Chowdhury judgement: extract on 'Plea of Alibi'

Extract from the Judgement of the case of Salauddin Quader Chowdhury. Full judgement can be downloaded here

(This post is linked to the following page 'Tribunal not consider submitted affidavits supporting SQC’s alibi')

XVIII. Plea of Alibi

244. In the instant case, defence has taken a plea of alibi that accused Salauddin Quader Chowdhury was not in Bangladesh during the War of Liberation in 1971 contending that he left for West Pakistan on 29 March, 1971 and came back to Bangladesh on 20 April, 1974. It may be mentioned here that as per provision of Rule 51 of the ROP, the burden of proof as to plea of alibi shall be upon the defence. But mere failure to prove the plea of alibi by the defence shall not render the accused guilty.

245. In order to prove the plea of alibi, the defence has examined 4 witnesses including the accused himself. Accused Salauddin Quader Chowdhury as D.W.1 made a long vivid description of his family history and the role played by his father late Fazlul Quader Chowdhury in the field of politics of this sub-continent. He has testified that he took active part in anti-Ayub movement in 1969 as well as in the non-cooperation movement for the cause of independence of Bangladesh. He has narrated that after the crack-down, the Pakistan army on 25 March, 1971, committed heinous crimes and genocide in the whole of Dhaka City in the state of panic.

246. D.W.1 Salauddin Quader Chowdhury, the then pre-liberation hero has surprisingly stated that instead of joining the War of Liberation , he left Dhaka on 29 March 1971 for West Pakistan to take higher education there and he came back to Bangladesh on 20 April, 1974.

247. The accused is required to prove the following issues as to prove plea of alibi: (1) Onus is entirely on the accused to prove the plea of alibi. (2) The defence is to prove affirmatively that during the War of Liberation in 1971 the accused was continuously staying in West Pakistan since 29 March to 16 December,1971. (3) The defence is to prove that the accused was not present in Bangladesh in 1971, at the time when the occurrences took place in Chittagong.

248. The defence has examined D.W. 2 Nizamuddin who is a schoolfriend of the accused and D.W. 3 Qayum Reza Chowdhury is his first cousin and D.W. 4 Abdul Momen Chowdhury is the husband of wife’s sister of D.W. 3 Qayum Reza Chowdhury.  

249. On perusal of the evidence adduced by D.W. Nos. 1-4, it is found that D.W. 1 (accused) claimed to have gone West Pakistan on 29 March, 1971 for getting admission in Panjub University and his two first cousins, D.W. 3 Qayum Reza Chowdhury and Salman F.Rahman and his friend D.W. 2 Nizamuddin visited Karachi in the month of April 1971. D.W. 3 QayumReza Chowdhury has claimed that he dropped Salauddin Quader Chowdhury at Tejgaon Airport on 29 March 1971 for flying to Karachi but while he visited Karachi he could not meet the accused during his stay in West Pakistan. DW.4 Abdul Momen Chowdhury has stated that in 1971, he was posted at Tanzania as 3rd Secretary of Pakistan Embassy and with intent to go to East Pakistan, he halted at Karachi for two weeks and at that time one day he went to the office of his batch-mate Asiqur Rahman where he was acquainted with accused Salauddin Quader Chowdhury for the first time. He has stated that he could not visit East Pakistan during the War of Liberation in 1971 for scarcity of PIA ticket at Karachi.

250. D.W. 3 Qayum Reza Chowdhury claimed that he met his Bhaiyra (wife’s sister’s husband) D.W. 4 Abdul Momen Chowdhury in the office of Asiqur Rahman at Karachi while D.W. 4 Abdul Momen Chowdhury testified that during his stay in Karachi at that time D.W. 3 Qayum Reza Chowdhury met him at his residence. The above contradiction as to place of meeting between D.W. 3 and D.W.4 is not ignorable which has, at least, weakened the plea of alibi.

251. It is a fact of common knowledge that in the night following 25th March 1971, while Pakistan army launched “ Operation Search Light” in Bangladesh by killing millions of unarmed Bangalees at that time the Bangalee people who were residing in West Pakistan started to leave the enemy country, i.e. Pakistan at the risk of their lives. Accused Salauddin Quader Chowdhury has testified that he comes of a Muslim family but he is not a Bangalee and he is a Bangladeshi by choice and not by birth. Since the accused proudly claims that he is not a Bangalee, it can be presumed that the accused as a non-Bangalee might have gone to West Pakistan as his first home during the War of Liberation in 1971. But the fact remains that the defence did not produce any travel or residential documents to show the date of so-called visit to West Pakistan and staying therein during the War of Liberation of Bangladesh. The defence in violation of the provision of section 9(5) of the Act submitted some documents before the Tribunal at the fag end of defence argument and intentionally refrained from proving those documents by recalling defence witnesses. As such the defence has miserably failed to prove its plea by documentary evidence that the accused stayed in West Pakistan during whole period of the Liberation War of Bangladesh.

