This is the defence appeal application in relation to Quader Molla that was filed in the appellate division of the supreme court in early March 2013
This is part one of the application. The second part ('Grounds') can be found here
You can download the prosecution application/response here (large document:11 mb)
You can download the prosecution application/response here (large document:11 mb)
1. That the instant Criminal Appeal is arising out of the Judgment and Order dated 05.02.2013 passed by the International Crimes Tribunal No. 2 (ICT-2) in ICT-BD Case No. 02 of 2012 convicting the Appellant in Charge Nos. 1, 2, 3, 5 and 6 for the offences of Crimes Against Humanity under section 3(2) of the International Crimes Tribunal Act 1973 (‘1973 Act’) and sentencing him to single sentence of ‘imprisonment for life’ for Charge Nos. 5 and 6 and single sentence of ‘imprisonment for fifteen (15) years’ for Charge Nos. 1, 2 and 3 under section 20(2) of the 1973 Act with direction to run the sentences concurrently.
2. That the Appellant is a law abiding citizen of the country. He has born on 2nd December 1948 in Jariperdangi, Union of Chor Bishnupur, Under Police Station of Sadapur, Faridpur. He completed his primary school education in 1958 from Jariperdangi Government Primary School. Following this he attended Amirabad Fajlul Haque Institution in 1959, completing his SSC in 1964. During his school education he received scholarship in 1959 and 1961. Subsequently he attended Faridpur Rajendra College in 1964 and completed HSC in 1966. He passed BSC in 1968 from the same college. He then was admitted to the Department of Physics at the University of Dhaka in December 1969 but was unable to complete his masters due to the war of liberation in 1971 in the University of Dhaka; he was a resident of Shahidullah Hall.
3. Following the Liberation War in 1971, the Appellant was admitted to the Department of Institute of Education and Research, receiving his Diploma in Education in 1975. During 1974-1975 he was employed as a teacher at Udayon School, Dhaka. In the year 1977 he completed Masters in Educational Administration securing first class first position. Thereafter he joined as a senior teacher of Rifles Public School, Dhaka. He also performed as acting Principal of that School. The Appellant joined the political group Jamaat-e-Islami in May 1979. Prior to this he was involved with the student wings of Jamaat-e-Islami. After his joining Jamaat-e-Islami he was appointed as Director of Education as well as Sub-Editor of the party’s paper, ‘The Daily Sangram’. He was elected as the vice-president of Dhaka Journalist Union in 1982 and in 1984. Following this he was appointed Secretary-General of the party in the Dhaka district in 1983 and then as Amir in 1987 until 1991. During this period, he was in close contact with both current Prime Minister Sheikh Hasina and BNP opposition leader Begum Khaleda Zia. He was the founder secretary of Manarat International School and College. At present he is Assistant Secretary of Bangladesh Jamaat-e-Islami.
4. That on 25th March 2010 the Government constituted the International Crimes Tribunal (1st Tribunal/ICT-1) under Section 6(1) of the 1973 Act to prosecute, try and punish the offenders for the offences under section 3(2) of the Act. The Government also appointed prosecutors including the Chief Prosecutor and established an Investigation Agency for the purpose of the 1973 Act. The Tribunal thereafter framed its Rules of Procedure which was subsequently amended from time to time (hereinafter referred to as ‘RoP’).
5. That on 13th July 2010 the Convict / Appellant was arrested from the premises of the Supreme Court by Detective Branch of Dhaka Metropolitan police. Then he was shown arrested in Pollibi Police Station Case no. 60(01)08, under section 148/448/302/34/101/326/307/436 and Keranigong Police Station Case no. 34(12)07, under section 447/448/436/302/109/114 of the Penal Code. Thereafter he was taken in to custody of police for interrogation in Pollobi P.S. Case no. 60 (01) 08 for 5 days, Palton P.S. case No. 37 (02)10 for 2 days, Palton P.S. case No. 46 (06)10 for 3 days, Palton P.S. case No. 25 (06)10 for 3 days, Palton P.S. case No. 55 (06)10 for 3 days
6. That on 22nd July 2010, the Chief Prosecutor made an application to the Tribunal to show the Convict/Appellant arrested under Rule 9 (1) of the Rules and Procedure for the alleged crimes committed under Section 3 (2) of the 1973 Act. This was recorded as ICT-BD Misc Case No. 01 of 2010 on 25th July 2010. On 26th July 2010 the Tribunal issued a warrant of arrest against the Appellant and on 29th July 2010 the Tribunal issued production warrant directing the jail authority to produce the Appellant before the Tribunal on 2nd August 2010 when the Tribunal ordered the Convict/Appellant to remain in police custody in relation to the case before the Tribunal.
