Quader Molla, day 22: Defence and state arguments

6 June 2013

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Abdur Razzaq, the defence lawyer went to the dais and continued to make his submission from the previous day: “ideally this question should be asked. My submission is that the accused petitioner...”

At this point Sinha J. stopped him and said, “The scheme of the law is...sections 161 and 162 of Code of Criminal Procedure 1898 (CrPC) and the section 165 of the Evidence Act. However, the procedure here is the special procedure. In such a scenario investigation depends on what is going on in the court. I believe there is no such provision for case diary and etc.” 

Razzaq argued, “My lord, yes there is such provision. May I request your lordship to turn page 92 of the volume I have provided to you (compilation of the ICT Acts). In this page your lordship will find rule-8 which state provisions regarding maintaining case diary by the Investigation Officer.” He further referred section 11 and section 9 (3) of the ICT Act 1973 in support of rule 8 of ICT Rules of Procedures 2010. 

He then submitted, “Our concern is what is said to I.O. and what is basically in the case dairy.”

Abdur Razzaq then started his regular submission and moved to the deposition of P.W.-3 Momena Begum. He readout her deposition. After that he submitted that they made an application to re-examine this witness as the lawyer engaged by them could not properly cross-examine this particular witness but the tribunal rejected that application. Wahab J. then made an enquiry to Razzaq- “There is rule (provision) in the CrPC to recall witnesses. Whether there is such specific provision in the ICT Rules of Procedures apart from ICT’s inherent power?” 

In response to that, Razzaq referred rule 48 (1) at page 141 of the compilation of ICT laws. He emphasised that this rule empowers the tribunal to re-call and re-examine any person already examined. 

He then referred P.W.-3’s cross examination at page 1441 of volume 4. The relevant paragraph he referred and read out was paragraph no. 5 at page 1443: “You did not depose to I.O. that your father rushed towards your house...” “...you have now deposed that you heard from someone who used to make tea for the freedom fighters that your father was killed by Abdul Quader Mollah and Akter Goonda- you have not deposed to before the I.O.”

Razzaq then moved at page 471 of volume 2: ‘Order to suspend a defence counsel’. He read out the tribunal’s order in this behalf. The main reason for applying for such an order was that the counsel engaged by the defence could not do the ‘contradiction’ of the P.W.-3 properly. 

 Chowdhury J. asked Razzaq, “Whether the tribunal has got such power to pass an order?” Razzaq repied, “My lord, there are 2 main points here- firstly, section 48 (1) of the Act and then secondly, the inherent power of the tribunal.” He further referred section 561 of the CrPC 1898 where there is a similar provision. Razzaq further pointed out that I.O. cross examination was conducted on 11.01.2012 and they made that application on 11.11.2012.

After that, Razzaq then referred a case from 19 DLR (SC). Wahab commented, “that she deposed at Jalladkhana (killing place) she went to her father’s house 3 days before. Why it was not asked and clarified in the cross-examination? It was very material. Now, the sympathy goes in her favour. We are made of blood and flesh; we are sons of this soil.” 

Razzaq said, “There is Indian Supreme Court judgment and there is also American Supreme Court judgement where it has been decided that the judges cannot be emotional.”

Razzaq then said before the court, “Now, I shall make my legal submission.” 

Before he moved on, he submitted, “we got the Jalladkhana’s document on 13.12.2012.” Then he submitted, “under section 21 I have 2 submissions. Firstly, to re-call and re-examine the particular witness before this court; although this court (appellate division) has never done it before but my humble submission is to do that.” 

Razzaq then referred a UK case Birmingham 6 [1991 (93) Criminal Review] (fight took place at a pub) where due to an error of judgement the Court of Appeal of England re-examined witnesses where they did not have power to do so. Razzaq concluded, “our case is much better than that case.”

After an adjournment Razzaq went to the dais and submitted, “Tribunal shall not require but must take judicial notice.” He then referred an ICTR case on judicial notice. The relevant paragraph he read out was 198 at page 65. Here, in deciding “whether genocide took place in Rwanda?” the ICTR took notice of the fact that the type of the conflict at Rwanda was an international armed conflict.

Razzaq then cited his next case on Definition of judicial notice. The relevant paragraph he mentioned was paragraph 13. He submitted, “that the tribunal has taken judicial notice of lot of things about the respondent Abdul Quader Mollah.” He readout from his paperbook, “Mirpur was an area 90% people was Biharis (non-Bengalee) and Abdul Quader Mollah used to maintain close culpable association with Biharis.”, for example. Chowdhury J. then commented, “this and is not conjunction.” Mahmood J. opined, “if there were a ‘comma’ here then the meaning would have been different.” Razzaq then submitted, “my submission is- that and is conjunctive.”

He then cited two cases- the first one is 39 DLR (AD) 199 and the relevant part is at page 211 of the judgement. The second one is (1973) 3 SCC 493 and the relevant part is at page 495 of the judgement. He then submitted, “these are my submission and my learned friend (attorney general) will make his submission in this regard. Then I shall make my further submission when he finishes.”

After that the Attorney General came to the dais and the Chief Justice asked, “You are now going make your submission in respect of appeal no. 24, right? AG replied, “yes, my lord.”

AG then started to read out section 21 (2). Sinha J. asked him, “Are you reading out the amended one?” AG replied, “Yes, my lord.” As soon as the AG finished reading out the section before the court, he submitted, “All charges has been dealt individually.” Wahab J. reminded him, “Mr Razzaq submitted that ‘acquittal’ means ‘acquittal from the case; not from the charge’.” AG  replied, “I shall cite some decisions in this regard.” Sinha J. argued, “it is even in the judgement at page 22- ‘accused person is not guilty of charged offence...he was not guilty of offence mentioned in charge no.4’.” AG then submitted, “In this context I shall cite a decision. My learned friend (Razzaq) has cited 3 cases on acquittal. The first was regarding ‘provident fund. And none of those cases are related to the context of this case.”

Razzaq, the defence lawyer then submitted, “Now I shall cite a judgement from Nuremberg.” Wahab J. then said, “you have to show it was perverse to the evidence and the reasoning.” Razzaq then added, “I have clearly said how they misled the evidence of P.W.-7.” Wahab J. further asked, “What was his age? Whether it was possible for a person of his age where heavy firing was going on outside...how it is possible?” AG argued, “He was 17 then and he was a freedom fighter. And it has not been challenged.” He further added, “It was in the month of November (almost end of the war) and at that time it was not unusual to go outside out of curiosity listening gun fire.”

Quader Molla appeal, day 21: Defence arguments

5 June 2013

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The defence counsel, Razak continued. “My Lord, yesterday I was in this part. Unfortunately, the I.O. did not say anything about this.” CJ asked him, “Did you cross examine I.O. on this point?” Razzaq replied, “yes, my lord.” CJ further asked, “Which paragraph of his cross examination? Can you please show us where is that?” Razzaq replied, “yes my lord, at page 626, 6th line from top.” He then read out the same.

Razzaq then moved to page 634, at PW-12 (I.O.) deposition. After he read certain part, Sinha J. stopped him and said, “You cannot say that the PW did not depose that to I.O.; the I.O. said, ‘the PW did not say that EXACTLY in that way’ that does not mean that the PW did not say that.”

Razzaq then moved to charge no. 6. He started to read out the charge at 10:25 am. He then read out the PW-3 Momena Begum and PW-12’s (I.O.) deposition. 

After he finished he reading out that he started to show the contradictions. 

At page 75, PW-3 deposed she cannot remember from which bank she cashed a cheque of 2000 taka which was given to her by Bangabondhu Sheikh Muzibur Rahman. Razzaq informed the bench on 28/09/2007, depositions were taken at Mirpur Jallad Khana of those whose relatives were killed there. There is a museum at the Jallad Khana. He then moved to page 1689 and 1690 and readout PW-3 statement which was taken at Jallad Khana.

After adjournment, proceedings continued

After the break Razzaq continued his submission again. He said, “I was at page 1695.” He then submitted, “While framing the charge, the prosecution said, he was a student and residing in the Shahidullah Hall. Subsequently, they attached to him some incidents in Mirpur.” Sinha J. pointed out the requirement for plea of alibi. 

CJ argued, “in the pre-1971, it was the practice that student who used to involve politics of Chatra Shangha (student wing of Jamat-e-Islam) or Communist party, they used to stay some other place along with their allotted room in the resident hall for some reasons. You see he was involved with election campaign in Mirpur.”

Razzaq replied, “My lord, at that time 90% of the population in Mirpur were non-bangalee and only 10% were Bangalee. My submission is those incidents were conducted by non-Bangalees just because of their political involvements.”

Sinha J. argued, “Mr Razzaq can you please see page 575 (PW-4 Kazi Rosy’s cross examination), last paragraph, second sentence, where while cross examining her you asked PW-4, ‘there was one Quder Molla in Mirpur in 1971 who was Bihari and known as ‘Butcher Molla’.’ You made that submission. What is your comment about that?” Razzaq replied, “This is not my submission now.”

CJ then asked Razzaq, “Is presence important to make accused petitioner liable?” 

Razzaq replied, “No, my lord.” CJ suggested, “In that case, this submission will not sustain.” 

Razzaq replied, “My submission is- they have accepted that Abdul Quader Molla was a resident of Shahidullah Hall and they have now come to tie him up with some incident happening in Mirpur. My submission is completely different.” 

Razzaq then referred to I.O. cross examination at page 1690 where he deposed, “He was a student of Shahidullah Hall at Dhaka University.” He then moved to page 626 of part 2, 3rd line, where I.O. deposed, “We been to Duyari Para in Mirpur to investigate whether Abdul Quader Molla used to live there. And then come to our office.” Razzaq argued, “There is nothing after that and then at last of the same page it has just been mentioned, ‘we talked to 3 families in relation to that’.”

Razzaq then moved to page 254 of the last volume and then to page 192 of the judgement and started to read the Evaluation of witness by the Tribunal at 12:37 pm. 

As soon as he started, Wahab Miah J. and Shamsuddin Chowdhury J. suggested, “it goes against your current argument cause the trial judges mentioned you argued that she (PW-3) was not the daughter of the victim.” 

Razzaq agreed with the judges. CJ asked him to proceed and Razzaq then continued reading the Evaluation and Findings of the tribunal.

