To see part 5, click here - dealing with charges, 5 and 6
Adjudication of Charge No.02 [Meherunnesa and her Family Inmates Killing]216. Summary Charge No.02: During the period of War of Liberation, on 27 March 1971, at any time, accused Abdul Quader Molla , one of leaders of Islami Chatra Sangha as well as a prominent member of Al-Badar or member of group of individuals, being accompanied by his accomplices, with common intention, brutally murdered the pro- liberation poet Meherun Nesa , her mother and two brothers when they had been in their house located at section 6, Mirpur, Dhaka. And thereby the accused had actively participated and substantially facilitated and contributed to the attack for accomplishment of the offence of murder as crimes 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.Witnesses217. Prosecution relies upon hearsay evidence in proving the charge nos. 2 relating to the event of horrendous killing of Meherun Nessa and her inmates. It is found that P.W.2, P.W.4 and P.W.10 have merely testified in Tribunal that they had learnt that accused Abdul Quader Molla and his Bihari accomplices Aktar goonda and others committed the offence of those murders. They do not claim to have witnessed the alleged horrific events. Now let us see what they have testified.Discussion of Evidence218. P.W.2 Syed Shahidul Huq Mama has stated that on 27 March Quader Molla(accused), Hasib Hashmi, Abbas Chairman, Aktar goonda, Hakka goonda, Nehal and their accomplices slaughtered poetess Meherunnesa, her brothers and mother. In cross-examination it has been simply denied. P.W.2 however, reaffirmed in cross-examination that he learnt about the killing of poetess Mehereunnesa and her brothers and mother from mass people. Defence could not dislodge it.219. P.W. 4 Kazi Rosy, another hearsay witness on the charge of murdering Meherun Nesa, stated that on 27th March evening she became aware that Abdul Quader Molla and his accomplices slaughtered Meherunnesa and her two brothers and mother to death by entering inside Meher’s house. In the next breath P.W.4 however, stated that the gang of perpetrators led by Abdul Quader Molla launched the attack but she could not say whether Abdul Quader Molla himself entered into the crime site i.e the house of Meher. Two days later she (P.W,4) learnt the incident from one Gulzar a non-Bengali and another Bihari who are not in this country now.220. The above version has not been specifically denied in cross- examination. Rather, in reply to question put by the defence P.W.4 stated that she learnt the incident when she was in her auntie’s house at Kalabagan from a person coming from Mirpur. It was natural in the frightened circumstances prevailing at the relevant time.221. From the above hearsay evidence we have got one thing that the gang of perpetrators led by the accused Abdul Quader Molla had launched attack to the house of poetess Meherunnesa. This part of version of P.W.4 could not be impeached by the defence. Thus, if the next part of the version that the accused himself did not enter into the crime house is taken to be true, it reveals that the accused had not physically participated to the actual commission of the event of horrific murders although he accompanied the gang to the crime site as stated by P.W.4.222. Why poetess Meherunnesa and her family were targeted? We have found from evidence of P.W.4 that they organized an ‘action committee’ to which poetess Meherunnesa was a member to resist the disgraces caused to Bengalis of Mirpur area. In the morning of 25 March they hold a meeting and after returning home she got information that an attack would have been launched to her and Meherunnesa’s house. She informed it to Meher and advised to leave home. But Meher remained at her home and she (P.W.4) left Mirpur.223. This fact remains totally unimpeached in cross-examination. Thus, it is quite clear that for the reason that Meherunnnesa was a civilian of progressive and pro-liberation ideology who was active to resist disgrace and disparity shown to the Bengali residents of Mirpur the gang led by Abdul Quader Molla instantly after the ‘operation search light’ on 25 march 1971 had launched horrific attack to her and her family. Who were the accomplices of accused Abdul Quader Molla at the relevant time?224. ]From evidence of P.W.2 we have found that on 27 March 1971 Quader Molla(accused), Hasib Hashmi, Abbas chairman, Aktar goonda, Hakka goonda, Nehal slaughtered Meherunnesa and her brothers and mother at their house. From the further narration of P.W.2 it is established that during 1970’s election accused Abdul Quader Molla , Aktar goonda and other associates were actively involved with campaigning in favour of Ghulam Azam , a candidate of Jamat e Islami and accused Quader Molla used to chanting slogan that “ gali gali me shor hai Sheikh Mujib Pakistan ka dushman hai”225. Therefore, we arrive at an unerring conclusion that local Bihari Aktar goonda, Nehal goonda, Hakka Goonda and Bihari hooligans were ‘full time accomplices’ of the accused Abdul Quader Molla.226. In cross-examination, P.W.4 denied the defence suggestion put to her by the defence that not the accused Abdul Quader Molla but one Qauder Molla who was a butcher by profession had committed the atrocities in 1971. From this suggestion it is proved that a person namedQuader Molla was a perpetrator of the crime alleged. But the defence has failed to establish this particular defence case that perpetrator ‘Quader Molla’ was another person, not the present accused. It therefore lends reasonable assurance to the hearsay evidence of P.W.4 and P.W.2 in proving complicity of the accused Abdul Quader Molla in the commission of the crimes alleged.227. P.W.10 Syed Abdul Qayum a resident of Mirpur locality has stated that he learnt that the non-Bengalis had killed Meherunnesa and her family at her house at section no.6, Mirpur. P.W.10 has simply corroborated the fact of the commission of the event of killing at the house of Meherunnesa.Evaluation of Evidence and Finding228. On factual aspect including the matter of probative value of hearsay evidence, Mr. Abdur Razzak, the learned senior defence counsel reiterated his argument which he has pressed relating to the charge no.1.229. Mr. Abdur Razzak, the learned senior defence counsel went on to submit further that Islami Chatra Sangha (ICS) and Al-Badar were not ‘auxiliary forces’ as defined in section 2(a) of the Act of 1973 and as such it cannot be said that, even if he really belonged to either of these organizations, he was a member of ‘auxiliary