Quader Molla appeal, day 10: Defence arguments

30 April 2013

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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.”

Quader Mollah appeal, day 9: Defence response

29 April 2013

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The Attorney General and prosecutor of ICT Tureen Afroz were present to represent the state. On the other hand, Khondokar Mahbub Hossain, Abdur Razzaq along with their 5/6 associates and juniors were there to represent the respondent Abdul Quader Mollah in the appeal No. 24/2013.

The AG went to the dais and he referred and readout several articles of the constitution. He mainly argued, “No new sentence has been created, no new liability has been created; only a new forum has been created for the accused/victim to raise their grievance. 

A counter argument came before the court, “Victim has not come before the court, the state has come.” 

Another issue came before the court that, the judgement was pronounced on 5th February 2013 and the amendment was passed and came into force on 18th February 2013 - whether such a post-judgement enactment is applicable to the respondent. Before, the started his argument Mr Justice Wahab Miah asked the AG, “Is your appeal against the ‘judgement of sentence’ or ‘judgment of acquittal’?” 

The AG replied, “Against the sentence my lord.” In response to that Justice Wahab Miah asked him, “Then why have made your submission against acquittal (on the last day)?"

Justice Mahmood also reminded AG that in CrPC 1898 the provision for appeal is dealt by 2 separate sections, 407 (acquittal) and 407A (improper judgement). 

Fristly, the AG argued, “Not only about the ICT Act but also in other cases, the constitution has similar provisions e.g. Art. 7B and 26 (3) of the constitution. (He readout both of the articles) Then he submitted, “Your lordship can kindly see Art. 35 of the constitution. Art. 35 does not say anything like that; “death sentence was already there; nothing new. No new sentence has been introduced.” The CJ then said, “So your submission is death penalty was there already; nothing new has been imposed by the amendment, right?” The AG replied, “Yes, my lord.”

Justice Sinha then asked the AG, “What about section 6 of the General Clauses Act? What is your submission about that?” The AG replied, “My lord, the Constitution is the Supreme law of the country and the General Clauses Act is the subordinate law.” However, in response to that Mr Justice Wahab Miah told to the AG, “Mr AG kindly see Art. 152 of the Constitution. It has been clearly stated in the sub article 2 of article 152 that General Clauses Act of 1897 is applicable to any Act of Parliament.” In reply to that the AG said, “In that case your lordships can kindly read Art. 47 sub-article 3 of the Constitution with me.” (He readout the sub-article which basically says any Act relating to try an offence of genocide, crimes against humanity and offence war crime and other international law if become inconsistence or contradictory with any provisions of the constitution cannot be considered void or illegal). He further argued, “Therefore, even if the death were not there, the death sentence could be imposed under the provision of this Art. 47 (3). And here the provision for appeal was already there.”

The AG then argued, “It is a protected law. By article 47 (3), the ICT Act is protected by the Constitution. It cannot be challenged. So, what cannot be done directly, cannot be done indirectly. Therefore, any action taken under this law cannot be challenged.” In response to that submission, justice Wahab said, “Look, art. 47 came into force in 1973 and it has been ended with the pronouncement of the judgement.” The AG replied, “my lord, the legislature was so sincere that at first they amended the constitution and then they changed the law.”

AG then referred a 12-part book written by Muntasir Mamun in respect of the history of independence war and genocide by rajakars. [Justice Sinha reminded him that in the Appellate Division if any counsel relies on any document, he needs to provide one copy for each judge. The AG then replied, “I have to buy 6 sets of that book then. It will be expensive. Anyway, I shall buy those for your lordship.] The CJ said, “We do not dispute about the history.”

Mr Justice Mahmood then  asked the AG, “the Act government enacted in 1973, what was the purpose of that Act?” He then asked the AG to read the long title of the ICT Act of 1973. The AG readout accordingly. The Mr Justice Moahood suggested, as this law is not for any particular period of time, therefore, it is a general law; not a special one.