252. Now let us examine the evidence produced by the prosecution to prove that the accused was all along present at his father’s residence named “Goods Hill” at Chittogong during the War of Liberation.

253. The investigation officer of the case has proved a paper clipping of ‘Dainik Pakistan’ dated 29.09.1971(Exhibit-10) under the caption “ XXXX”. In the said report it has been stated that the miscreants made an attack by throwing bomb on the car wherein son of Fazlul Quader Chowdhury was present. As a result the driver was killed while son of Fazlul Quader Chowdhury sustained severe injury and he was provided treatment in hospital.

254. The investigation officer has also proved a fortnightly report (Exhibit- 94) of political situation for the second half of September, 1971 from Special Branch, East Pakistan Dacca, prepared on 02.10.1971 by M.M. Hossain, Deputy Inspector General of Police where it was reported in clause No.III as “on 20.09.1971 evening, rebels fired at the car of Salauddin Quader Chowdhury S/O late Fazlul Quader Chowdhury, President, P.M.L at Chandrapara, Chittagong. They also threw a hand grenade in front of the car. Salauddin Quader Chowdhury was injured and his driver was killed.”

255. It was reported in the ‘Dainik Pakistan’ dated 29.09.1971 (Exhibit-10) that on sustaining injuries by bomb blasting accused Salauddin Quader Chowdhury was admitted in hospital for treatment. To substantiate the above occurrence, the prosecution has examined one doctor who was on duty in Chittacong Medical College Hospital in 1971. P.W-27 Dr. A.K.M Shafiullah has testified that in 1971 he served in Chittagong Medical College Hospital as an Assistant Registrar at Surgical Unit No.1. He has further stated that in the late September 1971 at around 10.00/10.30 P.M, on getting a call from his ward, he rushed to the hospital and saw there many people including army and police. He also saw accused Salauddin Quader Chowdhury sustaining severe injury in his leg, was lying in a bed. He has further stated that the accused was provided proper treatment from their hospital and thereafter he heard that the accused had been taken to Dhaka or abroad for better treatment. He has identified the accused in the dock. In cross-examination, he has denied the defence suggestion that the accused the defence suggestion that the accused was never admitted in Chittagong Medical College Hospital and they did not provide treatment to the accused in the month of September, 1971.

256. The prosecution evidence such as report of the Dainik Pakistan (Exhibit-10) and the report of the S.B (Exhibit-94) prepared by DIG of police and the evidence of P.W-27 Dr. Shafiullah are considered as most authenticated and reliable evidence to hold that accused Salauddin Quader Chowdhury was very much present in Bangladesh during the War of Liberation. Thus, the above mentioned unshaken evidence have totally destroyed the plea of alibi taken by the defence.

257. Besides the evidence discussed above, the evidence adduced by the eye witnesses deserve special consideration for adjudicating the plea of alibi. On perusal of the eviedence adduced by eye-witness such as P.Ws. 2,4,6,7,14,15,17,19,22,24,28,31,32 and 37 have categorically testified before the Tribunal that they saw accused Salauddin Quader Chowdhury accompanied by Pakistan army and Razakars while in order to commit genocide they directed attacks upon unarmed people of Hindu Community of different villages of the locality and some of them saw the accused at Goods Hill while they were abducted and tortured therein. All the aforesaid P.Ws identified the accused on dock as they belong to same locality and they also recognized the accused at the crime sites while he took part in the commission of genocide and crimes against huminity accompanied by Pakistan army and local Razakars. Thus, the prosecution has successfully proved by documentary and direct evidence that Salauddin Quader Chowdhury was very much present in Chittagong during the War of Liberation in 1971.

258. We have also found support in the decision of Aftabuddin -vs- State reported in BCR 1986(AD) 239. Their Lordships have observed on the point of plea of alibi in the following language:- “ (b)whether the defence plea of alibi supported by evidence or the prosecution evidence to the contrary is to be accepted as true and reliable is entirely for the court to decide. In this case, there is direct evidence from a number of witnesses including the victim P.W-2 that the accused was present on the spot and participated in the assault. If their statements are accepted as true, the plea of alibi will stand rejected.”

259. The decision cited above is squarely applicable in the present case. In the instant case also, a good number of eye-witnesses including victims recognized the accused at the place of occurrences during the War of Liberation in 1971. The evidence adduced by those eye-witnesses has been accepted as true and reliable. Thus, we hold that the plea of alibi taken by the defence in the instant case stands rejected.