Wahab Miah J. then argued, “Lets think we have accepted all of your other arguments but what about this finding of the trial court in this charge. The PW deposed her father requested to the person, ‘Brother Quader, please leave me.’ Please kindly see, she is a live witness; not a hearsay. She lost her sense at a certain stage.” Sinha added, “and she was raped! Which will prevail- her deposition to I.O.? or her statement before the tribunal?” I

In response to that, Razzaq argued, “Code of Criminal Procedure 1898 does not apply here.” Wahab Miah further assisted, “You have submitted that the PW went to her in-laws place 3 days before the incident. Where is your suggestion that she was not in the place of occurrence? It is not here. Please see page 562 7th line from bottom.” Razzaq quoted the PW, “I have not seen who killed my father but Quader Molla grabbed the collar of his shirt.”

CJ then said, “So you have finished your submission with charge no. 6?” 

Razzaq replied, “No my lord, tomorrow I shall show some law points and the judicial notices of facts taken by the tribunal and for the interest of justice, if your lordships wish, then you can examine in a witness.” (There is no such precedent that such an appeal court has ever examined a witness in a criminal matter)

Quader Molla appeal, day 20: Defence arguments

4 June 2013

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When Razzaq the defence counsel came to the dais, the CJ reminded him, “Mr Razzaq, you were in the paperbook-2 yesterday.” Razzaq replied, “yes my lord, I was making submission on contradiction by the PW 10. Here none of the PWs in respect of this particular charge mentioned convicted petitioner’s name before the I.O. and both heard the incident from the same source, non-Bangalee driver of the victim named Nizam. Now lets move to PW-10’s deposition at page 6, in the 2nd paragraph.”

CJ reminded him, “Mr Razzaq, you have already showed us this part. I have already marked it.” Razzaq replied, “Previously, I had shown it for different purpose; now I shall show the discrepancies. The source told Molla’s name to PW-5 but he did not tell his name to PW-10.”

Razzaq then moved to the next point. He submitted, “during 1970, only the 10% of population in Mirpur were Bangalees and 90% were Biharees (non-Banglee). The victim was a high profile - a journalist and a lawyer whereas, the Mollah was a student residing in the Sohidullah Hall of University of Dhaka.”

He the referred paragraph 269 (at page 173) of the judgement where the tribunal considered the discrepancies as follows- “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 matters which 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.“

In relation to such observation by the trial court he argued, “the distance between the places Shantinagar and Arambagh is about 1.25 km to 1.5 km. Such discrepancy should not have been ignored.”

In response to that submission Wahab Mia J. argued, “learned counsel think about the situation in 1971. It was only few minutes distance by car in 1971 because there was no traffic jam then. At present time it that distance might be a factor but it was not the same in 1971.”

Razzaq then submitted, “My lord, I shall now move to charge no 5. Before I start reading out the charge I would like to inform your lordship that the date of incident is 24th April 1971 and the place of incident is village Alubdi on the bank of river Turag. The allegation is killing 24 named people and 300+ civilians by the Pakistani force and the convicted petitioner Abdul Quader Molla. There are 2 prosecution witnesses PW-6 Shafiuddin Mulla and PW-9 Amin Hossain. And there was a defence witness DW-5 Altaf Hossain Mulla who is the brother of PW-6. Now I shall read out the charge from page 284 of volume-1.”

Mr Razzaq started to read out the charge at 9:46 am. After he had finished with reading out the charge he started to read out PW-6 Shafuddin Mulla’s deposition from part II, page 583 and then he read out PW-9’s deposition from page 598 of the same part. After that he started to read out the DW-5 Altaf Hussain Mulla at 10:54 am.

After an adjournment, the court returned.

The bench officer called item-3 and thus Mr Razzaq came to dais again and said, “I shall now continue from DW-5 deposition.”

He then said, “Now I shall read out the findings by the tribunal in respect of the prosecution and defence witnesses.” .

After that Razzaq then informed the court, “Now I shall make my submission about the charge no. 5.” He then submitted, “There are 2 discripencies.” CJ asked him, “Did you asked about those to I.O.?” Razzaq then, “Yes, I asked him and the I.O. said he (PW) did not say anything about that.

Please see page 587 where we asked the PW, ‘Did you say the following things to I.O.- (a) that you were involved with the politics of Bangladesh Student League?, (b) that you worked for Advocate Jahiruddin in his election campaign?, (d) that you knew Abdul Qader Molla in 1970? (that’s the most important one), (e) that you saw Abdul Quader Molla was talking to Pakistani force?, and (f) that you have seen rifle in hand of Abdul Quader Molla?’ and the I.O. deposed that the PW did not deposed any of these facts to him. You lordship will find that at 2ndparagraph of page 625 in the deposition of PW-12 (I.O.).”

Razzaq then readout the same from I.O.’s deposition. He then added, “both of the PWs deposed that they saw a rifle in Molla’s hand though.”

Shamsuddin Chowdhury J. showed from the deposition of those PWs, “afterwards, he (PW) deposed that he saw Abdul Quader Molla standing with a rifle aiming to unarmed civillians.” In response to that, Razzaq commented, “this particular witness could tell to the court that said Abdul Quader Molla is a Bangalee or non-Bangalee- that’s very surprising my lord.”

Razzaq then started to read from the statement, “it was dark at the time of occarance and they (Pakistani force) came by helicopter.” He particularly argued, “Well, we agree that it is possible to see that they came by helicopter even it is dark but how he (PW) identified a single person (Abdul Quader Molla) particularly when it was dark? The PW deposed at the last paragraph of page 588 that the sky was cloudy.” In response to that Wahab Miah J. replied, “it was easily possible to identify because the Pakistanis were tall and white and the convicted petitioner was short and dark complexion.”

Razzaq further quote a part of the PW’s cross examination which was, “It is not true that I have not seen anything. I hid in a hole in the paddy field until 11 am.”

He then submitted, “Now the issue is whether it is possible to see all those hiding like that?” Wahab Miah J. added, “Yes, see at page 585, 13th line from the top, ‘…the depth of the hole from the ground level was 4 feet’ which is almost same as his height.” Razzaq then submitted, “How it was possible to see? My submission is it is totally impossible. And then the CJ added, “But he denied. In his words, ‘it is not true that I have not seen anything hiding in the paddy field.” In response Razzaq argued, “Well, the witness may say; that’s upto him. Just because he said so there is no certainty that it is true for sure.

Quader Molla appellate division decision

Posts on the appellate decision on Quader Molla are being published on a sister blog, Bangladesh Politico. See below

See: For what offence has Molla got the death penalty?

        What happens now with Quader Molla

Quader Molla appeal, day 19: Defence arguments

3 June 2013

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Defence lawyer, Barrister Razzaq represented Mollah. He went to dais and started his submission as follows:

“My Lords, I was in the charge No. 3. There were 4 major contradictions that started with the PW5’s statement at page 577 of part 2, 4th line from the top.” He readout few lines and argued, “he has not been deposed from where the victim was taken to Mirpur. Again while framing the charge it has been mentioned that he was taken to Mirpur but it was not explained how he was taken there. Now at page 579, 3rd paragraph 3rd line, it has been stated that he was on his way to Shantinagar. But in the charge framing order it is stated that he was going to Arambagh. But in the deposition of PW5, the name of Arambagh is absent; however, the name of Shantinagar has been stated though.”

Shamsuddin Chowdhury J. argued, “Shatinagar and Arambagh is same place. Arambagh is a part of Shantinagar.” Razzaq replied, “There is some distance, at least 1.25 to 1.5 km; the difference in the names suggests that the place are different; otherwise there would have been same name.”

Razzaq then submitted, “During charge framing, it has been stated he was caught from Mirpur 10 but the PW stated that he was caught from Ittefaq roundabout by a non-Bangalee.” Sinha J. argued, “Charge is always written in short; therefore, you will not find much details in the charge.” In reply, Razzaq argued, “My submission is due to this confusion, PW5 has lost his credibility due to this discrepancy.” Sinha J. then explained, “there is no relationship between charge and any PW’s credibility.”

Razzaq then moved to his next argument, “Secondly, there is a contradiction in the examination in chief of PW5. In the examination in chief he said that he has not seen the convicted petitioner at that time, however, in the other part of his deposition he deposed, ‘Abdul Quader Molla worked for Jamat-e-Islami cadidate in the election of 1970 in which his father took part as Awami League candidate and elected as a member of the parliament.’ Thus it appears that he has seen the convicted petitioner. Now let us come to the contradiction. At the page 578, he has deposed that he never saw Molla, the convicted petitioner, face-to-face.”

Razzaq then moved to the next contradiction, “My lords, lets come to the 3rd contradiction at page 580, last paragraph and 4th line from the top where he stated that, ‘it is not true that I have not deposed to I.O. that my father was taken to Mirpur by non-Bangalee Abdul Khaleq.’ That means he said that. But in the same volume at page no. 651 your lordships will find that the I.O. (PW12) deposed that ‘it is true that the PW5 did not tell me that his father was taken to Mirpur by non-Banglee Abdul Khaeq’. Therefore, my submission is this version of evidence is not reliable.”

Mr Razzaq the moved to the last major contradiction. He submitted, “At volume 2, page 1721 to 1724 the brother and sister of the victim deposed at Jallad Khana that the victim was killed by non-Bangalees; he never mentioned Abdul Quader Molla’s name which I have shown your lordships previously.”

He then moved the contradiction by PW 10. He submitted, “there is contradiction between his examination in chief and whatever he has submitted to IO. He deposed, ‘…after that I met Nizam in the month of June.’ Here there are two versions and both of them are hearsay. His second source is the source of PW5 as well. Now the question is- which version is true?” He further argued, “the witness cannot remove mistake as they come to the court against the Abdul Quader Molla.”

“Now, may invite your lordships to turn page 11 PW10’s deposition, 3rd line from top. Here the PW 10 deposed, ‘…it is not true that I have not told to I.O. that I heard that Abu Taleb was taken to Jalladkhana by Abdul Quader Molla.”

“Now, may invite your lordships to turn page 12, 5th line from the top. Here the PW deposed ‘…non-Bangalee accountant of Daily Ittefaq, instead of taking him to his house, handed him over to Biharis.”