7. On 21st July 2010 the Investigation Agency appointed Mr. Abdur Razzak Khan as Investigation Officer to investigate the case against the Convict / Appellant. He investigated the case for more than a year and during this long period the Tribunal rejected several applications of the Appellant to enlarge him on bail. As a result he was detained in Jail Custody in violation of his legal rights guaranteed under the Constitution and other international instruments to which Bangladesh is a party. On 6th February 2012 the United Nations Working Group on Arbitrary Detention published its Opinion No. 66/2011 adopted at its Sixty-First Session wherein it found the Appellant’s detention to be arbitrary and in breach of international law. On 15th June 2011 the Convict / Appellant was taken to Safe Home for interrogation by the Investigation officer. Though a defnce counsel was allowed to be present in the adjacent room of interrogation, the Convict/Appellant was not allowed to consult with his counsel at any time on the day of interrogation in the Safe House.
8. On 30th October 2011 the Investigation Officer submitted Investigation report to the Chief Prosecutor and on 18th December 2011 the Chief Prosecutor submitted Formal Charge against the Appellant alongwith Investigating Report, statements of 40 witnesses and 9 volume seizer list documents (hereinafter referred to as ‘the Formal Charge Documents’). Subsequently the case was renumbered as ICT-BD-Case No. 07 of 2011. Thereafter on 28th December 2011 ICT-1 took cognizance of offences under section 3 (2) of the 1973 Act against the Appellant. On the same day the Tribunal directed the Prosecution to serve upon to the Defence, by 2nd January 2012, hard copies of the Formal Charge and other documents that the prosecution intends to rely upon.
9. That on 2nd January 2012 the Prosecution served upon Defence the materials it intended to rely upon in support of charges against the Appellant. These materials included nine volumes of documents and a volume of 40 Prosecution witness statements alleged to have been recorded by the Investigation Officer. On 10th January 2012 the Prosecution served on the Defence copies of the Formal Charge. Subsequently on 17th January 2012, the Prosecution submitted an application to another charge which subsequently became charge no. 6.
10. That upon receipt of the Prosecution Documents it transpired that a number of documents listed in the seizure list index had not been included in the Prosecution Formal Charge Documents. No disclosure of these documents was made despite the Defence’s objections. The defence was not given copy of the Investigation Report and on 22nd January 2012, the Tribunal issued an order refusing the Defence’s application to obtain a copy of the investigation report finding that the 1973 Act does not contain any provision for supplying copy of the investigation report to the Defence.
11. That thereafter on 22nd March 2012 the Government constitute a second International Crimes Tribunal (hereinafter “ICT-2”) which started functioning on and from 25th March 2012. On 9th April 2012, the Government promulgated International Crimes (Tribunals) (Amendment) Ordinance 2012, enabling the transfer of cases from one Tribunal to another. On 15th April 2012 the prosecution filed an application to transfer the Appellant’s case under section 11A of the International Crime (Tribunals) (Amendment) Ordinance 2012 for swift disposal. On 16th
April 2012 ICT-1 passed an order transferring the case to the newly constituted ICT-2.
12. In ICT-2 the case was renumbered as ICT-BD-Case No. 02 of 2012. From 02nd May 2012 Charge hearing started in ICT-2. On 10th April 2012 the Prosecution filed statements of 3 additional witnesses and on 02nd May 2012 the prosecution again filed statements of more 3 additional witnesses. On 28th May 2012 ICT-2 passed an order allowing those six (6) additional witnesses statements despite serious objection of the Defence.
13. Thereafter on 28th May 2012, the Tribunal framed 6 charges of Crimes Against Humanity against the Appellant under section 3(2) of the 1973 Act. Charge 1 is regarding murder of Pallab in Mirpur on 5th April 1971 and the Appellant was charged under section 3(2)(a)(h) with allegation to order the killing. Charge 2 is regarding murder of poet Meherunnessa, her mother and two brothers in Mirpur-6 on 27th March 1971 and the Appellant was charged under section 3(2)(a)(h) with allegations of directly killing the victims. Charge 3 is regarding murder of Khandaker Abu Taleb in Mirpur-10 on 29th March 1971 and the Appellant was charged under section 3(2)(a)(h) with allegations to order the killing. Charge 4 is regarding murder of hundreds of civilians in Khanbari and Ghatarchar (Shahidnagar) under Keranigonj Police Station on 25th November 1971 under section 3(2)(a)(g)(h) and the Appellant was charged to have planned and participated in the killings. Charge 5 is regarding murder of 344 civilians in Village Alubdi (Pollobi, Mirpur) on 24th April 1971 under Section 3(2)(a)(g)(h) and the Appellant was charged to have planned and participated in the killing. Finally Charge 6 is regarding murder of Hazrat Ali and his family members on 26th March 1971 under section 3(2)(a)(g)(h) and the Appellant was charged to have planned and participated in the killing.