Justice Sinha then pointed out another issue. He asked AG to readout their ‘purpose of appeal’ from page 2 of their written submission. The AG readout accordingly which implied that they have appealed against inadequate sentence awarded by the Tribunal; not against the acquittal. Justice Sinha spotted it as a defect and suggested they could remove the defect by simply stating that the appeal is “against the sentence.”

In this relation, the AG explained, “(Justice) Wahab Miah asked me a question at the beginning, “whether the appeal is against the charge or against the sentence? In respect to that my submission is- normally there is only a single charge in criminal case.” Justice Sinha protested and said, “No, we have got examples of several charge in a single criminal case.” Justice Mahmood further explained, “for example a person can be charged under sections 304 and 308 of the Penal Code at the same time.” The AG replied, “My Lords, in that case the sentence is given as a whole (not separately).” Finally he concluded saying that, “these are my submission, my lords.” He further added one last submission, “In the case of an amendment of the constitution, when it (amendment) is done, it is presumed that it has been done from the very beginning.”

At 10:55 am the AG completed his submission. The counsel for Mollah, Khondokar Mahbub Hossain went to the dais and submitted he is not prepared for the submission (as he was in abroad some days and he has to appear on some other cases) and prayed time until next day. However, the CJ said, “Mr Hossain, you are senior counsel and you have a very distinguish background. We do not expect it from you. You have got notice 3 weeks before. Now please start making your submission.” It was 2 minutes to 11 am (time for usual 1 hour tea-break), thus Mr Hossain requested the bench that he will start at 12 pm instead and the CJ happily agreed with that. The court was then adjourned for an hour.

The bench sat again after the break. 

Counsel for Mollah, Khondokar Mahbub Hossain started his submission saying that, “Trial of war criminals in Bangladesh is going to be a concern around the world. The purpose of the ICT Act 1973 was to try 195 Pakistani soldiers who were the principal offenders. Later on 17,000 was arrested under the Collaborators Act and they have been forgiven already. Now, just because of the ruling parties’ election manifesto the government is now trying ‘little fish’ leaving those ‘big fishes’. At page 45 of their book, the purpose of the appeal has been stated (he readout the purpose). My submission is- the very appeal is not covered by law in respect of charge number 4. A case cannot be divided in respect of charge. This is the fundamental principle. 

My next submission is- it is the discretion of the trial court to award sentence if there is an alternative.”

Justice S K Sinha interrupted and asked him boldly, “Is that a discretion?” Counsel Khondokar Mahbub Hossain replied, “Yes, under Code of Criminal Procedure. There are so many judgements.” However, the CJ said, “But Mr Hossain, the Code of Criminal Procedure (1898) is not applicable in this matter.” Mr Hossain’s counter argument against that was, “My lord, this law is so special that nothing is mentioned about the power of the Appellate Court. Thus, it is upto the appellate court to decide what is the applicable law to govern this matter in their court.”

Khondokar Mahbub Hossain further argued, “Your lordship can neither decrease or increase the sentence of the respondent.” The CJ asked him, “Why?” Mr Hossain replied, “Because there is nothing in the law regarding your power.” CJ (smilingly) replied, “If this is your submission, in that case your other appeal is not maintainable.”

After that K M Hossain started to make his submission again. In respect of appeal against the acquittal of respondent his submission was, “As there was no total acquittal, therefore, the appeal is not maintainable.” Sinha J. asked him, “Why you are saying there is no acquittal?” K M Hossain replied, “My lord, there is acquittal against the charge, not as a whole.”

His submission against the appeal against the sentence was, “The judgement passed on 5th February 2013 and the amendment was brought on 18th February 2013, therefore, the appeal is not maintainable. The very purpose of the amendment is a result of shouting outside the court.” The CJ interrupted at this point and said, “As a CJ, I need to say Mr Hossain and Mr Razzaq, no one should comment about a subjudice matter.” K M Hossain replied, “That is the unfortunate part, my lord.” He added, “It is applicable for both of the parties.”