force’. During 1971, only the Razakar force was placed under control and command of armed forces pursuant to gazette notification dated 07 September 1971. But the prosecution does not claim that the accused, at the relevant time, was a member of Razakars. The accused however can be brought to jurisdiction of the Tribunal as an ‘individual’. The learned counsel went on to submit that the offence alleged cannot be characterized as the offence of crimes against humanity as it lacks necessary elements, although the event of killing as listed in charge no.2 is not disputed. The threshold of argument placed by the learned defence counsel is that the involvement of the accused with the commission of alleged event of killing could not be proved by evidence.230. Mr. Abdus Sobhan Tarafder, the learned defence counsel has submitted that P.W.2, P.W.4 and P.W.10 are the hearsay witnesses who have testified in support of this charge. But prosecution has been failed to establish complicity of the accused with the offence as listed in charge no.2. In fact, due to previous hostilities between Biharis and Bangalee residents of the locality the Biharis committed the crime of killing of Meherunnesa. P.W.4 Kazi Rosy in a book (Exhibit-B-Page-25-26) written by her titled ‘Shahid Kabi Meherunnesa’ published in June 2011, in narrating the event, she has not incriminated the accused with the alleged killing. P.W.4 even in her earlier statement made to IO has not stated anything incriminating the accused.231. It is further argued by the learned defence counsel that the hearsay version as to complicity of the accused does not carry value. Besides, P.W.10 another hearsay witness has stated that he learnt that non- Bangalees of the Mirpur locality killed Meherunnesa. Therefore, there has been no credible evidence to connect the accused with the perpetration of the crime alleged in charge no. 2.232. Conversely, the learned prosecutor has submitted that P.W.2 and P.W.4 are quite reliable witnesses and their hearsay evidence coupled with other proved relevant facts and circumstances carries reasonable probative value. Even an ‘individual’, apart from member of ‘auxiliary force’ , may be brought to justice under the Act of 1973 and he can be held guilty even if he is found to have committed offence specified in section 3(2) of the Act of 1973. Context of war of liberation in 1971, extent of atrocities committed in furtherance of ‘operation search light’ and the pattern of criminal acts forming attack directed against civilians constituting the offence of murder itself proves that the offence was not isolated crime but those were committed in violation of customary international law.233. The Tribunal notes that hearsay evidence, under the International Crimes (Tribunals) Act 1973 is admissible and we do have jurisdiction to act on it if it is found to have reasonable probative value. It is found from evidence that immediately after the ‘operation search light’ on 25 March, 1971 the perpetrators had launched horrific attack on 27 Match 1971 to Meherunnesa and her family inmates and it is not disputed that they were brutally slaughtered at their own house.234. The defence has not been able to offer even a hint, by cross- examining the prosecution witnesses, that the murder was not a part of planned or systematic attack and it was an isolated crime. Therefore, the context, facts and circumstances revealed inevitably have proved the elements to constitute the alleged offence of murder as crime against humanity.235. From the hearsay evidence of P.W.2 Syed Shahidul Huq Mama it has been proved that on 27 March accused Abdul Quader Molla, Hasib Hashmi, Abbas Chairman, Aktar Goonda, Hakka Goonda, Nehal and their accomplices slaughtered poetess Meherunnesa, her brothers and mother. In cross-examination it has been simply denied but could not be shaken. P.W.2 had learnt the event of horrific killing of Meherunnesa and her family inmates from mass people. Defence could not dislodge it. Besides, in view of frightened situation prevailing at that time it was not natural and probable for particular Bengali resident of the locality to witness such atrocious event of killing. Rather learning the incident from mass people was natural and probable. Thus, hearsay evidence of P.W.2, if viewed together with the facts relevant to the role and continuous culpable association of the accused with the local Bihari perpetrators, inspires reasonable degree of credence.236. Next, hearsay evidence of P.W.4 goes to show that she had sensed that an attack would have been directed to her and Meherunnesa for the reason that they were actively involved with the ‘action committee’ organized to resist the disgrace caused to Bengali residents of Mirpur locality by the Biharis. This fact remains unshaken. Next, it has been already proved that local Bihari Aktar Goonda, Nehal goonda, Hakka goonda and Bihari hooligans were accomplices of the accused Abdul Quader Molla who led the gang to the crime site. We have also found from evidence of P.W.4 that accused himself did not enter into the house of Meherunnesa.237. We are convinced to pen our unambiguous view that leading the gang to the crime site is a significant act to establish culpable link of accused to the actual commission of the crime. In the case in hand we have found that accused Abdul Quader Molla led the gang of perpetrators to the house of the unarmed civilian victims, although the evidence does not show that the accused himself had directly participated to the actual commission of the crime alleged. As a result hearsay evidence of P.W.4 together with the relevant facts as to close culpable association of accused with the gang of Bihari perpetrators inevitably goes to adequately indicate his conduct as a link to the perpetration of the brutal killing.238. Murder as a crime against humanity under section 3(2) of the Act does not require the Prosecution to establish that the accused personally committed the killing. Personal commission is only one of the modes of responsibilities identified under section 4(1) of the Act. The accused shall be considered to have incurred criminal responsibility for the commission of murder as crime against humanity if it is established that his act in any way proves his complicity to the commission of such crime.239. It is the ‘attack’, not the acts of the accused, which must be directed against the target population, and the accused need only know that his acts are part thereof. The context prevailing at the relevant time (27 March 1971) together with the pattern and extent