To see part 5, click here - dealing with charges, 5 and 6
To see part 6, click here - dealing with contextual requirements to quality offenses as crimes against humanity and other defense arguments
To see part 7, click here - conclusion and sentence
To see part 7, click here - conclusion and sentence
XVIII. Relevant and Decisive Factual Aspects
137. Who was Abdul Quader Molla? Where he used to live in 1971? What he used to do and what was his political ideology, if any. Who were his associates during immediate pre-liberation time? Findings on these matters will be of significance relevance in adjudicating culpability of the accused for the charges framed. Therefore, at the outset, let us arrive at decision on these aspects, on having discussion based on evidence before us.
138. For the purpose of determining culpability of accused Abdul Quader Molla, indispensably, at out set, it is needed to know his sketch that may lend assurance as to an unerring conclusion about his activities and association with organizations and political parties, particularly during the pre-25th March 1971 period. It will also be of significance in arriving at decision as regards the fact of his staying at Mirpur locality of Dhaka city when the offences are alleged to have committed for which he has been charged with.
(i) Facts relevant to establish the role and association of the accused with the gang of perpetrators consisting of local Biharis namely Aktar goonda, Hakka goonda, Abbas chairman, Hasib Hasmi, Nehal
139. P.W. 2 Syed Shahidul Huq Mama (59), a valiant freedom fighter and a resident of Mirpur locality at the relevant time stated that Abdul Quader Molla, Biharis, Aktar goonda, Hakka goonda, Abbas chairman, Hasib Hasmi, Nehal had participated the election campaign in favour of Ghulam Azam and they used to give anti Sheikh Mujib and anti-Bengali slogans. This pertinent fact relevant to pre-25 March 1971 role of the accused remains unimpeached in cross-examination.
140. Thus, from the above unshaken version we have found three facts: (i) since prior to 25 March 1971 the accused’s position was predominantly against the movement of Bengali nation for its self- determination (ii) thereby the accused had cleared his position in favour of Jamat E Islami ideology and (iii) the accused was a close and active associate with the gang of local Bihari consisting of Aktar goonda, Hakka goonda, Abbas Chairman, Hasib Hasmi, Nehal .
141. On 26 March at about 08:00 morning, coming out from the shelter, P.W.2 found the houses of local Bangalee people in Mirpur on fire. He also saw the Bihari celebrating here and there on the street. On their way, Abdul Quader Molla and those (Aktar goonda, Nehal Hakka goonda, Abbas chairman, Hasib Hashmi) who participated the massacre started chasing them by shouting “ Shahid (P.W.2) has come, Shahid has come, apprehend him, apprehend him”.
142. The above fact remains unshaken in cross-examination. Rather P.W.2, on cross-examination, has re-affirmed it that on 26 March, in the morning, he coming out from the club room nearer to Shah Ali Majar, Mirpur he saw the houses of Bangalees on fire and the Pakistani army, Bihari, jamat e Islami and accused Abdul Qauder Molla remained present at the time of such destructive massacre.
143. The unimpeached version describing the role of accused on 26 March 1971 unequivocally and patently demonstrates that in furtherance of his prior association with the local Biharis namely Akter goonda, Nehal, Hakka goonda, Abbas Chairman, Hasib Hashmi accused Abdul Quader Molla even at the early part of the war of liberation being accompanied by these notorious people visibly started playing antagonistic role in the area of Mirpur.
144. In narrating a brief account of situation prevailing immediate before 25th March 1971 P.W.2 Syed Shahidul Haque Mama stated that he faced attack and protest by a group lead by Convention Muslim League leader S.A Khalek, Khasru, son of Governor Monaem Khan and the attackers opened gun fire. Thereafter, accused Abdul Quader Molla who belonged to Jamat E Islami, Dr. T Ali, Aktar goonda Nehal, Hasib Hashmi, Abbas Chairman, Kana Hafej and others convened a meeting by bringing Khan Abdul Qayum Khan against six points movements and eleven points movement. This meeting was organized by Anjuma-e- Mahajerin being fueled by Jamat E Islami. In that meeting, Abdul Qayum Khan uttered that “Sheikh Mujib is the traitor and enemy of Pakistan”. Defence could not dislodge this version in cross-examination.
145. This unshaken relevant fact adds further assurance to the role of accused and his close and culpable association with the gang of local Biharis including Aktar goonda Nehal, Hasib Hashmi, Abbas Chairman.
146. P.W.1 Mozaffar Ahmed Khan, a valiant freedom fighter who was the President of Keraniganj thana Chatra League in 1969 stated that during the war of liberation in the month of November he came to Mohammadpur, Dhaka in disguise and on the way of his return to home he found accused Abdul Quader Molla being accompanied by his accomplices standing in front of Mohammadpur Physical Training center which was known as the ‘torture cell’ of Al-Badar having rifle in hand.
