Abul Kalam Azad judgement, Part 2 dealing with legal and certain factual issues
XV. Discussion
37.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 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 judicial notice [Section 19(3) of the Act of 1973] and the reports published in foreign news papers in 1971.
38.Therefore, before we address the above decisive issues we prefer to make a portrayal related to factual aspects. Inevitably this portrayal would lend us a clear depiction as to pattern, extent and nature of atrocities committed during 1971 War of Liberation that may qualify the offences as crimes against humanity as specified in section 3(2)(a) and the offence of genocide as specified in section 3(2) (c)(i) of the Act of 1973.
XVI. Addressing legal issues agitated
39.Before we enter into the segment of our discussion on adjudication of charges we consider it convenient to address and resolve the legal issues agitated during summing up of cases of both parties.
Argument advanced by the State defence Counsel on legal aspect
XV. Discussion
37.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 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 judicial notice [Section 19(3) of the Act of 1973] and the reports published in foreign news papers in 1971.
38.Therefore, before we address the above decisive issues we prefer to make a portrayal related to factual aspects. Inevitably this portrayal would lend us a clear depiction as to pattern, extent and nature of atrocities committed during 1971 War of Liberation that may qualify the offences as crimes against humanity as specified in section 3(2)(a) and the offence of genocide as specified in section 3(2) (c)(i) of the Act of 1973.
XVI. Addressing legal issues agitated
39.Before we enter into the segment of our discussion on adjudication of charges we consider it convenient to address and resolve the legal issues agitated during summing up of cases of both parties.
Argument advanced by the State defence Counsel on legal aspect
40.Mr. Abdus Shukur Khan, Advocate, Bangladesh Supreme Court and the learned state defence counsel defending the absconded accused Abul Kalam Azad @ Bachchu, in course of summing up case has taken pain in raising some pertinent legal issues. He argued that 40 years delay in prosecuting the accused is not sufficiently explained and such delay creates doubt and fairness of prosecuting the accused; that trial in absence of accused is not valid, particularly in prosecution and trying an individual on allegation of committing internationally recognised crimes; that the phrase ‘individual’ and ‘group of individuals’ have been purposefully incorporated in the Act of 1973 by way of amendment in 2009 and such amendment does not have retrospective effect and as such the accused cannot be brought to jurisdiction of the Tribunal as an ‘individual’; 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; 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 army; that if the accused was actually prosecuted , tried and punished under the Collaborators Order 1972, now prosecuting him for the same offences is barred by the doctrine of double jeopardy; 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 prosecuted; that the crimes alleged are isolated in nature and not part of organized attack ; 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.
Reply of Prosecutor to argument extended by the Defence
41.In reply to these legal contentions, Mr. Syed Haider Ali, the leraned Prosecutor submitted that there is an historical context of delay in bringing the ‘individuals’ to the justice although the legislation enacted in 1973 was prevailing. Step was taken by forming prosecution team composed of four eminent senior counsels for prosecuting the perpetrators of offences specified in the Act of 1973. But after the dark history of assassination of Bangabandhu Sheikh Mujibur Rahman and his family on 15 August 1975 the process was halted and even the Collaborators Order 1972 was repealed on 31.12.1975. Democracy remained halted till 1991 and also till 2009 there was no favourable situation, strong political will and consensus to prosecute the offenders under the Act of 1973. This history of common knowledge itself is explanatory for delayed prosecution. Besides, there is no limitation in bringing criminal prosecution, particularly when it relates to ‘international crimes’ committed in violation of customary international law. Mr. Prosecutor went on to submit that the tripartite agreement is not a clog in bringing prosecution under the Act of 1973 against ‘auxiliary force ‘ and ‘individual’ or ‘group of individuals’. Besides, the tripartite agreement did not give immunity to listed 195 war criminals belonging to Pakistani occupation army. The agreement was not in consonance with the norms of compelling laws.
42. In respect of definition and elements of crimes against humanity, Mr. Prosecutor submitted that the phrase ‘ directed 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. The ICTY Statute does not contain the ‘systematic or widespread’ requirement. Subsequently, through judicial pronouncements it has been settled jurisprudence of ICTY that the offences of crimes against humanity must have been committed as part of ‘systematic or widespread attack’. Our Tribunal which is a domestic Tribunal constituted under our own legislation enacted in the sovereign parliament meant to prosecute, try and punish the perpetrators of ‘international crimes’ taking the context and pattern of atrocities into account may arrive at decision whether the acts constituting the offences can be qualified as crimes against humanity. The amendment of the Act of 1973 bringing the phrase ‘individual’ or ‘group of individuals’ have to be considered together with the preamble of the Statute and thus it is misconceived to say that merely for the reason of such subsequent amendment to the Act an ‘individual’ cannot be brought under jurisdiction of the Tribunal. As regard trial in absentia, it has been submitted that section 10A of the Act of 1973 provides provision of holding trial in absentia. The accused Abul Kalam Azad @ Bachchu deliberately remained absconding since pre-trial stage to evade the process of justice and as has been reported he has left the country. It signifies that he deliberately did not intend to face the prosecution. Absconsion itself is an incriminating circumstance to be considered together with evidence for determining culpability of the accused.
(i) Does Delay obstruct bringing prosecution under the Act of 1973?
43.From the point of morality and sound legal dogma, time bar should not apply to the prosecution of human rights crimes. Neither the Genocide Convention of 1948, nor the Geneva Conventions of 1949 contain any provisions on statutory limitations to war crimes and crimes against humanity. Article I of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity adopted and opened for signature, ratification and 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.
44.Still the Nazi war criminals of the Second World War are being prosecuted. Trials of genocides committed during the 1973 Chilean revolution and the Pol Pot regime of Cambodia in the1970s are now ongoing. The sovereign immunity of Slobodan Milosevic of Serbia, Charles Taylor of Liberia, and Augusta Pinochet of Chile (with the Chilean Senate's life-long immunity) as the head of state could not protect them from being detained and prosecuted for committing genocides, crimes against humanity, and war crimes.
45.In view of above settled position and in the absence of any statutory limitation, as a procedural bar, only the delay itself does not preclude prosecutorial action to adjudicate the culpability of the perpetrator of core international crimes. Indubitably, a prompt and indisputable justice process cannot be motorized solely by the painful memories and aspirations of the victims. 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.
46.Prolonged impunity and the related denial of the truth will allow old wounds to fester and may increase post-traumatic stress suffered by the victims of human rights crimes. [Special Rapporteur on the Right to Restitution, Comp. & Rehab. for Victims of Gross Violations of Human Rights & Fundamental Freedoms, Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, 135, Common on Human Rights, Econ. & Soc. Council, U.N. Doc. E/CN.4/Sub.2/1993/8 (July 2, 1993) [hereinafter van Boven] (by Theo van Boven).]
47.In this respect, Cohen has observed that “after generations of denials, lies, cover-ups and evasions, there is a powerful, almost obsessive, desire to know exactly what happened.” [STANLEY COHEN, STATES OF DENIAL: KNOWING ABOUT ATROCITIES AND SUFFERING 225 (2001)]. In Bangladesh, the efforts initiated under a lawful legislation to prosecute, try and punish the perpetrators of crimes committed in violation of customary international law is an indicia of valid and courageous endeavor to come out from the culture of impunity. Customary international law has finally progressed to a stage where States may not point to the passage of time to escape their duty to prosecute and punish perpetrators of genocide, crimes against humanity, and war crimes in their own courts.
48.Crimes against humanity and genocide, the gravest crime never get old and that the perpetrators will face justice. We should not forget it that the millions of victims who deserve that their tormenters are held accountable; the passage of time does not diminish the guilt. Considerations of material justice for the victims should prevail when prosecuting crimes of the extreme magnitude is on the process. Therefore, justice delayed is no longer justice denied, particularly when the perpetrators of core international crimes are brought to the process of justice. However, there can be no recognised theory to insist that such a ‘system crime’ can only be pursued within a given number of years. Therefore, delayed prosecution does not rest as a clog in trying the accused and creates no mystification about the atrocities committed in 1971
(ii) Validity of holding Absentia trial
49.The Act of 1973 provides provision of holding trial in abesntia, if the appearance of the accused could not be ensured for the reason of his absconsion [Section 10A (1) of the Act]. In the international context, the issue of trials in absentia arose with the first modern international criminal tribunal, the International Military Tribunal (IMT) at Nuremberg, which was established to try war criminals operating under the European Axis Powers during World War II. Article 12 of the Charter of the International Military Tribunal allowed for trials in absentia whenever the Tribunal found it necessary to do so in the interest of justice. Famously, Martin Bormann, who served as the Nazi Party secretary, was indicted, tried, and sentenced to death, all in absentia, despite doubts as to whether he had even been informed of the proceedings.