of attack signifies that intent of launching attack was to cause wrongs and criminal acts directing Meherunnesa and her family inmates, the unarmed civilians.240. The learned defence counsel has argued that P.W.4 is not a credible witness as her testimony made before the Tribunal is contradictory to the account she made in the book (Exhibit-B) titled “ Shahid Kabi Meherunnesa’ written by her.241. P.W.4 Kazi Rosy admitted that she did not mention anybody’s name in her book titled ‘Shahid Kabi Meherunnesa’ as there had been no judicial mechanism of prosecuting the perpetrators. She further explained that for the reason of fear she could not name any perpetrator responsible for the killing of Meherunnesa and her family. Since a judicial forum has been set up she is now testifying implicating accused Abdul Quader Molla.242. First, the oral evidence of a witness may not be identical to the account given in a prior statement. A witness may be asked different questions at trial than he/she was asked in prior interviews and that he/she may remember additional details when specifically asked in court. Second, presumably a predictable fear might have prevented P.W.4 in mentioning name of perpetrators in her book. Undeniably, for the reason of lack of a favourable situation and well-built consensus the issue of prosecuting and trying the perpetrators of dreadful crimes committed during the war of liberation in 1971 remained halted for several decades. Third, in the intervening time the pro-Pakistan political organisation has been able to revitalize its position in the independent Bangladesh, without any substantial impediment.243. For the rationales as stated above, a pro-liberation individual like P.W.4 usually is not likely to come forward with all details in narrating the account in the book written by her prior to making testimony before the Tribunal, for the reason of apprehended fear and risk. Explanation offered for the differences by the P.W.4 seems to be attuned to circumstances prevailing till setting up of a judicial mechanism under the Act of 1973. On contrary, defence could not suggest or establish any motive whatsoever for testifying such version which differs from her earlier account. Therefore, mere lack of specificity of perpetrator(s) or any omission in the book written by her earlier does not turn down her sworn testimony made before the Tribunal branding it to be a glaring contradiction, provided if it inspires credence in light of other relevant facts and circumstance.244. The act of leading the gang of actual perpetrators is indeed an act forming part of the attack that substantially contributed and provided ‘moral support’ and ‘encouragement’ to the actual commission of the crime. Merely for the reason that the accused had no physical participation to the perpetration he cannot be relieved from liability as his act of leading the gang of course provided substantial moral support and encouragement to the principals.245. Complicity encompasses ‘culpable association’ with the principals, and providing ‘moral support’, ‘encouragement’ to them. An accused can be considered to have participated in the commission of a crime if he is found to be ‘concerned with the killing’. By the act of leading the gang of perpetrators the accused is thus found to have provided moral support and encouragement to the principals to the actual commission of the crime. It is to be noted that a single or relatively limited number of acts on part of the accused would qualify as a crime against humanity, unless those acts may be said to be isolated. Leading the gang of perpetrators to the crime site was of course not an isolated act.246. It has been observed by the Appeal Chamber (ICTY) in the case of Deronjic, [July 20, 2005, para. 109] that “All other conditions being met, 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.”247. Also in the case of Kupreskic, the Trial Chamber of ICTY [January 14, 2000, para. 550] has observed that “In certain circumstances, a single act has comprised a crime against humanity when it occurred within the necessary context.”248. Therefore, it is now settled that even a single act on part of accused constitutes part of attack for committing the offence of murder as ‘crime against humanity’. But the acts or conducts of accused must have been shown to have ‘link’ with the commission of the crime. ‘Leading the gang of perpetrators’ to the crime site is such a conduct that establishes a sufficient ‘link’ of the accused Abdul Quader Molla with the actual commission of the offence alleged.249. Merely for the reason of absence of direct evidence the hearsay evidence, as discussed above, as to the complicity and conduct of the accused Abdul Quader Molla to the accomplishment of actual commission of the offence alleged cannot be brushed aside, particularly when it gets strength from some proved pertinent relevant facts and circumstances as to his patent culpable association with the gang of principal perpetrators.250. The intent or mental element of complicity implies in general that, at the moment he acted, the accomplice knew of the assistance he was providing in the commission of the principal offence. In other words, the accomplice must have acted knowingly. Leading the gang of perpetrators in launching an attack directed against Meherunnesa and her family inmates who were unarmed civilians itself indicates that the accused acted so knowingly and he was aware of the consequence of his act. Attack directed to Mehernnusa and her family inmates on 27 March 1971, in view of context of the war of liberation in 1971 and circumstances prevailing particularly in Dhaka, in furtherance of ‘operation search light’ on 25 March, 1971, was of course launched with knowledge and with criminal intent.251. It may be lawfully inferred that the accused knew or had reason to know that the principals were acting with intent to commit the offence of murder. The circumstances and facts insist to believe that the accused, as he led the gang of perpetrators, knew the intent of the principals. Thus, it has been proved that the accused Abdul Quader Molla had, with knowledge and mens rea, conscious complicity to the commission of the offence murder as crimes against humanity as listed in charge no.2 and thereby he incurs criminal liability for ‘complicity’ in commission of the murder of Meherunnesa and her inmates constituting the offence of crimes against humanity as specified in section 3(2)(a)(h) of the Act of 1973 which are punishable under section 20(2) read with section 3(1) of the said Act.
