This is the second part of the appeal application filled by the defence before the appellate division in early March 2013. To see the first part
Grounds
I. For that the Tribunal failed to define crimes against humanity to reflect customary international law in 1971, it erred in law by failing to direct itself that section 3(2)(a) of the ICTA must be reflective of crimes against humanity in customary international law in 1971, by failing to direct itself that an international armed conflict was an essential element of crimes against humanity in 1971 and implicit within Article 3(2)(a) of the ICTA.
II. For that the Tribunal erred in law in failing to direct itself that a “widespread and systematic” attack was an essential element of crimes against humanity in 1971 and thus implicit within Article 3(2)(a) of the ICTA, by failing to direct itself as to the meaning of “widespread” and “systematic” in crimes against humanity, in finding that the context of the 1971 war is sufficient to prove the existence of a systematic attack.
III. For that the Tribunal erred in law by failing to direct itself that the existence of a state plan or policy was an essential element of crimes against humanity in customary international law in 1971 and implicit within Article 3(2)(a) of the ICTA.
IV. For that the Tribunal further erred in law and in fact when it purported to take judicial notice of the nexus between underlying acts and a systematic attack, when it purported to find a nexus between the alleged underlying acts and the alleged systematic attack, by failing to direct itself as to the requirement of knowledge in crimes against humanity in customary international law in 1971 and the implicit requirement of knowledge in Article 3(2)(a) of the ICTA.
V. For that the Tribunal erred in law in failing to direct itself that the underlying core crime of rape did not qualify as an underlying act of crimes against humanity in customary international law in 1971, and thus also in Article 3(2)(a) of the ICTA.
VI. For that the Tribunal erred in law by failing to direct itself as to the law of judicial notice, in failing to direct itself that the purpose of the law of judicial notice is to promote fair trial, by failing to notify the Defence of the proposal to take judicial notice of certain facts and failing to hear legal submissions on the issue, by purporting to take judicial notice of contentious issues, by relying on sources which were not in evidence.
VII. For that the Tribunal erred in law by failing to define ‘complicity’ in Article 3(2)(h) of the ICTA to reflect customary international law in 1971, by defining complicity as “culpable association”. The Tribunal erred in law and in fact in its application of the law of complicity to the facts in charges 1, 2 and 3.
VIII. For that the Tribunal erred in law and in fact by failing to direct itself on the proper articulation and application of aiding and abetting as a mode of liability, misapprehending the burden and standard of proof in the assessment of aiding and abetting, by failing to properly articulate and by misapplying the burden and standard of proof in the assessment of the mental element of aiding and abetting.
IX. For that the Tribunal erred in law and in fact in its consideration of hearsay evidence, when it failed to define hearsay evidence, by failing to direct itself as to the inherent problems with hearsay evidence, by failing to direct itself as to the implications of Rule 57 of the Rules of Procedure, in failing to direct itself as to the tests for reliability and probative value to weigh hearsay evidence in accordance with Rule 56 (2) of the Rules of Procedure. The Tribunal erred in its assessment of the hearsay evidence for PW2, PW4, PW5 and PW10.
X. For that the Tribunal erred in law and in fact by failing to direct itself on the proper application for the assessment of identification evidence, in failing to consider and apply the relevant approach to assessing identification evidence of P.W.-3, 6 and 9.
XI. For that the Tribunal erred in law and in fact by failing to direct itself as to the proper assessment of the credibility of eye-witnesses of P.W.-3,6 and 9.
XII. For that the Tribunal erred in law and in fact by failing to correctly articulate and apply the applicable burden and standard of proof to the assessment of alibi as well as by numerous other factual and legal errors, by misapprehending the burden and standard of proof in the context of alibi, by failing to consider or provide a reasoned opinion with respect to relevant testimonial evidence and by misconstruing key evidence which, properly considered, supported the Appellant’s alibi.