50.United Nations reversed its policy against trials in absentia with the Special Tribunal for Lebanon (STL or Lebanon Tribunal) in 2006. The STL allows trials "to commence and to end............ without an accused ever having showed up in court. The STL (Special Tribunal for Lebanon) expressly allows for trials in the absence of the accused in article 22 of the STL Statute, entitled "Trials in absentia." Article 22(1), lists the situations where the STL can hold trials in the accused absence.
51.According to Professor William Schabas under section 22(1) (c) of the STL Statute, the accused may be tried in absentia when he refuses to appear after an initial appearance (absconded) or is otherwise unable to be found after all reasonable steps have been taken to inform him of the proceedings including media publication and communication with his known state of residence.
52.Accused Abul Kalam Azad @ Bachchu could have due opportunity of being properly informed of the proceedings in advance if the warrant of arrest could have been executed. But by remaining absconded and leaving country the accused has willfully declined to exercise his right to be present for facing trial and as such under this circumstance, trial in his absence would be permissible "in the interest of the proper administration of justice."
53.In the case in our hand, at pre-trial stage, for the purpose of effective investigation this Tribunal ordered for his arrest by issuing warrant and as it appears from the execution report, the accused knowing it preferred to remain absconded, instead of facing proceedings and trial. The accused has not intended to take part in the trial, rather wished to escape prosecution. The jurisprudence of both the ICCPR and the ECHR confirms that a trial in absentia will not violate a person's right to be present when he has expressly declined to exercise this right. The circumstance and the time and way the accused had gone to absconsion and left country led us to lawful inference that the accused has expressly declined to exercise his right to be present in trial.
54.That is to say, despite all reasonable steps taken to inform him of the proceedings including media publication, the accused Abul Kalam Azad @ Bachchu seems to be unwilling to face the trial, as he remained absconded and fled away even from country. It is a patent indicium that the accused, by his conduct, has waived his right to be present, and as such on this score too trial in his absence is quite permissible.
(iii) Incorporating ‘Individual or group of individuals’ to the Act by amendment
55. It is submitted by the learned counsel appearing on behalf of the accused (absconded) that since the subsequent amendment brought in 2009 of the Act of 1973 by inserting the phrases ‘individual’ and ‘group of individuals’ in section 3(1) carries ‘prospective effect’, in reality, the present accused cannot be prosecuted in the capacity of an ‘individual’ for the offences underlying in the Act which is admittedly ‘retrospective’. Since such amendment has not been expressly given retrospective effect interpretation stands that the amendment is prospective. Prosecution could not show that the accused belonged to Razakar force or subsequently Al-Badar Bahini and as such on this score too he cannot be prosecuted under the Act of 1973 by bringing him within the ambit of the phrase ‘individual’.
56.At the out set, before we resolve the issue, 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.
57.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.
58.The legislative modification that has been adopted by bringing amendment in 2009 has merely extended jurisdiction of the Tribunal for bringing the perpetrator to book if he is found involved with the commission of the criminal acts even in the capacity of an ‘individual’ or member of ‘group of individuals’. It is thus validly understood that the rationale behind this amendment is to avoid letting those who committed the most heinous atrocities go unpunished. This is the intent of bringing such amendment.
59. It may be further mentioned here that the words ‘individual’ or ‘group of individuals’ have been incorporated both in section 3 of the Act of 1973 and in Article 47(3) of the Constitution by way of amendments in 2009 and 2011 respectively. The right to move the Supreme Court for calling any law relating to internationally recognised crimes in question by the person charged with crimes against humanity and genocide has been taken away by the provision of Article 47A(2) of the Constitution. Since the accused has been prosecuted for offences recognised as international crimes as mentioned in the Act of 1973 he does not have right to call in question any provision of the International Crimes (Tribunals) Act 1973 or any of amended provisions thereto.
60.Thus, we hold that the application of prospectiveness or retrospectivity as to amendment to section 3(1) of the Act of 1973 raised by the defence is of no consequence to him 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.
(iv) Tripartite Agreement and immunity to 195 Pakistani war criminals
61.It is 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. 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 derogatory to the existing law i.e the Act of 1973 enacted to prosecute those offences.
62.It is settled that the jus cogens principle refers to peremptory principles or norms from which no derogatory is permitted, and which may therefore operate a treaty or an agreement to the extent of inconsistency with any such principles or norms. We are thus inclined to pen our convincing view that the obligation imposed on the state by the UDHR (Universal Declaration of Human Rights) and the Act of 1973 is indispensable and inescapable and as such the ‘tripartite agreement’ which is mere an ‘executive act’ cannot liberate the state from the responsibility to bring the perpetrators of atrocities and system crimes into the process of justice.
63.As 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.
64.Next, the Act of 1973 is meant to prosecute and punish not only the ‘armed forces’ but also the perpetrators who belonged to ‘auxiliary forces’, or who committed the offence as an ‘individual’ or member of ‘group of individuals’ and nowhere the Act says that without prosecuting the armed forces (Pakistani) the person or persons having any other capacity specified in section 3(1) of the Act cannot be prosecuted. Rather, it is manifested from section 3(1) of the Act of 1973 that even any person (individual or member of group of individuals), if he is prima facie found individually criminally responsible for the offence(s), can be brought to justice under the Act of 1973. Therefore, the argument that since the main responsible persons (Pakistan Army) have escaped the trial, on the strength of the tripartite agreement providing immunity to them, the next line collaborators or perpetrators cannot be tried is far-off to any canons of criminal jurisprudence. We are of the view that the ‘tripartite agreement’ is not at all a barrier to prosecute even a local civilian perpetrator under the Act of 1973.
(v) The accused could have been prosecuted and tried under the Collaborators Order 1972 and if prosecuted present prosecution for same offences is barred by the doctrine of Doctrine of Double Jeopardy
65.An offence for which the accused could have been convicted on the initial indictment if actually brought against him under the Collaborators Order 1972 does not appear to be same for which the accused has been prosecuted under the Act of 1973. The Tribunal, in determining the issue of double jeopardy, is concerned with offences or crimes as clearly refer to the Act of 1973 and not the Collaborators Order 1972.
66. There has been no proof that the accused was prosecuted and tried under the Collaborators Order 1972. It is not correct to say that the accused could have been prosecuted if actually he had perpetrated any of crimes enumerated in the Act of 1973 for which he has been charged now. Next, if the accused was really prosecuted and tried under the Collaborators Order 1972 the present prosecution under the Act of 1973 cannot be said to be barred by the doctrine of double jeopardy.
67.It is to be tested whether two criminal offences are the same for the purposes of double jeopardy jurisprudence, Lord Morris explained that- what has to be considered is whether the crime or offence charged in the later indictment is the same or is in effect or is substantially the same as the crime charged (or in respect of which there could have been a conviction) in a former indictment and that it is immaterial that the facts under examination or the witnesses being called in the later proceedings are the same as those on some earlier proceedings. [1964] A.C. 1254 at 1306 [H.L.(E.)].
68.Thus, the doctrine of double jeopardy prohibits that the accused should not have been put in peril of conviction for the same criminal offence as that with which he is then prosecuted and punished. First, there is no paper or document before us to show that accused was prosecuted under the Collaborators Order 1972 and the fate of such prosecution.
69.The Collaborators Order 1972 was a different legislation aiming to prosecute the persons responsible for the offences enumerated in the schedule thereof. It will appear that the offences punishable under the Penal Code were scheduled in the Collaborators Order 1972. While the 1973 Act was enacted to prosecute and try the crimes against humanity, genocide and other system 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.
70.In the case in hand, we have found that there are sufficient grounds to presume prima facie that the accused was physically associated with the perpetration of the offences enumerated in the 1973 Act. Therefore, we are disinclined to accept the argument 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.