147. In cross-examination, in reply to question put to him by the defence P.W.1 has re-affirmed it by saying that he found the accused standing in front of Physical training Centre’s gate having a Chinese rifle in hand.
148. We have also found from the Exhibit-2 a book titled ‘Sunset at Midday’ written by one Mohi Uddin , a member of Al-Badar wherein the seventh line of paragraph two at page 97 that “The workers belonging to purely Islami Chatra Sangha were called Al-Badar”. Besides, from the above unshaken and re-affirmed version it is quite evident too that accused Abdul Qauder Molla was a potential member of armed Al-Badar force and had been in Dhaka during the period of war of liberation in 1971.
149. Besides, accused Abdul Quader Molla while deposing as D.W.1 has admitted in cross-examination that he was elected President of Islami Chatra Sangha (ICS) of Shahidullah Hall unit of the University of Dhaka and he in 1977 was appointed as the private secretary of Professor Ghulam Azam pursuant to decision of Jamat E Islami.
150. We have found from evidence of P.W.9 that the accused Abdul Quader Molla being accompanied by 70/80 members belonging to ICS was engaged in providing training to Biharis at Mirpur locality for protecting Pakistan. This fact remained uncontroverted in cross- examination. This relevant fact suggests that the accused formed a ‘force’ consisting of local Biharis on his own initiation and naturally he had effective control on its members.
151. For the reason of conduct , role and culpable association of the accused with the gang of local Bihari hooligans who were quite antagonistic to the local Bengali people particularly who were in favour of self-determination movement of Bengali nation it is validly inferred without any doubt that accused Abdul Qauder Molla had accompanied , encouraged, aided and provided moral support to them to the actual commission of atrocious activities perpetrated in the area of Mirpur that happened during the early part of the war of liberation, in furtherance of ‘operation search light’ on 25 march 1971. Accordingly, the hearsay evidence of prosecution witnesses have to be viewed, valued and weighed together with the above pertinent relevant facts.
XIX. Adjudication of Charges
152. With regard to the factual findings, the Tribunal is required only to make findings of those facts which are indispensable to the determination of guilt on a particular charge. The Tribunal, according to settled jurisprudence, is in no way obliged to refer to every phrase pronounced by a witness during his testimony but it may, where it deems appropriate, stress the main parts of the testimony relied upon in support of a finding. Keeping it in mind we are going to adjudicate the charges through providing ‘reasoned opinion’ on rigorous evaluation of the facts in question by referring the relevant piece of evidence.
Adjudication of Charge No.1 [Pallab Murder]
153. Summary Charge No.01: The anti liberation people in order to execute plan to eliminate the freedom loving people, apprehending one Pallab student of Bangla College from Nawabpur forcibly brought him to the accused Abdul Quader Molla who was one of prominent leaders of Islami Chatra Sangha and as well as significant member of Al-Badar or member of group of individuals at Mirpur section 12, during the period of War of Liberation in 1971, when on his order his accomplices dragged Pallab there from to Shah Ali Majar at section 1 and he was then dragged again to Idgah ground at section 12 where he was kept hanging with a tree and on 05 April 1971, on order of accused his notorious accomplice Aktar and others killed Pallab, a non-combatant civilian and thereby accused committed an offence of murder as crime against humanity as specified in section 3(2)(a) of the Act of 1973 or in the alternative he had 'complicity to commit such crime' as specified in section 3(2)(a)(h) of the said Act which are punishable under section 20(2) read with section 3(1) of the Act.
154. The charge alleges significant acts of accused Abdul Quader Molla including giving order by him to the main perpetrators, knowing their intent and consequence of his acts, which facilitated the murder of Pallab. Thus the fact of bringing Pallab to the accused and that the accused ordered the main perpetrators to kill him are the facts in issue, relating to charge no.1, which need to be adjudicated. Prosecution adduced and examined P.W.2 and P.W.10 the residents of the crime locality Mirpur who have testified as to the commission of event of alleged killing and complicity of the accused therewith. Both the witnesses are hearsay witness so far their testimony relates to the event alleged.
155. Had there been any possibility to experience the event of alleged killing physically? Had the accused association with the main perpetrators of Pallab murder? What evidence the prosecution has been able to adduce to prove complicity of the accused with the commission of the incident of Pallab murder? Can the offence be characterized as an offence of murder as crimes against humanity?
156. All these questions may be well adjudicated mainly from the testimony of P.W.2 Shahidu Huq Mama. In addition to some significant relevant facts, this P.W.2 also deposed the fact of Pallab killing and complicity of the accused thereto. His statement before the Tribunal on principal fact in issue is ‘hearsay evidence’.