Mr Hossain then continued with his submission, “This Act has been amended to serve the political purpose. The intention of the legislature while enacting this law was to try the member of the armed forces and auxiliary forces but the Act has been amended one after another. By inserting Art 47 (3) by way of amendment in 1973, the legislature has tied up the hand of judiciary. Fundamental principle cannot be changed whatever the law is.” 

The CJ replied, “But you have not challenged the amendment.” K M Hossain replied, “Where shall we challenge my lord?” He further added, “My lord, the war criminals have been tried in some other countries in the world so far, however, no where it was done by the way we are doing. If the law is changes so rapidly then what is the need of a court?”

He further added, “We do not have anyone but god in the sky and you on the earth to seek justice. You should say to the government, ‘No, you cannot use us as your weapon.’ The respondent was coming before your lordship to decrease his punishment but they (government) said, ‘your punishment will rather increase, let alone ‘decrease’ it’. The amendment is not procedural matter. It is not a mere procedure; it is attached to right of my client. So, my respectful submission is- this appeal is not maintainable; at least in this case. Provision of CrPC and Evidence Act shall not apply to this Act which has affected the substantive right of my client.”

In response to that, the CJ replied, “You people will assist us; it is upto us whether we shall take it (the particular argument) or not.” In response, Mr K M Hossain said, “ I am really upset to see this law. In my entire practice life I have not seen such a law.”

Quader Molla appeal, day 8: Attorney General arguments

27 April 2013
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The Attorney General started his argument with Rules of Evidence under section 19 of ICT Act. This states:

19. (1) A Tribunal shall not be bound by technical rules of evidence; and it shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and may admit any evidence, including reports and photographs published in newspapers, periodicals and magazines, films and tape-recordings and other materials as may be tendered before it, which it deems to have probative value.

He read out the section and then argued, “section 19 needs to be read with section 23' which excludes the applicability of the CrPC 1898 and Evidence Act 1872. 

He then read out the preamble (purpose) of the Act. 

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.

WHEREAS it is expedient to provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes and other crimes under international law, and for matters connected therewith;

Now lets see in respect of charge No. 4 whether the tribunal correctly assessed all these (sections 19, 33 and preamble).

At this stage, Mr Justice S K Sinha asked AG, “Mr AG, a person cannot come before the court without giving testimony to I.O.” 

AG replied, “My lord, this is not applicable in this case.” Mr Justice Wahab Miah then reminded the AG, “Mr AG you are deriving from the tribunal’s judgement.” Mr Justice Wahab Miah further explained to the AG, “Mr AG you are missing a point- the tribunal did not believe PW 7 because he did not tell that to I.O.” However, the AG argued, “My Lords, this is a case of absolutely different nature” but Mr Justice Wahab Miah repied to AG, “We are very much aware of the fact that we are trying this matter as a special court. We know the law i.e. it has excluded CrPC and Evidence Act. You should not undermine this bench.”

AG then started with paragraph 296 of the judgement:

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?

Then he readout a part of PW7’s testimony from part 2, page 387 of the paperbook:

 “Pakistani army opened fire, there was short man with dark complexion wearing panjabi with the army. He also fired. Later on, he came to know that the short dark man was the accused petitioner Abdul Quader Mollah.” 

The CJ and Mr Justice Sinha interrupted him and said, “Mr AG, you have already read out all these before us.

Then the AJ readout paragraph 297 of the judgement:

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.

AG said that 'this is misleading, my lord.'

At this stage, Mr Justice Wahab Miah asked to AG, “Mr AG, what would you do if you were in that situation?” The AG replied, “My Lord, during the war of independence, from my roof top I saw the fighter jets are bombing.” Justice Wahab argued, “that is different” but the AG did not agree with him. AG argued, “it was November, my lord. Mukti Bahini (liberation force) had already been formed then. It was possible for someone to come forward to see what was happening outside hearing the frequent gun firing as it could be fired even by the liberation force. Therefore, it is completely misleading, my lords. Bangalees is not a cowardly nation. It ought not to be mentioned in the judgement.”

He then moved to paragraph 298 regarding the effect of not disposing a fact to I.O. 