Adjudication of Charge No. 03 [ Khandaker Abu Taleb Killing]
252. Summary Charge No.03: During the period of War of Liberation, on 29.3.1971 in between 04:00 to 04:30 evening, victim Khandoker Abu Taleb while returning from his house located at section-10, Block-B, Road-2, Plot-13, Mirpur, Dhaka to Arambag the accused Abdul Quader Molla one of leaders of Islami Chatra Sangha and as well as prominent member of Al-Badar, being accompanied by other members of Al-Badars, Razakars, accomplices and non-Bengalese apprehended him from a place at Mirpur-10 Bus Stoppage, tied him up by a rope and brought him to the place known as ‘Mirpur Jallad Khana Pump House’ and slaughtered him to death and thereby the accused had participated, and substantially contributed to the execution of the attack upon the victim, an unarmed civilian, causing commission of his horrific murder as crime against humanity’ as specified in section 3(2)(a) of the Act of 1973 or in the alternative 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.
253. Prosecution adduced and examined two witnesses in support of the charge no.2. Of them P.W.5 Khandoker Abul Ahsan(55) is the survived son of victim Khandoker Abu Taleb and P.W.10 Syed Abdul Qayum was a friend of the victim. They at the relevant time used to reside in Mirpur locality of Dhaka city. Both of them are hearsay witnesses as to the actual event of killing, as they had no opportunity to see the event. They have also testified facts relevant to the event of killing.
Discussion of Evidence
254. P.W.5 Khandoker Abul Ahsan is the survived son of Khandoker Abu Taleb. At the relevant time he was student of class IX of Mirpur Shah Ali Academy High School. His father was an eminent journalist and lawyer and had been residing in the house situated in plot 13 road no. 2 block-B sections 10 of Mirpur locality.
255. P.W.5 Khandoker Abul Ahsan stated that on 23 March 1971, while Syed Qayum (P.W.10), Head Master of Mirpur Bangla School had been staying at his house at Mirpur 10, block-C, at 02:30-03:00 am 3-4 persons entering inside the house by breaking door attacked said Qayum and started him scolding for hoisting the flag of ‘Swadhin Bangla’ at his school and then they stabbed him by repeated dagger blow causing bleeding injuries. Qayum attempted to flee there from but fell down on the street and then one Bangalee people somehow brought him to their (P.W.5) house wherefrom after giving him first aid, on the following morning, he was brought to Dhaka Medical College Hospital for having treatment and then his (P.W.5) father rushed to Bangabandhu and informed him of the incident. His father (victim) became mentally upset seeing the condition of Qayum and then on 24 March they came to the place of his ‘phupu’ at Shantinagar’ area leaving his father at Mirpur house. His father was, at the relevant time, a part time feature editor of the ‘Daily Paigam’ and also was associated with a law firm.
256. P.W.5 further stated that on 25 March, on getting information of demolishing the Ittefaque office his father (victim) rushed there for seeing condition of his colleagues but on arriving there he found some dead bodies there. On 29 March, his father(victim) was about to go to their Mirpur residence for bringing his car and money there from but on his way to Mirpur he had occasion to meet one non Bengali Abdul Halim, the chief accountant of the ‘Daily Ittefaque’ who in the name of taking him to Mirpur by his own car brought him(victim) to the accused Abdul Quader Molla and then his father was slaughtered by the accused to death by repeated dagger blows at Mirpur 10 ‘Jallad Khana’ and at that time Aktar Goonda and some non Bangalee were with Abdul Quader Molla(accused) .
257. In cross-examination, P.W.5 stated that he cane to know from Advocate Khalil of BNR (Law Firm) that one non Bengali Abdul Halim, the chief accountant of the ‘Daily Ittefaque’ brought his father by his car and Abdul Halim handed his (P.W.5) father over to Abdul Quader Molla and his accomplices at Mirpur. He also re-affirmed, on cross-examination, that he heard from their non-Bangalee driver Nizam that Abdul Halim handed his father over to Abdul Qauder Molla and his accomplices and his father was slaughtered at ‘Jallad Khana’. At the revenant time Abdul Qauder Molla was a resident of Duari para, Mirpur and most people knew it.
258. If we consider the narration made by P.W.5 in examination-in- chief and that he has re-affirmed on cross-examination together it is amply found that his hearsay testimony as to the fact of taking his farther the victim to Mirpur by Abdul Halim by his car and handing him over to Abdul Qauder Molla and his accomplices inspires credence. The sources of knowledge about the taking away of his father to Mirpur and handing him over to the accused and his accomplices were Advocate Khalil and their (P.W.5) non Bengali driver Nizam and both of them are not alive now.
259. P.W.5 stated that he himself did not witness the horrific incidents happened in 1971 and it was not possible for any Bangalee excepting a very few to witness it. This version reflects the horrifying reality and situation prevailing at the relevant time and as such availability of direct witness to prove the fact of actual commission of killing Khandaker Abu Taleb naturally may not be possible.
260. P.W.5 further stated that subsequently he came to know from Nizam, their (P.W.5) non-Bangalee driver that the people who embraced defeat in 1970 national election i.e. Aktar Goonda, Abdullah and some other Biharis, on order of Abdul Quader Molla, committed extensive killings in the locality of Muslim Bazar, Shialbari, Jallad Khana. This version remains totally unshaken and rather it appears to have been re- affirmed on cross-examination.
261. P.W.10 Syed Abdul Qayum a resident of Mirpur and friend of victim Khandoker Abu Taleb stated that Faruk Khan came to meet him in the month of June 1971 when he had been at his native village Nasirnagar after he had left Dhaka Medical College on 27 March 1971 wherein he was undergoing treatment for injuries he sustained resulting from the attack launched directing him in the night of 23 March 1971.