XIII. For that the Tribunal erred in law when holding that the degree of fairness as has been contemplated 1973 in the Act and Rules of Procedure formulated by the Tribunal are to be assessed with reference to the national wishes, in prioritising the rights of victims above those of the Accused, in failing to respect the Constitutional rights of the accused under national law as well as failing to adhere to the fair trial provisions of the ICCPR to which it is bound, when holding that the 1973 Act and the rules framed thereunder offer adequate compatibility with the rights of the accused enshrined under Article 14 of the ICCPR and that the 1973 Act has the merit and mechanism of ensuring the standard of safeguards recognised universally to be provided to the person accused of crimes against humanity, when holding that the 1973 Act and the ROP met international standards.
XIV. For that the Tribunal erred in fact and in law by failing to consider and apply the enhanced procedural safeguards required under the ICCPR and in customary international law in a case that could have carried the death penalty, in failing to consider and apply the procedural guarantees required in death penalty cases, by unreasonably restricting in number of Defence Witnesses and/ or unjustly refusing to allow the attendance of defence witnesses, in failing to respect the presumption of innocence, in failing to ensure that the Prosecution proved the case beyond a reasonable doubt, in failing to grant adequate time to prepare a defence, in failing to allow adequate facilities (including disclosure) for the preparation of the Appellant’s defence, in failing to direct the Prosecution to disclose exculpatory evidence, in failing to adequately respect the Appellant’s right to communicate with his legal counsel, in failing to ensure that it was a competent, independent and impartial tribunal, (or alternatively) in failing to ensure that it operated independently of third party of other interference, in breaching the principle of nullum crimen sine lege in the case of the Appellant by failing to direct itself and follow customary international law as it was in 1971.
XV. For that the Tribunal should have acquitted the Appellant on the ground that the Prosecution has failed to give any explanation whatsoever in the Formal Charge of the long delay of forty years, inasmuch as there are several decisions of the Superior Courts of the subcontinent that even a delay of one day in filing the First Information Report if not satisfactorily explained the Appellant is entitled to be acquitted because the unexplained delay makes the Prosecution case entirely doubtful.
XVI. For that the Tribunal has failed to come to a conclusion that the Appellant has been prosecuted for a collateral purpose namely because of his association with a party in opposition, which the party in power wants to suppress and oppress and by using 1973 Act as an instrument of suppression and oppression.
XVII. For that the Tribunal, the facts and circumstance of the case, has failed to come to the conclusion that the proceedings against the Appellant was a malafide one and he was entitled to be acquitted because malafide vitiates everything.
XVIII. For that the Appellant has been convicted as aider and abider when the principal offenders namely 195 identified prisoners of war had been, by an act of clemency, allowed to be repatriated to Pakistan and as such the trial and conviction of the Appellant as the aider and abider is contrary to the principle of justice and rule of law. Further, the primary purpose of the 1973 Act (and the first amendment to the Constitution) was to try the 195 Pakistan Prisoners of war and it was never the intention of the Parliament to try any civilian under the1973 Act , inasmuch as for the trial of the civilian population who collaborated with the Pakistani Army, a special legislation namely Bangladesh Collaborators (Special Tribunal) Order 1972 (President Order No. 8 of 1972) was promulgated.
XIX. For that the judgment and order of conviction passed by the Tribunal are unjust, improper and bad in law as well as on the merits of the case and the same is not sustainable in law.
XX. For that this Tribunal failed to take into Consideration that the prosecution has miserably failed to prove case against the Appellant by adducing independent, neutral and disinterested witnesses and any eye witness, and for which Tribunal 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 alleged offences have not been proved beyond reasonable doubt at all and as such the order of conviction and sentence of the Appellant is beyond jurisdiction For that the impugned Judgment and order of conviction and sentence has been passed on conjectures and surmises and misreading and misconception and without considering the material contradiction of the prosecution witnesses and hence the same is not sustainable in law and is liable to be set aside.