(vi) Whether the accused can be prosecuted without prosecuting his accomplices
71.Another question has been agitated by the defence. According to the charges it will reveal that apart from the accused, some other armed Razakars and co-perpetrators accompanied the accused at the crime scene in committing the crimes. But excepting accused, none of his accomplices has been brought to justice. It is true. But that by itself does not make the horrendous episode of atrocities directing the civilian population belonging to Hindu community constituting crimes against humanity and genocide untrue or give any immunity to accused Abul Kalam Azad @ Bachchu. If the accused is found guilty and criminally liable beyond reasonable doubt for his culpable acts, inaction in prosecuting his accomplices cannot be the reason for holding the former innocent or relieved from liability. In this regard we may recall the provision as contained in section 4(1) of the Act of 1973.
(vii) Definition and Elements of Crime
72.The learned defence counsel has argued that the offences specified in section 3(2) are not well defined and the same lack of elements. Section 3(2) 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.
73.We are not agreed with the above submission. Section 3(2)(a) of the Act is self contained and fairly compatible with the international jurisprudence. Before coming to a finding as to whether the attack directed against civilian population, in 1971, on political, racial, ethnic or religious grounds was ‘systematic’? Let us have a look to the jurisprudence evolved on this issue.
74.If we make a closer look to the contemporary standards of definition of 'Crimes against Humanity' in various Statutes, first this observation can be made that there is no 'consistency' among definitions. The definition of ‘Crimes against humanity’ as contemplated in Article 5 of the ICTY Statute 1993 neither requires the presence of 'Widespread and Systematic Attack' nor the presence of 'knowledge' thereto as conditions for establishing the liability for 'Crimes against Humanity'. True, the Rome Statute definition differs from that of both ICTY and ICTR Statutes.
75.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;'
76.It is now settled that the expression ‘directed 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 and 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.
77.True, the Rome Statute definition differs from that of both ICTY and ICTR Statutes. But, 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. Thus, our Tribunal (ICT) 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 constitute the offence of crime against humanity.
78.If the specific offences of 'Crimes against Humanity' which were committed during 1971 are tried under 1973 Act, it is obvious that 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 self-determined population in 1971. The Tribunal, as per section 19(3) of the 1973 Act, shall not require proof of facts of common knowledge; it shall take judicial notice of such fact. The specific offences committed as 'Crimes against Humanity' during 1971 war, were very much a part of a ‘systematic attack’ of the ongoing atrocious activities.
79. The section 3(2)(a) of the Act states the 'acts' constituting the offences of crimes against humanity is required to have been ‘directed 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’ on national, political, ethnic, racial or religious grounds. Thus, 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’ directed against ‘civilian population’ thus refers to organized and systemic nature of the attack causing acts of violence to the number of victims belonging to civilian population. . Therefore, the claim as to the non-existence of a consistent international standard for the definition of ‘crimes against humanity’ as enumerated in the1973 Act is visibly baseless.
XVII. Relevant and Decisive Factual Aspects
80. For the purpose of adjudicating the charges, at the out set, the following decisive factual aspects need to be resolved. These aspects relate to the context and status of the accused at the relevant time of perpetration of crimes alleged. To qualify the criminal acts allegedly committed by the accused as the offences of crime against humanity these aspects are essentially needed to be resolved first.
(i) When the Pakistani army rolled into Faridpur Town
81.This factual issue is crucially related to the events of crimes alleged. Because, from the charges framed against the accused it reveals that all the events of alleged atrocities were committed between the period of 14 May to 26 July 1971. The accused Abul Kalam Azad @ Bachchu allegedly in the capacity of Razakar and his accomplices perpetrated all these crimes and charge nos. 1 and 2 demonstrate that the accused used to maintain close and active association with the Pakistani army at different camps set up in Faridpur.
82. On prayer of prosecution, the Tribunal has permitted it to adduce attested photocopy of the East Pakistan Police Abstract of Intelligence [Vol XXV No. 17] dated April 24 1971 and the attested photocopy of the East Pakistan Police Abstract of Intelligence [Vol XXV No. 18] dated May 1 1971, as additional evidence under section 9(4) of the Act of 1973, as it considered those relevant for adjudication of the charges. The documents have been marked as Exhibit- 10 and 11.
83.It is quite evident from evidence of witnesses that the Pakistani army rolled into Faridpur town on 21 April 1971, in furtherance of ‘operation search light’ executed on 25 March 1971 in Dhaka and all the events of atrocities as listed in the charges took place since the entry of Pakistani army into Faridpur town and target of such horrific atrocious acts was mostly the Hindu community. Exhibit 10 and 11 add strength to an unerring inference on these pertinent relevant facts.
84.The East Pakistan Police Abstract of Intelligence [Vol XXV No. 17] dated April 24 1971(Exhibit-10) so far it relates to ‘Faridpur’ in serial 387 speaks as below: “387. Faridpur.—On 21st April, 1971, some deserters from East Bengal Regiment along with some ‘Mukti Fauz’ numbering about 20/25 approached the Deputy Commissioner, Faridpur and the Superintendent of Police, Fairdpur, at the latter’s residence and demanded arms and ammunition and Police Force from them to resist the Pakistan Army who were coming to Faridpur on that day. They refused to fulfill their demands. At this the ‘Mukti Fauz’ and EBR deserters surrounded the residence of the Superintendent of Police when some police personnel who were present there took their position to encounter them. Then the ‘Mukti Fauz’ and EBR deserters left the place, and fled away from Faridpur town just before the arrival of the Army on 21st April 1971.”
85. Thus, it has been conclusively proved that the Pakistan Army rolled into Faridpur town on 21 April 1971 and there was an attempt to resist their entry on part of ‘Mukti Fauz’ and pro-liberation members of (East Bengal Regiment (EBR) (who were treated as deserters). We have also found from testimony of P.W.7, P.W. 15 and P.W. 18 that entry of Pakistan Army into Faridpur town on 21 April 1971 was almost unhindered as the attempted resistance on part of pro-liberation group of Bengali people became futile as they lacked war-arms to encounter. Additionally, Exhibit-10 extends convincing reason to assume the above P.W.s quite credible as well.
86.Next, the East Pakistan Police Abstract of Intelligence [Vol XXV No. 18] dated May 1 1971 (Exhibit-11), so far it relates to ‘Faridpur’ in serial 431 says as follows: “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, 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.
(ii) Formation of Razakar in Faridpur in 1971
In order to get a picture as to the role and status of the accused including his political affiliation during the War of Liberation in 1971, at the out set we need to concentrate to what has been testified by the prosecution witnesses. It would be fairly relevant and indispensable for adjudication of his culpability. It appears that P.W.7 and P.W.15 and P.W.18 have made the portrayal, in this regard.
89.P.W.7 Md. Amir Hossain (60) from village East Khabashpur police station Kotwali district Faridpur, a freedom fighter has testified that on 21 April 1971 the Pakistani troops started rolling towards Faridpur town and the pro-liberation people together with police, Ansar , VDP attempted to resist them at Goalanda Ghat but had failed as they were not equipped with war-weapons. Afterwards, they moved towards Faridpur town where at a place known as ‘Goalchamat’ they found Advocate Afzal Hossain, Alauddin Khan, Khokon, Abul Kalam Azad @ Bachchu (accused) and 300/400 biharis welcoming the Pakistani troops and they started celebrating and chanting.
90.As regard formation of Razakar force in Faridpur, P.W.15 Probodh Kumar Sarker stated that during the first part of the month of May 1971 Razakar force was locally formed in Faridpur. P.W.15, in reply to question elicited in his cross-examination, replied that Abul Kalam Azad @ Bachchu received fire arms operating training possibly at Faridpur stadium. First, it has been established from evidence of most of P.W.s that the Pakistani troops had set up camps at Faridpur stadium and Faridpur circuit house. Second, it is found that at the time of implementing attack directed against civilians, accused Abul Kalam Azad @ Bachchu used to carry a rifle with him. Thirdly, the victims and sufferers of atrocities which were committed during the period of 14 May to 26 July 1971 have unequivocally testified that at that time the accused was known as a Razakar and such testimony could not have been impeached by the defence.