262. From Faruk Khan he (P.W.10) came to know that local Aktar Goonda, Biharis and Abdul Quader Molla had killed Taleb Saheb at Mirpur 10 ‘Jallad Khana’. He (P.W.10) returned home on 3 January 1972 after the independence and afterwards, he learnt from Nizam the non Bangalee driver of Abu Taleb(victim) that Abu Taleb was coming his home at Mirpur with non-Bengali accountant Halim but Halim handed him (Abu Taleb) over to the Biharis who slaughtered him at ‘Jallad khana’. In cross-examination, defence simply denied this version instead of shaking its credibility.
Evaluation of Evidence and Finding
263. Slaughtering Kahndaker Abu Taleb to death at Mirpur ‘Jallad Khana’ is not disputed. From evidence of P.W.5 it has been proved that on 29 March 1971 victim was coming to his Mirpur home with non- Bengali accountant Abdul Halim by his (Halim) car. The fact of handing the victim over to accused Abdul Qauder Molla is denied by the defence. But the involvement of Aktar Goonda and local Bihari in slaughtering the victim to death remains also unshaken.
264. The Defence attacked the credibility of hearsay evidence of P.W.5 mainly on the ground of inconsistencies between his narration in court and that made to the investigation officer. The learned defence counsel has argued that P.W.12 the Investigation officer has stated in his cross- examination P.W.5 did not state to him that non Bengali Abdul Halim, the chief accountant of the ‘Daily Ittefaque’ brought his father by his car and Abdul Halim handed his (P.W.5) father over to Abdul Quader Molla and his accomplices at Mirpur.
265. The learned defence counsel has argued that both the P.W.5 and P.10 are hearsay witnesses who have been examined by the prosecution in support of charge no.3. P.W.5 claims to have heard from their non- Bangalee driver Nizam that non-Bangalee Abdul Halim handed his father over to the accused Abdul Quader Molla. But he did not state it earlier to the IO. Besides, the book (Exhibit-B-Page 24, 2nd paragraph) speaks that said Abdul Halim handed the victim to non-Bangalees. Thus the defence does not dispute the fact of taking the victim by Abdul Halim by his car to Miprur and then he was slaughtered by Biharis. But the hearsay evidence of P.W.5 as to the fact of handing the victim over to accused is inconsistent with his earlier statement made to IO. Thus, the accused cannot be linked or said to have acted in any manner to the perpetration of killing Khandoker Abu Taleb.
266. The learned defence counsel went on to argue further that hearsay evidence of P.W.10 has stated that he learnt the event alleged first from one Faruk Khan during 1971 and then in January 1972 from Bihari Nizam , the driver of victim Khandoker Abu Taleb. Faruk Khan told P.W.10 that Biharis, Aktar goonda and Abdul Quader Molla slaughtered Khandoker Abu Taleb to death at Muslim Bazar. But Driver Nizam disclosed to P.W.10 that Bihari Aktar goonda and other Bihari people killed Khandoker Abu Taleb which is consistent with the narration made in the book Exhibit-B. Which one is true? Inconsistent hearsay evidence thus cannot be relied upon for finding the accused guilty.
267. The Tribunal notes that P.W.12 the IO has stated that P.W.5 stated to him that he learnt from Khalil that Halim brought his (P.W.5) father (victim) to Mirpur by his (Halim) car. Therefore, this cannot be a contradiction or subsequent embellishment, particularly when the P.W.5, in reply to question elicited to him by the defence stated that he came to know from Advocate Khalil of BNR (Law Firm) that one non Bengali Abdul Halim, the chief accountant of the ‘Daily Ittefaque’ brought his father by his car and Abdul Halim handed his (P.W.5) father over to Abdul Quader Molla and his accomplices at Mirpur.
268. It would be only an omission presumably due to his not being questioned on the point [Abdul Halim handed his (P.W.5) father over to Abdul Quader Molla and his accomplices at Mirpur] by the IO, during investigation. Therefore, that cannot be of any benefit to the defence to suggest that the witness is now making intelligent improvements.
269. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation,namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Thus, exaggerations per se do not render the evidence brittle. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matterswhich do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety.
270. The fact of coming the victim on the date at his Mirpur home with Abdul Halim by his car, handing him over to the Bihari perpetrators and then slaughtering him to death at Mirpur ‘Jallad Khana’ remain quite unshaken. The hearsay evidence of P.W.5 and P.W.10 seems to be credible and relevant and thus carries probative value.
271. Having appraisal of evidence of P.W.2, we have already found as to who the accomplices of accused Abdul Quader Molla were and his culpable association with them, particularly during the early part of war of liberation 1971. It is proved that the local Biharis namely Aktar Goonda, Nehal, Hakka goonda, Abbas Chairman, Hasib Hashmi were close accomplices of accused Abdul Qauder Molla in all antagonistic activities during pre-25 March time and also during the early part of war of liberation in perpetrating atrocities in Mirpur locality. The event of killing as listed in charge no.3 took place on 29 March 1971 i.e within four days of the ‘operation search light’ on 25 March 1971. We have got a clear depiction as to role, conduct and culpable association of the accused with the local Bihari hooligans that he had shown on 26 March 1971, as described by P.W.2. It is significantly relevant to lend assurance as to complicity of accused with the commission of the event of killing Khandoker Abu Taleb, an unarmed civilian.
272. The above proved facts together with the evidence of P.W.5 that Abdul Qauder Molla, Aktar Goonda and some non-Bengali were at the Miprur ‘Jallad khana’ when his father (Khandoker Abu Taleb) was slaughtered to death sufficiently proves the complicity of the accused Abdul Quader Molla with the event of killing. Therefore, we are convinced that the hearsay evidence of P.W.5 carries probative value as it is found reliable and relevant.