XXI. For that the Tribunal 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.
XXII. For that defence was not given equal treatment as the prosecution and subjected to a strict limit in presenting its case, both in terms of duration and witnesses and other procedural matters as a result of which defence was precluded from adequately challenging the prosecution evidences causing serious miscarriage of justice and hence the impugned judgment and the order of conviction is liable to be set aside.
XXIII. For that the institution of complaint against the Convict-Appellant is illegal and not in accordance with the provisions of The 1973 Act read with International Crimes (Tribunal-2) Rules of Procedure, 2012 (RoP) and as such the impugned Judgment and order of conviction and sentence against the Appellant is illegal and without lawful authority and hence the same is liable to be set aside.
XXIV. For that it is evident that the Investigation Officer (PW 12) has registered the case of Pallabi Police Station Case No. 60 dated 25.01.2008 under sections 148/448/302/34/201/326/307/436 of the Penal Code as a complaint of the instant case and registered the same as serial no.-1 which is not only illegal but without jurisdiction and as such the impugned judgment and order of conviction and sentence against the appellant is liable to be set aside.
XXV. For that the receiving of the case record of Pallabi Police Station case No. 60 dated 25.01.2008 under sections 148/ 448/ 302/ 34/ 201/ 326/ 307/ 436 and Keranigonj P.S. Case No. 34 dated 31.12.2007 under sections 447/ 448/ 302/ 109/ 114/ 436 of the Penal Code by the Tribunal on transfer on 22.07.2010 from the court of the learned Chief Metropolitan Magistrate Dhaka and Chief Judicial Magistrate Dhaka is illegal and without lawful Jurisdiction and as such the impugned judgment and order of conviction and sentence against the Appellant is liable to be set aside.
XXVI. For that the investigation proceedings is defective and illegal and the petition of Formal Charge submitted by the prosecution relying upon the said illegal investigation report is also illegal and as such the impugned judgment and order of conviction and sentence against the Appellant is liable to be set aside.
XXVII. For that it is evident that the Investigation Officer (PW-12) started the investigation on 21.07.2010 and concluded his investigation on 27.08.2012 and before conclusion of investigation he has submitted his investigation report to the Chief Prosecutor on 30.10.2011 as such the submission of the Investigation Report before the conclusion of the Investigation is unlawful and unauthorized and beyond the power conferred on the I.O. by the 1973 Act and the RoP and hence filing the petition of formal charge by the Prosecution is not only illegal but without jurisdiction and the charge framed on the basis of the illegal petition of formal charge is also illegal and as such the entire trial of the case is vitiated and hence the conviction and the sentence against the appellant is liable to be set aside.
XXVIII. For that the charges framed by the Tribunal is defective and hence the impugned judgment and order of conviction and sentence is liable to be set aside and the appellant be acquitted.
XXIX. For that the prosecution failed to prove the complaint of the instant case during trial and as such the impugned judgment and order of conviction and sentence against the appellant is liable to be set aside.
XXX. For that during trial of the case prosecution has adduced in all 12 witnesses in the case and they have miserably failed to prove the case against the Appellant beyond all reasonable doubts and as such the impugned judgment and order of conviction and sentence is liable to be set aside.
XXXI. For that the Tribunal hopelessly failed to appreciate the evidence on records in proper perspective and the impugned judgment of conviction and sentence passed by the Tribunal based on surmises and conjecture and hence the same is liable to be set aside and the convict-appellant may be acquitted.
XXXII. For that the Tribunal failed to appreciate glazing contradictions in the evidences on record and arrived at a wrong findings and decision in convicting and sentencing the Appellant and as such the impugned judgment of conviction and sentence is liable to be set aside.
