This is the second part of the judgment given by the tribunal on the trial of Ghulam Azam. This part deals with the charges of 'Conspiracy' and 'Planning' of crimes against humanity/genocide.
To see part one - dealing with introductory issues
To see part three - dealing with charge relating to incitement
XVI. Adjudication of charge No. 1- conspiracy and charge No. 2 planning in respect of crimes against humanity and genocide:-
92. The charge No. 1- Conspiracy contains 06 counts while charge No. 2 planning contains 03 counts. The prosecution has brought aforesaid two charges against accused Ghulam Azam which arose from holding group meetings with the Chief Martial Law Administrator of Pakistan and making press-briefing for several times to that effect, during War of Liberation, 1971. The allegations of making conspiracy and planning appear to be interrelated which arose from same group of persons with intent to commit crimes against humanity and genocide in Bangladesh, and accordingly these two charges are taken up together for convenience of discussion. As many as 6 counts of conspiracy have been brought against the accused. Conspiracy to commit crimes under section 3(2)(g) of the Act has been described in the Act but not well defined.
93. Conspiracy is defined in section 1(1) of the Criminal law Act 1977 as amended by section -5 of the Criminal Attempts Act 1981 in England. The section provides; if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either; will necessarily amount to or involve the commission of any offences by one or more of the parties to the agreement; or would do so but for the existance of facts which render the commission of the offence or any of the offences imposible. Actus reus; (1) The conspirators will not be liable when they never acted on their own plan. (2) The fact that the conspirators give a second thought and withdraws does not provide any defence. Mens Rea The Partner must intend that the crime will be carried out.
94. The crime of conspiracy should be limited to agreements to commit criminal offences: an agreement should not be criminal where that which it was agreed to be done would not amount to a criminal offence if committed by one person. Once the parties have agreed, the conspiracy is complete, even if they take no further action, because, for example they are arrested. Conspiracy is a continuing offence. The opportunity conspiracy offers to roll together a course of criminal conduct under one charge and on one indictment is a significant attraction for prosecutors. It has been held that a single agreement can embrace conduct involving several offences, without infringing the rules against duplicity. Roberts  1 Cr App R 441; Greenfield  1 WLR 1151; Taylor  Crim LR 2005.
95. Conspiracy is a crime where it is more difficult than usual to distinguish between actus reus and mens rea, some of the elements discussed below in the context of mens rea might have been dealt with as easily as actus reus. The actus reus may be said to be an agreement : but agreement is essentially a mental operation, though it must be manifested by acts of some kind. ‘In the case of conspiracy as opposed to the substantive offence, it is what was agreed to be done and not what was in fact done which is all important. In short, the requirements of mens rea are: (i) an intention to agree, (ii) an intention to carry out the agreement, (iii) intention or knowledge as to any circumstances forming part of the substantive offence.
Conspiracy to commit Genocide96. Several ICTR Trial Chambers have convicted individuals of conspiracy to commit genocide. Like incitement, conspiracy is an inchoate offence, and completed genocide need not occur in order for a conviction to obtain. This is consistent with the common law understanding of conspiracy i.e. that once the individuals in question make the criminal agreement, the crime has in fact occurred. Several scholars have noted that this distinguishes conspiracy to commit genocide from conspiracy as a mode of liability as found in the doctrine of joint criminal enterprise.
97. The ICTR noted in Musema that the travaux preparatiores to the Genocide Convention made clear that the rationale for penalizing conspiracy to commit genocide was ‘to ensure, in view of the serious nature of the crime of genocide, that the mere agreement to commit genocide should be punishable even if no preparatory act has taken place. Although the concept of conspiracy is far less accepted in the civil law, the ICTR accepted and applied basic principles of common law conspiracy on the theory that the drafters of the Genocide Conviction (and presumably by extension the drafters of the ICTY Statute, i.e. the Security Counsel), meant to codify the common law concept of conspiracy with full knowledge that the concept’s acceptance was not universal among all legal systems, but that its application in the case of genocide was warranted by the exigencies of the crime. Consequently, the ICTR borrowed the common law definition of conspiracy and eschewed the civil law version of complot. As for the elements, the ICTR held that the mens rea for conspiracy to commit genocide is the dolus specialis of genocide (i.e. the intent to destroy, in whole or in part, a national, ethnic, racial or religious group). As for the material element, the requirement is that the individual agree with one or more individuals to commit genocide, also known as a ‘concerted agreement to act’. The element of acting ‘in concert’ is key because it distinguishes a conspiracy from mere ‘conscious parallelism’. The agreement need not be an express or formal one but may be inferred from the ‘concerted or coordinated action on the part of the group of individuals.’ Consequently, a ‘tacit understanding of the criminal purpose is sufficient.’
