Part 6 of the judgment dealing with the trial of Abul Kalam Azad concerned with the law relating to Crimes against Humanity and the sentencing
XX. Contextual requirement to qualify the offences proved as crimes against humanity
307.Defence argued that crimes were isolated in nature apart from the fact that accused had no involvement with the commission of any of alleged crimes, in any manner.
308.From the second segment of our discussion on adjudication of charges relating to crimes against humanity(charge nos. 1,2,3,4,5,6 and 8) we have found the events of atrocities constituting crimes against humanity were perpetrated directing the unarmed civilians belonging to Hindu community. We have also found it proved from evidence as discussed above that the accused Abul Kalam Azad @ Bachchu physically participated and acted with knowledge and common intent to the commission of those atrocities and he (accused) committed all the wrongs and criminal acts in the capacity of an armed member of Razakars being accompanied by Pakistani army and his accomplices Razakars. Under what context the accused committed such acts forming part of attack directed against civilian population? We need to have look to the contextual backdrop of perpetration of such crimes in furtherance of ‘operation search light ‘on 25 March 1971.
309.It is essential to be established that the crimes for which the accused has been found criminally liable and guilty, as discussed above, were not isolated in nature and the same were committed under a different context and pattern in implementation of organizational policy and plan, although policy or plan are not considered as elements of the offence of crime against humanity.
310.Section 3(2) (a) of the International Crimes (Tribunals) Act, 1973 (as amended in 2009) defines the 'Crimes against Humanity' in the following manner: '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;'
311.Thus, 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. The expression ‘directed against 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.
312.In determining the fact as to whether the atrocious acts which are already proved to have been committed were directed against Bengali civilian population constituting the crimes against humanity in 1971 during the War of Liberation it is to be considered that the 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 some policy 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.
313.As regards elements to qualify the ‘attack’ as a ‘systematic character’ the Trial Chamber of ICTY in the case of Blaskic [(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 in the definition and establishment of the methodical plan’”
Context prevailing in 1971 in the territory of Bangladesh
314.It is indeed a history now that the Pakistani 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:
- Policy was to target the self-determined Bangladeshi civilian population High level political or military authorities, resources military or other were involved to implement the policy
- Auxiliary forces were established in aiding the implementation of the policy
- The regular and continuous horrific pattern of atrocities perpetrated against the targeted non combatant civilian population.
315.The above facts in relation to policies are not only widely known but also beyond reasonable dispute. The context itself reflected from above policies is sufficient to prove that the offences of crimes against humanity as specified in section 3(2)(a) of the Act of 1973 were the inevitable effect of part of systematic attack directed against civilian population. This view finds support from the observation made by the Trial Chamber of ICTY in the case of Blaskic as mentioned above.
316.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 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, 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 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. It may be legitimately inferred from the phrase “directed against any civilian population” as contained in the Act of 1973 that the acts of the accused comprise part of a pattern of ‘systematic’ crimes directed against civilian population.
317.Anthony Mascarenhas in a report titled ‘Genocide’ published in The Sunday Times , June 13, 1971 found as below:“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:-
(1)The Bengalis have proved themselves “unreliable” and must be ruled by West Pakistanis;
(2) 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;
(3) 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/foreign/19710613_tst_genocide_center_page.pdf]
318.Therefore, the crimes for which the accused has been charged and found guilty were not isolated crimes, rather these were part of organized and planned attack intended to commit the offence of crimes against humanity as enumerated in section 3(2) of the Act, in furtherance of policy and plan.
319.Further, Section 3(2) (c)(i) of the Act of 1973 defines ‘Genocide’ as an act committed with intent to destroy, in whole or in part, a national, ethnic, racial, religious or political group, such as, killing members of the group. From the charge no.7 framed we find that the criminal acts narrated therein were directed against the Hindu community which falls within the meaning of ‘religious group’ or a particular ‘members of the group’, with intent to destroy it, either whole or in part. From testimony of most of witnesses it has been established that almost instantly after accomplishment of crimes targeting the Hindu community, the members of this community who were residents of the crime villages deported to India, in fear of further fatality and harms. This amply indicates the ‘genocidal intent’ of causing massive destruction and killing of civilians belonging to the Hindu community, as has been narrated in charge no. 7.
