25 April 2013
See previous day's hearing
On behalf of the state the Attorney General went to the dais to make his submission.
The Chief Justice asked him, “Mr Attorney General, we know there are two appeals. Which appeal does your submission relates to? The AG explained, “The submission is in respect of appeal no. 24 (appeal by government).”
The CJ asked for the original 1973 International Crimes (Tribunal) Act, and all the amended versions (in 2009 and recently in 2013) of the International Crimes Tribunal Act to AG, however, the AG replied they do not have all the versions. Then the CJ asked the counsel for accused petitioner Mr Abdur Razzaq to assist the AG. Mr Razzaq then confirmed the Bench they will provide those by Sunday (28.04.2013). However, afterwards those have been provided by the AG.
The AG started making his submission referring to section 20 of the 1973 Act (Judgement and sentence) of the ICT Act. He readout subsection 2. 'Upon conviction of an accused person, the Tribunal shall award sentence of death or such other punishment proportionate to the gravity of the crime as appears to the Tribunal to be just and proper.'
See previous day's hearing
On behalf of the state the Attorney General went to the dais to make his submission.
The Chief Justice asked him, “Mr Attorney General, we know there are two appeals. Which appeal does your submission relates to? The AG explained, “The submission is in respect of appeal no. 24 (appeal by government).”
The CJ asked for the original 1973 International Crimes (Tribunal) Act, and all the amended versions (in 2009 and recently in 2013) of the International Crimes Tribunal Act to AG, however, the AG replied they do not have all the versions. Then the CJ asked the counsel for accused petitioner Mr Abdur Razzaq to assist the AG. Mr Razzaq then confirmed the Bench they will provide those by Sunday (28.04.2013). However, afterwards those have been provided by the AG.
The AG started making his submission referring to section 20 of the 1973 Act (Judgement and sentence) of the ICT Act. He readout subsection 2. 'Upon conviction of an accused person, the Tribunal shall award sentence of death or such other punishment proportionate to the gravity of the crime as appears to the Tribunal to be just and proper.'
He then explained before the lordships that the appeal is mainly against the acquittal in respect of charge no. 4. He then read the summary of the charge No. 4 from paragraph 276 at page 131 of the judgement delivered by the ICTB.
Adjudication of Charge No.4 [Ghatar Char and Bhawal Khan Bari killing]
276. Summary Charge No.04: During the period of War of Liberation ,on 25.11.1971 at about 07:30 am to 11:00 am the accused Abdul Quader Molla one of leaders of Islami Chatra Sangha and as well as prominent member of Al-Badar, being accompanied by his 60-70 accomplices belonging to Razaker Bahini went to the village Khanbari and Ghatar Char (Shaheed Nagar) under police station Keraniganj, Dhaka and in concert with his accomplices, raided the house of Mozaffar Ahmed Khan and apprehended two unarmed freedom fighters named Osman Gani and Golam Mostafa there from and thereafter, they were brutally murdered by charging bayonet in broad day light. In conjunction of the event of attack the accused and his accomplices attacking two villages known as Bhawal Khan Bari and Ghatar Chaar (Shaheed Nagar) , as part of systematic attack, opened indiscriminate gun firing causing death of hundreds of unarmed civilian village dwellers including the civilians named in the charge no.04 and thereby the accused had actively participated, facilitated, aided and substantially contributed to cause murder of two unarmed freedom fighters including large scale killing of hundreds of unarmed civilians and thereby committed the offence of murder as ‘crimes against humanity’, 'aiding and abetting’ the commission of the offence of murder as ‘crime against humanity' or in the alternative he had 'complicity in committing such offence' as mentioned in section 3(2)(a)(g)(h) of the International Crimes(Tribunals) Act,1973 which are punishable under section 20(2) read with section 3(1) of the Act.
After that, he readout the findings of the ICTB started from paragraph 292 at page 135 of the judgement. He read paragraphs 294, 296, 297, 298, 299, 300, 301, 302, 303 and 305 respectively.
While reading paragraph 294, he emphasised that it is not disputed the “established presence of the accused”. He also emphasised the ‘question before the ICTB’ in paragraph 296, “which one is true version?”. He further emphasised the following part of paragraph 298, “…has contributed serious doubt as to the credibility and truthfulness of his (PW7) testimony.”
The AG considered paragraphs 299 and 305 as the final findings. The learned AG also gave importance last 4 lines of the paragraph 300 where it has been mentioned, “the claim that PW7 learnt about the complicity of accused from PW8 does not carry any value”.