Count-1: Dainik Azad: April, 6. 1972 (copy of paper clipping) Leaders’ meeting with Lt, General Tikka Khan. Assurance of assistance to restore...........
98. By a Press release of the Martial Law Administrator it was reported that Mr. Nurul Amin led a team comprised of 12 special leaders to meet with Lt. General Tikka Khan, Chief Martial Law Administrator of ‘Kha’ zone. Among others renowned leaders like Khaza Khayeruddin, Mr. Golam Azam, Mr. Shafiqul Islam, Maulana Nuruzzaman and Maulavi Farid Ahmed etc. were also present in that meeting. They have proposed to the Chief Martial Law Administrator to form a Citizen’s Committee in Dhaka which will work to bring normalcy and to remove unnecessary and less fear from the mind of the citizens. They have also ensured that they will give full assistance to CMLA for restoring normalcy within the Province. The Chief Martial Law Administrator thanked them for their assuarance of assistance. Dainik Purbudesh, 06 April, 1971 (copy of paper clipping) [ a picture] Title of the picture:
99. Mr. Nurul Amin led a team comprised of 12 political leaders to meet with Lt. General Tikka Khan, Chief Martial Law Administrtor, ‘Kha’ zone. It has been evident that on 04.04.1971 accused Ghulam Azam along with others met Lieutenant General Tikka Khan, the then Chief Martial Law Administrator of Zone-Kha. Such facts were published through Radio Pakistan and also reported in Daily Azad dated 05.04.1971, Daily Azad and Daily Purbodesh both dated 06.04.1971 marked as exhibit-33, exhibit -34 and exhibit -99 respectively. It also appears from exhibit 52, Daily Pakistan dated 06.04.1971, in which it was stated that they all including Ghulam Azam gave assurance of all kind of help and a proposal to form a Nagorik Committee. As Ameer of Jammat-e-Islami Ghulam Azam met Tikka Khan with an intent to make atrocities committed subsequently by his followers.
Count : 2 Dainik Pakistan, 7 April, 1971 (copy of paper clipping) Dainik Purbodesh Dainik Azad, 07 April, 1971 (copy of paper clipping) Dainik Azad, 07 April, 1971( copy of paper clipping) More political leaders met with CMLA
100. Full assistance ensured to restore normalcy yesterday (Tuesday), more political leaders met with CMLA, ‘kha’ Zone and ensured their full support to restore normalcy in the province. In an Govt. handout it was reported that former Foreign Minister Mr. Hamidul Haq, Provincial President of Jamaat-e-Islami Prof. Ghulam Azam, Provincial President of Jomiote Ulamaye Eslamis Pir Mohsen Uddin Ahmed and local renowned lawyer Advocate Mr. A.K. Sadi had invidual meetings with General Tikka Khan. It was reported in the handout that the said leaders expressed their concern over India’s interference with the internal affairs of Pakistan and over the illegal entrance of the armed in sergeant. They stated that the partiots of the province will assist the Pakistani Armed Force to foil any conspiracy of India. The accused met Tikka Khan in the then Governor House with a view to form auxiliary forces which was published in Daily Pakistan dated 07.04.1971 marked as exhibit -53. Subsequently Shanti Committee, Rajakar, Al-badr, Al-Shams Bahini were constituted at the inspiration of accused by meeting with Tikka Khan in the governor house.
Count:3 Fortnightly Report, Ist half of April, 1971, Para-9 to 12
101. Leaders of different political parties and the intelligentsia including the lawyers reacted sharply against the Indian interference in the internal affairs of Pakistan and condemned the same as well as the mischievous propaganda launched by India.
102. On 14.4.1971 a meeting of the East Pakistan Peace and Welfare Steering Committee was held in Dhaka with its president Mvi Farid Ahmad (PDP) in the chair. All the nine members of the Committee who attended the meeting took oath of complete dedication to the cause of Islam and integrity and sovereignty of Pakistan. The meeting outlined the policy and programme regain confidence of the people, restore normally in the province and organise the people to fight against Indian designs and aggression.
103. It is evident that on 14.04.1971 accused Ghulam Azam took part in a meeting as a member of Peace and Welfare Steering Committee where all participants including accused pledged to protect Islam and preserve the unity and sovereignty of Pakistan. It has emerged from exhibit 479 that accused Ghulam Azam attended a meeting of Peace and Welfare Steering Committee expressing to regain confidence of people against so called Indian plans and aggressions and they were agreed upon to organize the people.
Count:4 Dainik Sangram, 20 June, 1971, (copy of paper clipping) Pro. Ghulam Azam in Pindi Press briefing Only Patriot can suppress Separatist (Biccinnotabadi) Rawalpindi, 19 June, PPI.
