Ghulam Azam Judgment, Part 5: Murder as crime against humanity

This is the fifth part of the judgment given by the tribunal on the trial of Ghulam Azam. This part deals with a charge of murder as a crime against humanity. [Please note that some Bangla text is not included but will be added when translated. It is indicated by XXX]


To see part one - dealing with introductory issues
To see part two - dealing with charges relating to conspiracy and planning
To see part three - dealing with charge relating to incitement

To see part four - dealing with charge relating to complicity

To see part six - dealing with command control and superior responsibility
To see part seven - dealing with sentence

XX. Adjudiction of Charge No. 05 [Murder of Siru Miah and three other civilians as crimes against humanity specified in section 3(2)(a) of the Act, 1973]

Charge No. 05 : After the crackdown on March 25, 1971, seeing the Pakistani Army moving towards Mohammadpur Police Station at 11.00 p.m., Sub-Inspector of Police Siru Miah went to his house at Chamelibagh and on March 28, 1971, he along with his wife Anwara Begum, minor son Anwar Kamal and other relatives went to his village at Ramkrishnopur, P.S. Homna, District Comilla and started helping the people who were leaving the country as refugee. On October 25, 1971, the said Siru Miah along with his son Anwar Kamal and others in order to go to India left their homes and they had two revolvers, one with Siru Miah and another with Nazrul Islam and they were apprehended by Razakars at Tantar checkpost of Kashba P.S. on October 27, 1971 at about 10.00 in the morning and were taken to the Razakars camp. At that time 5-6 members of the Pakistani Army came there and took the two revolvers from them and they were fastened with wire and kept in a truck going towards Brahmanbaria and at about 12 noon they were taken to Brahmanbaria court. They were abused like anything and the wristwatch and ring which they possessed were forcefully taken from them and they were taken to Razakars Manzil and people were told that a special force with arms had been captured and from then every morning they were taken to the house of one Dana Miah and tortured which was looked into by Jamaat-e-Islami leader and Shanti Committee (Peace Committee) member Peyara Miah and the torture continued for the whole day and then taken to thana hazat. After 2-3 days they were taken to jail. Accused Prof. Ghulam Azam being the Ameer of East Pakistan Jamaat-e-Islami and a central leader of the Peace Committee, the wife of Siru Miah Anwara Begum developed an idea that if the accused try then all of them may be released and Siru Miah’s wife came to Dhaka in the house of her sister whose husband was a teacher of the accused’s two sons, Azmi and Amin and the accused was requested by the said teacher and the accused said that he all knew it and he asked the said teacher to meet him after two days. After two days when the teacher met accused Prof. Ghulam Azam, he went to the office of Jamaat-e-Islami at Nakhalpara and gave the said teacher an enclosed envelope asking him to give it to Peyara Miah and when the said envelope was given in the hand of Peyara Miah, reading that letter he showed another official letter written by the accused where it was written to kill Siru Miah and his son as they were freedom fighters. Then Peyara Miah told that this letter contained nothing new and told Siru Miah’s wife to go home and pray. Ultimately those persons along with others, a total of 40 persons, were taken out of the jail. Subsequently, one person named Shafiuddin was released as he knew Urdu and others were taken to Pourotola and were shot at by Razakars and Al- Badars and one survived and the remaining 38 were killed. Thus, under the direct instruction of the accused, S.I. Siru Miah, Anwar Kamal, Nazrul Islam and Abul Kashem, in total 38 persons, were killed, Anwar Kamal was also tortured and, therefore, accused Prof. Ghulam Azam committed crimes of murder and torture as crimes against humanity under section 3(2)(a) of the International Crimes (Tribunals) Act 1973, which is punishable under section 20(2) of the Act.

Discussion of Evidence:
291. P.W.7 Dr. Munia Islam Chowdhury has stated that on 02-08-2010 at about 2.00 p.m. the investigation officer, Motiur Rahman having come to their house at 36, Chamelibagh Paradise Kamal House talked to her mother Anwara Begum (wife of deceased S.I. Siru Miah) and seized from her a photograph of S.I. Siru Miah (Ext. 496), two photographs of Anwar Kamal (Ext. 496/1 and Ext. 496/2), photo copy of a letter dated 01-11-1971 written by Anwar Kamal to his mother Anwara Begum (Ext. 496/5), a photograph of Martyr Nazrul Islam (Ext. 496/3), a joint photograph of Anwara Begum and her son Anwar Kamal (Ext. 496/4), etc. under a seizure list. She has proved the said seizure list Ext. 495 and her signature therein Ext. 495/1. She has also filed an enlarged copy of the above mentioned letter and the same has been marked as Ext. 497.