After that AG read out the testimony of the PW1 Mozaffar Ahmed Khan, PW7 Abdul Mazid Palwan and PW8 Nurjahan. (see Index of Molla evidence to access all evidence)
He referred to where the PW1 mentioned the name of the accused petitioner Abdul Quader Mollah and how he (PW1) saw him in front of Mohammadpur Physical Training Centre. He (PW1) further identified “the accused petitioner Abdul Quader Mollah is present in the dock.”
In relation to PW7 Abdul Mazid Palwan’s testimony he particularly refered to his testimony: “there were some other people wearing panjabi(traditional dress worn by Pakistanis as well as by Muslims)…Pakistani Armed forces opened fire and there was a short man with them who had rifle in his hand; he also fired. Later I came to know that short man was Abdul Quader Mollah.”
After a short adjournment, the bench sat again just after midday.
The AG then moved on to PW8 Nurjahan’s testimony. Justice Sinha asked about a particular point, 'Was that done by rajakars only? Or done by army and rajakars?” AG readout the stated paragraph and confirmed that it was done by army and rajakars. Then CJ asked AG to proceed.
AG then continued “…saw with rifle at Mohammadpur” but Justice Mr Wahab Miah interrupted him again and asked him, “What is difference between the time he (PW1) saw him (accused) at Mohammadpur and date of incident?” “What is distance between the 2 places (Mohammadpur Physical Training Centre and place of genocide Alokdi village?” The AG replied, “about 10 miles, my lord.” Mr Justice Wahab then argued, “Then how can you connect (the 2 events)?” The AG humbly replied, “If you take it as a whole canvas, you will be able to connect my lord.” The CJ then reminded him (AG) about the difference of time. AG replied, “PW1 saw him (accused) on 1st November 1971 and the genocide took place on 25th November 1971.”
The AG then continued reading out PW8’s examination in chief and ended up with reading out her (PW8) cross examination at page 393 of the paper book. He then argued, “She (PW8) is a natural witness.”
He then moved to the testimony of PW12 Abdur Razzaq (who is Investigating Officer in this case. The AG argued, “he (PW12) testified that PW7 did not tell him ‘exactly’ what he (PW7) testified before the tribunal that does not mean that he (PW7) did not mention it at all.” The AG then continued to page 438 where PW12 stated in his testimony “he (PW7) did not tell me the way he told before the tribunal but he mentioned that to me.” The AG then concluded, “…these are the evidence in respect of our appeal. On the basis of these evidence, I shall submit my findings before your lordships.”
The AG then read out section 8 (Investigation) of the ICT Act. Mr Justice Sinha then argued, “It is the general rule.” Mr Justice Mahmood added, “If it is so, in that case there was no reason to take statements by the Investigating Officer.” Mr Justice Sinha further added, “If someone does not give statement to Investigating Officer, then there is no scope to examine him.”
In response to that the AG argued, “My Lords, according to section 23 of the International Crimes Tribunal Act, Code of Criminal Procedure (1898) and the Evidence Act (1872) does not apply in this matter” He further mentioned chapter 6 and rule 56 (gazette notification No. 4698 by ICTB-2).
The hearing was adjourned.
294. The fact of death of victims resulting from the attack launched in the locality of Ghatarchar and Bhawal Kahnbari is not disputed. The accused is alleged to have accompanied the principals in perpetrating the crimes (as listed in charge no.4). Of course the burden is on prosecution to establish first the presence of accused at the crime site and then his conduct or act that provided encouragement or moral support to the principals in committing the offence of crimes against humanity. Only after proving the presence of accused at the crime site, it is to be adjudicated whether the death of victims was a result of act or conduct of the accused and it must be the only reasonable inference that can be drawn from the evidence and circumstances. ‘Awareness’ as to consequence of act or conduct on part of the accused is sufficient to prove contribution of accused to the commission of the murder of victims.
295. However, now let us evaluate what the P.W.1, P.W.7 and P.W.8 have testified in relation to charge no.4 . Of them P.W.7 and P.W.8 claim to have witnessed the event that allegedly continued from early morning to about 11:00 am of 25 November 1971. The attack was allegedly launched directing the civilian population of village ‘Ghatarchar’ and ‘Khan Bhawalbari’ under keraniganj police station district Dhaka. A gang of Pakistani army, Biharis and Al-Badar allegedly perpetrated the crime while accused Abdul Quader Molla is also alleged to have accompanied them.