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

[However, the CJ then asked the AG, “Mr AG where is your Additional Attorney General and Deputy Attorney General? You should be assisted by them.” The AG replied, “My lord, the Additional Attorney General has gone to Geneva to attend a conference and the Deputy Attorney General is busy with making submission in a case before the HCD.” He then continued.] 

AG said that 'My Lord, non-disclosure to I.O. has been dealt with by section 162 of the CrPC 1898.'

However, Justice Wahab replied, “Leave the laws. It is common sense. Show me a single International (War Crime) Tribunal which has accepted such.” 

In response to that the AG argued, “my lord this is a domestic tribunal; not international therefore, such reference from other international war crime tribunal is not necessary here.” However, Justice Wahab further argued, “But our tribunal has referred so many international tribunals and referring to the same is not barred by law.” 

Then the AG readout the similar provisions from the governing laws of other international tribunals e.g. Art. 19 and 20 of Nuremberg Tribunal, Art. 13 of Tokyo Tribunal, Art. 15 of Yugoslavia Tribunal.

Justice Wahab said “You see Mr AG, all are drafted in the same language.” However, the AG argued, “A person having rifle in hand in front of rajakar camp- this is enough. Deposing to the I.O. or not is technical. We should remove the technical difficulties according to provision of the similar laws governing other international war crime tribunals. 

After that, the AG brought another issue. He submitted that the court should only consider examination in chief of witness deposition; but not the contradiction which is of course related to the earlier issue (deposing to I.O.). He said: “You see my lords, the PW8 Nurjahan herself said that she saw a short man with dark complexion; later on she came to know that it was Abdul Quader Mollah of Jamat-e-Islami. She came to know that not only from PW7 but also from her father-in-law and some other people. Now lets come to  testimony of PW12 i.e. the I.O. of the case. He said that PW8 did not say that ‘exactly’ he testified it before the tribunal which implies that he (PW8) he told that to I.O. in other way though. Then he moved to where PW12 deposed that ‘this witness did not say this way…but he told to me that…’ she deposed to me that she has heard it from her father-in-law but did not tell me that he has also heard it from PW7 Abdul Mazid Palwan.

After an hour's adjournment, the court resumed.

The AG started his submission reading out s. 19. He also read out rule 53 by ICTB-2 at chapter 6. Mr Justice Mahmood asked to him, “Whether rules made by the tribunal is applicable to us (to follow)?” The CJ explained, “He (AG) is trying to show whether ICT has followed his own rule in this respect.” The AG argued, “My lord, the incident happened 40 years back.” CJ replied, “The statement she (PW7) deposed before the court that should be conjunctive with his earlier statement. If he says whatever he likes in different occasions, what is his credibility then?” 

The AG argued, “here in the law, ‘statement by him’ means ‘statement before the court’; not ‘statement before I.O.’” Hearing this argument by AG 3 out of 6 judges laughed out and Justice Wahab said, “If we accept your this argument then…” Justice Sinha finished the sentence with, “You are trying to tie up our hands!” 

AG replied, “My lord, you cannot shift the credibility.” Justice Wahab replied, “Mr AG, you are shifting from your argument.” Mr Justcie AHM S Chowdhury said: “In the testimony we can see there is an omission by the PW; if there was a contradiction instead of omission (hypothesis) , will your argument would be the same?” The AG then replied, “I have alternative argument as well my lords. Nurjahan (PW8) did not say that ‘exactly’ does not mean she did not say at all.”

At this stage the issue came before the court relating to changing law after the judgement - whether the change is applicable to this accused petitioner. Mr Justice Mahmood referred to a case from 50 Dhaka Law Reports (DLR), “the ‘date of the decree’ is the yardstick”. Thus, can you clarify your position whether the amendment is applicable to accused petitioner?”

Justice Wahab raised another issue, “Under Act, government may appeal against an acquittal; but you please make us clear what does acquittal means here- ‘acquittal of charge’ or ‘acquittal as a whole’. The amendment made after 2 weeks from the date of judgement. Please explain your position regarding this.” 