“In contrast to that now at let us move to page 635, the deposition by the I.O., 3rd line from the top. ‘…it is true that PW 10 in his deposition before me stated that Khandoker Abu Taleb was killed by non-Bangalees.”

Quader Molla appeal, day 18: Defence arguments

2 June 2013

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Today there were 5 judges instead of 6 as on the previous thursday, 30.05.2013, one of the newly appointed judges in the Appellate Division Mr Siddiqur Rahman Miah retired from the service as he attained the age of retirement (currently 67 years) for the judges’ of the higher judiciary (Supreme Court).

Defence lawyer, Barrister Razzaq went to dais and started his submission with following words, “the previous day I was making my submission in relation to charge no. 03 and now I shall start with the witness testimony of P.W. 5 Khandoker Abul Ahsan (the survived son of victim Khandoker Abu Taleb) at page 576 of volume 2. However, before I start may please know whether this bench (which is now constituted of 5 judges) will continue hearing this appeal (as one of the member of the bench retired the previous day)? The CJ replied, “Even 4 judges are sufficiently competent to hear this appeal and we are 5 here so there will be no problem. Please continue.”

Razzaq then started reading out the witness testimony of the prosecution witness 5.

Razzaq then continued reading the deposition given by P.W. 5 He read both the examination and cross-examination including contradiction. As soon as finished, Sinha J. pointed out a part of P.W. 5 deposition at page 577 where he deposed as follows:

“On 29 March, my 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).”

Sinha J. asked for Razzaq’s comment on this particular part the witness expressly mentioned accused petitioner Molla’s name in his testimony. In reply, Mr Razzaq said, “My lord, I shall make my submission about that later on. Let me now move to the contradiction of P.W. 5 testimony with another P.W. for the same charge P.W. 10 Mr Syed Abdul Qayum, a friend of the victim.”

He then continued, “My Lord, at page 5 his witness testimony, he deposed that he met Faruk Khan, a friend of the victim Khandoker Abu Taleb, in the month of June 1971 when he had been at his native village Nasirnagar. From him P.W.10 came to know that local Aktar Goonda, Biharis and Abdul Quader Molla had killed the victim at Mirpur 10 ‘Jallad Khana’. He (P.W.10) returned home on 3 January 1972 after the independence. After he came to know from Nizam, the non-Bangalee driver of victim that he (victim) was coming his home at Mirpur with non-Bengali accountant Halim but Halim handed him (victim) over to the Biharis who slaughtered him to death at ‘Jallad khana’ (killing place).

Now, my lords, both of the prosecution witnesses are hearsay witnesses i.e. none of the prosecution witness actually seen the event, rather they heard about the event from a non-Bangalee Nizam (victim’s driver).”

He then argued, “the witness in his testimony mentioned ‘someone named Molla’. There is no clarification that who is that Molla. Let me come to the next page where the witness deposed someone named Molla saved his life. At the 2nd paragraph of page 10 of his testimony, the witness testified, ‘he who saved my, I used to treat him with tea and biscuit (from the tea stall) if I met him on the streets. He had got long beard and his name was some Molla. Further, P.W. 5, in his statement clearly stated that his father was killed by Biharis.”

He then continued with prosecution witness statement before I.O., “Now let us move P.W. 10’s statement to I.O. at page 1724 (4th line from the top)”. He then readout the statement and then submitted, “Accused Abdul Quader Molla had not been referred anywhere in this statement. He clearly stated that he (accused) was killed by Biharis. Next let us move to P.W. 5 statement before the I.O. at page 1726.” He readout the statement and argued, “Nowhere in his statement Abdul Quader Molla’s was not mentioned.” He then agreed, “the name of the Abdul Quader Molla were mentioned in the statement by victim’s son in relation to his father’s killing; the statement was made in 2010 though.”

Razzaq then moved to Kazi Rosy (P.W.)’s writings in relation to victim Khandoker Abu Taleb. He narrated from Kazi Rosy’s book, “He (victim) was attacked by non-Bangalees and they slaughtered him into pieces. It was heard that someone named Abdul Malek (non-Bangalee/Bihari) assured him (victim) assured him that the situation at Mirpur was normal. He (Malek) took him to Mirpur and then handed over him (victim) to Biharis (non-Bangalee).”

He continued with the evaluation of evidence and findings of the Tribunal in relation to the charge no. 03. He readout from the judgement.

Quader Molla appeal, day 17: Defence arguments

27 May 2013

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Razzaq went to the dais and started to read from paragraph 200 of the judgement by ICTB regarding relating to charge no 1

200. It is argued by the defence that the event of killing of Pallab was an isolated crime; even it is admitted to have taken place at the relevant time. This argument does not fit to the context prevailing at the relevant time. Besides, even a single murder or killing constitutes an offence of crime against humanity if it is found to have been perpetrated as a part of attack targeting unarmed ‘civilian population’. It is now settled jurisprudence that even a single or limited number of acts on the accused’s part would qualify as a crime against humanity, unless those acts may be said to be isolated or random, provided all other conditions being met.
201. The appeal Chamber of ICTR has observed in the case of Nahimana, Barayagwiza and Ngeze, [ November 28, 2007, para. 924] that – “A crime need not be carried out against a multiplicity of victims in order to constitute a crime against humanity. Thus an act directed against a limited number of victims, or even against a single victim, can constitute a crime against humanity, provided it forms part of a ‘widespread’ or ‘systematic’ attack against a civilian population.”
202. Next, section 3(2)(a) of the Act of 1973 describes that the attack must be committed ‘against any civilian population’. This requirement is consistent to the jurisprudence that the acts must be ‘directed against’ the population i.e. it must be ‘the primary object of the attack’.
203. The context of war of liberation in 1971 and pattern of launching attack causing murder of Pallab for which the accused has been charged (Charge No.01) with by itself suggests that the murder was not an isolated crime.
204. The learned defence counsel, by drawing attention to the CD (Material Exhibit-I series) argued that P.W.2 Syed Shahidul Huq Mama in an interview with the BTV, in narrating the atrocious events committed in Mirpur in 1971 has not made any account involving the present accused Abdul Quader Molla with any of events for which he has been charged with. Thus, his testimony made in Tribunal is not credible and it suffers from contradiction.
205. It appears that P.W.2 Syed Shahidul Huq Mama admitted, on cross-examination, that he on 20 April 2012 made an interview in a program titled ‘Ekattore Ranangoner Din guli’ in Bangladesh Television (BTV) wherein he described the events committed in the locality of Mirpur-Mohammadpur during the war of liberation in 1971 and he attempted to portray the correct account. But the journalists are in practice to exclude part of his narration, even add new words to it for which he is not responsible.
206. First, earlier statement or any account made to any non judicial forum is not evidence and it may simply be used to see inconsistencies or omissions with the evidence made in court. The explanation offered by P.W.2 is reasonable and thus if such prior interview is found to have not contained any narration hinting involvement of the accused with any of atrocities alleged committed in Miprur his sworn testimony made in Tribunal is not liable to be brushed aside, provided if his evidence in its entirety inspires sufficient weight in light of attending circumstances. Second, P.W.2 does not claim to have witnessed the accused in committing the event of killing Pallab. If really he had any motive he could testify falsely by claiming that he saw the accused committing the crime alleged. But he did not do it. This demeanor is appositely relevant in assessing his sworn testimony made in Tribunal.
207. Therefore, the Tribunal, in particular taking into account the demeanor of the P.W.2 and the explanation offered for the difference, if any, notes that his oral evidence made before us is not rendered to be contrived in nature and any of his prior account made in TV interview, for the reason agitated by the defence, cannot be the lone index in rejecting the evidence of P.W.2, whether in whole or in part.
208. Defence failed to refute the incident of murder of Pallab on the date time and in the manner as have been alleged. It is the fact of common knowledge that such pattern and systemized atrocities were committed through out the period of nine months in the land of Bangladesh and as such merely considering the number of victim of crime or the fact that an event related to single murder it is not correct to infer that the event of murder of Pallab was an isolated crime. The context in its entirety itself legitimately establishes that murder of Pallab was the outcome of a part of ‘systematic attack’ directed against member of ‘civilian population’.
209. From the unimpeached version of P.W.2 we have found that accused Abdul Quader Molla was culpably associated with Aktar Goonda and local Bihari extremists who during the early part of war of liberation committed serious crimes targeting the Bangalee and pro- liberation people residing around the Mirpur locality. It is to be noted that ccircumstantial evidence is evidence of circumstances surrounding an event or an offence from which a fact at issue may be reasonably inferred. Circumstantial evidence may be necessary in order to establish an alleged fact.
210. Proof of all forms of criminal responsibility can be given by direct or circumstantial evidence. Although it is proved that the local Bihari extremists and Aktar Goonda were the main offenders, yet it is proved beyond reasonable doubt that accused Abdul Quader Molla, for the reason of his continuing culpable association with the principals, had ‘complicity’ to the criminal acts constituting the offence of Pallab killing as he ‘consciously’ used to maintain such culpable association with the perpetrators in materializing the design of Pakistani occupation forces and Jamat E Islami the potential pro-Pakistan political organisation to extinguish the unarmed Bangalee and pro-liberation people and Awami league the political party which had leading role in encouraging the Bangalee nation for its self determination and independence.
211. The accused himself need not have participated in all aspects of the alleged criminal conduct. [ Stakic, (Trial Chamber), July 31, 2003, para. 439]. The actus reus of aiding and abetting a crime may occur before, during, or after the principal crime has been perpetrated [Blaskic, (Appeals Chamber), July 29, 2004, para. 48]. Accordingly, participation may occur before, during or after the act is committed.
212. We have got in the case on hand that the accused Abdul Quader Molla is not alleged to have committed any of crimes individually. It is proved that the accused used to maintain ‘culpable association’ with the local group of Bihari goons who were extremely antagonistic to pro- liberation civilians of Mirpur even just before commission of the crime alleged. His prior conduct and ‘culpable association’ is sufficient to connect him with the actual accomplishment of the attack constituting the offence of murder of Pallab as crimes against humanity perpetrated by his accomplices, the local Bihari goons. Committing a crime enumerated in the Act of 1973 may be done individually or jointly with others. Committing such crime may also be said to have been participated by the accused if he is found to have provided moral support or encouragement by his act or acts to the principals, even if he was not present at the crime scene. In light of this established facts and conduct of the accused, the above principles enunciated in the case of ICTY, as regards participation and conduct of accused forming attack provides support in holding the accused Abdul Quader Molla responsible particularly for the crimes alleged as listed in charge no. 1.
213. On cumulative evaluation of testimony and relevant facts and circumstances we have found that accused Abdul Qauder Molla and his Bihari accomplices masterminded and executed the killing of Pallab, a civilian, as a part of attack.
214. It is thus validly inferred that the accused having ‘awareness’ as to the consequences of acts and conduct of those Bihari perpetrators continued his association with them. It was not necessary that the accused must remain present at the crime site when the murder of Pallab was actually committed. In this regard the Tribunal also notes that “actual physical presence when the crime is committed is not necessary . . . an accused can be considered to have participated in the commission of a crime . . . if he is found to be ‘concerned with the killing.” [Tadic, (Trial Chamber), May 7, 1997, para. 691]
215. The accused Abdul Quader Molla is thus found to have had ‘complicity’ to the actual commission of killing Pallab in the manner by bringing him forcibly from Nawabpur. The reason of targeting Pallab was that he was in favour of pro-liberation activities and as such it may be unambiguously presumed that killing him was in furtherance of systematic attack directed against civilian population. As a result, the accused incurs criminal liability for having his ‘complicity’ to the commission of the murder of Pallab constituting the offence of crime against humanity as specified in section 3(2)(a)(h) of the Act of 1973 which is punishable under section 20(2) of the Act.