14. Initially ICT-2 charged the Appellant on the above six counts as both principal and secondary offenders. On 04th June 2012 the Appellant filed an Application for review of the order as the accused cannot be charged in both mode of liability at the same time. On 14th June 2012 ICT-2 accepted the defence argument and amended the charge framing order to make the charges alternative in all the six counts.
15. It is submitted that in the Charge framing order the Tribunal acted ultra vires by drawing conclusions to the highly disputed question of facts which include the creation, command structure and role of forces known as the Razakars, the Al-Badrs, the Al-Shams and the Peace Committee. It is submitted that the Tribunal’s role at the stage of charge framing is merely to confirm whether in its opinion there is sufficient evidence to establish substantial grounds to believe that an accused is criminally responsible under the 1973 Act. Therefore, it cannot conclude findings on: the command structure of these groups; their roles; who was responsible for their organization and what acts they are alleged to have had committed.
16. On 28th May 2012 the Appellant pleaded ‘Not Guilty’ to all the six charges contending inter alia that the Appellant have been falsely implicated in these charges by the present Awami League Government out of political enmity and the case has been concocted against him by the Investigation Officers, the prosecution witnesses being interested witnesses and related to each other, falsely gave their evidence, and the evidence were self contradictory with each other and their own previous statements, and they have concocted the case against the Appellant. Thereafter ICT-2 fixed 20th June 2012 for opening statement and examination of prosecution witness. The defece was directed to submit a list of witnesses along with documents which the defence intends to rely upon by 20th June 2012.
17. On 20th June 2012 the prosecution made its opening statement and ICT-2 fixed 03rd July 2012 for examination of the prosecution witnesses. Thereafter on 3rd July 2012 ICT-2 started examining the prosecution witnesses. The defence was allowed to submit the defence documents on 12th July 2012 and list of defence witnesses on 15th July 2012.
18. By 6th August 2012 the prosecution examined six witnesses from its earlier lists of 46 (40+3+3) witnesses and the prosecution was unable to bring the remaining prosecution witnesses as they might be unwilling to give false evidence against the Accused. As such on 6th August 2012 the Prosecution filed a list of additional 8 (eight) witnesses without any prior notice to the defence. Despite serious objection of the defence on 7th August 2012, ICT-2 allowed this additional list of prosecution witnesses and permitted the prosecution to call witnesses from this new list from the next day i.e. 8th August 2012. However the prosecution could examine only three witnesses from this new list. This has seriously prejudiced the Appellant as the defence had to cross examine these witnesses without any preparation. The prosecution also examined another witness from its earlier list of 46 witnesses. After examining 10 witnesses the prosecution elected not to call any other witnesses on facts and called the Investigation Officer and his assistant Ms. Monowara Begum as PW 12 and PW 11. The Prosecution case closed on 4th November 2012.
19. In the mean time on 18th October 2012 Prosecution filed an application to limit the number of Defence Witnesses between 3 to 4 witnesses and disallow the list of defence witnesses submitted earlier. On 05th November 2012 ICT-2 unlawfully ordered limiting the defence to call six witnesses only. This order restricted the Appellant’s ability to challenge the allegations against him and to prove his defence of alibi. The defence submitted several applications for permission to call more defece witnesses and ICT-2 rejected all those applications. On 5th November 2012 ICT-2 ordered the defence to commence from 11th November 2012. The defence prayed for a reasonable adjournment to prepare the defence case and asked permission to call at least 12 defence witness. But the tribunal rejected the prayer and the applications and forced the defence case to commence on 15th November 2012 with inadequate preparation.
20. On 15th November 2012 the Appellant testified as the first Defence Witness (DW). The defence case was forced to close on 13th December 2012 after examination of the six defence witness. In the meantime on 13th December 2012 the government re-constituted ICT-2 as the Chairman Mr. Justice ATM Fazle Kabir was moved to ICT-1 to fill up the vacant post of ICT-1’s former Chairman Mr. Justice Nizamul Haq. Mr. Justice Obaidul Hassan who was already a member of ICT-2 was appointed as new Chairman of ICT-2. On the same day the Government also appointed Mr. Justice Md. Mozibur Rahman Miah as a member of ICT-2 to fill in the vacancy. It is submitted that due to his appointment at this last stage of the trial Mr. Justice Md. Mozibur Rahman Miah could not hear any of the prosecution and defence witnesses.
21. On 17th December 2012 the prosecution summing up commenced in front of the newly constituted bench and concluded on 27th December 2012. The defence summing up started on 07th January 2013 and concluded on 17th January 2012. On 5th February 2013 ICT-2 passed the impugned judgment convicting the Appellant in Charge Nos. 1, 2, 3, 5 & 6 and sentencing him to life imprisonment.