XXXIII. For that in charge no. -1 regarding murder of Pallab the prosecution has adduced only 2 witnesses namely Sayad Sahidul Hoque Mama-P.W.-2 and Sayad Abdul Quaium- P.W.-10 and admittedly they are not eye witnesses of the alleged occurrence rather they are anonymous hearsay evidence and their evidences have not proved the case against the Appellant beyond reasonable doubt and the Tribunal failed to appreciate their evidences in their perspectives and in arriving wrong finding and decision the Tribunal most illegally and arbitrarily awarded the conviction and sentence to the Appellant and as such the impugned Judgment and order of conviction and sentence is liable to be set aside.
XXXIV. For that the evidence of P.W.-2 regarding charge no. -1 is totally vague and the Tribunal failed to appreciate the said evidence in favour of the Appellant and against the prosecution and hence the impugned judgment and order of conviction and sentence is liable to be set aside.
XXXV. For that it is evident that P.W.-2 admitted in his evidence that he gave an interview with BTV on 20th April 2012 and his interview was broadcast by the TV under the heading “GKˇii iYv½‡bi w`b ¸wj” (Defence Material Exhibit No. I) wherein he has stated the occurrence took place within the area of Mirpur from 25th March 1971 to 31st January 1972 mentioning the name of the persons those who were involved in the said occurrences and in the aforesaid statement he did not mention any thing against the Appellant while describing the incidents of Charge no. -1 and as such the impugned Judgment and order of conviction and sentence is liable to be set aside.
XXXVI. For that Charge no. -1 framed by the Tribunal is defective and illegal having no materials placed before them by the prosecution regarding the date and time of the alleged occurrence and as such the impugned Judgment and order of conviction and sentence is liable to be set aside.
XXXVII. For that there is nothing against the Appellant in the evidence of P.W.-10 save and accept that “xxxx” and in this connection defence drew his attention regarding the aforesaid statement wherein he denied that “xxxx” and the investigating officer (P.W.-12) admits that “xxx and the Tribunal failed to discuss and appreciate the aforesaid evidence of P.W.-10 in favor of the Appellant and against the prosecution and as such the impugned Judgment and order of conviction and sentence is liable to be set aside.
XXXVIII. For that the prosecution hopelessly failed to proved Charge no.-1 beyond any shadow of doubt against the convict appellant and the evidences of P.W.-2 & 10 are in favor of acquittal and against the conviction and sentence and as such the impugned Judgment and order of conviction and sentence is liable to be set aside.
XXXIX. For that in charge no. 2 the prosecution adduced 3 witnesses namely P.W.-2 Sayad Shahidul Hoque Mama, P.W.-4 Kazi Rozi and P.W.-10 Sayad Abdul Quaium and their evidences are in favour of acquittal and against the conviction and sentence but the Tribunal failed to discuss and appreciate their evidences in favor of the defence and arrived at a wrong finding and decision, on hypothetical assessment of their evidences in favour of prosecution and as such the impugned Judgment and order of conviction and sentence is liable to be set aside.
XL. For that charge no. -2 framed by the Tribunal under section 3(2)(a)(h) against the Appellant is defective and illegal and the same is not tenable and maintainable in law and facts and circumstances of the case and as such the conviction and sentence against the appellant is liable to be set aside.
XLI. For that the Tribunal hopelessly failed to appreciate the material contradictory evidences of P.W.-2, 4 and 10 in favour of the defence and against the prosecution and in arriving at the wrong finding and decision the Tribunal most illegally awarded conviction and sentence to the appellant and hence the impugned Judgment and order of conviction and sentence is liable to be set aside.
XLII. For that the prosecution witness no.-10 in his examination-in-chief distinctly and specifically stated that “xxx” and in the Defence Material Exhibit-I P.Ws.-2 and 4 have stated that the non Bengalis had killed Meherunnesa and her family at her house at section no. 06, Mirpur and they have corroborated the evidence of P.W.-10 regarding killing of Meherunnesa and also P.W. in a book titled “Shahid Kobi Meherunnesa” published in June, 2011 (Exhibit-B) written long after constitution of the Tribunal did not implicate the Appellant while describing the murder of Meherunnesa and she also did not implicate the Appellant with the alleged killing even in her earlier statement made to Investigating Officer and as such the impugned judgment and order of conviction and sentence against the Appellant is liable to be set aside.
