(iii); 3(2)(g)(h) and 4(2) of International Crimes (Tribunal) Act, 1972 The accused was the chairman of Mymensingh district Islami Chhatro Shongho on 1971 since Al Badr is a paramilitary force whose chief organizer was the accused then he has the superior/commander status. Since, the accused is a high ranking commander he is liable for the crimes committed by all his subordinate workers under the section 4(1);4(2) and for committing genocide by inflicting serious physical injuries, taking preparation for genocide, organizing the killing squad of Al Badr force and recruiting and providing military training to the workers of Islami Chhatro Shongho.
In paragraph 8.7 he is liable for committing genocide by killing males and by raping females. The accused has committed crime which is worthy of the highest punishment by the section 20 of International Crimes (Tribunal) Act, 1973. 
Allegation no-3: Crime Against Humanity: Murder. Refers to paras 8.1-8.17
Events described in paragraphs 8.4; 8.7; 8.10; 8.12; under sections 3(2)(a)(h) of the International Crimes (Tribunal) Act, 1973. The accused is liable to genocide by killing unarmed pro liberation people deliberately on the basis of religion, political party and ethnicity. The accused has committed crime which is worthy of the highest punishment by the section 20 of International Crimes (Tribunal) Act, 1973. 
Allegation no-4: Crime Against Humanity: Extermination. Refers to paras 8.1-8.17
Events described at the paragraph 8.9 under the section 3(2) of International Crimes (Tribunal) Act, 1973. The accused is liable for committing crime against humanity by committing extermination by giving inciting and hateful speech at the procession and the symposium, creating fear among the mass people and by creating propaganda among the party workers to eliminate pro liberation Bengali populace. The accused has committed crime which is worthy of the highest punishment by the section 20 of International Crimes (Tribunal) Act, 1973. 
Allegation no-5: Crime Against Humanity: Deportation. Refers to paras 8.1-8.17
Event described at the paragraph 8.6 under the Section 3(2)(a) of International Crimes (Tribunal) Act, 1973. The accused Muhammad Kamarujjaman is liable for committing crime against humanity by removing people from their home and by deporting them as many in habitants of Gridha Narayanpur village of Sherpur town under Jamalpur district including Emdadul Huq Hira Mia were compelled to leave their home due to the extensive torture of Kamarujjaman and his Al Badr troop. The accused has committed crime which is worthy of the highest punishment by the section 20 of International Crimes (Tribunal) Act, 1973. 
Allegation no-6: Crime against humanity: Torture. Refers to paras 8.1-8.17
Event described at the paragraphs 8.4; 8.5; 8.8; 8.11; 8.12; under the sections 3(2)(a)(g)(h) of the International Crimes (Tribunal) Act, 1973. The accused and his Al Badr force had arrested Martyr Bodiujjaman son of Md. Fojlul Huq inhabitant of Kalinogor village under Nalitabari police station of Sherpur district on 29th June 1971 at about 11 pm from the residence of Ahammod member of Ramnogor village under Jhinaigati police station and had taken to Ahammod nogor camp and there they tortured him all night
The accused had arrested Syed Abdul Hannan, lecturer of Islamic history and Culture of Sherpur College and made him almost naked, made him bald, harnessed him, rubbed him with ashes and dragged him along the streets of Sherpur town while they were whipping him brutally. He is liable for committing crime against humanity by torturing and persecuting. The accused has committed crime which is worthy of the highest punishment by the section 20 of International Crimes (Tribunal) Act, 1973. 
Allegation no-7: Crime Against Humanity: Rape. Refers to para 8.1-8.17
Event described at the paragraph 8.7 under the Section 3(2)(a)(h) International Crimes (Tribunal) Act, 1973. The accused is liable for crime against humanity by killing males and raping females of Shohagpur village on 25th July, 1971. The accused has committed crime which is worthy of the capital punishment by the section 20 of International Crimes (Tribunal) Act, 1973. 
Allegation no-8: Crime Against Humanity: Persecution, Refers to paras 8.1-8.17
Event described at the paragraph 8.6 under the section 3(2)(a)(g)(h) of International Crimes (Tribunal) Act, 1973. The accused with his Al Badr men looted and burned the residence of Emdadul Huq Hira Mia, inhabitant of Gridha Narayanpur village of Sherpur town under Jamalpur district and Pakistani army settled their camp in that house and by capturing innocent unarmed and common people of that area and after killing burying them in mass grave the accused is liable for committing crime against humanity. The accused has committed the crime which is worthy of the highest punishment by the section 20 of International Crimes (Tribunal) Act, 1973. 
Allegation no-9: Liability for all Crimes. Refers to para 8.1-8.17.
Events described in the paragraphs 8.1; 8.2; 8.3; 8.9; 8.10; 8.11;8.13; 8.14; 8.15 under the section 4(1); 4(2) of International Crimes (Tribunal) Act, 1973