320.From the backdrop and context it is thus quite evident that the existence of factors, as discussed above, lends assurance that the atrocious criminal acts ‘directed civilian population’ formed part of ‘systematic attack’. Section 3(2) (a) of the Act of 1973 enumerates which acts are categorized as the offence of crimes against humanity. Any of such acts is committed ‘against any civilian population’ shall fall within the offence of crimes against humanity. 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.
321.Thus, 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 .
322.On the other hand, defence has not been able to establish even a hint that the murder was not a part of planned and systematic attack and the crimes for which the accused has been charged and found criminally liable were isolated crimes. Therefore, the facts and circumstances inevitably have proved the elements to constitute the offences of murder, rape, abduction, confinement and torture as crimes against humanity.
XXI. Conclusion
323.Despite lapse of long 40 years time the testimony of PWs most of whom are live witnesses to the incidents of atrocities narrated in the charges 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.
324.It has been proved from testimony of witnesses that the accused had directly participated to the commission of crimes as an armed member of Razakar force. Besides, we have found that for the reason of his atrocious acts in the locality the accused was widely known as ‘Razaker’. According to Section 3(1) of the Act of 1973 it is manifested that even any person (individual or a member of group of individuals) is liable to be prosecuted if he is found to have committed the offences specified in section 3(2) of the Act. That is to say, accused Abul Kalam Azad @ Bachchu, even in the capacity of an ‘individual’ or member of ‘group of individuals’ comes within the jurisdiction of the Tribunal if he is alleged to have committed crimes specified in section 3(1) of the Act.
325.We are convinced from the evidence, oral and documentary, led by the prosecution that accused Abul Kalam Azad was a potential member of Razakar (volunteer) force in Faridpur, otherwise he would not have carried rifle with him when he led the armed gang to the crime sites for committing crimes. He, at that time, was widely and generally known as ‘Bachchu Razakar’. Already we have got from evidence of P.W.5, P.W.8, P.W.10 and P.W.15 that at the relevant time of commission of alleged crimes accused was a potential Razakar who received training and a rifle. It is found that before formal formation of Razakar force pursuant to a gazette notification dated 02 August 1971 the then Pakistani government and Pakistani army in the then East Pakistan organized ‘Razakar’ (Volunteer) force almost instantly after they took the territory under their armed control. The purpose was to have aid and assistance to carry out their atrocious operations against the Bengali civilian population including the Hindu group, intellectuals, pro- liberation civilians. As a result, we may legitimately infer that the accused Abul Kalam Azad @ Bachchu committed the offences for which he has been charged in the capacity of Razakar i.e as a member of ‘auxiliary force’ as specified in section 2(a) of the Act of 1973.
326.According to section 4(1) of the Act of 1973 an individual incurs criminal liability for the direct commission of a crime, whether as an individual or jointly. In the case in hand, in dealing with the charges we have found that the accused Abul Kalam Azad @ Bachchu himself had physically participated being accompanied by his armed accomplices to the commission of crimes and as such he held criminally responsible for the direct commission of crimes proved.
327.Now, another question comes forward as to whether the accused can be brought within the jurisdiction of the Tribunal if we consider that the prosecution has not been able to prove that the accused committed the crimes proved as a member of Razakar , an auxiliary force? The answer is ‘yes’. Section 3(1) provides jurisdiction of trying and punishing even any ‘individual’ or ‘group of individuals’ who commits or has committed, in the territory of Bangladesh any of crimes mentioned in
section 3(2) of the Act. We have resolved the issue on incorporating the phrase ‘individual’ or ‘group of individuals’ by way of amending the statute in 2009 together with the relevant Article of our Constitution. On this score as well, the accused cannot be relieved from being prosecuted and tried under the Act of 1973.