104. The Ameer of the East Pakistan Jamaat-e- Islami said that till the normalcy was restored in East Pakisatan, power must not be transferred to civil population. Professor Ghulam Azam said that in a Press Briefing in Rawalpindi following his meeting with the President. He said that the present separatist movement can be effectively suppressed by the patriots only and for that arms must be handed over to those who believe in the ideology and unity of the country (Pakistan).
105. Accused Ghulam Azam, in continuation of a conspiracy took part in a high level meeting on 19.06.1971 and on the same day he met the then President, Aga Mohammed Yahya Khan at Rawalpindi informing him the latest situation of East Pakistan and had a discussion with Aga Mohammed Yahya Khan to evaluate the activities of previous three months and resistance of the common people of East Pakistan through the uses of armed force. Such steps taken by accused were published in the Daily Sangram dated 20.06.1971 marked as exhibit-4.
Count:5 Dainik Pakistan, 21 June, 1971 (copy of paper clipping) Dainik Azad, 21 June, 1971( copy of paper clipping) Ghulam Azam in Lahore Press Briefing
Our reluctance to follow ideology is to blame for the present situation Lahore, 20 June.
106. The Ameer of E.P.J.I said that Sheikh Mujib was arrested since he advocated for separation, however, those who are still openly advocating for separation are yet to be arrested. He reiterated that the miscreants (duskritokarira) are still active in East Pakistan and continuing their activities. Peace loving people must get arms for their own defence.
107. It appears from evidence of exhibit -62, Daily Pakistan dated 21.06.1971 which reported that accused Ghulam Azam participated in a meeting with all Pakistan Jammat-e-Islami Chief Syed Abul Ala Moududi on 20.06.1971 where they discussed about the activities of followers of Jammat-e-Islami and also discussed to implement their intended views in committing atrocities and genocide during the liberation war.
Count : 6 Daily Ittefaq, 02 Dec. 1971 (copy of paper clipping) A true call to hold fresh election Rawalpindi, 1 Dec. (APP).
108. After a 70-minute long meeting with the President, EPJI Ameer Prof. Ghulam Azam said in a press conference that during that meeting he suggested the President that presently main duty is to eradicate all injustices and to earn the confidence of the people of East Pakistan. President’s reaction was encouraging, he said. Terming the so-called ‘muktibahini’ as enemy force, he said Razakars are enough to take care of them. In this regard he urged to increase the number of razakars.
109. It has also revealed from the Daily Ittefaq dated 02.12.1971 marked as exhibit -97 that accused Ghulam Azam took part in a seventy minute long conspiratorial meeting with the then former President Yahya Khan of Pakistan at Rawalpindi on 01.12.1971 where accused with a full confidence made demand to increase membership of Rajakar forces and also urged Pakistan Government to supply arms to those peoples who believe in the ideal of an unity of Pakistan. Sensing inevitable defeat by auxiliary forces accused invited the then President of Pakistan to supply more arms to his followers who committed genocide and crimes against humanity across the country. Failure to regain as aimed the accused finally conspired with others in order to kill intellectuals that continued till 16th December, 1971.
XVII. [Planning involving the commission of crimes specified in section 3(2) of the Act, 1973] Summary Charge No. 02: Accused Prof. Ghulam Azam, by his acts and commissions, planned to commit crimes against humanity, genocide and other offences- as a result of which crimes mentioned in section 3(2) of the Act were committed in all-over Bangladesh, and, therefore, the accused is charged under section 3(2) (f) read with section 4(1) and section 4(2) of the Act to plan to commit crimes specified in section 3(2) of the Act, which are punishable under section 20(2) of the Act.
110. In the above charge, the allegation brought against accused Prof. Ghulam Azam is that during Liberation War, 1971, he connected himself with the planning involving the commission of crimes specified in section 3(2) of the International Crimes (Tribunals) Act, 1973. But the offence “planning” is not defined in the said Act, but it is available in the international statutes. In the Naletilic Trial Judgment (IT-98-34), the Trial Chamber held that “planning” means that, one or several persons contemplate designing the commission of a crime at both the preparatory and execution phases. The existence of a plan can also be proved by circumstantial evidence. An accused held responsible for having committed a crime will not be found responsible for planning such crime.
111. In the Krstic Trial Judgment (IT-98-33), the Trial Chamber also observed as follows: “The Trial Chambers of the ICTY and the ICTR and the Appeals Chamber of the ICTY have identified the elements of the various heads of individual criminal responsibility in Article 7(1) of the Statute. The essential findings in the Jurisprudence may be briefly summarized as follows: “Planning” means that one or more persons design the commission of a crime at both the preparatory and execution phases; …………………………………………………………..” There are three counts under charge no.02 which are discussed as below:
Count No. i: That on 04-04-1971, accused Prof. Ghulam Azam and others planned to form an organization named ‘Nagorik Committee’ in order to support the occupying Pakistani forces and on the same day placed this plan before Lt. General Tikka Khan. The said organization committed above mentioned crimes in all-over Bangladesh.