157. Since the technical rules of evidence is not applicable to the proceeding before the Tribunal and any evidence may be admitted and the Tribunal shall have to weigh its probative value in arriving at a decision on any fact in issue. On plain construal of the provision of section 19(1) of the Act of 1973 hearsay evidence is not inadmissible per se and the Tribunal, in exercise of its discretion, may act on such hearsay evidence, after weighing its probative value together with other circumstances and relevant facts.
Discussion of Evidence
158. P.W.2 Shahidu Huq Mama does not claim to have witnessed the accused giving order to kill Pallab nor did he witness the fact of bringing Pallab to the accused. He (P.W.2) has stated that Hakka Goonda’s ‘akhra’ was in ‘Thathari Bazar’ wherefrom Akter Goonda and his accomplices apprehending Pallab brought him to Mirpur Muslim Bazar area and chopped his(Pallab) fingers and then hanging him with a tree caused inhuman torture and then they killed him on 05 April. Accused Abdul Quader Molla, Aktar goonda and other Biharis i.e Hasib Hashmi, Hakka goonda, Nehal masterminded the event of killing.
159. The above hearsay version has not been denied in cross- examination. Rather, in reply to question put to him by the defence P.W.2 has stated that he had heard the incident of forcible bringing of Pallab from ‘Thathari Bazar’ and causing torture and death to him at Mirpur Muslim Bazar area from person whom he knew and mass people of Mirpur.
160. In describing some crucial relevant facts P.W. 2 Syed Shahidul Huq Mama, a valiant freedom fighter and a resident of Mirpur locality at the relevant time stated that Abdul Quader Molla, Biharis, Aktar goonda, Hakka goonda, Abbas chairman, Hasim hasbi, Nehal had participated the election campaign in favour of Ghulam Azam and they used to give anti Sheikh Mujib and anti-Bengali slogans such as [Bengali text]| This pertinent fact evidently portrays the pre-25 March 1971 role of the accused and it remains unimpeached in cross- examination.
161. The above unshaken version indubitably establishes that accused Abdul Quader Molla, despite the fact that he was a Bengali civilian, was an active and close associate of local Aktar Goonda and Bihari hooligans. This key relevant fact provides further assurance as to complicity with the atrocious activities perpetrated by Aktar goonda and Bihari accomplices, particularly during the early part of the war of liberation.
162. In narrating a brief account of situation prevailing immediate before 25th March 1971 P.W.2 Syed Shahidul Huq Mama stated that he faced attack and protest by a group lead by Convention Muslim League leader S.A Khalek, Khasru, son of Governor Monaem Khan and the attackers opened gun fire. Thereafter, accused Abdul Quader Molla who belonged to Jamat E Islami, Dr. T Ali, Aktar goonda Nehal, Hasib Hashmi, Abbas Chairman, Kana Hafej and others convened a meeting by bringing Khan Abdul Qayum Khan against six points movements and eleven points movement. This meeting was organized by Anjuman-e- Mahajerin being fueled by Jamat E Islami. In that meeting, Abdul Qayum Khan uttered that “Sheikh Mujib is the traitor and enemy of Pakistan”. Defence could not dislodge this version in cross-examination.
163. This unshaken relevant fact adds further assurance to the hostile role of accused and the fact of his close and culpable association with the gang of local Biharis including Aktar goonda Nehal, Hasib Hashmi, Abbas Chairman.
164. We have found too from testimony of P.W. 2 Shahidul Huq Mama that Mirpur locality was not isolated from the ‘operation search light’ that was carried out by the Pakistani troops on 25 March 1971. It remains undisputed. In the dreadful night, he (P.W.2) and Majahar Hossain Mantu took refuge at a ‘club’ of Bangalee community situated nearby the ‘Shah Ali Shrine’. In the following morning i.e on 26 March at about 08:00 morning, coming out from the shelter, he found the houses of local Bangalee people on fire, the Bihari celebrating here and there on the street. On their way, Quader Molla and those (Aktar goonda, Nehal Hakka goonda, Abbas chairman, Hasib Hashmi) who participated the massacre started chasing them by shouting “ Shahid (P.W.2) has come, Shahid Has come, apprehend him, apprehend him” (Bangla text)
165. The above fact remains unshaken in cross-examination. Rather P.W.2, on cross-examination, has re-affirmed it that on 26 March, in the morning, he coming out from the club room nearer to Shah Ali Majar, Miprur he saw the houses of Bangalees on fire and the Pakistani army, Bihari, jamat e Islami and accused Abdul Qauder Molla remained present at the time of such destructive massacre.