296. First, we find that P.W.7 has made conflicting version as to the fact that accused accompanied the Pakistani army having rifle in his hand. Because, once he claims to have witnessed the accused at the crime site having rifle in hand and then claims to have learnt that a person named Abdul Quader Molla accompanied the gang after they had left the crime site. Which one is true version?
297. P.W.7 has not even disclosed the source of his knowledge as to presence of accused at the crime site. Next, according to him, he on hearing frequent gun firing from the end of northern part of village started approaching to that end and then he saw the accused Abdul Quader Molla with the Pakistani army. This version does not seem to be natural. Because, normal human prudence suggests that, particularly in circumstances prevailing through out the country, it was not natural for a Bangalee civilian to come forward to a place from which direction the perpetrators were moving with frequent gun firing. Rather in such a horrific situation non combatant civilians were supposed to escape. But P.W.7 claims that he rather moved forward to see what was happening. It is not believable as well.
298. Next, P.W.7 denied that he did not state what he has narrated here in Tribunal incriminating the accused with event alleged. But it appears that the I.O P.W.12 has stated that P.W.7 did not state all these to him implicating the accused, during investigation. Earlier statement made to IO is not evidence, true. But it is used to contradict what the witness deposes in court. Thus, it appears that there has been a fatal omission in earlier statement made to IO as to pertinent fact relating to culpability of the accused with the alleged event of attack causing mass killing of unarmed civilians which is a ‘glaring contradiction’ in evidence made before the Tribunal by P.W.7 on material particular which has created serious doubt as to credibility and truthfulness of his testimony.
299. This being the situation, naturally the hearsay evidence as to the fact of learning the event by P.W.1 from Abdul Mazid Palwan (P.W.7) loses weight and thus does not inspire any amount of credence.
300. Admittedly P.W.8 does not claim that she knew accused Abdul Qauder Molla even since prior to the alleged event. Her version goes to show that she learnt from P.W.7 that a person named Qauder Molla had killed her husband. But already we have found that P.W.7 Abdul Mazid Palwan has made seriously contradictory testimony as to seeing the accused at the crime site accompanying the principals carrying rifle in hand. His evidence has been rather found to be subsequent embellishment which is a glaring contradiction on material particular. Thus, the claim that P.W.7 learnt about the complicity of accused from P.W.8 does not carry any value and it adds no corroboration to what has been testified by P.W.7.
301. Next, the version as made by P.W.8 that she also found, at the place where her husband was killed, some army men and a Bangalee of black complexion and dwarf height who by a rifle in his hand asked her to leave the place does not prove that the said person was nobody but accused Abdul Qauder Molla. Therefore, identification of accused on dock 40/41 years after she had seen the said ‘Bangalee person’ at the crime site cannot be relied upon at all as it is not even possible to keep one’s face memorized particularly for a traumatized wife of victim.
302. Drawing attention to the above version defence suggested that she did not state it to the IO. P.W.8 denied it. But the IO (P.W.12), while contradicting P.W.8’s evidence made before the Tribunal, has stated that P.W.8 did not state it to him during investigation. That is to say, there has been crucial omission in her earlier statement on material particular. Indeed such omission in her earlier statement turns her testimony made here in Tribunal as subsequent embellishment which is a glaring contradiction that makes testimony of P.W.8 significantly unbelievable and perverted.
303. Like all elements of a crime, the identification of the Accused must be proved by the Prosecution beyond reasonable doubt. In assessing identification evidence, it is to be taken into account a number of relevant factors, including: the circumstances in which each witness claimed to have observed the accused; the length of the observation; the familiarity of the witness with the Accused prior to the identification; and the description given by the witness of his or her identification of the accused. But as we see, the evidence does not inspire us to believe that the P.W.7 and P.W.8 were familiar as to identity of the accused even since prior to the alleged event. None of these two witnesses claim so.
304. In view of above discussion and reasons the Tribunal notes unanimously that it has not been proved beyond reasonable doubt that the accused Abdul Quader Molla accompanied the Pakistani perpetrators to the crime site having rifle in hand and that the person whom P.W.8 claims to have seen at the crime site was none but the accused. It is not plausible too that P.W.8 had learnt from P.W.7 that accused Abdul Qauder Molla accompanied the principals to the crime site to the accomplishment of the offence of mass killing. Because. Testimony of P.W.7, in this regard, has been found to be disgustingly conflicting and contradictory inspiring no credence.