The AG replied, “I will explain, my lord.” The CJ added, “You need to look at art. 35 of the constitution as well. The AG was looking into his documents to make submission about that but due to his delay, the CJ said, “If you are not prepared on this issue take preparation otherwise there is no point to hear your submission. Now proceed at your own motion.”

AG then continued with his submission, “Now, section 20 (2) (about sentencing) of the ICT Act regarding remedy of the crime in respect of charge No. 5 & 6. My submission is it is clear from the section that if death is not awarded the reason needs to be mentioned which has not been done here.” 

Then he read out the testimony of PW3 Momena Begum:  “You see my lord, what a natural witness!” 

At this stage chief counsel for accused petitioner, Mr K M Hossain realised that the AG has finished his submission regarding charge no. 4 and thus asked the AG, “How can you move to charge nos. 5 and 6 before I give my submission in respect of charge no. 4?” However, the CJ said, “No problem. Let him (AG) make his submission. Whenever you will make your submission he will not interrupt.”] 

Then the AG started to read: “My father came to our housing shouting. I saw him hiding under the bed. The person who hold the collar of my father was Quader Mollah. They slaughtered my mother and sisters; killed my 2 year old brother throwing him to floor. After the war of independence, Akkas Member (of Union Porishod, lowest unit of local government) told me that Quader Mollah has killed your father. Akkas Member is no more alive. His sons are alive.”

The AG then submitted, “You see my lords, her family members have been killed, her sister was raped and killed, her brother was mercilessly killed, she was also raped. She is the only surviving member of his family. The defence could contradict by cross-examining her, but they rather clarified the truth." 

Then the AG read out paragraph 334 of the judgement i.e. court findings and reasoning in respect of charge no. 5. 

334. It has been proved that the horrific event of mass killing of 300- 350 unarmed civilians of Alubdi village was perpetrated by a gang of local Bihari hooligans and their accomplice accused Abdul Quader Molla and Pakistani army. Accused Abdul Quader Molla physically accompanied the gang to the crime site having rifle in hand and therefore he is liable for the atrocious event of massacre in the same manner as if it was done by him alone. Therefore, accused Abdul Quader Molla incurs criminal liability under section 4(1) of the Act of 1973 for the offence of mass killing as crimes against humanity as specified in section 3(2)(a) of the Act of 1973 which are punishable under section 20(2) read with section 3(1) of the said Act.

He then readout the ‘verdict of the sentence’ from paragraph 428. 

428. We have taken due notice of the intrinsic magnitude of the offence of murders as ‘crimes against humanity’ being offences which are predominantly shocking to the conscience of mankind. We have carefully considered the mode of participation of the accused to the commission of crimes proved and the proportionate to the gravity of offences. The principle of proportionality implies that sentences must reflect the predominant standard of proportionality between the gravity of the offence and the degree of responsibility of the offender. In assessing the gravity of the offence, we have taken the form and degree of the Accused’s participation in the crimes into account.

He argued, “(In this paragraph) the court relied upon and explained ‘principle of proportionality’ but this is not in our ICT Act; what is in our Act is in section 20 i.e. ‘gravity of the crime’. The concept of ‘principle of proportionality’ has been taken from ICTY.” 

He then referred to the provision of punishment in the governing legislation of different ICTs which is as follows: (i) Art. 27 of Nuremberg (at page 11 of their paperbook), (ii) Art. 16 of Tokyo Trial (at page 17), (iii) Art. 23 and 24 of ICTY (at page 24)- ‘individual circumstances of the convicted person’ and here there was no provision for death penalty either., (iv) Art. 19 of Sierra Leon (at page 47) there was no provision for death penalty here as well. According to Art 19 (2), ‘such factor and personal circumstances’ and ‘responsibility of the offender’. The AG argued, other sentence can be given in accordance of our Act but should be reason explaining tha.t but you can see there is no such reason except one line. 

Justice Sinha raised another issue about the punishment. The AG agreed and said, “Yes, it has not been specified as ‘till death’ and how many years to serve in the case of ‘imprisonment for life’.” The AG then read out the relevant provision of the CrPC, although it is not applicable here, where ‘imprisonment for life’ means 30 years of imprisonment.