166. It is also found from the narration made by the P.W.2 that he was associated with the ‘six points movement’ and ‘eleven points movement’ and during the time immediate before 25 March 1971 when he (P.W.2) participated a procession in favour the movement near the ‘Beauty Cinema hall’ at Mirpur locality, they faced attack and protest by a group lead by Convention Muslim League leader S.A Khalek, Khasru, son of Governor Monaem Khan and the attackers opened gun fire. Thereafter, accused Abdul Quader Molla who belonged to Jamat e Islami, Dr. T Ali, Aktar goonda Nehal, Hasib Hashmi, Abbas Chairman, Kana Hafej and others convened a meeting by bringing Kahn Abdul Qayum Khan against six points movements and eleven points movement. This meeting was organized by Anjuman-e-Mahajerin being fueled by Jamat E Islami . In that meeting, Abdul Qayum Khan uttered that “Sheikh Mujib is the traitor and enemy of Pakistan”. On hearing this P.W2 instantly raided the meeting stage and snatched the microphone and consequently he and his accomplices were mercilessly beaten and were thrown to a nearby dustbin.
167. The above narration realistically demonstrates that the accused Abdul Quader Molla was a man of pro-Pakistan ideology and he used to maintain active association with the organization of Jamat E Islami and its politics and the notorious Bihari people of Mirpur locality too.
168. This fact gets potency form the further narration of P.W.2 that during 1970’s election accused Abdul Quader Molla , Aktar goonda and his other associates were actively involved with the campaigning in favour of Ghulam Azam , a candidate of Jamat E Islami and accused Abdul Quader Molla used to chant slogan that “ gali gali me shor hai Sheikh Mujib Pakistan ka dushman hai”.
169. Thus, it stands fairly established that the role of accused Abdul Quader Molla was absolutely against the movement of self determination of Bangalee nation which was in active movement demanding freedom and emancipation under the leadership of Bangabandhu Sheikh Mujibur Rahman.
170. Additionally, it is already proved that the accused had close culpable association with local Bihari hooligan Aktar goonda who is admittedly the key perpetrator of the event of killing Pallab.
171. P.W.10 Syed Abdul Qayum principally testified the incident of killing of Khandoker Abu Taleb at ‘Mirpur Zallad Khana’. He also incriminated Aktar goonda, local Biharis and accused Abdul Quader Molla with the incident of attacking him causing injuries. Version of P.W.2 relating to the event of killing Pallab appears to have been corroborated by P.W.10 Syed Abdul Qayum who was a teacher of a local school by profession and an inhabitant of Mirpur locality, at the relevant time.
172. P.W.10 Syed Abdul Qayum has also corroborated that he had heard that Abdul Quader Molla (accused) had killed Pallab a student of Bangla College. In cross-examination, the above hearsay version has been simply denied but the defence could not shake credibility of such hearsay evidence by cross-examining P.W.10.
173. Despite the fact that P.W.2 is a hearsay witness of the incident, he seems to be a quite natural witness; otherwise he could make exaggeration by saying that he witnessed the accused ordering his bihari accomplices to kill Pallab, while he testified before the Tribunal. But he did not do it. Rather he stated, in this regard, what he learnt about orchestration and masterminding of the incident of Pallab killing. It could not be dislodged by the defence. Rather, in his cross-examination P.W.2 stated that he learnt the incident of killing Pallab from the mass people and people whom he knew.
Evaluation of Evidence and Finding
174. Mr. Abdur Razzak the leaned senior Counsel for the defence has submitted that the charge no.1 is based on unattributable hearsay evidence. The event of Pallab killling is admitted. But in absence of any other corroborative evidence merely on the basis of unattributable hearsay evidence the involvement of the accused cannot be concluded. In support of his contention he has cited a decision on the confirmation of charges in the case of the Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui [(ICCC: Pre-trial Chamber I: 30 September 2008): Page 225 of the Final Argument Pack submitted by the defence]. The learned defence counsel added that anonymous hearsay evidence does not carry probative value, by citing another decision in the case of the Prosecutor v. Kajelijeli [(ICTR Trial Chamber : case no. ICTR-98-44A-T 01 December 2003): Page 230 of the Final Argument Pack submitted by the defence].
175. In reply, the learned Prosecutor has argued that hearsay evidence is admissible under the Act of 1973 and its probative value is to be weighed in light of other facts and circumstances. Thus the hearsay evidence cannot be excluded straight way. The hearsay evidence of P.W.2 so far it relates to charge no.1 appears to have been corroborated by some unimpeached relevant facts and circumstances. Under section 19(1) of the Act of 1973 the tribunal may admit any evidence tendered before it, which it deems to have probative value. Weighing and determining the probative value of hearsay evidence lies with the discretion of the Tribunal [Rule 56(2) of the ROP].