XLIII. For that charge no.-3 framed by the Tribunal describing the alleged date, time and manner of occurrence is defective and the prosecution miserably failed to prove charge 3 against the Appellant beyond any reasonable doubt and as such the conviction and sentence against is liable to be set aside.
XLIV. For that admittedly the prosecution has adduced 2 hearsay witnesses namely P.W-5-Khandakar Abul Ahsan and P.W.-10-Sayad Abdul Quaium to prove charge no.-3 and their evidences are in favour of the defence and against the prosecution and the Tribunal failed to assess their evidences in their perspectives and as such the impugned Judgment and order of conviction and sentence is liable to be set aside.
XLV. For that P.W.-5 Khandakar Abul Ahsan son of the deceased Khandakar Abu Taleb stated in his examination-in-chief that “xx” and the Investigating Officer (P.W.-12) who has admitted that “xxx” and this P.W.-5 earlier made a statement before the authority of Jallad Khana wherein he has not stated anything against the involvement of the convict-appellant in participation of killing of his father and as such the impugned Judgment and order of conviction and sentence is liable to be set aside.
XLVI. For that in relation to Charge 3 P.W.-10 Syed Abdul Qayum stated in his examination-in-chief that “xxx” and P.W.-12 (I.O.) admitted that “xxx” and the Tribunal failed to appreciate the above material contradiction in awarding the conviction and sentence to the appellant and as such the impugned Judgment and order of conviction and sentence is liable to be set aside.
XLVII. For that the prosecution witness no. 10 in his examination-in-chief stated that “xxxx” and in the aforesaid statement there is no complicity of the Appellant with the commission of the event of killing of Khandoker Abdu Taleb and the Tribunal failed to consider the above evidence in favour of the Appellant and against the prosecution and as such the impugned Judgment and order of conviction and sentence is liable to be set aside.
XLVIII. For that it is evident that P.W.-4 Kazi Rosy was the president and deceased Kobi Meherunnesa was the member of action committee constituted with other members of Mirpur locality to protect the interest of Bengali People and there was acute enmity with the Non Bengali people of the Mirpur locality and out of that grudge and enmity deceased Pallab (Charge-1), Meherunnesa (Charge-2) and her family and Khandakar Abu Taleb (Charge-3) might have been killed by the Biharies and the Tribunal failed to appreciate the aforesaid facts and circumstances of the case and as such the impugned Judgment and order of conviction and sentence is liable to be set aside.
XLIX. For that the prosecution miserably failed to prove Charge No. 5 against the convict-appellant and hence the impugned judgment of conviction and sentence is liable to set aside and the convict-appellant be acquitted.
L. For that in Charge No. 5 the prosecution adduced only two witnesses namely Md. Shafiuddin Molla (PW6) and Amir Hossen Molla (PW9) and in their evidences there are lots of gross important and material contradictions but the Tribunal in passing the impugned judgment and order of conviction and sentences did not consider those material gross contradictions and hence the impugned judgment of conviction and sentence is liable to be set aside.
LI. For that P.W.-6- Md. Shafiuddin Molla stated in his examination-in-chief that “XXX and in this connection prosecution witness no.-12 i.e. Investigating Officer stated in his evidence that “XXX and the Tribunal in passing the impugned judgment failed to consider the above material gross contradiction and as such the impugned judgment and order of conviction and sentence is liable to be set aside.
LII. For that the Prosecution witness No. 6-Md. Shafiuddin Molla while stating the incident of Charge 5 stated in examination-in-chief that …“XXX and the learned Tribunal in passing the impugned judgment and order of conviction and sentence did not discuss and consider the aforesaid gross material contradictions of the evidence of PW6 and as such the impugned judgment and the order of conviction and sentence is liable to be set aside and the accused be acquitted.