91.P.W.5 Ranjit Kumar Nath, a freedom fighter and a victim of atrocious torture has also stated in cross-examination that accused Bachchu was also involved with the process of formation of Razakar force and subsequently he was the head of Faridpur Al-Badar force. This version remained unshaken.
92.P.W.8 Profulla Kumar Mondol (63). He knew accused Abul Kalam Azad @ Bachchu as he saw him attending meetings in support of Jamat E Islami and he (accused) was a student, junior to him, at Faridpur Rajendra College. This is why P.W.8 knew accused Abul Kalam Azad @ Bachchu. Defence failed to refute its credibility. From this version of P.W.8 it is evident that the accused was affiliated to Jamat E Islami politics.
93.However, P.W.8 who is a natural witness has also stated in his cross- examination, in reply to question put to him by the defence, that he learnt that Razakar force was formed ten-twelve days after the Pakistani troops entered in Faridpur and accused was its commander. Similarly P.W.10 Tushta Kumar Mondol (54) testified the event of crime of killing as listed in charge no.4 incriminating the accused. He however also stated that at that time accused Abul Kalam Azad @ Bachchu was the Razakar Commander. This version as well remained unshaken in his cross- examination.
94.From a report containing information (Exhibit-7: page 150 of the volume of prosecution’s document) about the accused as transmitted to the Special Superintendent of Police, City Special Branch, Dhaka by the Police Super, Faridpur vide its MEMO No. 1782 dated 12.4.2010 goes to show that initially accused Abul Kalam Azad @ Bachchu was a Razakar and was also the head of Faridpur Al-Badar force.
95.It is also found in a report titled “Pakistani Regime Is Preparing For Long Guerrilla War in East” published in the New York Times , July 30 1971 issue (By MALCOLM W. BROWNE) that- “ After brief training the recruit is given a rifle.............................The Government says it has already recruited more than 22,000 Razakars of a planned force of 35,000.”
96.The above report together with the East Pakistan Police Abstract of Intelligence [Vol XXV No. 17] dated April 24 1971(Exhibit-10) has adequately proved that the then Pakistan Government organized the Razakar force in Faridpur instantly after the Pakistani troop rolled into Faridpur in furtherance of ‘operation search light’ on 25 March 1971 to encounter the Bengali nation who started fight for freedom.
97.The Investigation Officer P.W.22 has explained why he could not collect sufficient necessary documents (old evidence) which were kept archived till 1975 in the office of the Deputy Commissioner, Faridpur, during his investigation. Undeniably, state support and co-operation and strong political will are required for the prosecution of perpetrators of internationally recognised system crimes by way of access direct evidence, such as archives or confidential information.
98.The history says, after the gloomy episode of assassination of the father of nation and his family happened on 15 August 1975 the persons and parties in state power started allowing individuals and political organizations which played visibly a notorious and antagonistic role resisting the war of Liberation in 1971 of being rehabilitated and recognized in all spheres of state. Even some of potential individuals actively affiliated with the politics of Jamat E Islami (JEI) in 1971 and its student wing Islami Chatra Sangha (ICS) got fair opportunity of sharing state power and even the privilege of hoisting our pride and heard earned national flag in their houses and vehicles. Unfortunately, the nation carrying enormous pains had to play the role of mere spectator. Because, the situation was not favourable for raising voice for prosecuting the perpetrators of serious crimes committed in violation of customary international law in 1971. Thus, the likelihood that by using the passage of time and situation favourable to them the beneficiary quarter has destroyed the relevant documents that might be enough to establish their culpability cannot be brushed aside.
99.However, despite the above challenge, eventually we have got two matters proved. One is entry of Pakistani troops into Faridpur on 21 April 1971 and another is the present accused Abul Kalam Azad @ Bachchu was provided training with a rifle having which with him he allegedly participated the commission of crimes being accompanied by his accomplices and these two facts lend assurance that he was recruited by the Pakistani troops as a potential armed Razakar and at the relevant time he perpetrated crimes in such capacity and subsequently he became the head of Faridpur Al-Badar force. That is to say, at the time of perpetration of alleged horrific crimes alleged his status was a potential Razakar who was also a close affiliate of Pakistani army in Faridpur.
(iv) Conduct of accused relevant to prove his status and association with Pakistani army
100. P.W.7 has stated that the Pakistani troops established their camps at Faridpur stadium, Police line, Ambika memorial hall, Faridpur Rajendra College with the aid of those people i.e. Advocate Afzal Hossain, Alauddin Khan, Khokon, Abul Kalam Azad @ Bachchu (accused). This version remained unshaken.
101. P.W.7 has testified that on the same day i.e on 21 April 1971, accused Bachchu Razaker with the assistance of Pakistani troops and local biharis looted the business concern of Badrilal Ramkrishna Agarwal situated at Chwak Bazar area and had set up his own office on the first floor of the building for administering anti-liberation activities there from. Later on, Bachchu Razaker had occupied the house of one Hiralal Mukhtar situated at Kabi Jasimuddin road where he had set up a training center for Al-badar. Defence could not shake all these pertinent versions.
102. Thus it is proved that the accused aided and substantially contributed in setting up army camps in Faridpur town wherefrom they used to operate their atrocious activities. Next, prosecution has been able to prove the role and conduct of accused who started his atrocious activities from the beginning of entry of Pakistani troops in Faridpur. This is of course a key relevant fact in determining his culpable role and status during the period of commission of offences of which he has been charged. Such conduct and activities of accused amply proves that he was a close accomplice of Pakistani army.
103.P.W.7 stated too that on 27.7.1971 some 7/8 armed Razakars including some biharis apprehended him from a place known as Jessore road at Goalchamat pretending him a freedom fighter and handed him over to Major Koraishi at Faridpur stadium camp. He was kept there confined in a room of the gallery’s ground floor where he found some more detainees. This version could not be dislodged in his cross-examination. That is to say the fact of remaining of P.W.7 confined at the camp is proved.
104.We have found from testimony of P.W7 that at the camp he found Ishaque, Anwar and Mansur of Maheshpur, EPR Hanif Mohammad of Bhanga, Subedar Golam Mostafa and badiuzzaman of Madaripur, Anukul of Khabashpur, Kabir, son of head master of Faridpur high school detained there . P.W.7 stated that he was kept confined there for long one month and during the period of his confinement he also saw bringing Khalil, Badal, Kislu, owner of Khondoker hotel and Abu Ysuf Pakhi (P.W.18) to the confinement cell.
105.P.W.7 denied that he did not state it to the Investigation Officer, while the defence drew it to his attention, to contradict his version that he made earlier to the IO. True, the P.W.7 did not state it to the IO, as it appears. But merely for this reason the version that he has made on dock narrating the fact of his confinement does not go on air. Mere omission in narrating a piece of fact earlier stated does not make the entire evidence of P.W.7 deposed in court untrue, particularly when the fact of his confinement in the camp of Faridpur stadium remains undisputed and unshaken.
106.P.W.7 also stated that during his confinement in the camp he saw accused Abul Kalam Azad @ Bachchu always accompanying Major Koraishi and he thought that he (accused) would initiate for his release as he was his class mate but he instead of doing it had told Major Koraishi –“he is a freedom fighter, finish him” and with this the Pakistani army had tortured him mercilessly. He could also hear screaming of women from a nearby torture cell. Defence could not impeach this pertinent version relating to the fact of affiliation of the accused with Pakistani army at the camps.
107.It is thus blatantly proved that accused Abul Kalam Azad @ Bachchu was a potential accomplice of Pakistani army which presumably being induced and encouraged by him used to initiate and commit atrocities.
(v)Whether the accused can be prosecuted as a member of ‘auxiliary force’?
108.It is a fact of common knowledge as well that the Pakistani occupation army organized Razakar, Al-Badar for the purpose of their operational support in implementing its atrocious activities in furtherance of policy and organized plan.