176. Charge no.1 is based on hearsay evidence. With regard to hearsay evidence, it should be pointed out first that this is not per se inadmissible. The Tribunal has the discretion to cautiously consider this kind of evidence and, depending on the circumstances of each case together with relevant facts.
177. First, it appears that the decision on the confirmation of charges in the case of the Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui [(ICCC: Pre-trial Chamber I: 30 September 2008): Page 225 of the Final Argument Pack submitted by the defence] relates to admissibility of hearsay evidence and it was found that anonymous evidence can be used to corroborate other evidence. Anonymous hearsay does not affect the admissibility of the evidence but could affect its probative value. In the above case the matter of probative value of hearsay evidence was questioned at pre-trial stage. According to the provisions contained in the Act of 1973 and ROP it is the Tribunal’s discretion which is to weigh the probative value of hearsay evidence in light of ‘other evidence’ relating to relevant facts and circumstances.
178. Second, we have found from the decision of the ICTR Trial Chamber given in the case of the Prosecutor v. Kajelijeli [(ICTR Trial Chamber: case no. ICTR-98-44A-T 01 December 2003): Page 230 para, 45 of the Final Argument Pack submitted by the defence] as cited by the defense that “....decision as to the weight to be given to the testimony based on tests of ‘relevance, probative value and reliability.” Accordingly, the Chamber notes that evidence, which appears to be “second hand”, is not, in and of itself, inadmissible, rather it is assessed, like all other evidence, on the basis of its credibility and its relevance.”
179. That is to say hearsay evidence is to be assessed like all other evidence, on the basis of its ‘credibility’ and its ‘relevance’. In the case in hand, hearsay evidence of P.W.2 is quite relevant to the material particular of facts relating to the event of killing and involvement of the accused therewith and as such not inadmissible. Such hearsay evidence is to be weighed now in light of ‘other evidence’ relating to relevant facts and circumstances.
180. From the unshaken version of P.W.2 as discussed above we have found three facts proved: (i) since prior to 25 March 1971 the accused’s position was predominantly against the movement of Bengali nation for its self-determination (ii) thereby the accused had cleared his position in favour of Jamat E Islami ideology and (iii) the accused was a close and active associate with the gang of local Bihari consisting of Aktar goonda, Hakka goonda, Abbas Chairman, Hasib Hasmi, Nehal .
181. The unimpeached version of P.W.2 describing the role of accused on 26 March 1971 unequivocally and patently demonstrates that in furtherance of his prior association with the local Biharis namely Aktar goonda, Nehal, Hakka goonda, Abbas Chairman, Hasib Hashmi accused Abdul Quader Molla even at the early part of the war of liberation being accompanied by these notorious people visibly started playing antagonistic role in the area of Mirpur.
182. Pallab was murdered during the war of liberation and on the date, place and in the manner as alleged remains unshaken, as revealed from evidence of P.W.2 Syed Shahidul Huq Mama. Besides, D.W.4 Sahera , wife of Pallab’s brother is one of listed prosecution witnesses. But finally she has deposed as a defence witness. She has also admitted the event of Pallab murder at the place and in the manner by the local hooligans i.e Aktar goonda and his accomplices. However D.W.4 remained silent as to complicity of the accused with the commission of the offence of murder. Presumably, defence has been able to bring her to depose in favour of the accused simply for disproving the complicity of the accused with the commission of the defence alleged. Thus, the commission of offence of murder as listed in charge no.1 remains undisputed. Now, we are to see how far the prosecution has been able to prove complicity of accused with it.
183. Why Most. Sahera (D.W.4) one of listed prosecution witnesses preferred to testify as a defence witness, instead of coming to testify as a prosecution witness? This is a very crucial question to be resolved, in light of circumstances revealed. Because, fundamentally she was a listed prosecution witness. It is true that prosecution is burdened to prove the charge by adducing evidence and not by taking advantage of flaws found in defence. Despite this legal position, in order to find out the truth let us have a look to what has been deposed by D.W.4 Most Sahera.
184. D.W.4 Most Sahera is also a hearsay witness as to the fact of alleged killing of Pallab. Re-affirming the fact that Palllab was forcibly brought from Nawabpur and then Aktar goonda and his Bihari accomplices had killed him during the war of liberation in 1971 at a place known as ‘Idgah field of Muslim Bazar’ she stated in cross- examination that son of accused Abdul Quader Molla 3-4 days back, meeting her asked to depose ‘in favour of his father’ (accused) and thus she came to depose as brought by him (son of Abdul Quader Molla). This version does not indicate that D.W.4 has preferred to testify as a defence witness to tell the ‘truth’. Rather it is legitimately inferred that purpose of deposing in court was to ‘favour the accused’.