292. P.W. 9 S.I. Md. Aminul Islam has stated that on 09-01-2011 he was on duty as Reserve Officer-2 at the S.P. office, Millbarak, Dhaka and on that date the investigation officer, Motiur Rahman having come to his office seized from the said office infront of him the photo copy of Memo No. 3599/R dated 14-08-1996 along with other papers attached thereto relating to service records of S.I. Siru Miah (Ext. 513) with a seizure list. He has proved the seizure list Ext. 511 and his signature therein Ext. 511/1.

293. P.W. 11 Shafiuddin Ahmed has stated that his home is situated at village Ramnagar under Homna police Station of district Comilla and in the neighbouring village Ramkrishnapur, there was a temporary camp of freedom-fighters at the house of martyr S.I. Siru Miah. He has further stated that on 25-10-1971 at night he himself, martyr S.I. Siru Miah and his son martyr Anwar Kamal, Martyr Nazrul Islam, martyr Abul Kashem and Jahangir Selim in order to go to India left their homes and they had two revolvers, one with S.I. Siru Miah and another with Nazrul Islam and they were apprehended by 20/25 Rajakars at Tantar checkpost and 5-10 minutes after, 5-6 members of the Pakistani Army came there with a military jeep from Comilla and took the two revolvers from them and kept them in a truck going towards Brahmanbaria and thereafter they were taken to Brahmanbaria court. He has also stated that at the court premises they were abused like anything by Peyara Miah and his 5-7 associates took their wristwatch and ring forcefully and thereafter they were taken to Rajakars Manzil and people were told that 6 members of special force with arms had been captured. On the next date at about 10.00 a.m. they were taken to the house of Dana Mia which was a torture camp of Army and they were tortured therein by Army personnel for 2/3 days and thereafter they were sent to Brahmanbaria jail. On 21st November in the Eid-ul-Fitre day at night, Pakistani Army having come to that jail took out 39 prisoners therefrom and kept him in cell No. 4 and on the following day he came to know that those 39 prisoners had been killed and after Liberation of Brahmanbaria he was released from the jail and thereafter he came to know that out of said 39 prisoners one prisoner namely Chinu had survived and 4/5 months after, he met him at Dhaka and at that time Chinu showed him the mark of bullet injury on the left side of his chest and told that 38 persons had been killed and buried at Pourotola. He has further stated that he also came to know from Chinu that his companions namely, martyr S.I. Siru Miah and his son martyr Anwar Kamal, martyr Nazrul Islam and martyr Abul Kashem had been within said 38 persons who had been killed. He has further stated that he having been released from jail came to know that Peyara Miah of whom he talked about was a member of the Peace Committee and he also came to know from the wife of martyr S.I. Siru miah that she had brought a letter from accused Prof. Ghulam Azam to save her husband and son. He identified the accused in the dock.

294. P.W. 11 in cross-examination has stated that he went to the place first time wherefrom they were apprehended. He has denied the defence suggestion that having been tutored by the prosecution he has stated that he came to know from the wife of martyr S.I. Siru Miah that she had brought a letter from accused Prof. Ghulam Azam to save her husband and son.

295. P.W.12 Sona Miah has stated that his village is Pourotola Dakkhinpara under police station and district Brahmanbaria. In the year 1971, during Liberation War, at the night of Eid he heard noise of vehicles and coming and going of people and on that night Panjabees killed persons by bullet shots. On that night he heard the bullet shots and on the following day in the morning he came to know about the occurrence and saw the same and at that time the Rajakars asked them why they had come to the place of occurrence and, at that time the Rajakars were digging holes and many dead bodies were lying there. He has further stated that the Rajakars buried 38 dead bodies there and he could identify one Rajakar, Ruhul.