305. Mere fact that P.W.1 saw the accused standing in front of Physical Training center, Dhaka having rifle in hand, on one day prior to the alleged event, does not connect the accused with the commission of the event of massacre as listed in charge no.4. Although form this relevant fact it can be validly inferred that during the war of liberation the accused had complicity with the Pakistani occupation army as an armed member of Al-Badar. Therefore, we are persuaded to note that the commission of the event of mass killing by launching attack directing the civilians as crimes against humanity on the date time and in the manner causing deaths of numerous civilians has been proved. Besides, commission of crimes alleged is not disputed. But for the reasons as stated above we are not convinced to arrive at decision that the guilt of accused has been proved. Prosecution has failed to prove participation or complicity or act on part of the accused to the commission of the offence of crimes against humanity by adducing lawful and credible evidence. As a result accused Abdul Quader Molla is not found to have incurred criminal liability for the commission of offence of mass killing as crimes against humanity as listed in charge no.4.
While reading paragraph 294, he emphasised that it is not disputed the “established presence of the accused”. He also emphasised the ‘question before the ICTB’ in paragraph 296, “which one is true version?”. He further emphasised the following part of paragraph 298, “…has contributed serious doubt as to the credibility and truthfulness of his (PW7) testimony.”
The AG considered paragraphs 299 and 305 as the final findings. The learned AG also gave importance last 4 lines of the paragraph 300 where it has been mentioned, “the claim that PW7 learnt about the complicity of accused from PW8 does not carry any value”.
After that AG read out the testimony of the PW1 Mozaffar Ahmed Khan, PW7 Abdul Mazid Palwan and PW8 Nurjahan. (see Index of Molla evidence to access all evidence)
He referred to where the PW1 mentioned the name of the accused petitioner Abdul Quader Mollah and how he (PW1) saw him in front of Mohammadpur Physical Training Centre. He (PW1) further identified “the accused petitioner Abdul Quader Mollah is present in the dock.”
In relation to PW7 Abdul Mazid Palwan’s testimony he particularly refered to his testimony: “there were some other people wearing panjabi(traditional dress worn by Pakistanis as well as by Muslims)…Pakistani Armed forces opened fire and there was a short man with them who had rifle in his hand; he also fired. Later I came to know that short man was Abdul Quader Mollah.”
After a short adjournment, the bench sat again just after midday.
The AG then moved on to PW8 Nurjahan’s testimony. Justice Sinha asked about a particular point, 'Was that done by rajakars only? Or done by army and rajakars?” AG readout the stated paragraph and confirmed that it was done by army and rajakars. Then CJ asked AG to proceed.
AG then continued “…saw with rifle at Mohammadpur” but Justice Mr Wahab Miah interrupted him again and asked him, “What is difference between the time he (PW1) saw him (accused) at Mohammadpur and date of incident?” “What is distance between the 2 places (Mohammadpur Physical Training Centre and place of genocide Alokdi village?” The AG replied, “about 10 miles, my lord.” Mr Justice Wahab then argued, “Then how can you connect (the 2 events)?” The AG humbly replied, “If you take it as a whole canvas, you will be able to connect my lord.” The CJ then reminded him (AG) about the difference of time. AG replied, “PW1 saw him (accused) on 1st November 1971 and the genocide took place on 25th November 1971.”
The AG then continued reading out PW8’s examination in chief and ended up with reading out her (PW8) cross examination at page 393 of the paper book. He then argued, “She (PW8) is a natural witness.”
He then moved to the testimony of PW12 Abdur Razzaq (who is Investigating Officer in this case. The AG argued, “he (PW12) testified that PW7 did not tell him ‘exactly’ what he (PW7) testified before the tribunal that does not mean that he (PW7) did not mention it at all.” The AG then continued to page 438 where PW12 stated in his testimony “he (PW7) did not tell me the way he told before the tribunal but he mentioned that to me.” The AG then concluded, “…these are the evidence in respect of our appeal. On the basis of these evidence, I shall submit my findings before your lordships.”
The AG then read out section 8 (Investigation) of the ICT Act. Mr Justice Sinha then argued, “It is the general rule.” Mr Justice Mahmood added, “If it is so, in that case there was no reason to take statements by the Investigating Officer.” Mr Justice Sinha further added, “If someone does not give statement to Investigating Officer, then there is no scope to examine him.”
In response to that the AG argued, “My Lords, according to section 23 of the International Crimes Tribunal Act, Code of Criminal Procedure (1898) and the Evidence Act (1872) does not apply in this matter” He further mentioned chapter 6 and rule 56 (gazette notification No. 4698 by ICTB-2).
The hearing was adjourned.
No comments:
Post a Comment