273. Complicity encompasses assistance, encouragement, or moral supports which are mostly possible to provide if culpable association is maintained with the principals. Amongst 10% of Bangalee residents of Mirpur locality why accused Abdul Quader Molla opted to be associated for almost all the time with the local Bihari hooligans namely Aktar goonda, Nehal, Hakka Goonda, Hasib Hashmi who were extremely antagonistic to Bangalees of the locality, instead of saving fellow Bangalee residents? Of course such association of the accused fueled the principals targeting the local pro-liberation Bangalee civilians in furtherance of ‘operation search light on 25 March 1971.
274. Cumulative effect of evidence and relevant facts and circumstances may have a decisive role in determining the culpability of the accused. Circumstantial evidence is not considered to be of less probative value than direct evidence. The act of culpable association of the accused with the principals and the evidence as discussed above inevitably proves that the accused Abdul Quader Molla was involved with the commission of the alleged brutal killing. Considering the context and pattern of attack we are satisfied that the aforementioned killing formed part of a systematic or organised attack against the civilian population. The victim of the alleged killing was a member of pro-liberation civilian population. The Tribunal is thus satisfied that the aforementioned killing constitutes the offence of murder as a crime against humanity committed in violation of customary international law.
275. We have already observed that actual physical participation when the crime is committed is not necessary and an accused can be considered to have participated ‘in the commission of a crime’ if he is found to be ‘concerned’ with the killing. Since the testimony of P.W.5 as to the fact of bringing the victim to Mirpur by Non-Bangalee accountant Abdul Halim by his car who handed him over to accused Abdul Quader Molla and at the time of slaughtering the victim accused was present at the crime site carries sufficient probative value the accused is considered to have acted so intending to provide moral support and encouragement to the principals with whom he maintained continuous and culpable association accused Abdul Quader Molla incurs criminal liability for ‘complicity’ in commission of the murder of Khandoker Abu Taleb constituting the offence of crimes against humanity as specified in section 3(2)(a)(h) of the Act of 1973 which are punishable under section 20(2) read with section 3(1) of the said Act.
Adjudication of Charge No.4 [Ghatar Char and Bhawal Khan Bari killing]
276. Summary Charge No.04: During the period of War of Liberation ,on 25.11.1971 at about 07:30 am to 11:00 am the accused Abdul Quader Molla one of leaders of Islami Chatra Sangha and as well as prominent member of Al-Badar, being accompanied by his 60-70 accomplices belonging to Razaker Bahini went to the village Khanbari and Ghatar Char (Shaheed Nagar) under police station Keraniganj, Dhaka and in concert with his accomplices, raided the house of Mozaffar Ahmed Khan and apprehended two unarmed freedom fighters named Osman Gani and Golam Mostafa there from and thereafter, they were brutally murdered by charging bayonet in broad day light. In conjunction of the event of attack the accused and his accomplices attacking two villages known as Bhawal Khan Bari and Ghatar Chaar (Shaheed Nagar) , as part of systematic attack, opened indiscriminate gun firing causing death of hundreds of unarmed civilian village dwellers including the civilians named in the charge no.04 and thereby the accused had actively participated, facilitated, aided and substantially contributed to cause murder of two unarmed freedom fighters including large scale killing of hundreds of unarmed civilians and thereby committed the offence of murder as ‘crimes against humanity’, 'aiding and abetting’ the commission of the offence of murder as ‘crime against humanity' or in the alternative he had 'complicity in committing such offence' as mentioned in section 3(2)(a)(g)(h) of the International Crimes(Tribunals) Act,1973 which are punishable under section 20(2) read with section 3(1) of the Act.
277. Prosecution, in support of the charge no.4, has adduced as many as three witness who have been examined as P.W.1, P.W.7 and P.W.8.Of them P.W.7 claims to have witnessed the event of killing. P.W.1 and P.W.8 are hearsay witnesses.
278. The commission of the crime causing mass killing as narrated in charge no.4 is however not disputed. Defence has argued that the accused was not involved with it in any manner as the prosecution has been totally failed to prove involvement of the accused either as a physical perpetrator or as an abettor or as an accomplice of the principals. Hearsay evidence of P.W.1 and P.W.8 does not carry any reliability and as such recognised standard of proof does not allow depending on it.
Discussion of Evidence
279. P.W.1 Mozaffar Ahmed Khan is a valiant freedom fighter who is from the crime village. It is found from evidence of P.W.1 that he knew the accused even since 1969 as he while attending meetings at ‘Madhur canteen’; Dhaka University saw the accused who was a leader of Islami Chatra Sangha. But P.W.1 does not claim to have witnessed the accused committing any criminal act. However, he had learnt the incident from Abdul Mazid Palwan (P.W.7). P.W.1 testified the commission of the event and killing of two freedom fighters Osman Gani and Golam Mostafa. But he however has not claimed to have witnessed the involvement of accused with the commission of the massacre.
280. P.W.1 however, has stated that prior to the alleged event he saw the accused standing in front of Mohammadpur Physical Training center, Dhaka having rifle in hand while he was coming back home from Mohammadpur.
281. P.W.1 Mozaffar Ahmed Khan lodged a complaint against accused bringing accusation relating the alleged event of killing in the court of Magistrate, Keraniganj. It is admitted. P.W.12 the IO has admitted that for the purpose of initiating investigation he obtained information from the complaint petition after the same was sent to the Investigation Agency through the office of the Registrar, ICT.