296. P.W. 12 in cross-examination has stated that in the morning he went alone to the place of occurrence to see the occurrence. He has further stated that Rajakar Ruhul has died.

297. P.W. 13 Anwara Begum has stated that S.I. Siru Miah was her husband and Anwar Kamal was her son. On 25th March, 1971 her husband was posted at Mohammadpur police station and at that time her son Anwar Kamal’s age was 14 years and he was a student of class X of Motijheel Govt. High School. On 28/29th March, she, her husband S.I. Siru Miah and son Anwar Kamal and her sister’s family went to their own village, Ramkrishnapur and one week after S.I. Siru Miah went to India. S.I. Siru Miah having stayed for 15/20 days in India came back to his own village as a freedom-fighter and he was incharge of the areas of five police stations to supervise the freedom-fighters. She has further stated that there was a camp of freedom-fighters at their village home and her husband S.I. Siru Miah used to arrange food and lodging for the freedom-fighters and send many people to India. She has also stated that on 25th October, 1971, S.I. Siru Miah, Anwar Kamal, Nazrul, Kashem, Jahangir Selim and Shafiuddin left for India, but 2 days after, one Jharu Miah, a cousin of S.I. Siru Miah, having come to her house told her that her husband and son along with others who had been going to India were apprehended by the Rajakars and thereafter they were taken to the camp, situated at Brahmanbaria, by the Pakistani Army; her brother Fazlur Rahman went to that camp to see them and at that time her son Anwar Kamal having written a letter (Ext. 497) on the white paper of a cigarette-packet sent the same to her through said Fazlur Rahman; thereafter she along with her father came to Dhaka to the house of her sister, Monwara Begum, wife of Md. Mohsin Ali Khan who was a teacher of Motijheel Govt. High School and thereafter he retired as a teacher from Khilgaon Govt. High School. She has further stated that he knew earlier and also heard from said Md. Mohsin Ali Khan that two sons of accused Prof. Ghulam Azam were students of said Md. Mohsin Ali Khan and in order to save her husband and son, on her request Md. Mohsin Ali Khan having gone to the house of accused Prof. Ghulam Azam requested him for releasing S.I. Siru Miah and Anwar Kamal and then the accused advised him to come to him again after two days and, accordingly two days after Md. Mohsin Ali Khan again went to the house of the accused and then the accused took him to his office at Nakhalpara, behind the old Parliament Bhaban, and after having written a letter, the accused handed over the same to him and, thereafter Md. Mohsin Ali Khan gave the letter to her. She has further stated that thereafter her brother Fazlur Rahman with the said letter went to Brahmanbaria and handed over the same to Peyara Miah, the president of the Peace Committee and then Peyara Miah having shown him another letter, wherein there was a direction of accused Prof. Ghulam Azam that they were freedom-fighters, let them be killed, told him that the letter brought by him carried no value and, as such, her brother came back home; two days after when her brother went to Brahmanbaria to see S.I. Siru Miah and Anwar Kamal, the clothes of them were returned to him and then she came to know that her husband and son had been killed. She has further stated that after independence of the country, Shafiuddin having been released from jail met her from whom she came to know that on 21st November, in the Eid-ul-Fitre day, at night 38 persons along with her husband and son had been killed by bullet shots at Pourotola and their dead bodies had been buried. She has also stated that Ahmed Imtiaz Bulbul (P.W. 14) was also in Brahmanbaria jail while her husband and son were therein and at that time he was a student of class X from whom she heard about the above mentioned occurrence.

298. P.W. 13 has stated in cross-examination that Mohsin Ali Khan was present in his working place at Dhaka during Liberation War; after her second marriage she gave birth to a baby girl; she was first acquainted with Shafiuddin Ahmed (P.W.11) during Liberation War and one month before 25th October, 1971 she was first acquainted with martyr Nazrul Islam. She has further stated that he has no acquaintance with Ahmed Imtiaz Bulbul (P.W.14), but she talked to him over telephone after having watched a T.V. programme where he was talking about the killing of her husband and son; she came to know from Shafiuddin Ahmed that her husband and son along with others had been tortured in the house of Dana Miah; she heard first the name of Peyara Miah from her brother and said Peyara Miah was the president of the Peace Committee and her brother alone went to Peyara Miah with the letter of accused Prof. Ghulam Azam. She has also stated that she heard the name of Prof. Ghulam Azam before and after 1971. She has denied the defence suggestion that Mohsin Ali Khan was never a school teacher of the sons of accused Prof. Ghulam Azam nor did the accused give him any letter nor did her brother Fazlur Rahman gave that letter to Peyara Miah nor did Peyara Miah show any letter of accused Prof. Ghulam Azam to Fazlur Rahman.