22. That Complaint is the key point for the investigation. After getting a complain an Investigation officer starts his investigation. The entire case against the Appellant has been prepared pursuant to the said Complaint recorded at Serial No. 1 dated 21.07.2010. No copy of this complaint was given to the defence. The defence filed 2 applications for copy of the complaint and the Tribunal rejected those applications on 6.03.2012 and 26.12.2012.
23. P.W.-12 stated in his deposition dated 08.10.2012 that he received the Keranigong PS case no. 34(12)07 and Pollobi PS Case no. 60(01)80 from the office of the register of the Tribunal and included them into the complain register. It is important to mention here that there is no provision in the 1973 Act or RoP empowering the Tribunal to receive any case record from other ordinary courts. Moreover the relevant courts of the above two cases has no power to transfer any case to the Tribunal. It is therefore submitted that the recording of above two cases in the complain register of the Investigation Agency is illegal.
24. In total, the Prosecution has effectively had over four decades in which to collect evidence and conduct witness statements in order to prepare their case. More recently, the Prosecution officially began its investigation against the Accused in mid-2010.
25. However, the Defence was not provided with adequate time nor facility in which to prepare its case contrary to both Article 14 (3) (b) of the International Covenant for Civil and Political Rights (hereinafter “ICCPR”) and Article 67 (1) (b) Rome Statute for the International Criminal Court (hereinafter “Rome Statute”) which provide for the right of an accused to have “adequate time and facilities for the preparation of his defence”. The right to adequate time and facilities is thus a universal right that has been agreed to by Bangladesh as signatory state party to both the ICCPR and ICC.
26. However, the Accused’s right to adequate time has been substantially breached on a number of occasions. Firstly, the delay in bringing any proceedings against the Accused has inevitably caused the loss of opportunity to interview or call witnesses for them as well as the loss of material evidence. The Defence was deprived of a reasonable opportunity to collect and produce evidence at trial in view of these investigative circumstances.
27. Secondly, the Accused was only formally charged on 28th May 2012 whereby the Tribunal fixed 6 charges concerning crimes against humanity against him. However, the Tribunal directed the Prosecution to open its case on 20th June 2012 pursuant to Rule 38(2), thereby granting the Defence only three weeks to prepare its case.
28. On 28th June 2012, the Prosecution served on the Defence an updated list of witnesses and the statements of three new witnesses. The Defence submitted that three weeks was not sufficient to fully investigate the 6 charges fixed against the Accused; visit all the named places; interview all the necessary witnesses and compile accompanying witness statements and take full instruction from the Accused on the charges framed against him. Furthermore, it was submitted that proceedings ought to be adjourned so as to allow time to prepare a proper defence against the three additional witnesses. This was not withstanding the fact that: firstly, events in question occurred over forty years ago and would therefore require further time to investigate and secondly, the crimes charged, namely crimes against humanity, are complex and serious crimes that would require intensive analysis of the allegations in the indictment. The Tribunal rejected the submissions and directed the first Prosecution witness to be called on 3rd July 2012.
29. Third, on 6th August 2012, the Prosecution filed an application for the inclusion of eight new Prosecution Witnesses. On 7th August 2012, the Tribunal made an order to insert these eight witnesses on to the list and to require the attendance of any one or more of these witnesses for examination-in-chief in the morning of the 8th August 2012. On 8th August 2012, the Defence filed an application for an adjournment of 2 to 3 weeks so as to have the time to prepare its defence to the new evidence. The Tribunal granted an adjournment of merely 4 days.
30. Fourth, the Defence was subsequently denied any further time prior to the commencement of the Defence case. On 11th November 2012, the Defence submitted that it required further time to prepare following closure of the Prosecution case and requested an adjournment of 7 days to 18th November 2012. The Tribunal subsequently adjourned proceedings for 4 days to 15 November 2012, with the first Defence witness called to testify that day. It is submitted that these significant prejudices caused to the Appellant should be taken into consideration at the time of disposal of the Appeal.
31. The right to adequate time and facilities is an important element of the guarantee of a fair trial and an application of equality of arms. The latter being a development within the concept of the right to fair trial. It is international standard for any provision which departs from the principle of equality to be to the benefit of the accused. It is submitted that the Defence has been treated to unequal treatment in these proceedings for the following reasons.
32. Firstly, pursuant to section 9(5) of the 1973 Act, the Defence was required to disclose its case, prior to the commencement of the Prosecution case or indeed closure of Prosecution case. In doing so, the presumption of innocence, which imposes the burden of proof upon the Prosecution, was seriously breached.
33. As abovementioned, the Defence has been seriously prejudiced in the time provided to prepare its case as compared to that of the Prosecution, thus breaching the principle of equality of arms. As well as cumbersome restraints on preparation time, the Defence was also subjected to a strict limit in presenting its case, both in terms of duration and witnesses.