109.Together with the Al-Badr and Al-Shams paramilitary forces, the Razakar were under Pakistani Army command. The Razakar force was composed of mostly pro-Pakistani Bengalis. Razakars were actively associated with many of the atrocities committed by the Pakistan Army during the 9-month war of liberation in 1971.On September 7, 1971, Pakistan Defence Ministry through an official order (No:4/8/52/543 P. S.= 1 /Ko/ 3659 D-Ko) elevated members of the Razakar Bahini to the status of auxiliary force of the Pakistan Armed Forces, it is true. But even before such elevation, accused as a member of volunteer Razakar force acted and conducted actively along with and in association with the Pakistani army in committing atrocities. It has been proved. This is enough for an unerring inference that the accused had acted as a member of a militia force under control of Pakistani army for their operational and other purposes and therefore, we are of view that at the time of committing crimes for which he has been charged with the accused was a member of ‘auxiliary force’ as defined in section 2(a) of the Act of 1973
110.How the P.W.7 knew the accused Abul Kalam Azad @ Bachchu? It is a vital question to be resolved for weighing credibility of evidence of P.W.7. It is found that in reply to question put to him by the defence during cross- examination P.W.7 replied that accused Abul Kalam Azad @ Bachchu was his class mate when he was a student of arts group in Faridpur Rajendra College. It could not be refuted in any manner. Therefore, the testimony of P.W.7 that he saw the accused and his accomplices welcoming the Pakistani troops on 21 April 1971 at a place known as Goalchamat, Faridpur and later on he saw the accused at the army camp where he (P.W.7) was kept confined inspires full credence.
111.The above relevant facts have clearly proved that at the time of perpetration of alleged horrific crimes alleged status of accused was that he was a potential Razakar and a close affiliate of Pakistani army in Faridpur.
Reply of Prosecutor to argument extended by the Defence
41.In reply to these legal contentions, Mr. Syed Haider Ali, the leraned Prosecutor submitted that there is an historical context of delay in bringing the ‘individuals’ to the justice although the legislation enacted in 1973 was prevailing. Step was taken by forming prosecution team composed of four eminent senior counsels for prosecuting the perpetrators of offences specified in the Act of 1973. But after the dark history of assassination of Bangabandhu Sheikh Mujibur Rahman and his family on 15 August 1975 the process was halted and even the Collaborators Order 1972 was repealed on 31.12.1975. Democracy remained halted till 1991 and also till 2009 there was no favourable situation, strong political will and consensus to prosecute the offenders under the Act of 1973. This history of common knowledge itself is explanatory for delayed prosecution. Besides, there is no limitation in bringing criminal prosecution, particularly when it relates to ‘international crimes’ committed in violation of customary international law. Mr. Prosecutor went on to submit that the tripartite agreement is not a clog in bringing prosecution under the Act of 1973 against ‘auxiliary force ‘ and ‘individual’ or ‘group of individuals’. Besides, the tripartite agreement did not give immunity to listed 195 war criminals belonging to Pakistani occupation army. The agreement was not in consonance with the norms of compelling laws.
42. In respect of definition and elements of crimes against humanity, Mr. Prosecutor submitted that the phrase ‘ directed 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. The ICTY Statute does not contain the ‘systematic or widespread’ requirement. Subsequently, through judicial pronouncements it has been settled jurisprudence of ICTY that the offences of crimes against humanity must have been committed as part of ‘systematic or widespread attack’. Our Tribunal which is a domestic Tribunal constituted under our own legislation enacted in the sovereign parliament meant to prosecute, try and punish the perpetrators of ‘international crimes’ taking the context and pattern of atrocities into account may arrive at decision whether the acts constituting the offences can be qualified as crimes against humanity. The amendment of the Act of 1973 bringing the phrase ‘individual’ or ‘group of individuals’ have to be considered together with the preamble of the Statute and thus it is misconceived to say that merely for the reason of such subsequent amendment to the Act an ‘individual’ cannot be brought under jurisdiction of the Tribunal. As regard trial in absentia, it has been submitted that section 10A of the Act of 1973 provides provision of holding trial in absentia. The accused Abul Kalam Azad @ Bachchu deliberately remained absconding since pre-trial stage to evade the process of justice and as has been reported he has left the country. It signifies that he deliberately did not intend to face the prosecution. Absconsion itself is an incriminating circumstance to be considered together with evidence for determining culpability of the accused.
(i) Does Delay obstruct bringing prosecution under the Act of 1973?
43.From the point of morality and sound legal dogma, time bar should not apply to the prosecution of human rights crimes. Neither the Genocide Convention of 1948, nor the Geneva Conventions of 1949 contain any provisions on statutory limitations to war crimes and crimes against humanity. Article I of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity adopted and opened for signature, ratification and 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.
44.Still the Nazi war criminals of the Second World War are being prosecuted. Trials of genocides committed during the 1973 Chilean revolution and the Pol Pot regime of Cambodia in the1970s are now ongoing. The sovereign immunity of Slobodan Milosevic of Serbia, Charles Taylor of Liberia, and Augusta Pinochet of Chile (with the Chilean Senate's life-long immunity) as the head of state could not protect them from being detained and prosecuted for committing genocides, crimes against humanity, and war crimes.
45.In view of above settled position and in the absence of any statutory limitation, as a procedural bar, only the delay itself does not preclude prosecutorial action to adjudicate the culpability of the perpetrator of core international crimes. Indubitably, a prompt and indisputable justice process cannot be motorized solely by the painful memories and aspirations of the victims. 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.
46.Prolonged impunity and the related denial of the truth will allow old wounds to fester and may increase post-traumatic stress suffered by the victims of human rights crimes. [Special Rapporteur on the Right to Restitution, Comp. & Rehab. for Victims of Gross Violations of Human Rights & Fundamental Freedoms, Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, 135, Common on Human Rights, Econ. & Soc. Council, U.N. Doc. E/CN.4/Sub.2/1993/8 (July 2, 1993) [hereinafter van Boven] (by Theo van Boven).]
47.In this respect, Cohen has observed that “after generations of denials, lies, cover-ups and evasions, there is a powerful, almost obsessive, desire to know exactly what happened.” [STANLEY COHEN, STATES OF DENIAL: KNOWING ABOUT ATROCITIES AND SUFFERING 225 (2001)]. In Bangladesh, the efforts initiated under a lawful legislation to prosecute, try and punish the perpetrators of crimes committed in violation of customary international law is an indicia of valid and courageous endeavor to come out from the culture of impunity. Customary international law has finally progressed to a stage where States may not point to the passage of time to escape their duty to prosecute and punish perpetrators of genocide, crimes against humanity, and war crimes in their own courts.
48.Crimes against humanity and genocide, the gravest crime never get old and that the perpetrators will face justice. We should not forget it that the millions of victims who deserve that their tormenters are held accountable; the passage of time does not diminish the guilt. Considerations of material justice for the victims should prevail when prosecuting crimes of the extreme magnitude is on the process. Therefore, justice delayed is no longer justice denied, particularly when the perpetrators of core international crimes are brought to the process of justice. However, there can be no recognised theory to insist that such a ‘system crime’ can only be pursued within a given number of years. Therefore, delayed prosecution does not rest as a clog in trying the accused and creates no mystification about the atrocities committed in 1971
(ii) Validity of holding Absentia trial
49.The Act of 1973 provides provision of holding trial in abesntia, if the appearance of the accused could not be ensured for the reason of his absconsion [Section 10A (1) of the Act]. In the international context, the issue of trials in absentia arose with the first modern international criminal tribunal, the International Military Tribunal (IMT) at Nuremberg, which was established to try war criminals operating under the European Axis Powers during World War II. Article 12 of the Charter of the International Military Tribunal allowed for trials in absentia whenever the Tribunal found it necessary to do so in the interest of justice. Famously, Martin Bormann, who served as the Nazi Party secretary, was indicted, tried, and sentenced to death, all in absentia, despite doubts as to whether he had even been informed of the proceedings.
50.United Nations reversed its policy against trials in absentia with the Special Tribunal for Lebanon (STL or Lebanon Tribunal) in 2006. The STL allows trials "to commence and to end............ without an accused ever having showed up in court. The STL (Special Tribunal for Lebanon) expressly allows for trials in the absence of the accused in article 22 of the STL Statute, entitled "Trials in absentia." Article 22(1), lists the situations where the STL can hold trials in the accused absence.
51.According to Professor William Schabas under section 22(1) (c) of the STL Statute, the accused may be tried in absentia when he refuses to appear after an initial appearance (absconded) or is otherwise unable to be found after all reasonable steps have been taken to inform him of the proceedings including media publication and communication with his known state of residence.