LIII. For that the learned Tribunal failed to consider the other material contradictions in the evidence of PW6 in passing the impugned judgment and order of conviction and sentence and hence the same is liable to be set aside.
LIV. For that PW.9-Md. Amir Hossen Molla stated in examination-in-chief that “XXX and the Tribunal in passing the impugned judgment failed to discuss and consider the above gross material contradictions and as such the impugned judgment and the order of conviction and sentence is liable to be set aside.
LV. For that PW- 9, Md. Amir Hossen Molla stated in examination-in-chief that “XXX and the persecution Witnesses No. 12 i.e. the Investigating Officer in his cross examination he has admitted that “XXX and the Tribunal in passing the impugned judgment failed to discuss and consider the above gross material contradictions and as such the impugned judgment and the order of conviction and sentence is liable to be set aside.
LVI. For that in respect to the mode of identification of the convict-appellant, Md. Amir Hossen Molla (PW9) stated in examination-in-chief that “XXX and in cross examination of the Investigation Officer (PW-12) he has admitted that XXX over and above this PW-9 filed a complaint case being Complaint Case No. 10 of 2008 on 24.01.2008 before the Chief Metropolitan Magistrate, Dhaka wherein also he did not make the above statement regarding mode of identification of the Appellant and in view of the above material gross contradictions in the statements of PW 9 the Tribunal ought to have considered that the subsequent identification of the Appellant by PW-9 on the date and time of the alleged occurrence is totally false and deserve no consideration of the Tribunal and hence the impugned judgment and the order of conviction and sentence is liable to be set aside.
LVII. For that these PWs 6 and 9 who are supporting Charge 5 are partisan and highly interested witnesses and the most important and material witnesses of the alleged occurrence have been withheld by the prosecution and as such the impugned judgment and order of conviction and sentence is liable to be set aside and the appellant be acquitted.
LVIII. For that it is evident that Md. Amir Hossen Molla (PW9) left his native village 8/10 days prior to the alleged incident of Charge 5 and stayed outside of Mirpur until independence and hence the Tribunal ought to have consider that it was impossible for PW-9 to have witnessed the incident of Charge 5 and as such the impugned judgment and the order of conviction and sentence is liable to be set aside.
LIX. For that the evidence adduced by the prosecution in respect of Charge 5 is in favour of acquittal of the Appellant and against the conviction and sentence and as such the impugned judgment and order of conviction and sentence is liable to be set aside.
LX. For that it is evident that the Investigation Officer (PW12) during his investigation did not find any aged man in the locality of Charge 5 and even the witnesses i.e. PWs 6 & 9 who gave statements to him during investigation could not identify the place of occurrence of Charge 5 and hence the place of occurrence of Charge 5 has not been established and as such the judgment and order of conviction and sentence is liable to be set aside.
LXI. For that in the evidence of Md. Amir Hossen Molla (PW9) it is evident that he filed a complaint case No. 10 of 2008 dated 24.01.2008 before the Court of the Learned Chief Metropolitan, Dhaka wherein he admitted that he alongwith his father, mother, brothers and sisters had been staying in their house at his native village Duaripara even after 25th March 1971 till the date of alleged incident of Charge 5 on 14th April 1971 on the other hand this PW 9 deposed a completely different story of Charge 5 before the Tribunal by stating that “XXX and the Investigation Officer (PW 12) admitted in Cross-examination that PW9 did not say this self-contradictory statement made before the Tribunal to him during Investigation of the case and the Tribunal hopelessly failed to consider the above material self-contradictory statements of PW-9 in passing the impugned judgment and order of conviction and sentence to the Appellant and hence the same is liable to be set aside and the Appellant be acquitted.
LXII. For that the Tribunal failed to appreciate that there are several criminal cases against Md. Amir Hossen Molla (PW9) including the case lodged by the caretaker of Mr. Justice A.F.M. Ali Asgar that seriously discredited his social status and character and hence the Tribunal ought not have considered his oral testimony and hence the impugned judgment and order of conviction and sentence is liable to be set aside.