34. Although the Prosecution case took 106 days to complete with 12 witnesses, the Defence was subjected to unfair rulings in the interest of expediting proceedings. On 05th November 2012, the Tribunal set a limit of 6 witnesses, effectively one witness per charge. By 13th December 2012, the Tribunal ordered the cessation of the Defence witness despite the Defence having only called 6 witnesses. The Defence case was therefore forcefully closed after 29 days. It breaches of the principle of equality of arms and have frustrated fairness of the proceedings.
35. That though there is no provision in the 1973 Act or RoP for additional investigation, P.W.-12 confirmed in his deposition dated 08.10.2012 that he had done additional investigation and recorded statement of 15 additional witnesses after submission of the Investigation Report on 30th October 2012.
36. Out of the 12 (twelve) prosecution witnesses only 4 (four) were examined from the original list of 40 (forty) witnesses. The following table shows the names of the prosecution witnesses examined by the prosecution from the lists submitted on different dates:
37. It is submitted that after submission of the Investigation Report the duty of the investigation officer is completed and he has no more jobs without assisting the prosecution. Though there is no clear provision in the 1973 Act or ROP of the Hon’ble Tribunal regarding the additional investigation, the investigation officer could not do any further investigation without taking any order of the Hon’ble Tribunal for additional investigation. It is therefore submitted that the additional investigation after close of the investigation was conducted by the Investigation Officer without any lawful authority.
38. ICT-2 on a number of occasions permitted the Prosecution to call witnesses according to a time table of which the Defence had not been aware. One extreme example was on 13th August 2012 when the Tribunal forced the Defence to cross-examine a new witness without prior notice about the name of witness from the Prosecution. This recurrent problem has been compounded by the readiness of the Tribunal to grant Prosecution applications to admit additional witnesses midway through the trial process, leaving the Appellant much aggrieved and the Defence frustrated at its inability to adequately prepare due to a lack of sufficient notice. The Prosecution regularly surprised the Defence by not revealing the order in which witnesses were to be called which is not an acceptable trial tactic, but rather represents a deliberate attempt to mislead the Tribunal and to keep the defence in a darkness regarding the trial process, which severely prejudice the Appellant.
39. It is already stated above that ICT-2 arbitrarily limited the defence witness to six as a result of which the Appellant was precluded from effectively challenging the prosecution evidences. The defence filed several applications praying ICT-2 to extend the list. ICT-2 rejected all those applications and on 03rd January 2013 it passed an order imposing fine of Tk. 10,000/= on the Appellant for filing those applications against the order of limiting number of DWs.
40. Due to the strict time limit and hurry from the Tribunal the defence counsels had to cross examine the prosecution witnesses with inadequate preparation. As a result the defence counsels were unable to cross examine the prosecution witnesses properly. On 11th November 2012 the defence filed an application for recall of the Prosecution witness Nos. 1, 2, 3, 4 and 5 under Rule 48(1) read with Rule 46A of RoP so that the defence counsel could cross examine those witnesses on relevant points. On 12th November 2012 ICT-2 rejected the application without affording any valid reason.
41. That the defence counsels were regularly intimidated by the law enforcing agencies during the trial and as a result they were unable to defend the Appellant and discharge their professional duty without fear and intimidation resulting serious prejudice to the Accused. On 9th October 2012, at around 4.00 pm 10/12 members of Detective Branch (‘DB’) of the Police trespassed into the law chambers of the Defence Counsels situated at the 8th Floor of Paltan Tower, 87 Purana Paltan Lane, Dhaka-1000. They had no specific purpose to enter unlawfully into the chamber. They entered the chamber with fire arms solely to create panic, threat and harass the lawyers of the Appellant. Further on 2nd December 2012 during mid night the members of the law enforcing agencies visited the house of a defence counsel Mr. Sazzad Ali Chowdhury without any valid reason. This created panic among all the defence counsels and they had to perform their profession duties towards the Appellant in constant fear of being intimidated by the members of the law enforcing agencies. These actions by the members of the law enforcing agencies had a serious adverse effect on the guarantee of a fair trial under section 6(2A) of the 1973 Act.
42. That PW 3, Momena Begum testified on 17.07.2012 in support of Charge 6 as a member of the victim family. PW 4, Poet Kazi Rozi testified on 24.07.2012 to support Charge 2 and PW 5 Khandakar Abul Ahsan testified on 29.07.2012 supporting Charge 3. All these prosecution witnesses implicated the Appellant with the alleged incidents. On 13.12.2012 the Daily Naya Digono reported that on earlier occasions these three witnesses and a defence witness namely Sahera (DW-4) were interviewed by the Liberation War Museum, Mirpur-10, Dhaka where they did not bring any allegation against the Appellant while describing the alleged incidents. It was reported that these documents were kept in the Jallad Khana of the Liberation War Museum in Mirpur, Dhaka. On 08.01.2013 Defence filed an application to call for the records of Jallad Khana (With the Audio and Video Record) containing statements of PW 3, 4, and 5 and DW 4 under section 11(1)(c) of the 1973 Act read with 46A of RoP. The defence could collect snap shots of these interviews from the records of Jallad Khana and annexed those copies with the Application. On 14.01.2013 ICT-2 passed an order rejecting this application with observation that the same might be considered at the time of passing final verdict. But in the impugned judgment ICT-2 rejected considering these documents on invalid reasons.