328.Therefore, it must be borne in mind too 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 and genocide committed in 1971 in violation of customary international law during the War of Liberation. Because, wrong acquittal has its chain reactions, the law breakers would continue to break the law with impunity.
329.‘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]
330.In the case in hand, it is abundantly clear that the accused absconded to evade the process of justice. Had the accused was not involved in the crime he would have certainly prepared to face the trial. But not only he has absconded instantly after issuance of warrant of arrest by this Tribunal but he has even left the country as reported by the enforcement or executing authority. The accused cannot be considered merely as an absentee accused. He is an absconded accused. Evading trial for the offences of which he has been charged with signifies his culpability too.The accused deliberately waived his right to be present at trial. This conduct adds further to his culpability.
331. Such deliberate absondence as a material incriminating circumstance lends further assurance as to the guilt of the accused who has been found criminally liable in relation to charges proved, excepting the charge no.2. Therefore, the fact of absconding of the accused can also be taken as an adverse and material incriminating circumstance to reinforce the evidence and circumstances available in the case.
XXII. VERDICT ON CONVICTION
332.For the reasons set out in this Judgement and having considered all evidence
and arguments, the Tribunal unanimously finds the accused Abul Kalam Azad @ Bachchu
Charge No.1: GUILTY of the offence of abduction, confinement and torture as ‘crimes against humanity’ as specified in section 3(2)(a) of the Act and he be convicted and sentenced under section 20(2) of the Act.
Charge No.2: NOT GUILTY of the offence of abduction, confinement and torture as ‘crimes against humanity’ as specified in section 3(2)(a) of the Act and thus he be acquitted.
.
Charge No.3: GUILTY of offence of murder as ‘crimes against humanity’as specified in section 3(2)(a) of the Act he be convicted and sentenced under section 20(2) of the Act.
Charge No.4: GUILTY of offence of murder as ‘crimes against humanity’as specified in section 3(2)(a) of the Act he be convicted and sentenced under section 20(2) of the Act.
Charge No.5: GUILTY of offence of rape as ‘crimes against humanity’ as specified in section 3(2)(a) of the Act he be convicted and sentenced under section 20(2) of the Act.
Charge No.6: GUILTY of offence of murder as ‘crimes against humanity’as specified in section 3(2)(a) of the Act he be convicted and sentenced under section 20(2) of the Act.
Charge No.7: GUILTY of offence of ‘genocide’ for ‘killing the members of Hindu community as specified in section 3(2)(c)(i) of the Act he be convicted and sentenced under section 20(2) of the Act.
Charge No.8: GUILTY of offence of abduction, confinement and torture as ‘crimes against humanity’ as specified in section 3(2)(a) of the Act he be convicted and sentenced under section 20(2) of the Act.
XXIII. VERDICT ON SENTENCE
333.We have taken due notice of the intrinsic gravity of the offence of ‘genocide’ and murders as ‘crimes against humanity’ being offences which are particularly shocking to the conscience of mankind. We are of agreed view that justice be meet with if a single ‘sentence of death’ under section 20(2) of the Act of 1973 is awarded to accused Abul Kalam Azad @ Bachchu for convictions relating to the offences of murder as ‘crimes against humanity’ (listed in charge no.s 3, 4 and 6) and for the offence of ‘genocide’ (listed in charge no.7) of which he has been found guilty beyond reasonable doubt.
334.However, we are of further view that considering the proportionate to the gravity of offences the accused Abul Kalam Azad @ Bachchu deserves imprisonment i.e. lesser punishment for convictions relating to the remaining offences as crimes against humanity (listed in charge no.s 1, 5 and 8). Accordingly, we do hereby render the following ORDER on SENTENCE.