Discussion of Documentary Evidence: The Prosecution in support of Count No.i has submitted, amongst other documentary and oral evidence, two newspaper clippings, Ext.33 and Ext. 34 which are discussed as below:
112. Ext. 33 is a copy of a newspaper clipping of “The Daily Azad" dated 05-04-1971 wherein it is stated under the caption "Tikka Khan meets the leaders" as follows: “in tonight's news of radio Pakistan, it has been told that, Mr. Nurul Amin, Khaja Khayer Uddin, Mr. Golam Azam, Mr. Shafikul Islam and Mawlana Nuruzzaman met Lieutenant General Tikka Khan, Martial Law Administrator, ‘Kha’ zone in Dhaka today.”
[original text of quote in judgement in bangla, unofficial translation]
113. Ext. 34 is a copy of a newspaper clipping of 'The Daily Azad’ dated 06-04-1971 wherein it is stated under the caption 'Lieutenant General Tikka Khan meets the leaders’ as under: "A press release published by the martial law authority informs that, on last Sunday afternoon, a representative team of 12 leaders led by Nurul Amin, met Lieutenant General Tikka Khan, Martial Law Administrator, ‘Kha’ zone. Beside Mr. Nurul Amin, Mr. Golam Azam, Mr. Shafikul Islam and Mawlana Nuruzzaman and Moulavi Farid Ahmed were also in that representative team. The team of the leaders proposed the Martial Law administrator to form a citizen committee in Dhaka in order to bring back the normal situation of the province and to remove unnecessary fear of people. They gave their full assurance to assist the Martial Law administrator to bring the normal situation back in the province. They expressed their deep frustration regarding India's interference in Pakistan's internal matter and their baseless propaganda.”
[original text of quote in judgement in bangla, unofficial translation]
114. On perusal of Ext.33 and Ext. 34 it appears that Nurul Amin, Khawaja Khayeruddin, accused Prof. Ghulam Azam, Shafiqul Islam, Moulana Nuruzzaman, Moulavi Farid Ahmed and some others on 04-04-1971 met Lt. General Tikka Khan, the then Martial Law Administrator of Zone- ‘Kha’ of East Pakistan at Dhaka and, in that meeting they placed a proposal to him to form an organization named ‘Nagorik Committee’ in order to support the occupying Pakistani forces.
Count no. ii: That on 09-04-1971, with the goal to commit the above mentioned crimes, accused Prof. Ghulam Azam and others in a united and planned manner formed the ‘Shanti Committee’ and nominated Khawaja Khayeruddin as the Convener of the committee. As part of the plan, the accused decided to form Shanti Committees in various parts of Cities, Unions and Mohallas and it was decided that those Shanti Committes would operate as per the directions of the Central Shanti Committee. The said organization committed the above mentioned crimes in all-over Bangladesh.
Discussion of Documentary Evidence: The Prosecution in support of Count No ii has submitted, amongst other documentary and oral evidence, three newspaper clippings, Ext. 37, Ext. 101 and Ext. 167 which are discussed as below:
115. Ext. 37 is a copy of a newspaper clipping of The Daily Azad dated 11-04-
1971. In that newspaper cutting it is stated under the caption ‘civil peace committee formed’ which reads as follows: “Dhaka, 10th April. A civil peace committee consisted of 140 members have been formed with a view to create a normal environment for the day to day life of the citizen of Dhaka. Khaja Khayer Uddin was made the convener of the committee. The committee has planned to bring out a procession from Bayatul Mokaram to Chak Bazar through a central committee program. On 9 April 1971, a peace committee has been formed in our meeting of citizen representatives of Dhaka. The committee has selected Khaja Khayer Uddin as its convener. The committee is consisted of 140 members. The similar committees has the power to co-opt. One thing worth mentioning, similar peace committee will be formed in the unions and locality level of greater Dhaka .... In the committee, along with other re-known persons, there are Mr. Q M Shafikul Islam, Prof. Golam Azam, Mawlana Muhhammad Masum……..and other."