The names of chiefs and central commanders of Rajakar, Al Badr and Al Shams have been collected. They are
1. Motiur Rahman Nijami : President, Pakistan Islami Chhatra Shongho
2. Ali Ahsan Muhammad Mujahid :President, East Pakistan Islami Chhatra Shongho
3. Mir Kashem Ali : Central leader of Islami Chhatra Shongho
4. Md. Yunus : Chief of Rajakar force
5. Muhammad Kamarujjaman : Chief organizer of Al Badr force
6. Ashraf Hosen :Founder of Al Badr force and chief of Mymensingh
7. Md. Shamsul Huq : Chief of city Badr force
8. Mostofa Shaokot Emran : Commander of Dhaka A l Badr force
9. Ashrafujjaman Khan : Chief of Dhaka city Al Badr force and chief Executor of intellectual killing
10. Chowdhury Moeen Udiin : Operation in charge of intellectual killing
11. Shardar Abdus Salam : Chief of Dhaka district

As the chairman of then Islami Chhatro Shongho of Mymensingh district Kamarujjaman first organized Al Badr with some loyal and selected members of Islami Chhatro Shongho of Ashek Mahmud College. Under the leadership of the accused Muhammad Kamarujjaman within few months all the workers of Islami Chhatra Shongho of Mymensingh district were included in the Al Badr force and sent to different regions after short military training. In this way, while having the superior status the accused Muhammad Kamarujjaman has joint and individual criminal responsibility of the accused under section 4(10 of the International Crimes (Tribunal) Act, 1973. Not only the accused is liable for his own crimes but he is responsible for the crimes of all his subordinates and the crimes of all organizations and persons which were within the influence of his organizational superstructure. The organizations under that superstructure are: Jamaat E Islami, Islami Chhatro Shongho, Peace Committee, Rajakar force, Al Badr force, Al Shams force, Mujahid force etc. Therefore the nature of the liability of the crimes of the accused in the light of the section 4(1) of the International Crimes (Tribunal) Act, 1973 is joint and individual criminal responsibility. For example, name of some persons are mentioned below who were in the circle of the accused’ leadership and the accused is liable himself jointly and individually for their crimes.
The accused Muhammad Kamarujjaman is responsible for plotting conspiracy, inciting people, planning and ordering for committing crimes and being involved fully in committing crimes in different areas of Mymensingh, Jamalpur, Netrokona, Kishorgonj, Sherpur by his loyal Al Badr force and as he was fully involved in these activities he is directly or indirectly responsible for all the crimes of his subordinate workers.

The accused has committed the crime which is worthy of the highest punishment by the section 20 of International Crimes (Tribunal) Act, 1973.

Joint and Individual criminal responsibility of the accused 
As the chairman of then Islami Chhatro Shongho of Mymensingh district Kamarujjaman first organized Al Badr with some loyal and selected members of Islami Chhatro Shongho of Ashek Mahmud College. Under the leadership of the accused Muhammad Kamarujjaman within few months all the workers of Islami Chhatra Shongho of Mymensingh district were included in the Al Badr force and sent to different regions after short military training. In this way, while having the superior status the accused Muhammad Kamarujjaman has joint and individual criminal responsibility of the accused under section 4(10 of the International Crimes (Tribunal) Act, 1973. Not only the accused is liable for his own crimes but he is responsible for the crimes of all his subordinates and the crimes of all organizations and persons which were within the influence of his organizational superstructure. The organizations under that superstructure are: Jamaat E Islami, Islami Chhatro Shongho, Peace Committee, Rajakar force, Al Badr force, Al Shams force, Mujahid force etc.

Therefore the nature of the liability of the crimes of the accused in the light of the section 4(1) of the International Crimes (Tribunal) Act, 1973 is joint and individual criminal responsibility. For example, name of some persons are mentioned below who were in the circle of the accused’ leadership and the accused is liable himself jointly and individually for their crimes.

The accused Muhammad Kamarujjaman is responsible for plotting conspiracy, inciting people, planning and ordering for committing crimes and being involved fully in committing crimes in different areas of Mymensingh, Jamalpur, Netrokona, Kishorgonj, Sherpur by his loyal Al Badr force and as he was fully involved in these activities he is directly or indirectly responsible for all the crimes of his subordinate workers.

My Lord; so Mr. Quamaruzzaman is liable of the superior responsibility which falls under section- 4(2). The accused person has used his superior status and thus committed crimes under section- 3(2) of the ICT Act-1973 and thus liable for conspiracy. When his superior status was prevailing - he has done several categories of crimes under section- 3(2) of ICTAct-1973.