As soon as he finished reading out that, he commented, “..this is the finding, my lord. My submission is- this finding is not based on the facts.” He further submitted, “My lords, you remember that there are 2 witness regarding this charge P.W.-2 and P.W.-10.

Razzaq then made his submission on the probative value of hearsay evidence. He readout paragraph 174 of the judgement which is basically defence submission on this issue. 

174. Mr. Abdur Razzak the leaned senior Counsel for the defence has submitted that the charge no.1 is based on unattributable hearsay evidence. The event of Pallab killling is admitted. But in absence of any other corroborative evidence merely on the basis of unattributable hearsay evidence the involvement of the accused cannot be concluded. In support of his contention he has cited a decision on the confirmation of charges in the case of the Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui [(ICCC: Pre-trial Chamber I: 30 September 2008): Page 225 of the Final Argument Pack submitted by the defence]. The learned defence counsel added that anonymous hearsay evidence does not carry probative value, by citing another decision in the case of the Prosecutor v. Kajelijeli [(ICTR Trial Chamber : case no. ICTR-98-44A-T 01 December 2003): Page 230 of the Final Argument Pack submitted by the defence].

Afterwards, he read out paragraph 175 which is prosecution’s reply to defence’s submission on this issue. And finally he read paragraph 177 which is the tribunal’s finding on this issue. 

175. In reply, the learned Prosecutor has argued that hearsay evidence is admissible under the Act of 1973 and its probative value is to be weighed in light of other facts and circumstances. Thus the hearsay evidence cannot be excluded straight way. The hearsay evidence of P.W.2 so far it relates to charge no.1 appears to have been corroborated by some unimpeached relevant facts and circumstances. Under section 19(1) of the Act of 1973 the tribunal may admit any evidence tendered before it, which it deems to have probative value. Weighing and determining the probative value of hearsay evidence lies with the discretion of the Tribunal [Rule 56(2) of the ROP].
176. Charge no.1 is based on hearsay evidence. With regard to hearsay evidence, it should be pointed out first that this is not per se inadmissible. The Tribunal has the discretion to cautiously consider this kind of evidence and, depending on the circumstances of each case together with relevant facts.
177. First, it appears that the decision on the confirmation of charges in the case of the Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui [(ICCC: Pre-trial Chamber I: 30 September 2008): Page 225 of the Final Argument Pack submitted by the defence] relates to admissibility of hearsay evidence and it was found that anonymous evidence can be used to corroborate other evidence. Anonymous hearsay does not affect the admissibility of the evidence but could affect its probative value. In the above case the matter of probative value of hearsay evidence was questioned at pre-trial stage. According to the provisions contained in the Act of 1973 and ROP it is the Tribunal’s discretion which is to weigh the probative value of hearsay evidence in light of ‘other evidence’ relating to relevant facts and circumstances.
178. Second, we have found from the decision of the ICTR Trial Chamber given in the case of the Prosecutor v. Kajelijeli [(ICTR Trial Chamber: case no. ICTR-98-44A-T 01 December 2003): Page 230 para, 45 of the Final Argument Pack submitted by the defence] as cited by the defense that “....decision as to the weight to be given to the testimony based on tests of ‘relevance, probative value and reliability.” Accordingly, the Chamber notes that evidence, which appears to be “second hand”, is not, in and of itself, inadmissible, rather it is assessed, like all other evidence, on the basis of its credibility and its relevance.”
179. That is to say hearsay evidence is to be assessed like all other evidence, on the basis of its ‘credibility’ and its ‘relevance’. In the case in hand, hearsay evidence of P.W.2 is quite relevant to the material particular of facts relating to the event of killing and involvement of the accused therewith and as such not inadmissible. Such hearsay evidence is to be weighed now in light of ‘other evidence’ relating to relevant facts and circumstances.

Afterwards, he moved to the deposition by the P.W.-10 Syed Abdul Quiyum which is at page 6 of the additional bundle. Razzaq readout from his cross-examination, “I have given statement but what I have deposed I cannot remember those now...” and then he readout another part, “Someone named Pallab was the student of Mirpur Bangla College was killed by Abdul Quader Mollah.” Razzaq then submitted, “He (P.W.-10) did not depose from whom he had heard that.” Razzaq then further readout from his (P.W.-10) cross-examination, “It is not true that I have not told to I.O. about the murder of Pallab.” Razzaq then submitted, “That means he (P.W.-10) told the fact to I.O. but it was not in his statement before the I.O. and the I.O. in his cross-examination said that P.W.-10 did not say anything to him about Pallab’s murder.”

Sinha J. commented, “That is why the tribunal has come to this conclusion. You do not need to submit all these.” 

Razzaq replied, “In that case, my submission is- P.W.-10’s statement should totally be excluded as in such cases corroborative evidence is required.” Chowdhury J. disagreed and said, “No, it is not required in this scenario.” 

Razzaq then submitted, “Tribunal itself said in the judgement that they need corroborative evidence and corroborated other evidence. Let us see what other evidences of P.W.-10 were relied by the tribunal.” He then read out paragraphs 179 and 180 of the judgement. When he finished with reading, Sinha J. asked to him to read paragraph 139 and Razzaq readout that accordingly (this is basically tribunal’s summary on P.W.-2 Syed Shahidul Huq Mama’s deposition in respect of role and association of the respondent with Biharis and some people). 

Razzaq then posed a question, “Is this the charge against me?” He then submitted, “The tribunal is not in a position to say that I (respondent) have not disclosed with Jamat-e-Islam and some other people like Akter Goonda and etc.” He then read out paragraphs 281, 164 and 196 respectively. Razzaq then submitted, “I (respondent) have been convicted under section 2. Now what the lordships did was instead of deciding the case on ‘substantive contribution’, they decided the case on the basis of ‘complicity’.”

Razzaq then referred an ICTR trial chamber case on substantive contribution. He particularly relied on paragraph 395. Chowdhury J. then asked him, “What do you mean by substantive contribution?” Razzaq replied, “Whether I have contributed to the crime or the part of the crime etc.” Chowdhury J. explained, “In our Penal Code at section 39 there is definition ‘basic contribution’ and it does not require to be present in the crime scene.”

He then moved to paragraph 212 and submitted, “there is no evidence apart from culpable association; still they discussed in paragraph 215.” He further submitted, “In the charge it was stated that he (victim) was taken to Mirpur (section) 11 and then to Mirpur (section) 12 and then he was killed. Prosecution did not explain or narrate anything. Thus it is simply fiction.” He further submitted, your lordship has long experience in the bar and the bench..you say whether such deposition is sufficient enough to convict the respondent.”

After that the CJ simply asked Razzaq, “Do you have anything else to submit in relation to this charge? Razzaq replied, “We have another evidence D.W.-4. But ICT did not believe her but they believed hearsay evidence, where D.W.-4 is the only family member.”

Quader Molla appeal, day 18: Defence arguments

3 June 2013

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Defence lawyer, Barrister Razzaq represented Mollah. He went to dais and started his submission as follows:

“My Lords, I was in the charge No. 3. There were 4 major contradictions that started with the PW5’s statement at page 577 of part 2, 4th line from the top.” He readout few lines and argued, “he has not been deposed from where the victim was taken to Mirpur. Again while framing the charge it has been mentioned that he was taken to Mirpur but it was not explained how he was taken there. Now at page 579, 3rd paragraph 3rd line, it has been stated that he was on his way to Shantinagar. But in the charge framing order it is stated that he was going to Arambagh. But in the deposition of PW5, the name of Arambagh is absent; however, the name of Shantinagar has been stated though.”

Shamsuddin Chowdhury J. argued, “Shatinagar and Arambagh is same place. Arambagh is a part of Shantinagar.” Razzaq replied, “There is some distance, at least 1.25 to 1.5 km; the difference in the names suggests that the place are different; otherwise there would have been same name.”

Razzaq then submitted, “During charge framing, it has been stated he was caught from Mirpur 10 but the PW stated that he was caught from Ittefaq roundabout by a non-Bangalee.” Sinha J. argued, “Charge is always written in short; therefore, you will not find much details in the charge.” In reply, Razzaq argued, “My submission is due to this confusion, PW5 has lost his credibility due to this discrepancy.” Sinha J. then explained, “there is no relationship between charge and any PW’s credibility.”

Razzaq then moved to his next argument, “Secondly, there is a contradiction in the examination in chief of PW5. In the examination in chief he said that he has not seen the convicted petitioner at that time, however, in the other part of his deposition he deposed, ‘Abdul Quader Molla worked for Jamat-e-Islami cadidate in the election of 1970 in which his father took part as Awami League candidate and elected as a member of the parliament.’ Thus it appears that he has seen the convicted petitioner. Now let us come to the contradiction. At the page 578, he has deposed that he never saw Molla, the convicted petitioner, face-to-face.”