[original text of quote in judgement in bangla, unofficial translation]
116. Ext. 101 is a copy of a newspaper clipping of The Daily Purbodesh dated 11-04-1971 wherein it is stated under the caption ‘peace committee has been formed to bring back the normal life in the city’ as under: “Dhaka, 10th April (APP): A peace committee has been formed to rapidly bring back the normal life in the city. Khaja Khayer Uddin was made the convener of the committee. All the peace committee of the city will work under this Central committee. .... A peace committee has been formed in a meeting of the representatives of local citizens of Dhaka yesterday. The committee selected Khaja Khayer Uddin as the convener of the committee. The committee has been formed with 140 members. The committee has been given the power to co-opt more members. ... Peace committee will also be formed in various union and locality level and they will work under the command of the Central committee. The committee will try to bring back the normal life of the city as soon as possible. .... Among other members, there are AQM Shafikul Islam, Prof. Golam Azam, Mawlana Muhammad Masum……and others."
[original text of quote in judgement in bangla, unofficial translation]
117. Ext. 167 is a copy of a newspaper clipping of The Daily Paygam dated 11-04-1971. In that newspaper clipping it is stated under the caption ‘peace committee has been formed with Khaja Khayer Uddin as the convener of the committee.’ which reads as follows: “on Friday a peace committee has been formed with 140 members and Khaja Khayer Uddin was made the convener of the committee. Is been informed that the committee has been formed to bring back normal life in the city. The committee will bring out a procession from Baytul Mokaram to Chak Bazar after Johar Namaz on Tuesday. The committee has planned to work under a central committee. On 9th April, this committee has been formed in a meeting of the representative leaders in Dhaka. . Khaja Khayer Uddin has been selected as the convener of the committee. The committee has 140 members and it has the power to form similar committees in the unions and locality (Moholla) level of greater Dhaka. They will do these works under the direction of the Central committee. They will take all necessary steps to bring the normal life back in the city. Among other members, there are AQM Shafikul Islam, Prof. Golam Azam, ……and others."
[original text of quote in judgement in bangla, unofficial translation]
118. According to Ext.37, Ext.101 and Ext. 167 as stated above, on 09-04-1971, in a meeting held at Dhaka, a ‘Shanti Committee’ was formed consisting of 140 members and Khawaja Khayeuddin was nominated as the Convener of the committee and, in that meeting accused Prof. Ghulam Azam and others were present and, at the time of forming the said committee, it was also decided to form Shanti Committees in various parts of Cities, Unions and Mohallas.
Count no. iii: That accused Prof. Ghulam Azam participated and formulated planning in the meeting held on 04-05-1971 for the purpose of forming units of the ‘Shanti Committee’ at various Unions of the Dhaka city. That meeting, which was held at the residence of A.Q.M. Shafiqul Islam at Elephant Road, Dhaka was also attended by Khawaja Khayeruddin, A.Q.M. Shafiqul Islam, Abdul Jabbar Khaddar, etc. The said organization committed above mentioned crimes in all-over Bangladesh.
Discussion of Documentary Evidence: In support of Count No. (iii) the Prosecution has submitted, amongst other documentary and oral evidence, two documents, Ext. 457 and Ext. 481 which are discussed as under:
119. Ext. 457 is a copy of the East Pakistan Police Abstract of Intelligence, Vol. XXV, Dhaka, Saturday, the week ending May 8, 1971 on Political Affairs wherefrom it appears that a meeting of the then East Pakistan Peace Committee was held on 4th May, 1971, at the Elephant Road Residence of A.Q.M Shafiqul Islam (CML) with Khawaja Khayeruddin, Convener of the Committee, in the chair. It was attended, amongst others, by Prof. Ghulam Azam (J I), Abdul Jabbar Khaddar (PDP) and A.Q.M. Shafiqul Islam (CML). The meeting discussed the formation of Peace Committees in different Unions of Dhaka city for the restoration of alleged normalcy and the proposed observance of Eid-i-Milad-un-Nabi on 8th May, 1971.
120. Ext. 481 is a copy of the Fortnightly Report on Political Situation for the First Half of May, 1971 from Special Branch, the then East Pakistan, Dhaka, Number 7 of 1971 wherefrom it also transpires that a meeting of the then East Pakistan Peace Committee was held on 04-05-1971 at the residence of A.Q.M. Shafiqul Islam (CML) at Elephant Road, Dhaka with Khawaja Khayeruddin, Convener of the Committee, in the chair. The meeting was attended, amongst others, by Prof, Ghulam Azam (J I), Abdul Jabbar Khaddar (PDP) and A.Q.M. Shafiqul Islam (CML). Resolutions were adopted in the meeting demanding protection of lives and properties of the general public, including the peasants, against the miscreants.
Discussion of Oral Evidence relating to Charge No 1 and 2.