The tribunal has the jurisdiction to take the judicial notice of these crimes.

So, My Lord, our humble prayers are as follows before the tribunal- to take Judicial Notice of the following matters under section-19 (3) of ICT Act-1973.
(a) To accept the formal charges and take the cognizance of offences committed by Mr. Quamaruzzaman under section-3(2) of ICT Act-1973.
(b) To take the cognizance of the matter of Superior Responsibility of the following person.
(c) To take the Judicial Notice of the offences under section- 19(3) of the ICT Act-1973.
(d) To take the judicial notices of the offences committed by the auxiliary forces under section- 19 (3) of the ICT Act-1973.
(e) To punish the perpetrators under section-20 of the ICT Act-1973.
'We would like to draw the kind attention of the Tribunal to these following matters' he said finally

Adjourned until the afternoon

Prosecutor Saiful Islam then made some oral arguments relating to the charge. He said that there are some vital points to justify the Formal charge.

Basic points are: This case is not a normal criminal case but related to our Liberation war. Whole nation is looking for its fair trial. We know that people of East Pakistan was deprived, at that time Pakistan tried to recognize Urdu as state Language. From the national budget analysis of that time, it is very much clear how the people of east-Pakistan had been deprived. However, our leader Bangbandhu Sheikh Mujibar Rahman raised his voice against West Pakistan.

The leader of Jamaat-i-islam of East Pakistan came under order of the Pakistan military and to execute various heinous offences to make successful all the activities of the Pakistan military. They established very good relationship with the Pakistan Military.

Each force was formed by Ghulam Azam leader of Jamaat-i-isalm and others members of Jamaat-i-islam with the direction of the West Pakistan Government. They formed peace committee at Thana and district level and started to identify the people who are against the West Pakistan. After that they were equipped with arms. Subsequently, for observing all of their purposes, other forces were also formed. Later they were trained and given arms to fight. Auxiliary force was supervised by Military Government. Al badr and Al shams these are the associated force of Razakaar force. They were also received training to fight. So they had a connection with the military force and did similar types of offences.

Accused Md. Quamaruzzaman was the pioneer organizer of Albadr. He brilliantly organised various operation which gave the Pakistan Authority enough confidence to realize the matter that the Auxiliary force observed their duty with due respect to West Pakistan. As Mr.Quamaruzaman was the pioneer organizer of Albadr so he was involved in those atrocities. He was the master planner as well in Mymensingh to assist the Pakistani Military. He used his capacity to organize his party to perpetrate crime during the Liberation War.

He is mainly charged with those activities which were committed by Albadr at Mymensingh during the war. Therefore he has been charged for his command responsibility as he was the chief of Mymensingh Chhtra Sangha Unit. Albadr was consisted of members of Islamic Chhtra Sangha.

He supervised those stations which were occupied as Razakaar office and military office. He supervised by giving instruction, plans and programmes. Therefore he was the part and parcel of the Albadr. He was charged for collective responsibility and charged with planning, conspiracy, incitement.

Therefore, he committed offence under section 3(2), (a),(c),(g),(h) and also attracts the section 4(1) and 4(2).

Today the Bengali nation would not be here, if Bangabandhu Sheikh Mujibar Rahman did not take the initiative and was not so adamant. This case is not a normal case; it is fully relate to the sentiment of the Bengali people which can not be avoided.

It is very clear that the Act is promulgated for prosecution and punishment of the offenders. As prima facie it is proved that accused has committed the offence, so he should be Prosecuted and punished.

Justice Nassim: If the case is proved then he will be punished.

Saiful Islam: Yes, my lord. Basically accused had an extra-ordinary capacity; he used his capacity to organize people against the East Pakistan. He will be liable as he hold the superior position at that time. He was the leader of Albadr, he trained them and supervised them. As he was in superior position, so he attracts the sec 4(2) of the ICT Act-1973.

Justice Fazle Kabir: Offence under section 3 and 4 should be proved in different circumstances. And in case of direct charges also such as charge against humanity, murder and rape you did not refer all particulars of those people who were killed. You have said in one charge that 44 persons had been died from 120 people but did not mention who are they? What is their father name? Where did they live? You should submit the particulars of those persons because there could be several people by the same name at one village.

Saiful Islam: For being proved this case as prima facie case, we have supplied enough documents for the satisfaction of the Tribunal.

Then Argument of the prosecution was completed.

Ehsan Siddiq: We need to take 3 weeks for our preparation.

Justice Nassim: Formal charge has been submitted at December, 3 months has been passed that formal charge is given. So you must have to be prepared.

Justice Nassim adjourned the court by fixing the date on 25th March for Ghulam Azam and Quamaruzzam matter.


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