282. P.W.7 Abdul Mazid Palwan claims to have witnessed the event of massacre and the accused Abdul Quader Molla accompanying the gang of perpetrators to the crime site. P.W.8 claims to have heard that accused was with the gang with a rifle in hand who killed her father.
283. We are to determine, was P.W.7 able to observe what he alleges to have witnessed? Does the witness have any reason to say something different from what he actually observed? It is not necessarily due to the bad faith of the witness. It may be that the witness was really present and that he saw the commission of the crime.
284. Let us see what the P.W.7 has stated. P.W.7 Abdul Mazid Palwan, a resident of crime site Ghatar Char at the relevant time, stated that on 25 November 1971 in the early morning on hearing gun firing from northern end of the village he started approaching towards that end and found, remaining in hiding into a bush, Pakistani army, Abdul Qauder Molla and Biharis killing civilians. Abdul Quader Molla also fired by the rifle in his hand.
285. P.W.7 in the next breath has stated that after the gang of perpetrators had left the crime site at about 11:00 am he learnt that the person accompanying the gang wearing Pajama-Panjabi was Abdul Qauder Molla and some Bangalee having their body covered by ‘borkha’ also accompanied the Pakistani army to the crime site.
286. P.W.8 Nurjahan is the wife of victim Nabi Hossain. At the relevant time she was 13 years old and used to reside at village Ghatar Char with her husband and she was pregnant at that time. On 25 November 1971 in the early morning on hearing heavy gun firing they remained in hiding under a cot. After gun firing had ceased her husband came out of house to see what was happening and he saw the Pakistani army coming toward their house and then her husband moved to his uncle Mozammel’s house and then she again heard gun firing. Afterwards her mother-in-law came and told that her husband was no more and with this she started running to the house of Mozammel and found her husband lying dead there. She also found there some Pakistani army and a Bangalee person of black complexion and dwarf height who by a rifle in his hand asked her to leave the place and with this being frightened she went inside the dwelling hut.
287. The event of attack causing murder of husband of P.W.8 remains undisputed and defence could not shake it by cross-examining her.
288. P.W.8 stated that afterwards she , at about 10:30-11:00 am found her husband dead receiving bullet injury on forehead and chest.P.W.8 also stated that she learnt that in conjunction of the event about 50-60 civilians of Ghatar Char were killed. She heard from her father-in-law Luddu Mia and Mazid Palwan (P.W.7) of their village that a person named Qauder Molla belonging to Jamat had killed her husband.
Evaluation and Findings
289. The learned defence counsel argued that two victims of Ghatarchar event(as listed in charge no.4) were freedom fighters who were not ‘civilians’ as they were volunteer corps and a party to conflict and hostility and thus the acts resulted in their death cannot be considered as ‘directing any civilian population’.
290. We cannot agree with the argument that merely for the reason that two out of numerous civilian victims were freedom fighters the crimes committed resulting death of civilians cannot be characterized as the offence of crimes against humanity. The Tribunal notes that specific situation of the victim at the moment of the crimes committed, rather than his status, at the time of event of the attack is to be considered. In the case of Prosecutor v. Blaskic para 214 it has been observed that “ a civilian is everyone who is no longer an active combatant in the ‘specific situation’ at the time of the commission of the crime. Besides, broad definition of civilian adopted by the adhoc tribunals implies that the character of a predominantly civilian population is not altered by the presence of certain non-civilians in their midst”
291. The ICTY and ICTR Statutes as well as jurisprudence state that the attack must be committed against any civilian population. This qualification has been interpreted to mean that the inclusion of non- civilians (military forces or those who have previously borne arms in a conflict) does not necessarily deprive the population of its civilian character. [ Tadic Trial Judgment, 638; Blaskic Trial Judgment, 209] .
292. However, the targeted population must remain predominantly civilian in nature. But according to ICTR and ICTY jurisprudence, it is the situation of the victim at the time of the attack, and not the victim’s status, that should be the focus of the inquiry. Therefore, we are of view that the attack as narrated in charge no.4 was directed against civilian population that resulted in numerous deaths of civilians and thus the offence of such murder is characterized as crimes against humanity as specified in section 3(2) of the Act.
293. The learned defence counsel also advanced his submission on definition of ‘murder’ by citing decision dated 26 July 2010 in the case No.001/18-07-2007/ECCC/TC of the Extraordinary Chambers in the Courts of Cambodia(ECCC), para, 331 [ Page- 156 of the Final Argument Pack submitted by the defence)]. Paragraph 331 of the judgment reads as below:“Murder, a well established crime under customary international law, requires the death of the victim resulting from an unlawful act or omission by the perpetrator. The conduct of the perpetrator must have contributed substantially to the death of the victims.”
294. The fact of death of victims resulting from the attack launched in the locality of Ghatarchar and Bhawal Kahnbari is not disputed. The accused is alleged to have accompanied the principals in perpetrating the crimes (as listed in charge no.4). Of course the burden is on prosecution to establish first the presence of accused at the crime site and then his conduct or act that provided encouragement or moral support to the principals in committing the offence of crimes against humanity. Only after proving the presence of accused at the crime site, it is to be adjudicated whether the death of victims was a result of act or conduct of the accused and it must be the only reasonable inference that can be drawn from the evidence and circumstances. ‘Awareness’ as to consequence of act or conduct on part of the accused is sufficient to prove contribution of accused to the commission of the murder of victims.
295. However, now let us evaluate what the P.W.1, P.W.7 and P.W.8 have testified in relation to charge no.4 . Of them P.W.7 and P.W.8 claim to have witnessed the event that allegedly continued from early morning to about 11:00 am of 25 November 1971. The attack was allegedly launched directing the civilian population of village ‘Ghatarchar’ and ‘Khan Bhawalbari’ under keraniganj police station district Dhaka. A gang of Pakistani army, Biharis and Al-Badar allegedly perpetrated the crime while accused Abdul Quader Molla is also alleged to have accompanied them.