Razzaq then moved to the next contradiction, “My lords, lets come to the 3rd contradiction at page 580, last paragraph and 4th line from the top where he stated that, ‘it is not true that I have not deposed to I.O. that my father was taken to Mirpur by non-Bangalee Abdul Khaleq.’ That means he said that. But in the same volume at page no. 651 your lordships will find that the I.O. (PW12) deposed that ‘it is true that the PW5 did not tell me that his father was taken to Mirpur by non-Banglee Abdul Khaeq’. Therefore, my submission is this version of evidence is not reliable.”

Mr Razzaq the moved to the last major contradiction. He submitted, “At volume 2, page 1721 to 1724 the brother and sister of the victim deposed at Jallad Khana that the victim was killed by non-Bangalees; he never mentioned Abdul Quader Molla’s name which I have shown your lordships previously.”

He then moved the contradiction by PW 10. He submitted, “there is contradiction between his examination in chief and whatever he has submitted to IO. He deposed, ‘…after that I met Nizam in the month of June.’ Here there are two versions and both of them are hearsay. His second source is the source of PW5 as well. Now the question is- which version is true?” He further argued, “the witness cannot remove mistake as they come to the court against the Abdul Quader Molla.”

“Now, may invite your lordships to turn page 11 PW10’s deposition, 3rd line from top. Here the PW 10 deposed, ‘…it is not true that I have not told to I.O. that I heard that Abu Taleb was taken to Jalladkhana by Abdul Quader Molla.”

“Now, may invite your lordships to turn page 12, 5th line from the top. Here the PW deposed ‘…non-Bangalee accountant of Daily Ittefaq, instead of taking him to his house, handed him over to Biharis.”

“In contrast to that now at let us move to page 635, the deposition by the I.O., 3rd line from the top. ‘…it is true that PW 10 in his deposition before me stated that Khandoker Abu Taleb was killed by non-Bangalees.”

Quader Mollah appeal, day 16: Defence arguments

19 May 2013

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Razzaq went to dais and referred to the continental shelf case (Libya vs Malta) where the issue was whether their sea-line would be decided on the basis of ‘equitable principle’ or ‘equidistance principle’. Razzaq submitted that the main issue was whether case would be decided on the basis of customary international law or not. He further submitted to be considered as customary international law there must be 2 things- (i) practice and (ii) opinio juris and he referred the book of Brownlie, 5th ed. (1999) in support of his submission. S Chowdhury J. argued there are 3 elements and the additional and the first one is the ‘general acceptance’.

Razzaq then moved to the next case i.e. Nicaragua case, another famous case in the area of customary international law. He argued, in this case the court decided on the basis of customary international law rather on the basis of the above mentioned Continental Shelf case which can be found at paragraph 183 of the judgement.

He then readout the definition of ‘international customary law’ from page 4 of the book of Brownlie and he also referred the Article 34 of the Statute of the International Court of Justice. He then submitted that the Nuremberg trial followed the customary international law to administer the trials of the accused war criminals. He referred a case where 2 citizens of Estonia were accused of crime against humanity as they deported civilian population to Russia which was a crime under the Nuremberg agreement (page 18, last paragraph) which was confirmed by UN resolution as per his submission.

After that Razzaq then referred to a report by the International Law Commission. He further submitted that we have adopted some of the provisions of the UDHR. At this point S Chowdhury J. asked him, “How this letter (declaring the detention of Abdul Quader Molla illegal by one of the unit of UN) is a customary international law?” Razzaq replied, “My lord, give me 2 minutes and I shall explain it to you. They (a unit of UN) have said that Abdul Quader Molla’s detention was not inconformity with UDHR and ICCPR (both are customary international law).” However, CJ, Chowdhury J. and Sinha J. disagreed with this submission by Razzaq.

Razzaq then moved to national court decision in this regard. He submitted, “My lord now I shall refer you to two decisions of your lordships. It has been decided by the Appellate Division that ‘International law incorporated in the constitution has binding force’ and ‘international law not inconsistent with the provisions of the constitution has a persuasive force’.” Mahmood J. asked him, “Where are your references? Is that Ershad’s (case regarding the passport matter of ex-martial law administrator/ex- president of Bangladesh General Hussain Mohammad Ershad) case?” Razzaq replied, “Yes my lord and the reference is 21 BLD (AD) 69.” 

He read out 2nd paragraph of page 69 of the said case, “If the domestic law is not clear and is inconsistence with international law then the domestic court is obliged to respect international law.” Razzaq then referred the 2nd case which was regarding the child custody of the aforesaid ex-president of Bangladesh Hussain Muhammad Ershad and the reference is 17 BLC (AD) 77. Razzaq read out paragraph 17 of the decision before the court. Chowdhury J. and Sinha J. disagreed with this submission as the facts of none of the case have a connection with the present case but Razzaq submitted that he mentioned those case just establish applicability and the scope of the international law by our domestic court. Chowdhury J. tried to argue further but the CJ asked Razzaq to proceed.

Razzaq then moved to the evidence by PW1 at page 347 of part 2. 

As soon as he started, Wahab J. told him, “Khondoker Mahbub Hossain (the lead counsel in this case) has already shown this and we have marked it in our copy. You told us that you will submit only on law point but now you are moving to facts.” Razzaq insisted, “My lords, please see only one line of the cross examination at page 348 where the PW-1 deposed, ‘I saw him standing in front of Mohammadpur Physical Training Centre’ and we further asked him, ‘have you seen him on your own eyes (meant whether he seen directly?’. My lords, how it can be crime against humanity which requires the elements: attack on civilian, plan and policy, attack must be systematic, attack must be wide spreads etc?” 

Chowdhury J. tried to differ with this argument but the CJ asked Razzaq to continue. CJ further asked him, “what is your next submission?” Razzaq referred to PW-7 testimony at page 387 and started to read out. CJ stopped him and said, “Mr Razzaq you are repeating. Do you want to see (I have already marked in my copy)?

Razzaq then moved to the findings about PW-1 by the tribunal and started to read out. However, Wahab J. stopped him, showed that referred part has already marked him and said, “We have already marked this part. You told us that Khondoker Mahbub Hossain has made his submission on facts and you are going to make your submission on law point only. Razzaq agreed saying that, “OK, my lord. I shall just read that and then move to my next point.”

Razzaq then referred to an Indian case [AIR (1938) (Privy Council) 227] and moved to the relevant part (page 229, right side last paragraph) and read that out. The Bench was in the opinion “that is an established principle and no one disputes that.” The CJ added, “You have gone too far Mr Razzaq. We have decision regarding that.” Razzaq replied, “My lord, it is a Privy Council decision that’s why I have referred that.”

Razzaq then referred Bangladeshi cases in relation to same issue. He first referred a case from 39 DLR (AD) 166 and started to read out the relevant paragraph 22. But CJ stopped him and said, “There is no dispute about this. Please move to your next citation.” Razzaq then cited 2 cases- firstly, 15 DLR (AD) 60 and said that the relevant paragraph is 20. He then cited the second case and the reference is 3 DLR (FC) 37. I.

Quader Molla appeal, day 15: Defence arguments

16 May 2013

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The AG represented the state and Barrister Razzaq represented Mollah. Razzaq went to dais and submitted as follows:

“My lords, on the previous day, I was on the issue ‘why international law is applicable in deciding this matter?’. Let us see the short title, long title and preamble of the 1973 Act (ICT Act 1973). The word ‘international’ is used several times in the Act.” He particularly noted that, “International Crimes Tribunal Act 1973, this is the title of the Act. Here, the words ‘crime’ and ‘tribunal’ are noun and the word ‘international’ is adjective; thus the crime is international; not the tribunal. The long title it has been expressly stated that the Act is intended to provide for the detention, prosecution and punishment for crime sunder international law.” 

Sinha J. argued, “in the section 3 (2), the crimes has been stated and explained. The crimes- ‘genocide’, ‘crime against humanity’ and ‘war crimes’ are separately stated there. ‘Any other crime under international law’ is separate from the earlier ones. Thus, the phrase ‘under international law’ does not include all others.

Razzaq then continued his submission, “In the preamble the long title has been repeated. Now let us examine what are the acts considered as crime against humanity under section 3 (2) (a) of the ICT Act 1973 also considered as crime under the Penal Code as well. There are 10 acts under this sub-section (2) (a) of section 3; those are: (1) murder (also a crime u/s 300 of Penal Code), (2) extermination, (3) enslavement, (4) deportation, (5) imprisonment, (6) abduction (also a crime u/s 362 of Penal Code but abduction in the ICT Act is not similar to ‘general abduction’ under Penal Code), (7) Confinement (also a crime under Penal Code), (8) torture, (9) rape (also a crime u/s 375 of Penal Code) and (10) persecution. Among the 10 acts only 4 acts have been defined as crimes by the Penal Code; now, the question is- from where we shall find the definition of other crimes?”

He further submitted, “Murder’ has been defined differently under the Penal Code but still your lordships has considered that it has been defined. Now lets us move to the second crime under the section 3 (2) i.e. crime against peace which has got 3 elements: (1) preparation, (2) planning, and (3) violation of international treaties/agreements. The third crime Genocide is the most important one but it has not been defined. The crimes under this sub-section has not been defined either.”

Mr Razzaq then referred to a full-bench judgement of the Appellate Division of the Supreme Court Bangladesh which was cited in the DLR (Dhaka Law Reports). He particularly referred paragraphs 9 and 10 of the judgement and readout before the bench quoting D.C. Bhattachariya, “…one has to treat the Act wholly; one part of the Act is an aid to other…the preamble of the statute is one of the best things to describe the Act.”

He further referred to Indian case [AIR 1942 at page 17] (and relevant page is 18) on interpretation of the statute. 

After an adjournment, the bench sat again.  

Mr Razzaq, the defence counsel, went to the dais and said, “My lords, the previous day one of your lordships asked us to provide the list of the websites from where we have downloaded the cases we have submitted before your lordships. I am now submitting the list of the websites before your lordships.”