52.Accused Abul Kalam Azad @ Bachchu could have due opportunity of being properly informed of the proceedings in advance if the warrant of arrest could have been executed. But by remaining absconded and leaving country the accused has willfully declined to exercise his right to be present for facing trial and as such under this circumstance, trial in his absence would be permissible "in the interest of the proper administration of justice."
53.In the case in our hand, at pre-trial stage, for the purpose of effective investigation this Tribunal ordered for his arrest by issuing warrant and as it appears from the execution report, the accused knowing it preferred to remain absconded, instead of facing proceedings and trial. The accused has not intended to take part in the trial, rather wished to escape prosecution. The jurisprudence of both the ICCPR and the ECHR confirms that a trial in absentia will not violate a person's right to be present when he has expressly declined to exercise this right. The circumstance and the time and way the accused had gone to absconsion and left country led us to lawful inference that the accused has expressly declined to exercise his right to be present in trial.
54.That is to say, despite all reasonable steps taken to inform him of the proceedings including media publication, the accused Abul Kalam Azad @ Bachchu seems to be unwilling to face the trial, as he remained absconded and fled away even from country. It is a patent indicium that the accused, by his conduct, has waived his right to be present, and as such on this score too trial in his absence is quite permissible.
(iii) Incorporating ‘Individual or group of individuals’ to the Act by amendment
55. It is submitted by the learned counsel appearing on behalf of the accused (absconded) that since the subsequent amendment brought in 2009 of the Act of 1973 by inserting the phrases ‘individual’ and ‘group of individuals’ in section 3(1) carries ‘prospective effect’, in reality, the present accused cannot be prosecuted in the capacity of an ‘individual’ for the offences underlying in the Act which is admittedly ‘retrospective’. Since such amendment has not been expressly given retrospective effect interpretation stands that the amendment is prospective. Prosecution could not show that the accused belonged to Razakar force or subsequently Al-Badar Bahini and as such on this score too he cannot be prosecuted under the Act of 1973 by bringing him within the ambit of the phrase ‘individual’.
56.At the out set, before we resolve the issue, 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.
57.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.
58.The legislative modification that has been adopted by bringing amendment in 2009 has merely extended jurisdiction of the Tribunal for bringing the perpetrator to book if he is found involved with the commission of the criminal acts even in the capacity of an ‘individual’ or member of ‘group of individuals’. It is thus validly understood that the rationale behind this amendment is to avoid letting those who committed the most heinous atrocities go unpunished. This is the intent of bringing such amendment.
59. It may be further mentioned here that the words ‘individual’ or ‘group of individuals’ have been incorporated both in section 3 of the Act of 1973 and in Article 47(3) of the Constitution by way of amendments in 2009 and 2011 respectively. The right to move the Supreme Court for calling any law relating to internationally recognised crimes in question by the person charged with crimes against humanity and genocide has been taken away by the provision of Article 47A(2) of the Constitution. Since the accused has been prosecuted for offences recognised as international crimes as mentioned in the Act of 1973 he does not have right to call in question any provision of the International Crimes (Tribunals) Act 1973 or any of amended provisions thereto.
60.Thus, we hold that the application of prospectiveness or retrospectivity as to amendment to section 3(1) of the Act of 1973 raised by the defence is of no consequence to him 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.
(iv) Tripartite Agreement and immunity to 195 Pakistani war criminals
61.It is 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. 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 derogatory to the existing law i.e the Act of 1973 enacted to prosecute those offences.
62.It is settled that the jus cogens principle refers to peremptory principles or norms from which no derogatory is permitted, and which may therefore operate a treaty or an agreement to the extent of inconsistency with any such principles or norms. We are thus inclined to pen our convincing view that the obligation imposed on the state by the UDHR (Universal Declaration of Human Rights) and the Act of 1973 is indispensable and inescapable and as such the ‘tripartite agreement’ which is mere an ‘executive act’ cannot liberate the state from the responsibility to bring the perpetrators of atrocities and system crimes into the process of justice.
63.As 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.
64.Next, the Act of 1973 is meant to prosecute and punish not only the ‘armed forces’ but also the perpetrators who belonged to ‘auxiliary forces’, or who committed the offence as an ‘individual’ or member of ‘group of individuals’ and nowhere the Act says that without prosecuting the armed forces (Pakistani) the person or persons having any other capacity specified in section 3(1) of the Act cannot be prosecuted. Rather, it is manifested from section 3(1) of the Act of 1973 that even any person (individual or member of group of individuals), if he is prima facie found individually criminally responsible for the offence(s), can be brought to justice under the Act of 1973. Therefore, the argument that since the main responsible persons (Pakistan Army) have escaped the trial, on the strength of the tripartite agreement providing immunity to them, the next line collaborators or perpetrators cannot be tried is far-off to any canons of criminal jurisprudence. We are of the view that the ‘tripartite agreement’ is not at all a barrier to prosecute even a local civilian perpetrator under the Act of 1973.
(v) The accused could have been prosecuted and tried under the Collaborators Order 1972 and if prosecuted present prosecution for same offences is barred by the doctrine of Doctrine of Double Jeopardy
65.An offence for which the accused could have been convicted on the initial indictment if actually brought against him under the Collaborators Order 1972 does not appear to be same for which the accused has been prosecuted under the Act of 1973. The Tribunal, in determining the issue of double jeopardy, is concerned with offences or crimes as clearly refer to the Act of 1973 and not the Collaborators Order 1972.
66. There has been no proof that the accused was prosecuted and tried under the Collaborators Order 1972. It is not correct to say that the accused could have been prosecuted if actually he had perpetrated any of crimes enumerated in the Act of 1973 for which he has been charged now. Next, if the accused was really prosecuted and tried under the Collaborators Order 1972 the present prosecution under the Act of 1973 cannot be said to be barred by the doctrine of double jeopardy.
67.It is to be tested whether two criminal offences are the same for the purposes of double jeopardy jurisprudence, Lord Morris explained that- what has to be considered is whether the crime or offence charged in the later indictment is the same or is in effect or is substantially the same as the crime charged (or in respect of which there could have been a conviction) in a former indictment and that it is immaterial that the facts under examination or the witnesses being called in the later proceedings are the same as those on some earlier proceedings. [1964] A.C. 1254 at 1306 [H.L.(E.)].
68.Thus, the doctrine of double jeopardy prohibits that the accused should not have been put in peril of conviction for the same criminal offence as that with which he is then prosecuted and punished. First, there is no paper or document before us to show that accused was prosecuted under the Collaborators Order 1972 and the fate of such prosecution.
69.The Collaborators Order 1972 was a different legislation aiming to prosecute the persons responsible for the offences enumerated in the schedule thereof. It will appear that the offences punishable under the Penal Code were scheduled in the Collaborators Order 1972. While the 1973 Act was enacted to prosecute and try the crimes against humanity, genocide and other system 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.
70.In the case in hand, we have found that there are sufficient grounds to presume prima facie that the accused was physically associated with the perpetration of the offences enumerated in the 1973 Act. Therefore, we are disinclined to accept the argument 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.
(vi) Whether the accused can be prosecuted without prosecuting his accomplices
71.Another question has been agitated by the defence. According to the charges it will reveal that apart from the accused, some other armed Razakars and co-perpetrators accompanied the accused at the crime scene in committing the crimes. But excepting accused, none of his accomplices has been brought to justice. It is true. But that by itself does not make the horrendous episode of atrocities directing the civilian population belonging to Hindu community constituting crimes against humanity and genocide untrue or give any immunity to accused Abul Kalam Azad @ Bachchu. If the accused is found guilty and criminally liable beyond reasonable doubt for his culpable acts, inaction in prosecuting his accomplices cannot be the reason for holding the former innocent or relieved from liability. In this regard we may recall the provision as contained in section 4(1) of the Act of 1973.
(vii) Definition and Elements of Crime
72.The learned defence counsel has argued that the offences specified in section 3(2) are not well defined and the same lack of elements. Section 3(2) 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.
73.We are not agreed with the above submission. Section 3(2)(a) of the Act is self contained and fairly compatible with the international jurisprudence. Before coming to a finding as to whether the attack directed against civilian population, in 1971, on political, racial, ethnic or religious grounds was ‘systematic’? Let us have a look to the jurisprudence evolved on this issue.