185. Deposing before the Tribunal as asked and brought by the son of accused Abdul Quader Molla ‘in favour’ of the accused was simply a mechanism to ‘disprove’ prosecution case and not to disclose the truth. But it is to be reiterated that the defence is not burdened to disprove prosecution case. Therefore, she seems to have been a ‘managed’ witness.
186. D.W.4 has claimed in cross-examination that she never heard the name of Abdul Quader Molla. She reiterated by saying ‘till today I have not ever heard the name of Quader Molla in my life’. If it is taken to be true, she (D.W.4) is not competent to know whether the accused had any complicity to the commission of the event of Pallab killing. Next, this version cannot be relied upon as not only at the relevant time but since prior to the operation search light on 25 March 1971 accused Abdul Quader Molla was known to mass people of the locality for the reason of his anti-liberation movement activities and culpable association with the local antagonistic Biharis including pro-Pakistan organization Jamat E Islami (JEI) and its student wing Islami Chatra Sangha (ICS). Thus, the claim of not having heard the name of accused Abdul Quader Molla even for once in life is not at all believable and as a result this version turns into a lie.
187. D.W.4 denied to have made statement to the Investigation officer, although she has admitted the fact that she knew Nasir uddin of Mirpur ‘Jallad Khana’ pump house and about one year before she visited it and had talked with Nasir. Why she (D.W.4) visited ‘Jallad Khana’ and had talked with Nasiruddin? No explanation has been offered by her.
188. It appears that the Investigation officer(P.W.12) has re-affirmed in his cross-examination , in reply to question put to him, that he recorded statement of Sahera, wife of Tuntuni’s brother at Mirpur Jallad Khana’ and before recording her statement he asked Nasiruddin, in- charge of ‘Mirpur Jallad Kahan Smriti Biddyapith’ to send her (Sahera: D.W.4) message for coming there. Thus, it is quite evident that D.W.4 Sahera made statement to the IO at Miprur Jallad Khana which now she is denying with ulterior motive of suppressing the truth.
189. It may thus be legitimately concluded that since she has deposed favouring the accused with a view to suppress the truth and that is why she has denied even the matter of making statement to the IO. Undoubtedly D.W.4 has suppressed the truth so far it relates to complicity of accused with the offence alleged. Therefore, her testimony, in other words, lends further assurance to the probative value of hearsay evidence of P.W.2.
190. Now the question is whether the hearsay evidence of P.W.2 carries reasonable probative value to connect the accused with the incident. Weighing probative value of hearsay evidence depends upon relevant facts and circumstances, as has already been observed. Since the technical rule of evidence shall not be applicable to the trial before this Tribunal, the hearsay evidence of P.W.2 in respect of complicity of the accused, an active associate of Aktar goonda, with the killing of Pallab inspires reasonable credence, under the circumstances as discussed above, and as such hearsay evidence as to complicity of the accused with the commission of the crime, of course, carries significant probative value.
191. The horrendous situation existing at that time was not encouraging for any Bengali civilian to witness the incident of killing including the fact of forcible bringing of Pallab to accused Abdul Quader Molla and giving order to kill him. We have found from evidence of P.W.2 that at the relevant time 90% of the residents of Mirpur was Biharis. Thus the small segment of Bangalee population of Mirpur was naturally in a grave frightened condition for the cause of sudden systematic atrocities committed by the local bihari hooligans in collaboration with anti-liberation Bengali people belonging to ideology of Jamat E Islami and its student wing Islami Chatra Sangha (ICS) and Pakistani army, particularly during the early part of war of liberation.
192. The fact of learning the complicity of the accused with the commission of Pallab murder from mass people, as testified by P.W.2, thus cannot be brushed aside, merely in absence of any eye witness, particularly when the attempt made by the defence to bring and examine a listed prosecution witness (D.W.4) appears to have been a futile one to exclude complicity of accused, for the reasons discussed above.
193. The reality is that long 41 years after the incident took place live witness may not be available and also the incident might not have been witnessed by any person for valid reason of frightened situation existing at that time, as has been already observed and this is the intent of provision of non applicability of the technical rules of evidence that excludes the hearsay evidence and provision of adopting non-technical procedure by the Tribunal and also admitting any evidence which deems to have probative value.
194. P.W.2 was, undeniably, an inhabitant of Mirpur locality. In 1971 the locality was not so densely populated. Thus and for the reason of own active involvement with pro-liberation movement P.W.2 had fair opportunity to know the accused Abdul Quader Molla and experience his pro-Pakistan political activities we are convinced to believe that P.W.2 knew the accused and he was quite familiar with the anti-liberation activities of the accused in Mirpur locality.
195. Therefore, the narration of P.W2 fairly demonstrates the status, position and antagonistic role of accused Abdul Quader Molla in 1971 war of liberation. In this regard, we have already found too that accused Abdul Quader Molla was a close associate and used to accompany the gang of local notorious Biharis who actually perpetrated the atrocious activities that took place in Mirpur locality particularly at the early part of the war of liberation in furtherance of ‘operation search light’ on 25 march 1971.