Hence, it is ORDERED
That the accused Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu son of late Abdus Salam Mia & late Magfura Khatun of village-Barakhardia (Choi ani), Police Station- Saltha, District-Faridpur at present sector no. 07, road no. 33, house no. 06, Police Station–Uttara, DMP, Dhaka and ‘Azad Villa’, 279/6 Chan Para, Uttarkhan, Dhaka is found guilty of the offences of ‘crimes against humanity’ (listed in charge no.s 3,4 and 6) and for the offence of ‘genocide’(listed in charge no.7) and he be convicted and sentenced to death and be hanged by the neck till he is dead under section 20(2) of the International Crimes (Tribunals) Act, 1973.
No separate sentence of imprisonment is being awarded to the accused Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu for convictions relating to the offences of crimes against humanity as listed in charge nos. 1, 5 and 8 of which too he has been found guilty as the ‘sentence of death’ has been awarded to him in respect of four other charges as mentioned above.
The accused Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu is however found not guilty of offence of crimes against humanity as listed in charge no.2 and he be acquitted thereof.
Since the convicted accused has been absconding the ‘sentence of death’ as awarded above shall be executed after causing his arrest or when he surrenders before the Tribunal, whichever is earlier. The sentence of death awarded as above under section 20(2) of the International Crimes (Tribunals) Act , 1973 [The Act No.XIX of 1973] shall be carried out and executed in accordance with the order of the government as required under section 20(3) of the said Act.
Issue conviction warrant. Let a copy of the Judgment be transmitted together with the conviction warrant to the Inspector General of Police, Bangladesh Police, Police Head Quarters, Dhaka for information and necessary action and compliance. Let a copy of the judgement be transmitted also to the District Magistrate, Dhaka for information and necessary compliance.
Justice Obaidul Hassan, Chairman
Justice Md. Mozibur Rahman Miah, Member Judge
Md. Shahinur Islam, Member Judge
See part 4: Offences of Crimes against Humanity, charges 1, 2, 3
See part 5: Offences of Crimes against Humanity, charges 4, 5, 6, 8
See part 5: Offences of Crimes against Humanity, charges 4, 5, 6, 8
XX. Contextual requirement to qualify the offences proved as crimes against humanity
307.Defence argued that crimes were isolated in nature apart from the fact that accused had no involvement with the commission of any of alleged crimes, in any manner.
308.From the second segment of our discussion on adjudication of charges relating to crimes against humanity(charge nos. 1,2,3,4,5,6 and 8) we have found the events of atrocities constituting crimes against humanity were perpetrated directing the unarmed civilians belonging to Hindu community. We have also found it proved from evidence as discussed above that the accused Abul Kalam Azad @ Bachchu physically participated and acted with knowledge and common intent to the commission of those atrocities and he (accused) committed all the wrongs and criminal acts in the capacity of an armed member of Razakars being accompanied by Pakistani army and his accomplices Razakars. Under what context the accused committed such acts forming part of attack directed against civilian population? We need to have look to the contextual backdrop of perpetration of such crimes in furtherance of ‘operation search light ‘on 25 March 1971.
309.It is essential to be established that the crimes for which the accused has been found criminally liable and guilty, as discussed above, were not isolated in nature and the same were committed under a different context and pattern in implementation of organizational policy and plan, although policy or plan are not considered as elements of the offence of crime against humanity.
310.Section 3(2) (a) of the International Crimes (Tribunals) Act, 1973 (as amended in 2009) defines the 'Crimes against Humanity' in the following manner: '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;'
311.Thus, 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. The expression ‘directed against 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.
312.In determining the fact as to whether the atrocious acts which are already proved to have been committed were directed against Bengali civilian population constituting the crimes against humanity in 1971 during the War of Liberation it is to be considered that the 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 some policy 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.
