Tuesday, September 17, 2013

Quader Molla appeal, day 10: Defence arguments

30 April 2013
To see the previous day's proceedings

It was the 2nd day of respondent’s submission in the appeal by the state (no. 24/2013).

Respondent’s counsel Mr K M Hossain went to the dais and started to make his submission.

“The original ICT Act 1973 has been amended several times purposefully. It can be easily noticeable from the trend of its changes.” He then read out the preamble of the original Act. He then submitted, “The respondent is not a member of armed forces or auxiliary force.” He then read out the definition of auxiliary force. After that, he submitted, “They have included by the way of amendment the terms, ‘any individual or group of individuals’. My submission is by this amendment the very purpose of the ICT Act 1973 has been frustrated.”

Mr Hossain further added, “It was the election manifesto of the ruling party to try the war criminals. At that time we thought that they are going to try those war criminals who got forgiveness from them previously (the then ruling party as well) as per the definition of “war criminals” stated in the original Act.” 

He further added, “Your lordships has set aside lot of provisions of the constitution earlier. My submission to do the same in this case too.” However, the CJ argued, “This is not the issue in this case.” Sinha J. added, “You got scope to come to the court regarding this issue before the matter was decided.” In response to that Mr Hossain argued, “I am here to pray ‘complete justice’. They could not provide any evidence that the respondent was a member of any auxiliary force like Al-Badr, Al-Shams etc. that is why they amended the provision of the law by inserting the terms, ‘individual or group of individuals’. It is very much clear that they have done it purposefully.”

Mr Hossain further submitted that, “The prosecution witnesses are mainly hearsay witnesses. From whom those hearsay witnesses heard, there is no whereabout of those people.” Mr K M Hossain then referred Chapter-6: Rules of Evidence at page 45 of the compilation laws provided to Bench by them. 

However, Wahab Miah J. pointed out that the said Rules of Evidence has been framed by ICTB-2 and applicable only to them; not in the case of ICTB-1 (decided Mollah’s matter). Counsel for the Respondent Mr Razzaq agreed with him. Mr Hossain apologise and then moved to the rules for ICTB-1 at page 47 of the said compilation. He read out the rule and suggested that the story of magazine, drama has now become the hearsay evidence. However, Wahab J. argued, that the hear-say evidence has got some probative value as per the rule 56 (2).

Mr K M Hossain then submitted that, “In 1971, Mirpur was such a place that no Bangalees dare to go there even in the daylight. PW1 was such a brave man that he came to look what is happening even after seeing the Pakistani force. We want justice my lords…we want justice. Pakistani force were scared about mukti bahini. Before going for operation in any place they used to send local police in that place and take clearance from them. The District Commissioner (D.C.) was informed before the Pakistani Army was moved from one place to another. Where are those Police Officers, Officer-in-Charge and D.C.s?” 

He further submitted, “A powerful country like Israel apologise to Turkey for the unlawful trespass by Israeli fighter-aircrafts…but Pakistan did not apologise till today! Basically the government is conductinging atrocities, puppet-show in the name of justice. When I been to London, a lord criticised about the judiciary of Bangladesh.” The AG and CJ protested and Mr Hossain further added, “My lord, I have protested as well and I replied to him, ‘our judge will uphold the justice and constitution when necessary.” Justice AHM S Chowdhury disagreed saying that, “They have very good impression about our judiciary. I been to UK recently.”

After an adjournment, counsel for respondent K M Hossain went to the dais and started to make his submission again.

He submitted that the appeal is not maintainable. In support of his submission he first read out the charge number 4 and then he argued, “In support of charge no. 4 there are 3 witnesses- PW1, PW7 and PW8. I shall now read out their testimony.” The CJ said, “It has already been read out by the learned AG.” Mr Hossain then argued, “He has read it on his own way and I shall read it on my own way.” 

He then started to read out PW1’s statement. He argued, “PW1 was a freedom fighter and he was inside Bangladesh. How could he enter such an area where the majority was Pakistani Biharis and there was notorious torture cell in that area? It is a story. Another issue is- how could he recognise the respondent Abdul Quader Mollah with rifle in hand?

Wahab Miah J. replied, “Please see the first 2 lines of the examination in chief. PW1 worked for Awami League candidate of Mirpur area and Abdul Quader Mollah worked for Jamat-e-Islami candidate Ghulam Azam in the National Parliamentary Election of 1970. That is how he knew the Respondent.” 

In response to that Mr Hossain argued, “This testimony can be used differently. As he worked for Awami League candidate therefore it can be argued that he is an ‘interested party’ in this case.”

Mr Hossain further submitted, “In this case, it is being shown that he was a great Jamat leader on the other hand, it is also being shown (at the same time) that he was standing (or patrolling) in front of the gate of Mohammadpur Physical Training Centre with rifle in hand as a sentry! If he were a great leader (as claimed) then he was not supposed to stand there with rifle in hand. For example, the attorneys or prosecutors do not carry rifles by themselves; rather their bodyguards carry rifles (or small arms).”

Wahab Miah J. also suggested another point to Mr Hossain, “You can also say, according to his (PW1) testimony he was a student of class 10 then. Normally, a student of class 10 is not brave enough to do so (entering into a bihari area and passing a notorious torture cell). On the other hand, according to his testimony he moved with his troops, then how come he resisted himself from firing and fighting with the rajakar/army just because of his father advice?” 

Further, in the charge it has been stated that the act of genocide was done by rajakars, however, the prosecution witnesses testified that it was done rajakars and Pakistani force.” K M Hossain further added, “Prosecution did not name them as ‘rajakars’ or ‘al-badr’; rather they simply categorised them as ‘group of individuals’.”

Then Mr Hossain moved to the testimony of PW7. He started to read out the testimony but the CJ said, “it has also been read out and I have already marked in my copy.” However, Mr Hossain still read out the statement and then argued, “How come the PW7 witnessed all these hiding in a bush during frequent gun firing? And he did not testify all those to the I.O.”

After that, Mr Hossain moved to the ‘contradiction’ of I.O. (he is also a prosecution witness in this case). He argued, “the I.O. said, the PW7 did not testify exactly the same whatever he testified before the ICT”. He then readout the whole paragraph. He further argued, “In the charge it has been specified that the genocide was by rajakars (only). However, here the PW has testified that it was done by Pakistani force and the respondent was with them.” He submitted that, “My respectful submission is- you must consider all these altogether.” 

In response to that Sinha J. argued, “It is not something material. Charge can be changed; nothing wrong with that.” However, Hossain replied, “But the charge was it was done by 60-70 rajakars and the live PW testified it was done by Pakistani force and rajakars were with them.” “The PW7 instead of running out to opposite direction, came forward to see what was going on”, he added.

Finally, Mr Hossain started to read out the testimony of PW8. The CJ said, “It has also been read out. Please read out the only portion you are relying on.” Mr Hossain read out certain parts of the examination in chief, “…saw a short, black guy on the yard of my husband’s uncle’s house. He aimed something like a rifle towards me..” “…I have from the word of mouth of my father in law that my husband killed by some Abdul Quader Mollah of Jamat.” Mr Hossain argued, “here the PW8 is a hearsay witness. There is no evidence to show that her father-in-law knew the respondent.”

Mr Hossain then moved to the contradiction by I.O. He read out, “The PW8 did not tell me that she saw a short and black guy.”

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