196. It is to be noted that instead of focusing on the substantial contribution of an accused's criminal conduct to the perpetration of a crime, focus should also be put on the accused's culpable association with the perpetrators, as a manifestation of willingness to be associated with a crime and his support to the principal perpetrator of the crime. This notion needs to be inferred from relevant facts and circumstances that may offer fair assurance to the credibility of hearsay evidence.
197. It has been established beyond any doubt that accused Abdul Quader Molla had vigorous and culpable association with the local Bihari and anti-liberation political organization Jamat E Islami. The conduct of the accused that has been revealed from discussion and evaluation of evidence of P.W.2 and P.W.10 was extremely antagonistic to the independence loving local Bangalee population. It is also proved as well that the atrocities that took place in Mirpur area instantly after 25 March 1971 was part of the ‘operation search light’, generated to execute plan and policy of the Pakistani ruler and occupation army targeting the unarmed Bangalee civilians.
198. The defence could not dislodge the facts relevant to conduct and culpable association of the accused with the Bihari perpetrators. Rather, it appears that on cross-examination, P.W.2 has re-affirmed the fact that on 26 March morning 1971, Pakistani army, Bihari, Jamat-e-Islami and accused Abdul Quader Molla were present at the time of committing mass destruction in Mirpur locality.
199. In reality, it was not likely for any Bangalee resident of Mirpur locality, excepting a very few to witness atrocious acts including killing, destruction, rape. Therefore, naturally, P.W.2 also could not have opportunity to witness the incidents of killings, although, for inevitable and legitimate reason he had occasion to learn about the incident and complicity of the accused therewith. On this score and since the defence had adequate opportunity to cross-examine the P.W.2 , the hearsay evidence as to link and culpable association of the accused Abdul Quader Molla with the incident of Pallab Killing carries sufficient probative value, in the backdrop of above relevant circumstances and facts as discussed above.
200. It is argued by the defence that the event of killing of Pallab was an isolated crime; even it is admitted to have taken place at the relevant time. This argument does not fit to the context prevailing at the relevant time. Besides, even a single murder or killing constitutes an offence of crime against humanity if it is found to have been perpetrated as a part of attack targeting unarmed ‘civilian population’. It is now settled jurisprudence that even a single or limited number of acts on the accused’s part would qualify as a crime against humanity, unless those acts may be said to be isolated or random, provided all other conditions being met.
201. The appeal Chamber of ICTR has observed in the case of Nahimana, Barayagwiza and Ngeze, [ November 28, 2007, para. 924] that – “A crime need not be carried out against a multiplicity of victims in order to constitute a crime against humanity. Thus an act directed against a limited number of victims, or even against a single victim, can constitute a crime against humanity, provided it forms part of a ‘widespread’ or ‘systematic’ attack against a civilian population.”
202. Next, section 3(2)(a) of the Act of 1973 describes that the attack must be committed ‘against any civilian population’. This requirement is consistent to the jurisprudence that the acts must be ‘directed against’ the population i.e. it must be ‘the primary object of the attack’.
203. The context of war of liberation in 1971 and pattern of launching attack causing murder of Pallab for which the accused has been charged (Charge No.01) with by itself suggests that the murder was not an isolated crime.
204. The learned defence counsel, by drawing attention to the CD (Material Exhibit-I series) argued that P.W.2 Syed Shahidul Huq Mama in an interview with the BTV, in narrating the atrocious events committed in Mirpur in 1971 has not made any account involving the present accused Abdul Quader Molla with any of events for which he has been charged with. Thus, his testimony made in Tribunal is not credible and it suffers from contradiction.
205. It appears that P.W.2 Syed Shahidul Huq Mama admitted, on cross-examination, that he on 20 April 2012 made an interview in a program titled ‘Ekattore Ranangoner Din guli’ in Bangladesh Television (BTV) wherein he described the events committed in the locality of Mirpur-Mohammadpur during the war of liberation in 1971 and he attempted to portray the correct account. But the journalists are in practice to exclude part of his narration, even add new words to it for which he is not responsible.
206. First, earlier statement or any account made to any non judicial forum is not evidence and it may simply be used to see inconsistencies or omissions with the evidence made in court. The explanation offered by P.W.2 is reasonable and thus if such prior interview is found to have not contained any narration hinting involvement of the accused with any of atrocities alleged committed in Miprur his sworn testimony made in Tribunal is not liable to be brushed aside, provided if his evidence in its entirety inspires sufficient weight in light of attending circumstances. Second, P.W.2 does not claim to have witnessed the accused in committing the event of killing Pallab. If really he had any motive he could testify falsely by claiming that he saw the accused committing the crime alleged. But he did not do it. This demeanor is appositely relevant in assessing his sworn testimony made in Tribunal.