43. It is submitted that the above earlier statements of PW 3, 4 and 5 and DW 4 was very relevant for proper adjudication of the case in charge Nos. 1, 2, 3 and 6 since that would show that PW 3, 4 and 5 were not creditable witnesses due to their earlier inconsistent statements. The interviewed statement of DW-4 kept in the records of the Jallad Khana could have shown that she was a creditable witness as the same was fully consistent with her testimony before the Tribunal. But ICT-2 was reluctant to consider these relevant documents and held that the evidence of DW – 4 was biased since she came to give evidence at the request of the Appellant’s son. It is submitted that the findings of ICT-2 in the impugned judgment on the credibility of PWs 3, 4 and 5 and DW-4 can be easily reversed if their earlier statements kept in the records of Jallad Khana of the Liberation War Museum is taken into consideration in Appeal.
44. That in the wake of huge controversy arising out of his Skype and email communication, on 11h December 2012, the former Chairman of ICT-1, Mr. Justice Nizamul Huq resigned. In these communications he was found to have been conspiring with Dr. Ziauddin, a section of the prosecution and some ministers of the government to convict the accused before ICT-1.
45. It is stated that cognizance in the case against the Appellant was taken on 28th December 2011 by the ICT-1 by a bench which was presided by the former Chairman of the ICT-1. As such the cognizance was taken by a bench in which the Chairman was not acting independently. Further there may be an appearance and perception that the cases in ICT-2 have been conducted in accordance and in compliance with the conversations between the former Chairman of the ICT-1 and Dr. Ziauddin. In a Skype conversation on 14th October, 2012 (reported in the Amar Desh on 9th December, 2012) Dr. Ziauddin suggests exerting pressure on ICT-2 from a ‘higher level’ to slow down Abdul Quader Mollah’s case in ICT-2 and to deal with the case of Maulana Abul Kalam Azad alias Bachhu, (which was being heard in absentia) first. Dr. Ziauddin tells the former Chairman:- XXXXX
46. This conversation took place on 14th October, 2012. By such date the trial of Abdul Qauder Mollah was well advanced. 12 PWs had already been examined. On the other hand charges had not even been framed by the ICT-2 at this stage in the case of Maulana Abul Kalam Azad. Charges were framed 20 days after this conversation, (i.e. on 4th November, 2012). Thereafter, the prosecution opened the case on 26th November, 2012. 22 (twenty-two) Prosecution Witnesses were quickly examined and on 26th December, 2012, (after exactly one month) the final arguments were complete. This case commenced well after all the others in the ICT-2 but is now the first trial to have been completed. This complies with the conversation of Dr. Ziauddin with the former Chairman on 14th October, 2012. As such there may be a reasonable perception that the ICT-2 may have acted according to the dictate of the higher authority as indicted by Dr. Ziauddin. As such there is an appearance of bias in relation to the ICT-2.
47. That on 02nd January 2013 Defence filed an application to recall the order taking cognizance dated 28.12.2011 and for a full and complete retrial under Rule 46A of the International Crimes Tribunal Rules of Procedure, 2010. On 07th January 2013 Hon’ble Tribunal after hearing this application passed an order rejecting this application. But in the said order ICT-2 issued a show cause notice on Dr. Ziauddin for the Skype and email communications and hence impliedly admitted the appearance of bias.
48. That it is submitted that the prosecution evidence was not sufficient enough to find the Appellant guilty in Charges 1, 2, 3, 5 & 6 beyond reasonable doubt and ICT-2 convicted Appellant on conjectures and surmises and hence the impugned judgment and order of conviction and sentence is liable to be set aside.
49. In Charge -1 regarding murder of Pallab the prosecution relied upon 2 witnesses namely P.W.-2: Sayad Sahidul Hoque Mama and P.W.-10 Sayad Abdul Quaium. Both of them are hearsay witnesses. At the time of cross examination they could not say the source of their information. It is well settled legal principle that anonymous hearsay evidence cannot be considered as sole basis for conviction. On the other hand in this charge Defence adduced D.W.-4, who is the Sister-in-law of Pallab who confirmed that the Appellant was not connected with killing of Pallab. Subsequently in this charge defence provided documents of Jallad Khana, which were containing the statements of Mr. Abbas Uddin (Elder Brother of Pollob) and Sahara (Wife of Pollob’s elder Brother). Regarding this charge Defence also exhibited (Defence Material Exhibit No - I) a V.C.D. which containing a program broadcasted on BTV on 20.04.2012 named “Ronggonar Dinguli” and a documentary named “Mirpur the Last Frontier”. It is evident from these video files that in an earlier TV interview PW 2 did not implicate the Appellant while describing the incident of Pallab killing. It is submitted that if the above evidences on record are considered then there is no scope to find the Appellant guilty in Charge 1. But ICT-2 failed to consider the above evidences and erroneously found the Appellant guilty in Charge 1 in the impugned judgment and hence the same is liable to be set aside.