313.As regards elements to qualify the ‘attack’ as a ‘systematic character’ the Trial Chamber of ICTY in the case of Blaskic [(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 in the definition and establishment of the methodical plan’”
Context prevailing in 1971 in the territory of Bangladesh
314.It is indeed a history now that the Pakistani 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:
- Policy was to target the self-determined Bangladeshi civilian population High level political or military authorities, resources military or other were involved to implement the policy
- Auxiliary forces were established in aiding the implementation of the policy
- The regular and continuous horrific pattern of atrocities perpetrated against the targeted non combatant civilian population.
315.The above facts in relation to policies are not only widely known but also beyond reasonable dispute. The context itself reflected from above policies is sufficient to prove that the offences of crimes against humanity as specified in section 3(2)(a) of the Act of 1973 were the inevitable effect of part of systematic attack directed against civilian population. This view finds support from the observation made by the Trial Chamber of ICTY in the case of Blaskic as mentioned above.
316.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 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, 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 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. It may be legitimately inferred from the phrase “directed against any civilian population” as contained in the Act of 1973 that the acts of the accused comprise part of a pattern of ‘systematic’ crimes directed against civilian population.
317.Anthony Mascarenhas in a report titled ‘Genocide’ published in The Sunday Times , June 13, 1971 found as below:“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:-
(1)The Bengalis have proved themselves “unreliable” and must be ruled by West Pakistanis;
(2) 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;
(3) 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/foreign/19710613_tst_genocide_center_page.pdf]
318.Therefore, the crimes for which the accused has been charged and found guilty were not isolated crimes, rather these were part of organized and planned attack intended to commit the offence of crimes against humanity as enumerated in section 3(2) of the Act, in furtherance of policy and plan.
319.Further, Section 3(2) (c)(i) of the Act of 1973 defines ‘Genocide’ as an act committed with intent to destroy, in whole or in part, a national, ethnic, racial, religious or political group, such as, killing members of the group. From the charge no.7 framed we find that the criminal acts narrated therein were directed against the Hindu community which falls within the meaning of ‘religious group’ or a particular ‘members of the group’, with intent to destroy it, either whole or in part. From testimony of most of witnesses it has been established that almost instantly after accomplishment of crimes targeting the Hindu community, the members of this community who were residents of the crime villages deported to India, in fear of further fatality and harms. This amply indicates the ‘genocidal intent’ of causing massive destruction and killing of civilians belonging to the Hindu community, as has been narrated in charge no. 7.
320.From the backdrop and context it is thus quite evident that the existence of factors, as discussed above, lends assurance that the atrocious criminal acts ‘directed civilian population’ formed part of ‘systematic attack’. Section 3(2) (a) of the Act of 1973 enumerates which acts are categorized as the offence of crimes against humanity. Any of such acts is committed ‘against any civilian population’ shall fall within the offence of crimes against humanity. 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.
321.Thus, 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 .
322.On the other hand, defence has not been able to establish even a hint that the murder was not a part of planned and systematic attack and the crimes for which the accused has been charged and found criminally liable were isolated crimes. Therefore, the facts and circumstances inevitably have proved the elements to constitute the offences of murder, rape, abduction, confinement and torture as crimes against humanity.
XXI. Conclusion
323.Despite lapse of long 40 years time the testimony of PWs most of whom are live witnesses to the incidents of atrocities narrated in the charges 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.
324.It has been proved from testimony of witnesses that the accused had directly participated to the commission of crimes as an armed member of Razakar force. Besides, we have found that for the reason of his atrocious acts in the locality the accused was widely known as ‘Razaker’. According to Section 3(1) of the Act of 1973 it is manifested that even any person (individual or a member of group of individuals) is liable to be prosecuted if he is found to have committed the offences specified in section 3(2) of the Act. That is to say, accused Abul Kalam Azad @ Bachchu, even in the capacity of an ‘individual’ or member of ‘group of individuals’ comes within the jurisdiction of the Tribunal if he is alleged to have committed crimes specified in section 3(1) of the Act.