299. P.W. 14 Ahmed Imtiaz Bulbul has stated that he is a tuner, lyrist and a music director and during Liberation War, 1971, he was a student of class X of Westend High School, situated at Azimpur, Dhaka; he and his elder brother Iftekhar Uddin Ahmed Tultul were freedom-fighters. He has further stated that in the 1st week of August, Manik, Mahbub, Khoka and he went to India and returned back to Dhaka after having got training therefrom and joined Sajib Bahini and started work at the area of Lalbag; thereafter on 29th October, while again they had been going to India, they were apprehended by the Pakistani Army and Rajakars at the Tantar checkpost, situated between Comilla and Brahmanbaria and they were tortured severely by them there and thereafter they were taken to Brahmanbaria head quarter and then they were sent to Brahmanbaria jail where he saw amongst others Nazrul (martyr), Kamal (martyr) and his father Siru Miah (martyr), Baten, Shafiuddin and he proved the photograph of Siru Miah, Kamal, Nazrul and others as Ext. 496; he came to know that said Nazrul, Siru Miah and Kamal had been apprehended from Tantar checkpost. He has also stated that on the next day he was taken to the house of Dana Miah at Brahmanbaria and was tortured by said Dana Miah who after one hour sent him to the Army Cell Office where he was again tortured and thereafter they were tortured regularly; on the Eid-ul-Fitre day after evening, Pakistani Army entered into the Brahmanbaria jail and having left him and 3 others in a cell, took out 40 prisoners including said Siru Miah and his son Kamal (Anwar Kamal) and Nazrul and on the next day he came to know that those prisoners had been killed at Pourotola except one who had been released from the jail gate. He has further stated that two days after, the rest 4 prisoners including himself were taken again to the office of Dana Miah and tortured there and on that night they were able to escape therefrom and then he went to the house of his friend Mahbub’s sister and on the next day he came to Azimpur, Dhaka and met her mother and at the middle of night he was again apprehended by the Pakistani Army and tortured and after Liberation of the country he was released on 17th December from Ramna police station. He has also stated that in the year of 2008 while he was talking about the said occurrence in a T.V. programme, Anwara Begum, wife of Siru Miah and mother of Kamal, having watched that programme made contact with him over telephone and then he told her some of the said occurrence.

300. P.W. 15 Sheikh Farid Alam has stated that his house is at 141, West Nakhalpara and his father purchased 2.10 kathas of land in his (P.W. 15) name at 142, Nakhalpara wherein he had a semi-pacca building and a tinshed. He has further stated that there was a Madrassa and an office of Jamaat-e-Islami in the said building and tin-shed and the said office space was rented by his father.

301. P.W. 16 Md. Motiur Rahman is the investigation officer of this case. He has stated that on 02-08-2010 at 2.00 p.m. he seized with a seizure list, photographs of S.I. Siru Mia, Anwar Kamal, Nazrul Islam and Anwara Begum (P.W. 13) and certified photocopy of a letter as produced by said Anwara Begum from 36, Chamelibag, Paradise Tomal House, 4/C, P.S. Paltan, Dhaka in presence of witnesses. He has proved the said seizure list Ext. 495 and his signature therein Ext. 495/2. He has further stated that the photographs and the letter have already been exhibited as Exts. 496 to 497. He has also stated that on 03-08-2010 he recorded the statement of the witness Mohsin Ali Khan s/o Reasat Ali Khan and said statement has been received in evidence by this Tribunal under section 19(2) of the International Crimes (Tribunals) Act, 1973. He has proved the said statement Ext. 523 and his statement therein Ext. 523/1.