296. First, we find that P.W.7 has made conflicting version as to the fact that accused accompanied the Pakistani army having rifle in his hand. Because, once he claims to have witnessed the accused at the crime site having rifle in hand and then claims to have learnt that a person named Abdul Quader Molla accompanied the gang after they had left the crime site. Which one is true version?
297. P.W.7 has not even disclosed the source of his knowledge as to presence of accused at the crime site. Next, according to him, he on hearing frequent gun firing from the end of northern part of village started approaching to that end and then he saw the accused Abdul Quader Molla with the Pakistani army. This version does not seem to be natural. Because, normal human prudence suggests that, particularly in circumstances prevailing through out the country, it was not natural for a Bangalee civilian to come forward to a place from which direction the perpetrators were moving with frequent gun firing. Rather in such a horrific situation non combatant civilians were supposed to escape. But P.W.7 claims that he rather moved forward to see what was happening. It is not believable as well.
298. Next, P.W.7 denied that he did not state what he has narrated here in Tribunal incriminating the accused with event alleged. But it appears that the I.O P.W.12 has stated that P.W.7 did not state all these to him implicating the accused, during investigation. Earlier statement made to IO is not evidence, true. But it is used to contradict what the witness deposes in court. Thus, it appears that there has been a fatal omission in earlier statement made to IO as to pertinent fact relating to culpability of the accused with the alleged event of attack causing mass killing of unarmed civilians which is a ‘glaring contradiction’ in evidence made before the Tribunal by P.W.7 on material particular which has created serious doubt as to credibility and truthfulness of his testimony.
299. This being the situation, naturally the hearsay evidence as to the fact of learning the event by P.W.1 from Abdul Mazid Palwan (P.W.7) loses weight and thus does not inspire any amount of credence.
300. Admittedly P.W.8 does not claim that she knew accused Abdul Qauder Molla even since prior to the alleged event. Her version goes to show that she learnt from P.W.7 that a person named Qauder Molla had killed her husband. But already we have found that P.W.7 Abdul Mazid Palwan has made seriously contradictory testimony as to seeing the accused at the crime site accompanying the principals carrying rifle in hand. His evidence has been rather found to be subsequent embellishment which is a glaring contradiction on material particular. Thus, the claim that P.W.7 learnt about the complicity of accused from P.W.8 does not carry any value and it adds no corroboration to what has been testified by P.W.7.
301. Next, the version as made by P.W.8 that she also found, at the place where her husband was killed, some army men and a Bangalee of black complexion and dwarf height who by a rifle in his hand asked her to leave the place does not prove that the said person was nobody but accused Abdul Qauder Molla. Therefore, identification of accused on dock 40/41 years after she had seen the said ‘Bangalee person’ at the crime site cannot be relied upon at all as it is not even possible to keep one’s face memorized particularly for a traumatized wife of victim.
302. Drawing attention to the above version defence suggested that she did not state it to the IO. P.W.8 denied it. But the IO (P.W.12), while contradicting P.W.8’s evidence made before the Tribunal, has stated that P.W.8 did not state it to him during investigation. That is to say, there has been crucial omission in her earlier statement on material particular. Indeed such omission in her earlier statement turns her testimony made here in Tribunal as subsequent embellishment which is a glaring contradiction that makes testimony of P.W.8 significantly unbelievable and perverted.
303. Like all elements of a crime, the identification of the Accused must be proved by the Prosecution beyond reasonable doubt. In assessing identification evidence, it is to be taken into account a number of relevant factors, including: the circumstances in which each witness claimed to have observed the accused; the length of the observation; the familiarity of the witness with the Accused prior to the identification; and the description given by the witness of his or her identification of the accused. But as we see, the evidence does not inspire us to believe that the P.W.7 and P.W.8 were familiar as to identity of the accused even since prior to the alleged event. None of these two witnesses claim so.
304. In view of above discussion and reasons the Tribunal notes unanimously that it has not been proved beyond reasonable doubt that the accused Abdul Quader Molla accompanied the Pakistani perpetrators to the crime site having rifle in hand and that the person whom P.W.8 claims to have seen at the crime site was none but the accused. It is not plausible too that P.W.8 had learnt from P.W.7 that accused Abdul Qauder Molla accompanied the principals to the crime site to the accomplishment of the offence of mass killing. Because. Testimony of P.W.7, in this regard, has been found to be disgustingly conflicting and contradictory inspiring no credence.
305. Mere fact that P.W.1 saw the accused standing in front of Physical Training center, Dhaka having rifle in hand, on one day prior to the alleged event, does not connect the accused with the commission of the event of massacre as listed in charge no.4. Although form this relevant fact it can be validly inferred that during the war of liberation the accused had complicity with the Pakistani occupation army as an armed member of Al-Badar. Therefore, we are persuaded to note that the commission of the event of mass killing by launching attack directing the civilians as crimes against humanity on the date time and in the manner causing deaths of numerous civilians has been proved. Besides, commission of crimes alleged is not disputed. But for the reasons as stated above we are not convinced to arrive at decision that the guilt of accused has been proved. Prosecution has failed to prove participation or complicity or act on part of the accused to the commission of the offence of crimes against humanity by adducing lawful and credible evidence. As a result accused Abdul Quader Molla is not found to have incurred criminal liability for the commission of offence of mass killing as crimes against humanity as listed in charge no.4.