325.We are convinced from the evidence, oral and documentary, led by the prosecution that accused Abul Kalam Azad was a potential member of Razakar (volunteer) force in Faridpur, otherwise he would not have carried rifle with him when he led the armed gang to the crime sites for committing crimes. He, at that time, was widely and generally known as ‘Bachchu Razakar’. Already we have got from evidence of P.W.5, P.W.8, P.W.10 and P.W.15 that at the relevant time of commission of alleged crimes accused was a potential Razakar who received training and a rifle. It is found that before formal formation of Razakar force pursuant to a gazette notification dated 02 August 1971 the then Pakistani government and Pakistani army in the then East Pakistan organized ‘Razakar’ (Volunteer) force almost instantly after they took the territory under their armed control. The purpose was to have aid and assistance to carry out their atrocious operations against the Bengali civilian population including the Hindu group, intellectuals, pro- liberation civilians. As a result, we may legitimately infer that the accused Abul Kalam Azad @ Bachchu committed the offences for which he has been charged in the capacity of Razakar i.e as a member of ‘auxiliary force’ as specified in section 2(a) of the Act of 1973.
326.According to section 4(1) of the Act of 1973 an individual incurs criminal liability for the direct commission of a crime, whether as an individual or jointly. In the case in hand, in dealing with the charges we have found that the accused Abul Kalam Azad @ Bachchu himself had physically participated being accompanied by his armed accomplices to the commission of crimes and as such he held criminally responsible for the direct commission of crimes proved.
327.Now, another question comes forward as to whether the accused can be brought within the jurisdiction of the Tribunal if we consider that the prosecution has not been able to prove that the accused committed the crimes proved as a member of Razakar , an auxiliary force? The answer is ‘yes’. Section 3(1) provides jurisdiction of trying and punishing even any ‘individual’ or ‘group of individuals’ who commits or has committed, in the territory of Bangladesh any of crimes mentioned in
section 3(2) of the Act. We have resolved the issue on incorporating the phrase ‘individual’ or ‘group of individuals’ by way of amending the statute in 2009 together with the relevant Article of our Constitution. On this score as well, the accused cannot be relieved from being prosecuted and tried under the Act of 1973.
328.Therefore, it must be borne in mind too 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 and genocide committed in 1971 in violation of customary international law during the War of Liberation. Because, wrong acquittal has its chain reactions, the law breakers would continue to break the law with impunity.
329.‘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]
330.In the case in hand, it is abundantly clear that the accused absconded to evade the process of justice. Had the accused was not involved in the crime he would have certainly prepared to face the trial. But not only he has absconded instantly after issuance of warrant of arrest by this Tribunal but he has even left the country as reported by the enforcement or executing authority. The accused cannot be considered merely as an absentee accused. He is an absconded accused. Evading trial for the offences of which he has been charged with signifies his culpability too.The accused deliberately waived his right to be present at trial. This conduct adds further to his culpability.
331. Such deliberate absondence as a material incriminating circumstance lends further assurance as to the guilt of the accused who has been found criminally liable in relation to charges proved, excepting the charge no.2. Therefore, the fact of absconding of the accused can also be taken as an adverse and material incriminating circumstance to reinforce the evidence and circumstances available in the case.
XXII. VERDICT ON CONVICTION
332.For the reasons set out in this Judgement and having considered all evidence
and arguments, the Tribunal unanimously finds the accused Abul Kalam Azad @ Bachchu
Charge No.1: GUILTY of the offence of abduction, confinement and torture as ‘crimes against humanity’ as specified in section 3(2)(a) of the Act and he be convicted and sentenced under section 20(2) of the Act.
Charge No.2: NOT GUILTY of the offence of abduction, confinement and torture as ‘crimes against humanity’ as specified in section 3(2)(a) of the Act and thus he be acquitted.
.
Charge No.3: GUILTY of offence of murder as ‘crimes against humanity’as specified in section 3(2)(a) of the Act he be convicted and sentenced under section 20(2) of the Act.