302. P.W. 16 has stated in cross-examination that Siru Miah was a Sub- Inspector in 1971; the distance between the then Brahmanbaria jail and Pourotola, where 38 persons were killed, is about 2 k.m.; the letter written by martyr Anwar Kamal to his mother Anwara Begum was reached her through her brother Fazlur Rahman; Tantar checkpost is within Koshba police station. He has further stated in cross-examination that Mamun Azmi and Amin Azmi, both sons of accused Prof. Ghulam Azam, passed S.S.C Examination from Khilgaon Govt. High School in 1969 and 1970 respectively. He has also stated that he does not know whether Mohsin Ali Khan was a house tutor of said two sons of accused Prof. Ghulam Azam, but he was their school teacher. He denied the defence suggestions that Mohsin Ali Khan was not a teacher of Khilgaon Govt. High School in 1971 and, that Mohsin Ali Khan did not meet Prof. Ghulam Azam in 1971 and, that Mohsin Ali Khan never made any statement to him (I.O.).

Evaluation of evidence and findings:303. The prosecution has examined as many as 8 witnesses (P.W. Nos. 7, 9, 11, 12, 13, 14, 15 and 16) to prove the charge No. 05 relating to the killing of S.I. Siru Miah and his son Anwar Kamal, Nazrul Islam and Abul Kashem, in total 38 persons and also torturing said Anwar Kamal made by Pakistani Army and the members of Rajakar and Al-Badr bahinis and Peace Committee under the direct instruction of accused Prof. Ghulam Azam. P.W. 11 Shafiuddin Ahmed is a very important witness in respect of charge No. 05 as he has claimed that he was also apprehended with S.I. Siru Miah and his son Anwar Kamal and others by the Rajakars and he was all along with them till they were killed. P.W. 11 having supported the allegations brought against accused Prof. Ghulam Azam in charge No. 05, has stated that on 25- 10-1971 at night he himself, martyr S.I. Siru Miah and his son martyr Anwar Kamal, martyr Nazrul Islam, martyr Abul Kashem and Jahangir Selim in order to go to India left their homes and they had two revolvers, one with S.I. Siru Miah and another with Nazrul Islam and they were apprehended by 20/25 Rajakars at Tantar checkpost and thereafter Pakistani Army came there and took the revolvers from them and kept them in a truck going towards Brahmanbaria and then they were taken to Brahmanbaria court. He has also stated that at the court premises they were abused like anything by Peyara Miah and thereafter they were taken to Rajakar Manzil. On the next morning at about 10.00 they were taken to the house of Dana Miah which was a torture camp of Army and they were tortured therein for 2/3 days and thereafter they were sent to Brahmanbaria jail. He has further stated that on 21st November, in the Eid-ul-Fitre day at night, Pakistani Army having come to the jail took out 39 prisoners therefrom and on the following day he came to know that those 39 prisoners had been killed and after Liberation of Brahmanbaria he was released from the jail and thereafter he came to know that out of aforesaid 39 prisoners one prisoner namely, Chinu had survived and 4/5 months after, he met him at Dhaka when Chinu showed him the mark of bullet injury on the left side of his chest and told that the rest 38 persons including S.I. Siru Miah and his son Anwar Kamal, Nazrul Islam and Abul Kashem had been killed and buried at Pourotola. He has also stated that he having been released from jail came to know that Peyara Miah had been a member of the Peace Committee and he also came to know from the wife of martyr S.I. Siru Miah that she had brought a letter from accused Prof. Ghulam Azam to save her husband and son.