74.If we make a closer look to the contemporary standards of definition of 'Crimes against Humanity' in various Statutes, first this observation can be made that there is no 'consistency' among definitions. The definition of ‘Crimes against humanity’ as contemplated in Article 5 of the ICTY Statute 1993 neither requires the presence of 'Widespread and Systematic Attack' nor the presence of 'knowledge' thereto as conditions for establishing the liability for 'Crimes against Humanity'. True, the Rome Statute definition differs from that of both ICTY and ICTR Statutes.
75.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;'
76.It is now settled that the expression ‘directed 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 and 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.
77.True, the Rome Statute definition differs from that of both ICTY and ICTR Statutes. But, 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. Thus, our Tribunal (ICT) 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 constitute the offence of crime against humanity.
78.If the specific offences of 'Crimes against Humanity' which were committed during 1971 are tried under 1973 Act, it is obvious that 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 self-determined population in 1971. The Tribunal, as per section 19(3) of the 1973 Act, shall not require proof of facts of common knowledge; it shall take judicial notice of such fact. The specific offences committed as 'Crimes against Humanity' during 1971 war, were very much a part of a ‘systematic attack’ of the ongoing atrocious activities.
79. The section 3(2)(a) of the Act states the 'acts' constituting the offences of crimes against humanity is required to have been ‘directed 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’ on national, political, ethnic, racial or religious grounds. Thus, 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’ directed against ‘civilian population’ thus refers to organized and systemic nature of the attack causing acts of violence to the number of victims belonging to civilian population. . Therefore, the claim as to the non-existence of a consistent international standard for the definition of ‘crimes against humanity’ as enumerated in the1973 Act is visibly baseless.
XVII. Relevant and Decisive Factual Aspects
80. For the purpose of adjudicating the charges, at the out set, the following decisive factual aspects need to be resolved. These aspects relate to the context and status of the accused at the relevant time of perpetration of crimes alleged. To qualify the criminal acts allegedly committed by the accused as the offences of crime against humanity these aspects are essentially needed to be resolved first.
(i) When the Pakistani army rolled into Faridpur Town
81.This factual issue is crucially related to the events of crimes alleged. Because, from the charges framed against the accused it reveals that all the events of alleged atrocities were committed between the period of 14 May to 26 July 1971. The accused Abul Kalam Azad @ Bachchu allegedly in the capacity of Razakar and his accomplices perpetrated all these crimes and charge nos. 1 and 2 demonstrate that the accused used to maintain close and active association with the Pakistani army at different camps set up in Faridpur.
82. On prayer of prosecution, the Tribunal has permitted it to adduce attested photocopy of the East Pakistan Police Abstract of Intelligence [Vol XXV No. 17] dated April 24 1971 and the attested photocopy of the East Pakistan Police Abstract of Intelligence [Vol XXV No. 18] dated May 1 1971, as additional evidence under section 9(4) of the Act of 1973, as it considered those relevant for adjudication of the charges. The documents have been marked as Exhibit- 10 and 11.
83.It is quite evident from evidence of witnesses that the Pakistani army rolled into Faridpur town on 21 April 1971, in furtherance of ‘operation search light’ executed on 25 March 1971 in Dhaka and all the events of atrocities as listed in the charges took place since the entry of Pakistani army into Faridpur town and target of such horrific atrocious acts was mostly the Hindu community. Exhibit 10 and 11 add strength to an unerring inference on these pertinent relevant facts.
84.The East Pakistan Police Abstract of Intelligence [Vol XXV No. 17] dated April 24 1971(Exhibit-10) so far it relates to ‘Faridpur’ in serial 387 speaks as below: “387. Faridpur.—On 21st April, 1971, some deserters from East Bengal Regiment along with some ‘Mukti Fauz’ numbering about 20/25 approached the Deputy Commissioner, Faridpur and the Superintendent of Police, Fairdpur, at the latter’s residence and demanded arms and ammunition and Police Force from them to resist the Pakistan Army who were coming to Faridpur on that day. They refused to fulfill their demands. At this the ‘Mukti Fauz’ and EBR deserters surrounded the residence of the Superintendent of Police when some police personnel who were present there took their position to encounter them. Then the ‘Mukti Fauz’ and EBR deserters left the place, and fled away from Faridpur town just before the arrival of the Army on 21st April 1971.”
85. Thus, it has been conclusively proved that the Pakistan Army rolled into Faridpur town on 21 April 1971 and there was an attempt to resist their entry on part of ‘Mukti Fauz’ and pro-liberation members of (East Bengal Regiment (EBR) (who were treated as deserters). We have also found from testimony of P.W.7, P.W. 15 and P.W. 18 that entry of Pakistan Army into Faridpur town on 21 April 1971 was almost unhindered as the attempted resistance on part of pro-liberation group of Bengali people became futile as they lacked war-arms to encounter. Additionally, Exhibit-10 extends convincing reason to assume the above P.W.s quite credible as well.
86.Next, the East Pakistan Police Abstract of Intelligence [Vol XXV No. 18] dated May 1 1971 (Exhibit-11), so far it relates to ‘Faridpur’ in serial 431 says as follows: “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, 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.
(ii) Formation of Razakar in Faridpur in 1971
In order to get a picture as to the role and status of the accused including his political affiliation during the War of Liberation in 1971, at the out set we need to concentrate to what has been testified by the prosecution witnesses. It would be fairly relevant and indispensable for adjudication of his culpability. It appears that P.W.7 and P.W.15 and P.W.18 have made the portrayal, in this regard.
89.P.W.7 Md. Amir Hossain (60) from village East Khabashpur police station Kotwali district Faridpur, a freedom fighter has testified that on 21 April 1971 the Pakistani troops started rolling towards Faridpur town and the pro-liberation people together with police, Ansar , VDP attempted to resist them at Goalanda Ghat but had failed as they were not equipped with war-weapons. Afterwards, they moved towards Faridpur town where at a place known as ‘Goalchamat’ they found Advocate Afzal Hossain, Alauddin Khan, Khokon, Abul Kalam Azad @ Bachchu (accused) and 300/400 biharis welcoming the Pakistani troops and they started celebrating and chanting.
90.As regard formation of Razakar force in Faridpur, P.W.15 Probodh Kumar Sarker stated that during the first part of the month of May 1971 Razakar force was locally formed in Faridpur. P.W.15, in reply to question elicited in his cross-examination, replied that Abul Kalam Azad @ Bachchu received fire arms operating training possibly at Faridpur stadium. First, it has been established from evidence of most of P.W.s that the Pakistani troops had set up camps at Faridpur stadium and Faridpur circuit house. Second, it is found that at the time of implementing attack directed against civilians, accused Abul Kalam Azad @ Bachchu used to carry a rifle with him. Thirdly, the victims and sufferers of atrocities which were committed during the period of 14 May to 26 July 1971 have unequivocally testified that at that time the accused was known as a Razakar and such testimony could not have been impeached by the defence.
91.P.W.5 Ranjit Kumar Nath, a freedom fighter and a victim of atrocious torture has also stated in cross-examination that accused Bachchu was also involved with the process of formation of Razakar force and subsequently he was the head of Faridpur Al-Badar force. This version remained unshaken.
92.P.W.8 Profulla Kumar Mondol (63). He knew accused Abul Kalam Azad @ Bachchu as he saw him attending meetings in support of Jamat E Islami and he (accused) was a student, junior to him, at Faridpur Rajendra College. This is why P.W.8 knew accused Abul Kalam Azad @ Bachchu. Defence failed to refute its credibility. From this version of P.W.8 it is evident that the accused was affiliated to Jamat E Islami politics.
93.However, P.W.8 who is a natural witness has also stated in his cross- examination, in reply to question put to him by the defence, that he learnt that Razakar force was formed ten-twelve days after the Pakistani troops entered in Faridpur and accused was its commander. Similarly P.W.10 Tushta Kumar Mondol (54) testified the event of crime of killing as listed in charge no.4 incriminating the accused. He however also stated that at that time accused Abul Kalam Azad @ Bachchu was the Razakar Commander. This version as well remained unshaken in his cross- examination.