He concluded his submission saying that “the story narrated by the PW3 (Momena) is so natural. There cannot be more heinous crime. For that reason we are fighting against the judgement.

Quader Molla appeal, day 7: Acquittal on charge 4

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.'

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.

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.

Quader Molla appeal, day 6

18 April 2013

To see previous day's proceedings

It should be noted that there are 2 appeals relating to Quader Molla. The first one (Criminal Appeal No. 39) has been lodged by the counsels of the accused petitioner Delwar Hossain Sayedee seeking an overturn of the guilty verdicts, and the second one (Criminal Appeal No. 40) has been lodged by the Chief Prosecutor of ICT seeking a change in senctence to one of the death penalty.

In relation to the appeal by the defence, this was heard at 11 am. The court fixed the date for formal hearing on this matter.

On behalf of the state the Attorney General, an additional attorney general and a prosecutor from ICT was present. On behalf of the accused petitioner, senior counsel Barrister Abdur Razzaq, Barrister Tanvir Al-Amin, Tazul Islam and some other counsels were present.

One of the state counsels went to the dais and the Chief Justice asked whether he had received 'the paper book from the defense. The counsel replied, “No, my lord.” The CJ then said, “but they have already submitted it (paper book)”. The counsel then replied, “Yes, my lord. I have been informed about the fact but I have not received it yet.” Then the CJ asked him, “Have you submitted the concise statement supporting your appeal. The counsel said, “Not yet, my lord but I can submit it within 3 days, my lord.” The counsel then sat down.

The counsel for Sayedee Mr Abdur Razzaq came to the dais and CJ asked, “Yes, Mr Razzaq. Have you submitted the concise statement?” Mr Razzaq replied, “Not yet, my lord.” CJ then said, “In one case (No. 39) you are the petitioner and in another case (No. 40) you are the Respondent. Thus, you need to submit 2 concise statements. Please submit both of the concise statements within a week.”

Mr Razzaq replied, “This is a huge case, my lord.” It is not possible to submit the concise statement within a week.” In response to that the CJ said, “Both the parties have appealed in this matter. As you are saying that 1 week is not sufficient for you to submit the concise statement, we hope that you will submit it within 2 weeks. Please keep in mind this a special law and there is a time frame.”

Mr Razzaq then replied, “My lord, the time frame is directory; not mandatory.” CJ then made his order, “Ok, the matter is adjourned until 2nd May i.e. 2 weeks time from now. You (both of the parties) will submit and exchange the concise statement in the meantime. We shall hear the matter from 2nd May.” Then court adjourned until 12 pm for tea-break.

Following on from this, the court then dealt with the state appeal.

The prosecutor of the ICT went to the dais and continued to read out from paragraph 345 of the judgement. He had previously completed reading out upto paragraph 344 before the bench started to hear and reject the recusal application.

The counsel finished up reading out the judgement at 1:20 pm.

After the state counsel was done with reading out the judgement, senior counsel for accused petitioner, Mr Abdur Razzaq went to the dais and submitted a time petition on the ground that the chief counsel for accused petitioner has gone abroad to the UK for treatment. He informed the bench that he will be back on 24th and will be able to attend the hearing from 25th April. In response, the CJ said, “You are one of the senior counsels and you are here. And there are 2 appeals.” At this stage an ICT Prosecutor stood up and suggested the bench, “We can continue.” In reply Mr Razzaq said, “My humble prayer before your lordship, please let him come; he is lawyer in this case.” However, the CJ decided, “Let us proceed. We shall hear the petition for adjournment on Sunday.”

Quader Molla appeal, day 5: order on recusal applications

16 April 2013
Previous day's proceedings

The 4 judges were present. The Chief Justice read out the order.

In summary, he said that they had considered the application on the basis of documentary evidence and arguments by the both parties. The 2 judges concerned were not professionally embarrassed to hear the appeal. Therefore, the bench is of the opinion to reject the application for recusal. The Chief Justice referred to a foreign case supporting the court decision. From now on the all 6 six judges forming the bench will hear the appeal.

