27 Mar 2012: Alim cognisance, bail

The tribunal informed Salahuddin Quader Chowdhury and his lawyer that there would be a delay in providing the order for indictment against him as the new judge needs to familiarize himself with the case, and that once he has done so he will then be able to pass the order.

The matter was fixed on 4th April, 2012.

The hearing them moved onto discuss the cognizance application against Abdul Alim

The prosecutor, Advocate Rana Dash Gupta said that from the Investigation it has been found that the accused Abdul Alim was the leader of the then Pakistan Muslim League. From the witnesses statements which has been found from the investigation it is clear that he was the Chairman of the Peace Committee and he was the Razakar Commander. It has been found from a photograph that the accused Abdul Alim was standing beside the Pakistan Army infront of 26 arrested young man. From the statements of witnesses’ it has been made clear that he was the member of Peace Committee and was involved with the Razakar Committe.

If he didn’t possess any superior status, then there was no way for him to stand beside the Army Commander. At that time that which has been committed and happened in Joypurhat district was done with his direct direction and provocation. Now, our question is, other than a big shot; who hold the status to give direction of such a atrocities?

Justice Nizamul Haq: Okay. If anyone gives direction from his home to commit a particular act; whether it would fall under the superior responsibility.

Advocate Rana Dash Gupta: Yes, My Lord. Before the 26 detained young men, who could hold the status to stand beside the Army Commander? It can be assumed that the accused certainly held the superior status.

Justice Nizamul Haq: Mr. Prosecutor, section- 4(2) of the ICT Act-1973 reads as follows-  “Any commander or superior officer who orders, permits, acquiesces or participates in the commission of any of the crimes specified in 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, whereby such persons or 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.”

Now, Mr. Prosecutor, as per this section whether the matter of “subordinates” comes under this case? On your view what is your findings from the aforesaid photograph?

Advocate Rana Dash Gupta [Prosecutor]: From the investigation, it is found that he was liable for that offence under superior responsibility.

Justice Nassim then passed the order (summary)

Accused Abdul Alim is present today in the Tribunal. The matter of cognizance is taken. We have perused the formal charge, investigation report and other documents as submitted. We are in the opinion that there is a Prima Facie Case against the accused. As such cognizance under- 3(2), 4(1), and 4 (2) is taken against the accused. The accused is present before the tribunal. So, no notice is required to be served.

At this stage the Chairman directed the defence counsel to come with the bail petition.

Munshi Ahsam Kabir, for Alim argued that there was no misuse of the bail petition granted by the tribunal till now. His physical condition should be considered carefully. And his health condition deteriorates during the period of his bail.

Advocate Rana Dash Gupta [Prosecutor]: My Lord, my learned friend appearing on behalf of the petitioner would like to say that as the petitioner has not misused the bail, so he should be granted with the extension of bail. But here my question is: whether justice would be denied to the victims and the family members of the martyrs of 1971. The offences under section-3(2) are non-bailable offences.

My Lord, I would like to say that Mr. Abdur Razzak, the defense lawyer has referred the case of Mr. Abdul Alim, in the time of taking the cognizance of the issue of Mr.Golam Azam and urged to consider the matter of his age and physical condition. Your Lordship has rejected that argument when considering the gravity of the offence.

The chairman then said, have you gone through the order? There are other matters which have been taken into consideration other than only the gravity of the offence.

Advocate Rana Dash Gupta then referred to the other international tribunals for the trial of Crimes against humanity and the incidence of accused staying in the custody other than being granted bail.

As the accused petitioner was a powerful leader in 1971 and he was elected as a Member of Parliament at 1978, so he does not hold a normal status. Now we would like to pray to your Lordship to send the accused to the custody of the Jail authority, thus reject the petition of the defence counsel.

Defence Counsel: My Lord, my learned friend has a lot of international cases including the Chamber of the Court of Cambodia; but he was unable to present whether there was any single incident to reject the bail after granting it.

Justice Nizamul Haq: Mr. Counsel as you have stated that- the accused petitioner’s physical condition has deteriorates during the bail. Could you please produce supporting papers in regard of this?

Defence Counsel then produced the papers

Advocate Rana Dash Gupta: It would be better, if our learned friend would supply the copies of the medical reports to us.

Justice Nizamul Haq then passed the following order:

As regards the extension of bail, the learned counsel for the petitioner submits that he has not misused the scope of bail. He has further submitted that- the petitioner had co-operated the Investigation Officer. He submitted that his physical condition has further deteriorated. He thus submits that- he has not misused the bail, so extension of the bail was sought.

Mr. Rana Dash Gupta, prosecutor submits that it is a case of crimes against humanity and genocide. He submitted that if the physical condition of the petitioner deteriorates then he could be treated in the Prison authority. He further submits that except this case, all the other accused are on custody and have not been granted bail.

We have heard learned counsel for the accused and the prosecutors. It is a fact that aall other accused are on custody, except this petitioner. It is a matter that his lower part of the body is paralyzed.

He has not misused the bail. He has also co-operated the investigation officer. It is clear that he would not frustrate the bail. So this old crippled man should not be sent to the custody. And we are in point to grant him bail on the same condition. And the petitioner should submit his latest medical reports to us.

We hereby direct the prosecution to submit the formal charges, witness testimonies and other documents to the registrars’ office by 1st April and 2nd April, 2012 is fixed for the defence to collect the documents from the office of the Registrar.

The matter shall be heard on 24th April, 2012 for charge hearing.

The tribunal then moved onto dealing with the the defense response to the charge-framing application against Azam