94.From a report containing information (Exhibit-7: page 150 of the volume of prosecution’s document) about the accused as transmitted to the Special Superintendent of Police, City Special Branch, Dhaka by the Police Super, Faridpur vide its MEMO No. 1782 dated 12.4.2010 goes to show that initially accused Abul Kalam Azad @ Bachchu was a Razakar and was also the head of Faridpur Al-Badar force.
95.It is also found in a report titled “Pakistani Regime Is Preparing For Long Guerrilla War in East” published in the New York Times , July 30 1971 issue (By MALCOLM W. BROWNE) that- “ After brief training the recruit is given a rifle.............................The Government says it has already recruited more than 22,000 Razakars of a planned force of 35,000.”
96.The above report together with the East Pakistan Police Abstract of Intelligence [Vol XXV No. 17] dated April 24 1971(Exhibit-10) has adequately proved that the then Pakistan Government organized the Razakar force in Faridpur instantly after the Pakistani troop rolled into Faridpur in furtherance of ‘operation search light’ on 25 March 1971 to encounter the Bengali nation who started fight for freedom.
97.The Investigation Officer P.W.22 has explained why he could not collect sufficient necessary documents (old evidence) which were kept archived till 1975 in the office of the Deputy Commissioner, Faridpur, during his investigation. Undeniably, state support and co-operation and strong political will are required for the prosecution of perpetrators of internationally recognised system crimes by way of access direct evidence, such as archives or confidential information.
98.The history says, after the gloomy episode of assassination of the father of nation and his family happened on 15 August 1975 the persons and parties in state power started allowing individuals and political organizations which played visibly a notorious and antagonistic role resisting the war of Liberation in 1971 of being rehabilitated and recognized in all spheres of state. Even some of potential individuals actively affiliated with the politics of Jamat E Islami (JEI) in 1971 and its student wing Islami Chatra Sangha (ICS) got fair opportunity of sharing state power and even the privilege of hoisting our pride and heard earned national flag in their houses and vehicles. Unfortunately, the nation carrying enormous pains had to play the role of mere spectator. Because, the situation was not favourable for raising voice for prosecuting the perpetrators of serious crimes committed in violation of customary international law in 1971. Thus, the likelihood that by using the passage of time and situation favourable to them the beneficiary quarter has destroyed the relevant documents that might be enough to establish their culpability cannot be brushed aside.
99.However, despite the above challenge, eventually we have got two matters proved. One is entry of Pakistani troops into Faridpur on 21 April 1971 and another is the present accused Abul Kalam Azad @ Bachchu was provided training with a rifle having which with him he allegedly participated the commission of crimes being accompanied by his accomplices and these two facts lend assurance that he was recruited by the Pakistani troops as a potential armed Razakar and at the relevant time he perpetrated crimes in such capacity and subsequently he became the head of Faridpur Al-Badar force. That is to say, at the time of perpetration of alleged horrific crimes alleged his status was a potential Razakar who was also a close affiliate of Pakistani army in Faridpur.
(iv) Conduct of accused relevant to prove his status and association with Pakistani army
100. P.W.7 has stated that the Pakistani troops established their camps at Faridpur stadium, Police line, Ambika memorial hall, Faridpur Rajendra College with the aid of those people i.e. Advocate Afzal Hossain, Alauddin Khan, Khokon, Abul Kalam Azad @ Bachchu (accused). This version remained unshaken.
101. P.W.7 has testified that on the same day i.e on 21 April 1971, accused Bachchu Razaker with the assistance of Pakistani troops and local biharis looted the business concern of Badrilal Ramkrishna Agarwal situated at Chwak Bazar area and had set up his own office on the first floor of the building for administering anti-liberation activities there from. Later on, Bachchu Razaker had occupied the house of one Hiralal Mukhtar situated at Kabi Jasimuddin road where he had set up a training center for Al-badar. Defence could not shake all these pertinent versions.
102. Thus it is proved that the accused aided and substantially contributed in setting up army camps in Faridpur town wherefrom they used to operate their atrocious activities. Next, prosecution has been able to prove the role and conduct of accused who started his atrocious activities from the beginning of entry of Pakistani troops in Faridpur. This is of course a key relevant fact in determining his culpable role and status during the period of commission of offences of which he has been charged. Such conduct and activities of accused amply proves that he was a close accomplice of Pakistani army.
103.P.W.7 stated too that on 27.7.1971 some 7/8 armed Razakars including some biharis apprehended him from a place known as Jessore road at Goalchamat pretending him a freedom fighter and handed him over to Major Koraishi at Faridpur stadium camp. He was kept there confined in a room of the gallery’s ground floor where he found some more detainees. This version could not be dislodged in his cross-examination. That is to say the fact of remaining of P.W.7 confined at the camp is proved.
104.We have found from testimony of P.W7 that at the camp he found Ishaque, Anwar and Mansur of Maheshpur, EPR Hanif Mohammad of Bhanga, Subedar Golam Mostafa and badiuzzaman of Madaripur, Anukul of Khabashpur, Kabir, son of head master of Faridpur high school detained there . P.W.7 stated that he was kept confined there for long one month and during the period of his confinement he also saw bringing Khalil, Badal, Kislu, owner of Khondoker hotel and Abu Ysuf Pakhi (P.W.18) to the confinement cell.
105.P.W.7 denied that he did not state it to the Investigation Officer, while the defence drew it to his attention, to contradict his version that he made earlier to the IO. True, the P.W.7 did not state it to the IO, as it appears. But merely for this reason the version that he has made on dock narrating the fact of his confinement does not go on air. Mere omission in narrating a piece of fact earlier stated does not make the entire evidence of P.W.7 deposed in court untrue, particularly when the fact of his confinement in the camp of Faridpur stadium remains undisputed and unshaken.
106.P.W.7 also stated that during his confinement in the camp he saw accused Abul Kalam Azad @ Bachchu always accompanying Major Koraishi and he thought that he (accused) would initiate for his release as he was his class mate but he instead of doing it had told Major Koraishi –“he is a freedom fighter, finish him” and with this the Pakistani army had tortured him mercilessly. He could also hear screaming of women from a nearby torture cell. Defence could not impeach this pertinent version relating to the fact of affiliation of the accused with Pakistani army at the camps.
107.It is thus blatantly proved that accused Abul Kalam Azad @ Bachchu was a potential accomplice of Pakistani army which presumably being induced and encouraged by him used to initiate and commit atrocities.
(v)Whether the accused can be prosecuted as a member of ‘auxiliary force’?
108.It is a fact of common knowledge as well that the Pakistani occupation army organized Razakar, Al-Badar for the purpose of their operational support in implementing its atrocious activities in furtherance of policy and organized plan.
109.Together with the Al-Badr and Al-Shams paramilitary forces, the Razakar were under Pakistani Army command. The Razakar force was composed of mostly pro-Pakistani Bengalis. Razakars were actively associated with many of the atrocities committed by the Pakistan Army during the 9-month war of liberation in 1971.On September 7, 1971, Pakistan Defence Ministry through an official order (No:4/8/52/543 P. S.= 1 /Ko/ 3659 D-Ko) elevated members of the Razakar Bahini to the status of auxiliary force of the Pakistan Armed Forces, it is true. But even before such elevation, accused as a member of volunteer Razakar force acted and conducted actively along with and in association with the Pakistani army in committing atrocities. It has been proved. This is enough for an unerring inference that the accused had acted as a member of a militia force under control of Pakistani army for their operational and other purposes and therefore, we are of view that at the time of committing crimes for which he has been charged with the accused was a member of ‘auxiliary force’ as defined in section 2(a) of the Act of 1973
110.How the P.W.7 knew the accused Abul Kalam Azad @ Bachchu? It is a vital question to be resolved for weighing credibility of evidence of P.W.7. It is found that in reply to question put to him by the defence during cross- examination P.W.7 replied that accused Abul Kalam Azad @ Bachchu was his class mate when he was a student of arts group in Faridpur Rajendra College. It could not be refuted in any manner. Therefore, the testimony of P.W.7 that he saw the accused and his accomplices welcoming the Pakistani troops on 21 April 1971 at a place known as Goalchamat, Faridpur and later on he saw the accused at the army camp where he (P.W.7) was kept confined inspires full credence.
111.The above relevant facts have clearly proved that at the time of perpetration of alleged horrific crimes alleged status of accused was that he was a potential Razakar and a close affiliate of Pakistani army in Faridpur.
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