Full order will be placed on site as soon as obtained.

Quader Molla appeal, day 4: recusal application

7 April 2013

To see previous day's proceedings

This day was fixed for the hearing of ‘recusal application’ submitted by the counsels of Abdur Quader Mollah. On the previous day, his lead-counsel Khondokar Mahbub Hossain was heavily criticized by the Bench for talking to press before the application came to the actual notice of the Bench.

The 6 judges took their seats at 9:10 am. However, they adjourned at 10:30 am until 12:00 pm. Until 10:30 am the Bench did not hear the matter as there were 7 other items in the cause list prior to this matter.

The Bench sat again at 12:05 pm and the item no. 8 was called at 12:25 pm. At that time, the counsels for Abdul Quader Mollah senior advocate Khondokar Mahabub Hossain went to the dais straightaway and started to make his submission supporting the recusal application. Almost all the high profile lawyers, widely known as BNP and Jamat supporters e.g. Barrister Abdur Razzak (Asstt. Secretary General of Jamat-e-Islami), senior advocate Rafiqul Islam Miah (ex BNP MP), Barrister Mahabub Uddin Khokon (current General Secretary of the Supreme Court Bar Association), Tajul Islam (counsel for Jamat leaders at ICTB), Barrister Tanvir Parvez (counsel for Jamat leaders at ICTB), were also present in the courtroom at that time. On the other hand, on behalf of the state, the Attorney General Mahbub-e-Alam and some other junior state counsels were present.

Senior Advocate Khondokar Mahbub Hossain read out the written submission supporting the recusal application. 

After that, the Chief Justice asked the Attorney General, the chief law officer of the state, to make his submission. The Attorney general submitted that the grounds were not genuine. He explained before the lordship that the expectation and demand of the entire nation is to punish the 'demons' of the 1971 who had committed the offence of crime against humanity during the war. He also submitted that the judges in question have not made any comment so far in this matter then how the learned defence counsels claims ‘no confidence’ on them. 

The Chief Justice asked the attorney general, “What were the findings of the ICT,B about the skype scandal?”

The attorney general replied, “The information cannot be referred to or discussed”.

The Chief Justice then explained, “You did not understand my question. You are simply referring the decision of ICT,B (not the findings). What about the admissibility of this piece of documents/evidence?

Then the Chief Justice was then about to adjourn the hearing for today saying that “that’s all for today.” However, the lead counsel for Mr Mollah, Khondokar Mahbub Hossain said,”My Lord, I have just one submission. It is the practice of the apex court in such cases, allegation need not to be true; merely raising allegation is enough. And in such cases (an application for recusal), such judges should not be a party to the hearing of the application.

At 12:50 pm the Judges left their seats to decide whether the two judges in question would hear the recusal application or not. The court-staff then entered and removed 2 chairs. 

4 judges then took their seats instead 6 (the 2 judges in question i.e. S K Sinha and AHM Shamsuddin Chowdhury were absent then). Then the chief justice formally declared that this application will be heard by the bench of 4 judges  instead of 6. Chief Justice asked Khondokar Mahbub Hossain to make his submission and he started accordingly.

However, the chief justice interrupted and said, “you do not need to read out line to line.”

In response, Mr Hossain replied, “That’s what we written.”

Then the 2nd most senior among the 4 judges, Mr Justice Wahab Mia said, “You submitted the application yesterday 4 pm. Do you think that we have not already read this over night? Please make a concise submission.”

Mr K M Hossain explained that reading out the background is important to make the Bench understand why they have submitted the application. He also said that they have made the application in a rush.

The defence lawyer then argued that, “Your lordship could have dismissed the application without even hearing it; however, you have not done so. That means there there might be some sort of merit of the application. I request your lordship to watch at least one video (of skype conversation)..what type conversation were those and ultimately he resigned due to those video clips.”

At 1:25 pm, the chief justice adjourned the hearing until the following day.