50. That with regard to charge-2 regarding murder of Poet Meherunnesa, her mother and her two brothers the Prosecution relied upon 3 witnesses namely, P.W.-2: Sayad Sahidul Hoque Mama, P.W. - 4: Poet Kazi Rozi and P.W.-10: Sayad Abdul Quaium. These witnesses are hearsay and cannot be the sole basis for conviction. Moreover PW 10 did not say anything implicating the Appellant with the alleged occurrence. Regarding this charge the defence exhibited the book namely “Shahid Kobi Meharunnasa” by Poet Kazi Rozi (PW 4) (Defence Exhibit – B) on this particular incident published on June 2011. PW-4 did not say anything about the Appellant in her book while describing the alleged incident. Moreover in a previous video Interview in a documentary titled “Mirpur the Last Frontier” (Defence Material Exhibit No - I) PW-2 and PW-4 did not implicate the Appellant while describing the incidents of Charge -2. As such it is clear that PW-2 and PW-4’s evidence before the Tribunal implicating the Appellant with the incidents of Charge 2 are subsequent embellishments and should not be relied upon. It is therefore submitted that if the above evidences on record are considered then there is no scope to find the Appellant guilty in Charge 2. But ICT-2 failed to consider the above evidences in respect to Charge 2 in the impugned judgment and hence the same is liable to be set aside.
51. In Charge 3 regarding murder of Khandakr Abu Taleb the Prosecution relied upon 2 witnesses namely Khandakr Abul Ahsan (P.W.-5) – the victim’s son and Sayad Abdul Quaium (P.W.-10). Both of them are hearsay witnesses and cannot be considered as the sole basis for conviction. The defence submitted copy of the earlier interview of the victim’s son, Khandakr Abul Ahsan (P.W.-5) which is contained in the records of Jallad Khana of the Liberation War Museum which contradicts his statement made before the Tribunal. In the earlier interview PW-5 did not implicate the Appellant on the killing of his father and hence it is clear that his evidence before the Tribunal is subsequent embellishment and cannot be relied upon. Further the evidence of PW 10 is not reliable since there are gross contradiction in his statements made to the Tribunal and the statements to the Investigation Officer. Moreover defence relied upon the book written by Poet Kazi Rozi (PW-4) titled “Shahid Kobi Meharunnasa” (Defence Exhibit – B) where PW 4 did not implicate the Accused while describing the incidents of Charge 3. It is therefore submitted that ICT-2 should have considered the previous inconsistent statement of PW-5 while passing the impugned judgment. In view of the above the impugned judgment of conviction in charge 3 is liable to be set aside and the Appellant be acquitted.
52. In Charge 5 regarding murder of civilian peoples of Alubdi village the prosecution relied upon 2 witnesses namely, Safiuddin Molla (P.W.-6) and Amir Hossam Molla (P.W.-9). There are gross contradictions between their depositions before the Tribunal and the statements before the Investigation Officer. The Investigation Officer (PW-12) admitted in cross examination that PWs 6 and 10 did not describe the incidents in the manner they described before the Tribunal. These two witnesses were sufficiently discredited in cross examination that the tribunal did not consider in the impugned judgment. PW-6’s younger brother Sahfiuddin Molla testified as D.W.-4 who confirmed that PW-6 was not present at the time of occurrence of the incident of Charge 5 and as such there was no scope for PW 6 to witness the incident. On the other hand PW 9 is an interested witness and a veteran criminal facing criminal charges in about 50 cases for extortion, arms case, drugs and other criminal acts including forceful possession of a land of a justice of the Supreme Court of Bangladesh. It is submitted that ICT-2 failed to appreciate that the evidence of that PWs 6 and 9 cannot be relied upon to find the Appellant guilty for Charge 5 and hence the impugned judgment is liable to be set aside.
53. That with regard to Charge-6 about killing of Hazrat Ali and members of his family the prosecution relied upon a sole witness namely Momena Begom (P.W.-3) who is member of the victim family. There is no corroboration. Moreover PW-3’s testimony is confused since in one place she claimed to be eye witness and in other place she testified like an hearsay witness. She admitted that she was of 13 years only and after the horrendous incident she went mad for three years. There are many inconsistencies in the statements of PW 3. The defence relied upon her earlier interview recorded in the Jallad Khana of the Liberation War Museum. In the said interview she did not implicate the Appellant with the alleged incident and confirmed that she left her house 2 days prior to the incident of Charge 6. It is the defence case that the Momena who testified as PW 3 is a fake Momena and it could be confirmed if the records of the Jallad Khana could be called for since the Liberation War Museum has video record of the interview of the original Momena. It is submitted that ICT-2 should have considered the above aspects of the evidence of PW-3 and acquit the Appellant in Charge 6. Hence the impugned judgment and order of conviction and sentence is liable to be set aside.