304. P.W. 7 Dr. Munia Islam Chowdhury is a daughter of Anwara Begum (P.W. 13). She has stated that on 02-08-2010, the investigation officer, Md. Motiur Rahman seized from their house the photo copy of a letter dated 01-11-1971 written by Anwar Kamal to his mother Anwara Begum (Ext. 496/5) along with some photographs of S.I. Siru Miah, Anwar Kamal and others. Ext. 497 is the enlarged copy of said letter. P.W. 16 Md. Motiur Rahman (I.O) having corroborated the evidence of P.W. 7 stated that on 02- 08-2010 he seized photographs of S.I. Siru Miah, Anwar Kamal, Nazrul Islam, Anwara Begum and certified photocopy of a letter as produced by said Anwara Begum from her house. The said letter (Ext. 496/5 and Ext. 497) written by Anwar Kamal shows that after their apprehension he and his father were severely tortured. The said letter is as follows: XXX
305. Ext. 523 is the statement of Mohsin Ali Khan, who is now dead, recorded by the investigation officer, has been received in evidence by this Tribunal under section 19(2) of the Act, 1973. Having considered the legal aspects of the said statement of a witness, we are of the opinion that the statement of a witness received under section 19(2) of the Act, 1973 alone does not form the basis of conviction, but such statement may be used as corroborative evidence to prove a particular occurrence. In the instant case the said statement of the witness, Mohsin Ali Khan, who is now dead, has corroborated the evidence of P.W. 13 Anwara Begum. He has stated in his statement that on 1st May, 1968 he joined as an Assistant Teacher in Khilgaon Govt. High School and he remained posted there till 1989 and, S.I. Siru Miah was the husband of his wife’s sister; Azmi and Amin, sons of Prof. Ghulam Azam, were the students of his school and they were his students also and with reference to that, after 15 ramadan, S.I. Siru Miah’s wife Anwara Begum came to his house at Khilgaon Chowdhury Para and told him that S.I. Siru Miah and his son Anwar Kamal had been in Brahmanbaria jail and asked him to request Prof. Ghulam Azam to release them from the jail. He has further stated that thereafter he went to the house of Prof. Ghulam Azam at Mogbazar and requested him to release S.I. Siru Miah and his son Anwar Kamal; then Prof. Ghulam Azam told him that they had been freedom-fighters and they had been apprehended with arms at the border and asked him to come again after two days and accordingly he again went to the house of Prof. Ghulam Azam who then took him to the tin-shed office of Jamaat-e-Islami at Nakhalpara, near old Parliament Bhaban and after sometime he having given him a letter enclosed in an envelop asked him to give the same to Peyara Miah who was a leader of Brahmanbaria Peace Committee and Jamaat-e-Islami and then he came back with the letter and handed over the same to Anwara Begum who thereafter went to Brahmanbaria with the letter. He has also stated that thereafter he came to know that on 21st November in the Eid-ul-Fitre day at dead of night, Pakistani Army had killed S.I. Siru Miah and his son Anwar Kamal along with many others at Pourotola and then their associates, Al-Badrs and Rajakars had buried them there.

306. Upon scrutiny of the oral and documentary evidence as discussed above, it is evident that on 25th October, 1971, S.I. Siru Miah and his son Anwar Kamal, Nazrul Islam and others in order to go to India left their home and on the way they were apprehended by Rajakars at Tantar checkpost and taken to the Rajakars camp and thereafter they were sent to Brahmanbaria by the Pakistani Army and Rajakars and subsequently they were kept in Brahmanbaria jail. Ultimately, under the direction of accused Prof. Ghulam Azam, on the Eid-ul-Fitre day at night, S.I. Siru Miah and his son Anwar Kamal, Nazrul Islam and Abul Kashem, in total 38 persons were killed by the Pakistani Army and their associates Rajakars and Al-Badars and, said Anwar Kamal was also tortured. It is argued by the defence that the prosecution could not prove the killing of 38 persons and, as such, it is doubtful about the killing of S.I. Siru Miah and his son Anwar Kamal, Nazrul Islam and Abul Kashem. This argument does not fit to the context prevailing during Liberation War in 1971. Besides, even a single murder or killing or torturing one person 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. The Appeal Chamber of ICTR has observed in the case of Nahimana, Barayagwiza and Ngeze (November 28, 2007, para 924) as follows: “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 a part of ‘widespread’ or ‘systematic’ attack against a civilian population.”

307. It is evident on record that accused Professor Ghulam Azam as the Ameer of Jammat-e-Islami could have saved the lives of victim Siru Miah, and 3 other civilians by giving direction to his subordinate Peyara Miah but he intentionally facilitated and substentially contributed in killing Siru Miah and 3 others by giving negative signal to his subordinate Peyera Miah, who was the leader of Peace Committee, Brahmanbaria. Having considered all attending facts and circumstances, we are inclined to hold that the accused is criminally liable under section 4(1) of the Act and found guilty for the murder of Siru Miah, and 3 others under the crimes aganist humanity as sepcified in section 3(2)(a) of the Act.