He then formally started his submission regarding the detention issue of the accused petitioner Molla. He particularly referred to article 6 of the UN Charter and submitted that UNHCR declared Molla’s detention was unlawful. Therefore, I shall request to your lordships to respect the customary international law.”

At this point Shamsuddin Chowdhury J. started arguing with the defence counsel Razzaq claiming that everything is not customary international law. The CJ asked Razzaq to continue apparently ignoring Chowdhury’s comment. 

Wahab J. argued, “detention might be unlawful during the trial process but now conviction has already been imposed, therefore, there is no problem now. At this stage, Sinha J.  asked “Whether the decision by UNHCR is binding upon us (on the Apex Court of the country)? What is the authority?” Razzaqq replied, “Under the UN Charter.” Sinha J. made counter argument, “Can you try a U.S. soldier in ICC? This is something like that- ‘if you agree (with international law) it’s OK, if you do not agree that’s also OK’”. Razzaq replied, “Well, the matter is different for Bangladesh. U.S. is not a signatory.”

He then continued his submission, The CJ interrupted at this point and asked Razzaq, “Before you proceed, may I ask you, was the government notified about the UNHCR decision that Molla’s detention was unlawful)?” Razzaq replied, “Yes, my lord. Learned Deputy AG is aware of the fact.” However, Shamsuddin Chowdhury J. criticised, “They are not even judicial body.” Sinha J. added, “If you choose any forum other than this court then go to them. Do not come to us.” Razzaq argued, “The Report by the International Law Commission is not binding on us but out court recognises that under customary international law”

At this point there was a harsh exchange of words between the Shamsuddin Chowdhury J. and the defence counsel Razzaq. Chowdhury J. heavily criticised, “Mr Razzaq, a lawyer of your standing should not mislead the apex court of the country. Everything you are identifying as customary international law is not the customary international law.” Razzaq replied, “My lord, you enlighten with huge knowledge but I have lesser knowledge. Please give us time so that we can study and then appear before your lordship.”

After that Razzaq, continued with his submission, 'My point is- here plan and policy is not an element of the crime. He then referred to a decision of ICTR.” He readout paragraph 86 of the said judgement in relation to elements of crime. Sinha J. aksed him, “What does knowledge means here?” Razzaq replied, “Knowledge means constructive or actual knowledge.” Sinha J. further asked him, “Why should we follow that ICTR decision? Please explain whether in our context it can be applied or not? That is why we need to know the facts and contexts.”  Razzaq replied, “My lord, if you ask I shall bring thousand page judgments for you.” The CJ warned, “Do not forget that it is the Apex court of the country, this is not just the appellate ICT.” Wahab J. added, “Probably this is the first time in the world the apex court has become the appellate authority.”

Afterwards, again there was an exchange between Chowdhury J. and Razzaq and Razzaq finally concluded, “I am a bad lawyer; I could not make understand my point.”

Quader Molla appeal, day 14: Defence arguments

15 May 2013
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Barrister Razzaq was present to represent Mollah. He went to dais and continued his submission on legal issues concerning this particular appeal. However, just before Razzaq started his submission, the bench informed him they have rejected the application for providing ‘Division’ (certain privileges in the prison) to the accused petitioner Mollah under Jail Code. This had been submitted yesterday and the bench heard the both parties. The bench did not read out any written order in this regard. Razzaq, the counsel for Mollah did not make any comment about the bench’s decision inside the courtroom.

Mr Razzaq started his submission with following words, “I was on the element of murder under the crime against humanity. I shall continue that and I am going to rely on some case laws in doing so. I have stored all those case laws in this CD and I am now providing copies of this for your lordships.”

He then provided 6 CDs to bench officers containing the cases on the element of murder under crime against humanity. Sinha J. then asked Razzaq to mention facts of those cases. Razzaq replied, “We have provided you the CDs. I believe you will able to find the facts in the case and the cases have been sorted chronologically.”

Mahmood J. asked Razzaq to provide them the list of websites from where they have downloaded the case so that he may be able to access those cases from his iPad.

Razzaq replied that he will provide them the same.

Mr Razzaq then finally started his submission. He started, “the first case I am citing is an ICTY case at page 23, paragraph 91 (of the case volume they have provided to the Bench).” He then submitted, “There are lot of crimes under section 3A of the ICT Act 1973.” And the CJ asked him, “And which one you are charged with?

Razzaq then referred the second case at page 26; it was an ICTR (trial chamber) case named Prosecutor vs Bisenjimana and submitted that paragraphs 48 and 49 of this case is relevant to this matter which actually says, “attack must be on civilians”. Chowdhury J. argued, “the case is based on a war situation.”

Razzaq replied, “We are not going into that, however, the preamble of our constitution says that there was an war between Bangladesh and Pakistan. And later on India join the war; it was an international armed conflict as the constitution is the supreme law of the country.”

Razzaq then moved to the next case. It is also ICTR case named Prosecutor vs Semanza. The relevant paragraph is 330 which he read out before the bench. And then he submitted, “charge No. 4 relates to only 2 freedom fighters, therefore, it is not crime against humanity.”

He referred another case and referred paragraph 114 where it has been decided, “if someone takes arms in his hand he becomes combatant.”

Razzaq then referred to paragraph 131 at page 69 of ICTB judgement. Chaowdhury J. argued that “this is not polticial.” Razzaq then referred paragraph 71 at page 72 of the same ICTB judgement.

After that Razzaq showed the relevant international provision on the element of crime against humanity “Attack must be systematic and wide speared.” First, he referred ICTY legislation at page 130 of his bundle. Here the relevant provision is at article 5 at page 135 and he readout the article. Then he referred Rome Statute at page 29. Here the relevant provision is at article 7 at page 32 and he readout the article. After that, he referred ICTR legislation 1994 at page 144 and here the relevant provision is at article 3 at page 148 which he read out. He further referred Cambodian legislation at page 91. Here the relevant provision is at article 5 at page 92 and he readout the article. He finally referred the Sierra Leone legislation at page 121 and the relevant article is 2. And he readout the article.

Razzaq summed up that, “in the ICTY legislation the element ‘wide speared and systematic’ was not present. It was introduced first in the ICTR legislation.” He then referred an ICTY case at page 35. Here the relevant paragraph is 646 at page 46. The CJ then asked him, “What is your proposition?” Razzaq replied, “this element of crime against humanity is not present in our legislation.”

Razzaq then submitted, “There are differences between genocide and crime against humanity; and crime against humanity and homicide. Genocide was not in the 1945 (Nuremberg Agreement) because it was not in the customary international law. Genocide Convention came into force in 1948 but we know people were killed in the gas chamber by Nazi force which was not characterised as crime of genocide.” He then added, “Our ICTB accepted part of my argument i.e. “Wide speared OR (not and) Systematic” but we are not satisfied. That’s why we are saying, “Wide speared AND systematic.” He then referred page 36, particularly paragraph 46 of the ICTB judgement.

Chowdhury J. then told the counsel for convicted petitioner, “Any international document does not ipso facto become international customary law. It has to be followed for long time.”

Razzaq replied, “My argument is- killing has to be systematic and widespread.” He then moved to paragraph 648 at page 37. But Chowdhury J. argued, “Here, they have not said widespread; they have in fact said here, Organised and systematic.” Razzaq then further submitted, “law has changed since Nuremberg, ICTR and ICTY. However, only Nuremberg is applicable for us because crime has to be there at least. Although retrospective effect can be given but crime has to be there under the customary international law.”

Razzaq started his submission with, “I was submitting on one of the elements of crime under humanity i.e. attack must be wide speared and systematic. International Law Commission Report, 1996 (48th Session) at page 32 also supports our argument.” He read out the definition and commentary.

He then submitted, “the Charter of Nuremberg trial (Article-6) does not include such a provision but in many cases before it, it considered that the crime was systematic.” He further submitted that, “International Law commission report is a part of customary international law”.

He then moved to page 89 of part 1 (judgement) and then submitted, “Section 3 (2) (a) is incompatible with the international jurisprudence. Article-5 of ICTY legislation did not require this (wide speared and systematic nature of attack).” He then referred to the ICT judgement and submitted, “My submission is, the tribunal lordships have accepted that; partially though.”

He then moved to page 32 of the latest judgement by the tribunal-1 (Sayedee’s matter) but CJ stopped him saying that, “It is a subjudice matter (appeal is pending before the same court)”. Razzaq replied, “I shall just refer the appeal No. 40 of 2013, page 32, subparagraph 2 (of paperbook no.-1) where their lordships have agreed that the attack must be ‘wide speared OR systematic’ and my submission is it must be wide speared AND systematic’. If your lordship has any doubt then I shall remove that by the way of my submission.”

He then referred an ICTY (trial chamber) judgement at page 39. Here the relevant paragraph 236 is at page 40 where the elements refer to ‘large scale’ and ‘systematic’. He referred the next case at page 41 which is a well-known ICTR case. Here the relevant paragraph 123 is at page 42. After that he referred another well-known case at page 43. Here the relevant paragraph he mentioned was 580 at page 44. He then submitted that “the concept of systematic means ‘thoroughly organised’.” Razzaq then referred his next case at page 49 which is also an ICTY case decided in 2001. Here the relevant paragraph he mentioned was 179 at page 50. Then he said, “My submission is the offence is not crime against humanity; it is totally redundant.”

Razzaq then moved to page 53, article-6 of Nuremberg Charter and readout the 3rd line from top. He then moved to article-7 of the Statute of ICC at page 58. Here the relevant paragraph he read out was paragraph-2 at page 59. These provisions relates to one of the elements of crime against humanity- “attack directed to a civilian population”. He then submitted, “We are member of ICC.”

He then referred the next case which was an ICTY case. The relevant page he referred was page 62 of his bundle. Razzaq then referred couple of cases. The last one was a Sierra Leone case at 64. The relevant page he mentioned was page 66. He mentioned that the prosecutor in this case was a very famous member of American Bar. Chowdhury J. asked Razzaq to read paragraph 41 from the top of this case and Razzaq read out.

It was 1 pm then and the CJ adjourned the hearing until next day.

Quader Molla appeal, day 13: Defence arguments

13 May 2013

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Barrister Razzaq was present to represent Mollah instead of the chief counsel K M Hossain. He went to dais and started to make his submission.