54. It is submitted that ICT-2 did not at all considered the contradictions of the statements of the PWs before the Tribunal and the statements made before the Investigation Officer. If the contradictions are taken into account then there is no scope to find the Appellant guilty in any of the charges and hence the impugned judgment is liable to be set aside.
55. That it is stated that the Appellant had been charged to have committed the alleged incidents of charges 1 to 6 from 26th March to 25th November 1971. It is the defence case that the Appellant was in Faridpur in his home village during this period. The Appellant testified that after 7th March 1971 the he left Shahidullah Hall of the University of Dhaka and went his father’s house at Sadarpur, Faridpur. The Appellant stayed there up to the November 1972. In fever of this Alibi defence examined the Appellant as (D.W.-1), Sushil Condro Mondol (D.W.-2), Muslam Uddin Ahmed (D.W.-3) and A. I. M. Loqueman (D.W.-6). The Prosecution failed to discredit these defence witnesses in cross examination. It is submitted that the prosecution failed to prove that the Appellant was living in Mirpur or in Dhaka, i.e. the places of occurrences of all the charged incidents, since none of the PWs supported testified as to the Appellant’s address in Mirpur or in Dhaka during the liberation war. The prosecution failed to specify in which place of Mirpur or in Dhaka the Appellant was living during the liberation war. Moreover the prosecution failed to produce a single piece of document to show that the Appellant was living in Mirupur or in Dhaka during the liberation war. In these circumstances it is therefore submitted that ICT-2 failed to consider the above aspects of the evidences and came to a wrong conclusion rejecting the alibi defence of the Appellant resulting serious miscarriage of justice and hence the impugned Judgment is liable to be set aside and the Appellant be acquitted.
56. In defining the crime against humanity under section 3(2)(a) of the 1973 Act, the Tribunal is under an obligation to look into the defination of crime against humanity as existed in 1971 and, if required, the subsequent developments of the law in this field contributed to by the International Criminal Tribunal of the Former Yugoslavia, the Tribunal for Rwanda, the Special Court for Sierra Leone and International Criminal Tribunal at the Hague (ICC). The Tribunal shall also take into consideration international armed conflict, widespread and systematic attack, a state plan or a policy as essential elements of crime against humanity. If the Prosecution fails to prove these elements of crime beyond reasonable doubt, of necessity, it will fail to discharge its burden of proof.
57. That it is submitted that the judgment and order of conviction passed by the courts below are unjust, improper and bad in law as well as on the merits of the case and the same is not sustainable in law.
58. That it is submitted that Court below failed to take into consideration that the prosecution has miserably failed to prove the Charges against the Appellant by adducing independent, neutral and disinterested witnesses, and any eye witness, and for which the trial court should have drawn adverse presumption against prosecution and in that view of the matter the order of conviction and sentence has caused a gross injustice and in view of the matter the allegations have not been proved beyond reasonable doubt at all and as such the order of conviction and sentence of the Appellant is absolutely illegal and beyond the jurisdiction of law on the face of the record and in that view of the matter the conviction and sentence in the impugned judgment are liable to be set aside.
59. That it is submitted that the order of conviction and sentence is based on the conjectures and surmises and misreading and misconception and without considering the material contradiction of the prosecution witnesses and ICT-2 has passed the impugned judgment and order of conviction and sentence which is not sustainable in law hence the same is liable to be set aside.
60. That it is submitted that ICT-2 failed to take into consideration that the sentence is too severe and made illegally and in any view of law, facts and circumstances the order of conviction and sentence can not be sustained and is liable to be set aside.
61. That being aggrieved by and dissatisfied with the Judgment and Order dated 5th February 2013 passed by the ICT-2 in ICT-BD Case No. 02 of 2012 convicting the Convict/Appellant in Charge Nos. 1, 2, 3, 5 and 6 for the offences of Crimes Against Humanity under section 3(2) of the International Crimes (Tribunal) Act 1973 (‘1973 Act’) and sentencing him to single sentence of ‘imprisonment for life’ for Charge Nos. 5 and 6 and single sentence of ‘imprisonment for fifteen (15) years’ for Charge Nos. 1, 2 and 3 under section 20(2) of the 1973 Act with direction to run the sentences concurrently, the Convict-Appellant begs to prefer this Criminal Appeal before this Hon`ble Court on the following amongst other-
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