121. P.W.1 Moontassir Uddin Khan Mamun alias Moontasir Mamun, a Professor of the History Department of Dhaka University, has deposed that after March 1971, mainly Jamaat-e-Islami, different groups of Muslim League, P.D.P and sections of some other political parties supported the central government of the then Pakistan, but the activities of Jamaat-e-Islami and Muslim League were more than other main political parties; that in the first week of April, they altogether met Lt. General Tikka Khan when Pakistani Army used to commit killing, looting, rape every day in different areas of Bangladesh and, among the leaders of those political parties, Nurul Amin and accused Prof. Ghulam Azam were prominant and as per their advice and zeal Peace Committee was formed in the month of April. He has further deposed that Peace Committees were formed at grass root level and thereafter Rajakar, Al-Badar, Al-Shams, etc. Bahinis were formed and in those Committees and Bahinis Jamaat-e-Islami had primacy and the leaders of Jamaat-e-Islami had also leadership over Al-Badar Bahini and, that among the leaders of political parties, accused Prof. Ghulam Azam, the then Ameer of Jamaat-e-Islami, played the most important role to assist the Pakistani Army. He has also deposed that he and others who were in the country saw and heard the brutal activities of Rajakar Bahini, Al-Badar and Peace Committee and , that the Peace Committee was spread over from the centre to grass-root levels and the Peace Committee showing paths took the Pakistani Army to different places, killed or assisted to kill, raped Bengalee women or assisted to rape them and plundered the valuables, particularly, of the workers of Awami League and Hindu Community and, accused Prof. Ghulam Azam, the then Ameer of Jamaat-e-Islami was the master mind of the Peace Committee who instigated and inspired Pakistani Army which is evident from the then newspapers. He has further deposed that though Rajakar Bahini was initially formed with the workers of Jamaat-e-Islami, but afterwards the government of the then Pakistan brought them within the legal frame-work. Rajakar Bahini also showing paths took Pakistani Army to different places and assisted them, identified the freedom-fighters and they also participated in killing, rape, looting and arson and, the members of Peace Committee and Rajakar Bahini indiscriminately committed genocide, rape and looting and it was assessed that during Liberation War, thirty lakh people were killed, but it is more than that which came out from his research. He has also deposed that accused Prof. Ghulam Azam in the first part of April met Lt. General Tikka Khan twice and thereafter he met Yahya Khan, the then President of Pakistan and he also met the political leaders of Pakistan who supported the commission of genocide and atrocities that during Liberation War more than four lakh girls and women were raped. He identified the accused in the dock.
122. P.W.1 has stated in his cross-examination that he was a student of 3rd year of Hon’s in the month of March, 1971 and, that he started research on the Liberation War since 1974 and that perhaps the Peace Committee was formed first on April 9 under the leadership of Khawaja Khayeruddin and so far he remembers, Advocate A.Q.M. Shafiqul Islam, Sayed Md. Masum, Ghulam Azam (accused) and others were within 140-member Shanti Committee and of them, he is sure, accused Prof. Ghulam Azam was a member of Jamaat-e-Islami and the accused was present in the first meeting of Executive Committee of the Peace Committee. He has further stated in cross-examination that accused Prof. Ghulam Azam contested the election from Mirpur area where he (P.W.1) used to live in 1970. He has denied the defence suggestion that accused Prof. Ghulam Azam was not involved in any killing, rape, looting committed in 1971.
123. P.W.2 Mahabub Uddin Ahmed, Bir Bikrom has deposed that he is a freedom-fighter and he joined the then Pakistan Civil Service in Police Cadre and, in 1971 he was posted at Jhinaidah, sub-division, as S.D.P.O. He has further deposed that the leaders of political parties e.g. Jamaat-e-Islami, Muslim League, PDP, etc. in the first part of April having met Lt. General Tikka Khan supported the Operation Search Light, conducted by Pakistani Army since 25th March, and planned to form Peace Committees countrywide to assist Pakistani Army and he heard that Prof. Ghulam Azam (accused), Khawaja Khayeruddin and Nurul Amin were with the persons who met Lt. General Tikka Khan; that Islami Chatra Shangha was the student front of Jamaat-e-Islami and the Islami Chatra Shangha formed Rajakar Bahini and they also formed Al-Badr Bahini and, accused Prof. Ghulam Azam met Yahya Khan, the then President of Pakistan, to form the Peace Committee, Al-Badr and Rajakar Bahinis armed. He also deposed that the Peace Committee, Al-Badr, Al-Shams and Rajakar Bahinis along with Pakistani Army committed genocide, killing, rape, arson, looting, etc. in different places of the country and, Jamaat-e-Islami and its student front took the lead in committing those crimes against humanity and accused Prof. Ghulam Azam was the leader of said Jamaat-e-Islami and under his leadership those offences were committed.