LXIII. For that the Tribunal failed to appreciate that Md. Amir Hossen Molla (PW9) is a person of bad character and his testimony cannot be relied upon since he was reported to be a veteran criminal and he admitted that in various news papers including the Daily Inquilab dated 14th December 2001 (Defence Exhibit- C series) reported that XXX and Daily Jugantor of the same date reported with headline “XXX and though PW-9 claimed the above reports to be false he admitted that he did not oppose the said news reports and did not submit any material evidence to controvert the said news reports and hence the Tribunal ought not have considered his oral testimony and as such the impugned judgment and order of conviction and sentence is liable to be set aside.
LXIV. For that the findings of the Tribunal on credibility of Md. Amir Hossen Molla (PW-9) are against the evidence on records and hence the same is not tenable in law and facts and as such the impugned judgment and order of conviction and sentence is liable to be set aside.
LXV. For that the Tribunal failed to appreciate that the identification of the convict-appellant by PWs 6 and 9 in Mirpur during the 1970 election campaign of Professor Golam Azam should not be relied upon since admittedly they were cultivators and were residing in remote villages and on the other hand Kazi Rozi (PW-4) and Sayed Abdul Quyum (PW-10) who were resident of Mirpur never claimed to have seen the convict-appellant for a single moment in Mirpur during the 1970 election campaign and on subsequent event it was not possible for PW 6 and 9 to identify the convict-appellant on the date and time of the alleged occurrence and hence the impugned judgment and order of conviction and sentence is liable to be set aside and the appellant be acquitted.
LXVI. For that regarding Charge No. 6 the Prosecution adduced only one prosecution witness namely Ms. Momena Begum as PW 3 who has admitted in her earlier statement on 28.09.2007 before Ms. Jaheda Khatun Tamanna of Liberation War Museum, Dhaka that she left her father’s house in Mirpur (alleged place of occurrence) two days prior to the alleged date of occurrence and she had been residing in her father-in-law’s house in Gingira at the time of the alleged date and time of occurrence and as such her subsequent statement claiming her to be an eye witness of the alleged occurrence is nothing but subsequent embellishment and this does not prove the allegations of Charge 6 against the convict-appellant beyond reasonable doubt and hence the impugned judgment and the sentence is liable to be set aside.
LXVII. For that the defence filed and moved an application under Section 11(1)(c) of 1973 Act read with Rule 46A of the RoP before the Tribunal to call for the registers of Jallad Khana of the Liberation War Museum, Mirpur-10, Dhaka wherein the statement of PW-3 regarding incidents of Charge 6 was recorded and preserved on 28.09.2007 by the Museum authority and the Tribunal passed an order to the effect that since the photographed copy of the statement of PW- 3 and the concerned paper cutting had been filed with the application and the tribunal disposed of the said application giving finding that the record of Jallad Khana need not be called for and the same would be taken into account at the time of passing judgment and the Tribunal failed to consider those documents in accordance with provision of law in the impugned judgment and hence the same is liable to be set aside.
LXVIII. For that it is evident that the Investigating Officers did not visit the place of occurrence mentioned in Charge No. 6 during investigation of the case and they have not prepared any sketch map of the palace of occurrence and over and above the prosecution hopelessly failed to prove the alleged place of occurrence by adducing independent and material evidence in trial and as such the conviction and sentence against the convict-appellant in the impugned judgment is liable to be set aside.
LXIX. For that it is evident from the side of the prosecution witness that the convict-appellant Md. Quader Molla had been residing in Shahidullah Hall within the compound of the University of Dhaka and another Quader Molla resident of village Duaripara within Mirpur area and in the statement of PW 3 to the Investigation Officer (i.e. PW 12) she has stated that “XXX and the Investigation Officer (PW 12) went to the village Duaripara alongwith his other officers to verify the Quader Molla of village Duaripara involved in the occurrence of charge 6 and in view of the above evidences on record the Tribunal without giving clear finding as to which Quader Molla was involved in the alleged occurrence, arbitrarily awarded conviction and sentence to the convict-appellant and hence the impugned judgment is liable to be set aside.