207. Therefore, the Tribunal, in particular taking into account the demeanor of the P.W.2 and the explanation offered for the difference, if any, notes that his oral evidence made before us is not rendered to be contrived in nature and any of his prior account made in TV interview, for the reason agitated by the defence, cannot be the lone index in rejecting the evidence of P.W.2, whether in whole or in part.
208. Defence failed to refute the incident of murder of Pallab on the date time and in the manner as have been alleged. It is the fact of common knowledge that such pattern and systemized atrocities were committed through out the period of nine months in the land of Bangladesh and as such merely considering the number of victim of crime or the fact that an event related to single murder it is not correct to infer that the event of murder of Pallab was an isolated crime. The context in its entirety itself legitimately establishes that murder of Pallab was the outcome of a part of ‘systematic attack’ directed against member of ‘civilian population’.
209. From the unimpeached version of P.W.2 we have found that accused Abdul Quader Molla was culpably associated with Aktar Goonda and local Bihari extremists who during the early part of war of liberation committed serious crimes targeting the Bangalee and pro- liberation people residing around the Mirpur locality. It is to be noted that ccircumstantial evidence is evidence of circumstances surrounding an event or an offence from which a fact at issue may be reasonably inferred. Circumstantial evidence may be necessary in order to establish an alleged fact.
210. Proof of all forms of criminal responsibility can be given by direct or circumstantial evidence. Although it is proved that the local Bihari extremists and Aktar Goonda were the main offenders, yet it is proved beyond reasonable doubt that accused Abdul Quader Molla, for the reason of his continuing culpable association with the principals, had ‘complicity’ to the criminal acts constituting the offence of Pallab killing as he ‘consciously’ used to maintain such culpable association with the perpetrators in materializing the design of Pakistani occupation forces and Jamat E Islami the potential pro-Pakistan political organisation to extinguish the unarmed Bangalee and pro-liberation people and Awami league the political party which had leading role in encouraging the Bangalee nation for its self determination and independence.
211. The accused himself need not have participated in all aspects of the alleged criminal conduct. [ Stakic, (Trial Chamber), July 31, 2003, para. 439]. The actus reus of aiding and abetting a crime may occur before, during, or after the principal crime has been perpetrated [Blaskic, (Appeals Chamber), July 29, 2004, para. 48]. Accordingly, participation may occur before, during or after the act is committed.
212. We have got in the case on hand that the accused Abdul Quader Molla is not alleged to have committed any of crimes individually. It is proved that the accused used to maintain ‘culpable association’ with the local group of Bihari goons who were extremely antagonistic to pro- liberation civilians of Mirpur even just before commission of the crime alleged. His prior conduct and ‘culpable association’ is sufficient to connect him with the actual accomplishment of the attack constituting the offence of murder of Pallab as crimes against humanity perpetrated by his accomplices, the local Bihari goons. Committing a crime enumerated in the Act of 1973 may be done individually or jointly with others. Committing such crime may also be said to have been participated by the accused if he is found to have provided moral support or encouragement by his act or acts to the principals, even if he was not present at the crime scene. In light of this established facts and conduct of the accused, the above principles enunciated in the case of ICTY, as regards participation and conduct of accused forming attack provides support in holding the accused Abdul Quader Molla responsible particularly for the crimes alleged as listed in charge no. 1.
213. On cumulative evaluation of testimony and relevant facts and circumstances we have found that accused Abdul Qauder Molla and his Bihari accomplices masterminded and executed the killing of Pallab, a civilian, as a part of attack.
214. It is thus validly inferred that the accused having ‘awareness’ as to the consequences of acts and conduct of those Bihari perpetrators continued his association with them. It was not necessary that the accused must remain present at the crime site when the murder of Pallab was actually committed. In this regard the Tribunal also notes that “actual physical presence when the crime is committed is not necessary . . . an accused can be considered to have participated in the commission of a crime . . . if he is found to be ‘concerned with the killing.” [Tadic, (Trial Chamber), May 7, 1997, para. 691]
215. The accused Abdul Quader Molla is thus found to have had ‘complicity’ to the actual commission of killing Pallab in the manner by bringing him forcibly from Nawabpur. The reason of targeting Pallab was that he was in favour of pro-liberation activities and as such it may be unambiguously presumed that killing him was in furtherance of systematic attack directed against civilian population. As a result, the accused incurs criminal liability for having his ‘complicity’ to the commission of the murder of Pallab constituting the offence of crime against humanity as specified in section 3(2)(a)(h) of the Act of 1973 which is punishable under section 20(2) of the Act.