124. P.W.2 has stated in his cross-examination that perhaps in the month of September, 1970 he joined as S.D.P.O at Jhinaidah and he was incharge of sub-sector ‘A’ (Alpha Company) of Sector No.8 since May, 1971; that Lt. General Tikka Khan was the then Governor of East Pakistan and Martial Law Administrator of East Zone of Pakistan Military Government. He has further stated that he heard that Khawaja Khayeruddin was the Chief of the Peace Committee and amongst others accused Prof. Ghulam Azam was a member of that Committee.
125. P.W.3 Sultana Kamal is an Advacate who has stated that she is a freedom-fighter and at present she is the Executive Director of the Ain-o- Shalish Kendro. She has testified that in 1971, she was a student of Dhaka University; that during Liberation War, 1971, genocide was being committed and in April she came to know that some political parties, based on religion, and Pakistani Army hand to hand started activities against Liberation War and that Jamaat-e-Islami, P.D.P, Muslim League and accused Prof. Ghulam Azam were involved with those activities and the accused used to meet frequently Lt. General Tikka Khan and the leaders of Pakistani Army and discussed with them how to save the unity of Pakistan and he also used to deliver speeches and made statements wherefrom it appeared that Pakistan meant Islam and opposing Pakistan meant opposing Islam. Firstly they started organizing activities in the name of Peace Committee and thereafter in May they formed Rajakar Bahini and they also formed Al-Badr and Al-Shams Bahinis with the students of Jamaat-e-Islami and young workers and, accused Prof. Ghulam Azam was the leader of all those ill-activities and at that time the accused visited Pakistan and during his visit he talked against the Liberation War and the freedom-fighters. She has further deposed that the members of those Bahinis having caught hold of women of different ages handed over them to Pakistani Army camps and bankers wherein they were raped and many of them were killed after rape. The accused Prof. Ghulam Azam, as the overall leader of Rajakar, Al-Badr and Al-Shams Bahinis, was established as a symbol against the freedomfighters who were infavour of Liberation and during Liberation War, 1971, and genocide, killing, rape, looting, conversion of Hindus to Muslims, etc. were committed by the members of those Bahinis along with Pakistani Army. She has also testified that she took interview of 19 women who were raped by Pakistani Army and most of them were handed over to Pakistani Army by the members of those Bahinis. She identified the accused in the dock.
126. P.W.3 has stated in her cross-examination that Khawaja Khayeruddin was the Convener of the Peace Committee which was formed with the members of Jamaat-e-Islami, Muslim League and P.D.P. She has also stated that they heard that accused Prof. Ghulam Azam was the Ameer of the then East Pakistan Jamaat-e-Islami and that during Liberation War, Rajakar, Al- Badar and Al-Shams Bahinis were formed in April, 1971 or thereafter and accused Prof. Ghulam Azam had the most important role in forming those Bahinis along with the Peace Committee.
127. P.W.16 Md. Motiur Rahman, Additional Superintendent of Police is the investigation officer of this case. He has deposed that during investigation, after having seized alamats, perused documents, visited the place of occurrence and examined the witnesses, it clearly appeared to him that accused Prof. Ghulam Azam was the Ameer of the then East Pakistan Jamaat-e-Islami since 1969 to 1971. In the night of 25th March, 1971, Pakistani Army, with modern weapons, started committing crimes against humanity, genocide and other crimes on the unarmed bangalees in the name of Operation Search Light and in that situation the accused along with 12 others having met Lt. General Tikka Khan at the then Governor House, supported those atrocities and assured him that they would co-operate with the Pakistani Army and that in continuation of said conspiracy and planning, on 9th April, 1971 the accused formed 140-member Central Peace Committee in order to co-operate Pakistani Army in committing the atrocities and the accused himself was the third man of the top of that Committee. He has further deposed that for the continuous wide criminal activities of accused Prof. Ghulam Azam, during Liberation War, thirty lakh people were killed, two lakh women of different ages were raped, one crore people were compelled to deport out, some people of minority community were compelled to convert their religion and thousands of houses, shops, schools, colleges, Universities, mosques, temples, bridges, etc were destroyed. He has also testified that accused Prof. Ghulam Azam was the mastermind of all those criminal activities and he was the key-man of the central Peace Committee, Rajakar, Al-Badr and Al-Shams Bahinis.
128. D.W.1 Abdullahil Amaan Azmi is a son of accused Prof. Ghulam Azam. He has deposed that the then Chief Martial Law Administrator, General Yahya Khan on 25th March, 1971 conducted the most hateful killing of the history through Operation Search Light and that Peace Committee was formed in 1971 and his father Prof. Ghulam Azam was a member of the Central Peace Committee.