Charge No.4: GUILTY of offence of murder as ‘crimes against humanity’as specified in section 3(2)(a) of the Act he be convicted and sentenced under section 20(2) of the Act.
Charge No.5: GUILTY of offence of rape as ‘crimes against humanity’ as specified in section 3(2)(a) of the Act he be convicted and sentenced under section 20(2) of the Act.
Charge No.6: GUILTY of offence of murder as ‘crimes against humanity’as specified in section 3(2)(a) of the Act he be convicted and sentenced under section 20(2) of the Act.
Charge No.7: GUILTY of offence of ‘genocide’ for ‘killing the members of Hindu community as specified in section 3(2)(c)(i) of the Act he be convicted and sentenced under section 20(2) of the Act.
Charge No.8: GUILTY of offence of abduction, confinement and torture as ‘crimes against humanity’ as specified in section 3(2)(a) of the Act he be convicted and sentenced under section 20(2) of the Act.
XXIII. VERDICT ON SENTENCE
333.We have taken due notice of the intrinsic gravity of the offence of ‘genocide’ and murders as ‘crimes against humanity’ being offences which are particularly shocking to the conscience of mankind. We are of agreed view that justice be meet with if a single ‘sentence of death’ under section 20(2) of the Act of 1973 is awarded to accused Abul Kalam Azad @ Bachchu for convictions relating to the offences of murder as ‘crimes against humanity’ (listed in charge no.s 3, 4 and 6) and for the offence of ‘genocide’ (listed in charge no.7) of which he has been found guilty beyond reasonable doubt.
334.However, we are of further view that considering the proportionate to the gravity of offences the accused Abul Kalam Azad @ Bachchu deserves imprisonment i.e. lesser punishment for convictions relating to the remaining offences as crimes against humanity (listed in charge no.s 1, 5 and 8). Accordingly, we do hereby render the following ORDER on SENTENCE.
Hence, it is ORDERED
That the accused Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu son of late Abdus Salam Mia & late Magfura Khatun of village-Barakhardia (Choi ani), Police Station- Saltha, District-Faridpur at present sector no. 07, road no. 33, house no. 06, Police Station–Uttara, DMP, Dhaka and ‘Azad Villa’, 279/6 Chan Para, Uttarkhan, Dhaka is found guilty of the offences of ‘crimes against humanity’ (listed in charge no.s 3,4 and 6) and for the offence of ‘genocide’(listed in charge no.7) and he be convicted and sentenced to death and be hanged by the neck till he is dead under section 20(2) of the International Crimes (Tribunals) Act, 1973.
No separate sentence of imprisonment is being awarded to the accused Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu for convictions relating to the offences of crimes against humanity as listed in charge nos. 1, 5 and 8 of which too he has been found guilty as the ‘sentence of death’ has been awarded to him in respect of four other charges as mentioned above.
The accused Moulana Abul Kalam Azad @ Abul Kalam Azad @ Bachchu is however found not guilty of offence of crimes against humanity as listed in charge no.2 and he be acquitted thereof.
Since the convicted accused has been absconding the ‘sentence of death’ as awarded above shall be executed after causing his arrest or when he surrenders before the Tribunal, whichever is earlier. The sentence of death awarded as above under section 20(2) of the International Crimes (Tribunals) Act , 1973 [The Act No.XIX of 1973] shall be carried out and executed in accordance with the order of the government as required under section 20(3) of the said Act.
Issue conviction warrant. Let a copy of the Judgment be transmitted together with the conviction warrant to the Inspector General of Police, Bangladesh Police, Police Head Quarters, Dhaka for information and necessary action and compliance. Let a copy of the judgement be transmitted also to the District Magistrate, Dhaka for information and necessary compliance.
Justice Obaidul Hassan, Chairman
Justice Md. Mozibur Rahman Miah, Member Judge
Md. Shahinur Islam, Member Judge
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