He referred an Indian case [1941 AIR 331] and readout a paragraph from page  339. Sinha J. identified that the paragraph Mr Razzaq readout is from a dissenting opinion. Razzaq agreed and added, “Yes, my lord and I am inviting your lordships to give dissenting opinion to secure justice if necessary.” He then submitted, “ My submission is strict interpretation should be given.”

He then stated, “The first paragraph of the preamble of the ICT Act 1973 states that it is an Act to provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes and other crimes under international law. Now lets us see what is meant by ‘international crime’.” Sinha J. argued, “here the crimes ‘genocide’, ‘war crimes’ are expressly stated.” Razzaq argued, “Then offence murder is quite different from genocide. Further, under section 3 (2) (a) of the ICT Act 1973, there is no definition of murder.”

Sinha J. asked counsel Razzaq, “Was there any Act for Nuremberg trial?” Razzaq replied, “No, my lord.” Sinha argued, “Then why are arguing that definition of crime is required; Nuremberg did not have any Act even!” Razzaq replied, “But there was an agreement; most importantly there was customary international law and Nuremberg Tribunal agreed to follow that.”

Razzaq then submitted, “I shall show the elements of crime against humanity.” 

Now let us see what is the source of customary international law? The sources have been mentioned in the Article 38(1) of the Statute of the International Court of Justice. I am particularly relying on sub-article (b) international customs and (c) general principles of law recognised by civilized states.”

Mr Razzaq then argued, “the ICTY (1993), ICTR (1994) ICC, ECC (1999), Sierra Leone are post-Nuremberg courts/tribunals trying this kind of offence and apart from Sierra Leone, other courts/tribunals are formed long ago; Sierra Leone is the most recent one. Therefore legal principle/definitions enunciated in the earlier ones are not applicable for us.” 

In response to that, the CJ argued, “But our one is the different one. It is a domestic tribunal. You have argued that the definitions of the crimes are not described in our Act; lets see what AG argues.” 

AR replied, “Yes, my lord. For example, the definition of murder is not in our Act.” 

Sinha J. asked, “if it is recognised then is it necessary to define?” 

AR replied, “yes, my lord. I am now showing you the definition of murder under the crime against humanity. There are total 7 elements of murder under the crime against humanity. Among these 7 elements there are some elements that are not present in the definition under our Penal Code. Under the customary international law the definition is different.” 

Shamsuddin Chowdhury J. interrupted at this stage and argued, “Listen Mr Razzaq, definition of murder has been come from common law.” 

AR argued the 7 elements distinguishes ‘murder under crime against humanity’ from ‘murder under common law’.

He then submitted, “The offence committed in 1971 and the Act came into force in 1973. In this case retrospective effect has been given but that offence must be a crime under the customary international law in 1971. Here, the crime against humanity was not in our law of the land. Therefore, we need to see whether it was in the then customary international law.” He then referred article 15 of the ICCPR.

After that Mr Razzaq referred some case from the volume he provided the bench. At first, he referred ICTY case at page 7 of that volume. Then he referred another ICTY case at page 9 of the same volume; the relevant paragraph of this case was 194 at page 10 of the volume. He basically explained the objective and subjective element of the crime against humanity from these 2 cases. After that, he moved to page 11 (relevant page 12) and referred an ICTR case. The ICCPR, ACHR, ECHR (HR instrument of 3 continent) were referred by the judge in the relevant paragraph he read out. He argued, that point was accepted by the ICTB-1 in the Delwar Hossain Sayedee’s case (ref: page 17, paragraph 16)

He then again reverted back to his point ‘the element of murder’ under the crime against humanity. He submitted that, “There are among the 7 elements, there are 6 actus reaus nd 1 mens rea. And among the 7 elements some have been accepted by our tribunal. The 7 elements are as follows: (1) there is an attack which has nexus with the accused, (2) attack caused any of the offences (mentioned in s. 3 (2) (a), (3) victim must be a civilian, (4) attack must be of either nationality, racial or religious ground, (5) attack must be wide speared, (6) attack was a part of a plan, and (7) accused’s knowledge. Among these elements the first 6 are the actus rea and the last one is the mens rea.

Mr Razzaq then referred section 3 (2) (a) and pages 1 to 11 of the Nuremberg Charter. The CJ argued, “Our position is better because we have a legislation but Nuremberg did not have that.” AR replied, “We have borrowed everything from Nuremberg because we did not have an option then; there was no other example of trying war criminals apart from Nuremberg.”

Razzaq then further argued, “If the customary international law is accepted, then the judgement against Mollah will be blown away. Therefore, so far our tribunal accepted the customary international law, should be applicable.” 

Shamsuddin Chowdhury J. then asked AR to look General Pinochet judgement.

Then AR moved to the Agreement of Nuremberg by the Nuremberg Access Countries. Wahab Miah J. then asked AR to see article 6 of the agreement and quoted ”acting in the interest of the Nuremberg Access Countries.” Sinha J. asked AR to go through the preamble of the Nuremberg Agreement.

After an adjournment, Mr Razzaq went to the dais and started to make his submission regarding an application (division application under the jail code by the accused petitioner). He submitted that the division was originally granted by the tribunal but it was subsequently cancelled by the jail authority after the pronouncement of judgement against the accused petitioner. AR particularly argued, as the appeal has initiated the matter is still pending.

CJ then said, “Yes Mr AG, what is your submission regarding that?” Instead of the AG, DAG (who is the liaison official for ICT case) came to the dais and submitted, “The division was cancelled after the conviction therefore the jail authority has not done anything wrong.” 

AR argued, “It was granted by the ICT but cancelled by the Jail authority.” Mr Razzaq basically tried to argue whether the jail authority has power to cancel a division which was granted (upon application) by the ICT. Wahab J. said, “No one is wrong; the Tribunal has the power to do that; and so has the jail authority.” Finally, the CJ said that they shall give the order regarding this (division) tomorrow.

Mr Razzaq then continued his submission on the appeal of Mollah. He argued, “Legal principles of Nuremberg is applicable for us because before 1971 there was no other tribunal of this nature in the world.” He then again revert back to the element of crime issue. He argued, “To be a murder under he crime against humanity, there must be an attack” and he referred an ICTR case [Nahimana vs Prosecution (2007)] and an ICTY case [Kunarac (2002)] relevant paragraph 99 (series of acts and nexus).

After that, he further argued, “To be a murder under he crime against humanity, the must be on civilians.” and he relied on following case to support his argument- Prosecution vs Bisenjimana [ICTR, 2006], Prosecution vs Semanza [ICTR (Trial judgement), 2003] and Blaskic vs Prosecution [ICTY (Appeal Judgement), 2004]

Quader Molla appeal, day 12: Defence arguments

7 May 2013

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On 18th April 2013, the bench heard for the first time matters relating to the defence appeal and had asked both parties to submit the concise statement by 2nd May 2013; although the chief counsel for accused petitioner Barrister Abdur Razzaq prayed 4 weeks’ time to submit the same, the bench allowed only 2 weeks.

At the beginning, the AG informed to the bench that they have submitted the concise statement. However, Barrister Razzaq, the chief counsel for accused petitioner in this matter, submitted an application for extension of time on 2nd May 2013

Mr Razzaq went to dais. And the CJ asked him, “Why did not you submit the concise statement?” Razzaq replied, “My Lord, we prayed for 4 weeks’ time but you allowed us only 2 weeks.” CJ argued, “You have submitted the application for extension of time on 2nd May and today is 7th May; it is already 3 weeks now. We have respect on you that is why we did not bring the matter up in the meantime.” In response to that Razzaq replied, “We have mutual respect for you as well. Please allow us to more weeks and I promise I shall not pray for any further time.”

Mr Razzaq then added, “One more thing, we have not received the concise statement of appeal no. 40 (appeal by the government).” The AG stood up and claimed, “No, my lord. We have served them.” CJ asked for the proof and AG took back the appeal bundle which he submitted to the bench officer at the beginning and he started to search for the proof. 

In the meantime, Mr Razzaq readout relevant provision from the Rules and Procedure of the Supreme Court in support of his claim. AG then agreed that the concise statement was not served as he did find any proof of serving it. 

CJ then asked Mr Razzaq to conclude his submission. Razzaq then submitted, “My respectful submission is to allow us 2 more weeks’ time to submit the concise statement.” And then CJ asked the AG to make his submission (if any) against that. 

AG then submitted, “In respect of extension of time my submission is it should not be allowed as we have already submitted our concise statement by the time given by you. I shall serve the copy of our concise statement by special messenger.” Sinha J. said, “You need not to submit it as it has already been submitted to the office of the register; they shall collect it.” CJ asked AG, “Have you finished your submission?” AG replied, “Yes my lord.”

The CJ then pronounced the order in respect of the time petition. He extended the time until 16th May 2013 (9 days instead of 2 weeks). He explained, “initially the counsel for accused petitioner prayed for 4 weeks and they submitted the application for extension of time on 2nd May i.e. already 5 days has passed after they submitted the application. Therefore, by 16th May it will be 2 weeks from the date of application.” (Time was calculated from the date of application of extension of time instead of today. The bench also considered the initial date of application and prayer for 4 weeks’ time.)

The tribunal then moved onto the appeal by the government.

Barrister Razzaq was present to represent Mollah. He went to dais and reminded the bench that he was submitting on sections 20 and 21 of the ICT Act 1973. He also gave 6 copies of a volume containing 6 judgements he was going to rely in his further submission.

At first, he referred page 195 of his volume and read out a part of an Indian judgement supporting his argument that strict interpretation of the statute should be considered. He kept reading, “..if there is any ambiguity then it will go in favour of the accused. If there are 2 interpretations, then the lenient one should be applicable.” 

He then read a long paragraph (paragraph 12) of an Indian Judgement [AIR 1991 (SC) 1289] 

After that, he moved to a short paragraph (paragraph 90) of another judgement [2004 1SCC 597] regarding section 21 of ICT 1973. 

Afterwards he moved to paragraphs 15 and 16 of a Bangladeshi judgement [56 DLR 454] on a criminal matter under the Nari O Shishu Nirjatan Daman Ain (Act to stop violence against women and children). In this case death reference was rejected as under section 11 of the said Act the only punishment was death penalty. He argued, “It is unprecedented anywhere in the world.” 