129. D.W.1 has stated in his cross-examination that he came to know that on 4th April, 1971, his father accused Prof. Ghulam Azam met the Military Authority of Pakistan, but he does not know whether his father met the Military Authority of Pakistan before or after that date. During Liberation War his father went to Pakistan more than once, but he does not know how many times he went there. His father was the Ameer of the then East Pakistan Jamaat-e-Islami. He has further stated that the book named ‘XXX’ written by his father is a autobiographic book which was published in nine Volumes of which he exhibited first and third Volumes which were marked as Ext. H and H1 respectively. He has further stated that at page 133 of Ext. H1 it is stated as follows: “on the 26 March 1971 my father went out of our house with our car and driver and witnessed the incident of killing and massacre at Dhaka University area Nabarpur Road and Gulistan Area. It seemed to him as if the Army has attacked to crank where our enemy land country.” [original text of quote in judgement in bangla, unofficial translation]
130. D.W.1 has further stated in cross-examination that it is stated at page 154 of that book that in April, 1971 at the initiative of Khawaja Khayeruddin and Mowlovi Farid Ahmed, a meeting was held in the house of Nurul Amin and in that meeting his father Prof. Ghulam Azam along with representatives of different political parties were present. It is also stated at page 157 of that book that a peace committee was formed making Khawja Khayeruddin as its convener. He also stated that he exhibited a part of the book named ‘war crime of 1971 and trial of war crime ’ edited by Shahriar Kabir (Ext. F1) wherein at page 63 it is stated as follows: “This is the Golam Azam, who supported all the unjust, illegal., Inhuman and cruel acts of Pakistan Army in 1971; who called the freedom fighters as traitors and called for action to destroy them; who formed the Al Badar force and induced them to kill the best intellectual minds of our country. My teacher Munir Choudhury, Mofazzal Haydar Choudhury, Sontosh Kumar Bhatyacharya and Sirajuddin Hossain, my senior Shahidullah Kaysar, my friend Giyasuddin Ahmed, mu colleague Abul Khayer, Anowar Pasha, Rashidul Hasan and Muhammad Mortuja, my student ANM Golam Mostofa and Saiyad Nazrul Haque were killed by his plan. I’m affected, deeply sad because of their death.” [original text of quote in judgement in bangla, unofficial translation]
Evaluation of evidence and findings
The prosecution has mainly relied upon documentary evidence to prove charge Nos. 1 and 2.
131. D.W.1 Abdullahil Aman Azmi, the son of the accused has admitted in cross-examination that his father wrote autobiography named “ Jibon-e-Ja- Dekhlam” volume-III (Ext. H-page-133) in which it has been stated that his father went out of their house on 26.03.1971 riding on their car and visited Dhaka University area, Nawabpur Rood, Gulistan area and witnessed the marks of massacre and destructions thereof caused by pakistan army in the night following 25 March, he thought, Pakistan army as if launched an attack on an enemy country with intent to capture it.
132. It is revealed that on the following day of 25 March, accused Ghulam Azam visited Dhaka city and acquired direct knowledge about the atrocities and massacres committed by Pakistan army.
133. Despite of the fact, the accused along with his like minded leaders met Tikka Khan, CMLA on 04.04.1971 (Exts. 33,34) and gave assurance to provide all assistance to the CMLA for restoring normalcy within the province.
134. The news clippings of the Daily Azad, Daily Purbodesh and Daily Paigam Exts. 37, 101 and 167 go to speak that the accused and his associates made meetings with Tikka Khan as a part of conspiracy and planning to commit crimes against humanity and genocide as a result of which horrendous crimes as specified under section 3(2) (a) (c) (f) (g) of the Act were committed in all over Bangladesh by Pakistan occupation army with the help of collaborators during nine months struggle in 1971. Since conspiracy to commit crimes against humanity and genocide is an inchoate offence, it is not necessary to prove that genocide occurred pursuant to the conspiracy and planning. Agreement between two parties may be proved by direct evidence. Besides this, such agreement to conspiracy and planning may be inferred from circumstantial evidence. Concerted action on the part of the conspirators can constitute evidence of an agreement. In the instant case, we find from the documentary evidence cited above that the accused with his associates held meeting with Tikka Khan, CMLA and the President of Pakistan for several times and pursuant to such conspiracy and planning the accused as head of Jamaat-e-Islami substantially contributed much in forming para-militia forces such as Peace Committees up to grass-root level, Razakar, Al-Badr and Al-shams to resist independence of Bangladesh. It is further evident that the accused urged the President of Pakistan to supply arms to true patriots of Pakistan and to increase the number of Razakars to annihilate pro-liberation people of Bangladesh. The circumstantial evidence that arose from the activities of the accused during War of Liberation lead us to hold that the accused is guilty for committing crimes for conspiracy and planning which resulted massive crimes against humanity and genocide in a large scale in all over Bangladesh by his subordinate para militia forces as discussed in paragraph nos. 64 to 89 of this judgment.