He then explained to US and UK court structure to show that there are 2 appellate forums in both countries e.g. in US there are Federal Courts and then State Supreme Court and then Supreme Court of USA, similarly in UK there Crown Courts, then Court of Appeal and then Supreme Court of England and Wales to try a criminal offence but here in Bangladesh there is only one appellate forum. 

Mr Razzaq then referred to another Bangladesh judgement [42 DLR (AD) 195] from page No. 195 of his volume, and 2 more Indian cases AIR 1992 (SC) 1785 at page 210 of this volume and AIR 2002 (SC) at page 207 of his volume (he read out the relevant paragraph page 208). 

He further referred a judgement by Lord Simon of Chancery Bench at page 232 of his volume. At this stage CJ asked Mr Razzaq, “What was the case about?” Mr Razzaq was could not gave a straightforward answer to that. Then the CJ argued, “It was not Lord Simon; he was in the House of Commons. How would he decide a case in the Chancery Division?” Mr Razzaq could not give a reasonable answer to that question.

The CJ then said, “We understand your submission. Do want to submit anything further?” In response Mr Razzaq replied, “My lords, I am just summing up.” He then referred and read out Article 16 of the Collaborators Act.

He then continued his submission. His main arguments were as under:

1) There is no restriction in the ICT Act 1973 to cross-examine prosecution witnesses;

2) The entire purpose of the appeal will be frustrated if AG’s submission is accepted.

He then referred a case from BLD 1966. He then said, “The general purpose of the cross examination is to find out the truth and it should be allowed.” 

He then readout section 10 (i) (e) of the ICT Act 1973

10. (1) The following procedure shall be followed at a trial before a Tribunal, namely:- ...
(e) the witnesses for the prosecution shall be examined, the defence may cross-examine such witnesses and the prosecution may reexamine them;

 and argued, “this proceeding should be followed.” Wahab J. added, “this provision is the same as the Evidence Act 1872”. 

He then readout rule 53 (ii) of the International Crimes (Tribunal-2) Rules of Procedure 2012. 

He then argued, “What has given by the Act cannot be taken away by Rules.” 

He further readout section 9 (3) of the ICT Act 1973:

(3) The Chief Prosecutor shall, at least three weeks before the commencement of the trial, furnish to the Tribunal a list of witnesses intended to be produced along with the recorded statement of such witnesses or copies thereof and copies of documents which the prosecution intends to rely upon in support of such charges.

Wahab J. then suggested, “You should also refer the first proviso of section 162 of Code of Criminal Procedure 1898 where it is required to provide the copy of the prosecution statement to the defence. Is there any such provision in the ICT Act or Rules?”

Justice AHM Shamsuddin Chowdhury added, “Principle of fair justice demands it and you have got that, right?” Razzaq replied, “Yes, my lord.” 

Mr Razzaq then readout rule 18 (1) of the International Crimes (Tribunal-2) Rules and Procedures 2012 and he argued, “There is no provision to provide it to defence.” Mr Razzaq then moved to section 3 (2) of the ICT Act as in the charge no. 4, the accused respondent was charged with subsections (a), (g) and (h) of section 3 (2).

Quader Molla appeal, day 11: Defence arguments

2 May 2013

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Mr Hossain went the dais however, he was just wondering where to start. Mahmood J. helped him saying that, “You were at PW8’s testimony yesterday.”

Mr Hossain then moved to the testimony of the I.O.  “The place of genocide is Ghatarchar. PW8 Nurujahan was 13 in 1971, however, I did not ask her to show her national identity/voter card to confirm her age. On 30/06/12 he been to PW8 Nurjahan’s house. The distance between the place of incident and Nurjahan’s house is about 5 km. I been to her house alone; there was no one with me.”

Mr Hossain then submitted referring the testimony of the PW8, “She found her husband dead at her husband uncle’s place. Now the issue is- there is no proof that he was killed at the place of genocide.”

Sinha J., disagreed with his submission asked him to explain further. Mr Hossain explained, “Her husband been to his uncle’s place hearing the firing and later on her husband’s aunt came and informed her (PW8) that her husband was dead. Further, the firing started at the time of Fazr prayer (normally between 4:30 am to 5:30 am) and she (PW8) came out of the house after the firing stopped (around 11 am as per witness testimony)” 

Mr Hossain then quoted from PW8’s testimony, “…hearing that, I been to my uncle’s husband’s place...a short black guy aimed something like a rifle to me and I returned home due to fear and then again I went to my husband uncle’s house and found my husband laying on the ground in backside up position. When I turned him back I found blood…I heard from the word of mouth of my father-in-law that a person named Quader Mollah of Jamat killed my husband.” 

Mr Hossain then added, “No such thing was told to I.O.”

He then moved to I.O.’s cross examination at last paragraph of page 437 to show the contradiction. He read it out and submitted, “she has not testified the same to I.O.” 

About the PW7 he submitted, “His family left the village and instead of running away with them, walked 5 km alone and saw the incident hiding in a bush!” Mr Sinha J. asked, “Why that will be so?” Mr Hossain replied, “the I.O. has testified that the distance between Nurjahan’s place and the place of incident is 5 km far.”

Mr Hossain then submitted, “the charged was framed on 28/05/12 and witness testimony was started on 03/07/12. PW1 is not the witness of the genocide; witnesses are mainly PW7 and PW8. And the PW7 and PW8 did not mention the name of the respondent Abdul Quader Mollah and both are hearsay i.e. after the incident they came to know the name of the respondent. And hearsay is not admissible.”

At this point Sinha J. readout from the statement of PW, “the incident took place on 25/11/71 and he testified on 15/01/11.” In response Mr Hossain readout a part from the testimony of I.O. “On 30/06/12, for the purpose of investigation…” Sinha J. again argued, “You are saying she did not testify the same at all.” K M Hossain argued, “I.O. visited the place of incident on 30/06/12, why did not he visit the place at the time of taking the testimony or immediately after that? 

Sinha J. disagreed with him and asked him to read the testimony again.

There was an adjournment

K M Hossain went to the dais and started to make his submission. At this stage he focused on the history of this case. He submitted the case was transferred to ITCB on 21/07/2010 and the charge-sheet was submitted on 03/10/2011. He then moved to the 2nd paragraph of I.O.’s statement where he testified that the date of incident is 25/11/1971 and he visited the place on 15/01/2011. CJ interrupted and explained, “There are 2 incident here- one is act of genocide and another is killing of PW8 Nurjahan’s husband.” K M Hossain then further argued, “I.O went to Nurjahan’s place after the charge-sheet was submitted; the case was closed then already.” He made some further arguments after that.

Finally, Mr Hossain finished his submission on 12:30 pm. Once he finished, Mr Abdur Razzaq stood up and said he will make some further argument and the Court allowed him to do so. Mr Razzaq came to the dais and made following submission:

“My Lords, first of all I shall readout the section 20 and 21 of ICT Act 1973 regarding the provision of appeal (he read out accordingly). Now, my lord, may I invite your lordship to move section 20 (2)? (he read out accordingly). Now the issue is- whether an acquittal under section 21 means acquittal entirely or it means acquittal from a charge only? My submission is- here acquittal means acquittal entirely. Now let me readout the definition of acquittal from page 25, 3rd paragraph from top of Black’s Law Dictionary (the most authentic law dictionary in the world). (he gave copy to each judge and then readout the same. It is lengthy definition, however, as per the dictionary meaning acquittal mean ‘to set free to walk’ in short.) Thus, my humble submission is- acquittal means someone walking outside of the custody freely.”

Then he moved to Code of Criminal Procedure (CrPC) 1898. He submitted, “Although the CrPC is not applicable in this case but we can take some assistance from that to interpret the ICT Act. According to CrPC, an ‘order for acquittal’ means an accused is walking free. Thus, my submission is- ‘acquittal’ means ‘acquittal in total; not in a particular charge’. Further, the provision was not in the original Act, it was inserted after the judgement has been pronounced.”

“May I invite your lordship to the amendments of the ICT Act. By the 2nd amendment (on 14/07/2009), the provision of appeal (section 21) was changed which is, ‘the Government shall have right of appeal against an order of acquittal. Here, acquittal mean acquittal in total i.e. set walking free’.”

“My lord, the Act was further changed by the last amendment which is now the current law- ‘government shall have the right of appeal against an order of acquittal and order of sentence’. Now, my humble submission is, the government appeal is incompetent. It is also incompetent because of other grounds as well. The accused respondent was convicted on 5th February 2013 and the amendment was passed far after the judgement on 18th February 2013. Further, CrPC, CPC, Evidence Act is not applicable to this case. Therefore, my submission is stricter interpretation is required. My further submission is- any ambiguity will go in my client’s favour.”

He then read section 20 and submitted, “according to the provision of this section, the trial court can use their diligence irrespective to their findings- guilt or innocence; and decide whatever in their opinion ‘just and proper’. Your lordship should take a note of that. It has been further supported by rule 46 (3)- ‘deemed fit and proper to the tribunal’.”

“Now may I invite your lordships to look section 302 (punishment for murder) of the Penal Code for assistance. Here the provision is, ‘shall be punishable with death or imprisonment for life’. In the ICT Act, according to the sub-section 2, the provision is ‘death or any other punishment’- which is similar to the Penal Code. The AG has submitted that the punishment must be ‘the death’ because ‘death’ is in the first place. My submission is- it is totally wrong.”

Justice Wahab said, “No, he (AG) said death sentence is the provision and ‘proportionality’ is the exception.”

Chowdhury J. added, “And the ‘proportionality principle’ applies only to non-death sentences.”

Mahmood J. said, “In India, according to the recent change, they have swapped the positions; ‘imprisonment for life’ comes first then ‘death’ sentence has been placed and special order/permission is required for imposing death sentence.”

In response to that Barrister Abdur Razzaq said, “My submission is, they can give any sentence in accordance with the proportionality and gravity of the offence.” Mahmood J. replied, “yes, you can argue it.”

Wahab J. further explained, “Only in the Nari O Shishu Nirjatan Daman Ain (Law against the violence against the woman and child) for the offence of ‘rape with killing’ the punishment is ‘ONLY death’; no other option. Parliament has not left any option in that case but here in this case there are options.”