LXX. For that the Investigation Officer (PW 12) admitted that PW 3 was cited witness against Charge 3 and he also admitted that “Avwg †gv‡gbv †eM‡gi wcZvgvZvi evox NUbv¯’‡j hvB bvBÓ and accordingly on 18.12.2011 in the Petition of Formal Charge the Chief Prosecutor reasonably did not propose charge no. 6 against the convict-appellant and as such the Tribunal ought to have considered that P.W.-3 was not actually an witness for Charge 6 and the Tribunal failed to appreciate these evidences on record and hence the conviction and sentence against the appellant is liable to be set aside.
LXXI. For that it is evident that PW-3 (Momena Begum) was mad for 3 years after liberation war and before the independence of Mirpur area and she also claimed that she was minor at the relevant time and during the incident she was hiding under the bad and as such the Tribunal ought not to have considered her single testimony in awarding the conviction and sentence for life to the Appellant and as the impugned judgment and order of conviction and sentence is liable to be set aside.
LXXII. For that the single testimony of PW-3 (Momena Begum) to support Charge 6 is self contradictory and there is no independent and material witness to corroborate the evidence of PW-3 and hence the conviction and sentence awarded to the Appellant on the basis of the sole uncorroborated evidence of PW-3 is liable to be set aside and the appellant be acquitted.
LXXIII. For that the Tribunal failed to consider the anomalies in the evidence of PW-3 in passing the impugned judgment of conviction and sentence and hence the same is liable to be set aside and the appellant be acquitted.
LXXIV. For that the Investigation Officer (PW12) did not investigate regarding the incident of charge no. -6 in accordance with the provisions of law and hence the conviction and sentence to the Appellant is liable to be set aside.
LXXV. For that the Investigation Officer (PW 12) in his evidence admitted that he alongwith other two officers namely Z.M. Altafur Rhman and S.M. Idris Ali recorded the statements of the witnesses of the case and he failed to establish as to which of the statement of the witness was recorded by which of the officer and that makes the investigation perfunctory and as such the conviction and sentence to the Appellant is liable to be set aside.
LXXVI. For that the prosecution witnesses are highly interested and the prosecution failed to adduce any disinterested witness and hence the impugned judgment and order of conviction and sentence is liable to be set aside.
LXXVII. For that the defence has adduced in all five defence witnesses including the convict appellant, to prove the plea of Alibi to the effect that the Appellant was not living at Dhaka and he had been living in his own district at Faridpur during the date and time of the alleged occurrences of the instant case and the defence has been able to prove the same beyond any reasonable doubt and the Tribunal failed to appreciate the defence evidence in its perspective and as such the impugned Judgment and order of conviction and sentence is liable to be set aside.
LXXVIII. For that it is evident that the Investigating Officer during Investigation of the case has recorded statements of 87 witnesses in all and he has cited only 17 witnesses in his Investigation Report and during trial of the case prosecution has adduced only 4 witnesses out of those 17 witnesses and other material witnesses have been withheld without any just cause and as such the impugned judgment is liable to set aside.
LXXIX. For that it is evident that the Investigating Officer (PW-12) concluded his Investigation on 27.08.2012 and the Trial of the case has been commenced on 28.05.2012 and admittedly it appears that trial of the case and investigation proceeding was going on simultaneously which is not permissible on facts and law and as such the impugned judgment and order of conviction and sentence is liable to set aside.
LXXX. For that the tribunal failed to assess the evidence on records in favor of the appellant and against the prosecution and as such the impugned judgment and order of conviction and sentence is liable to set aside.
LXXXI. For that the tribunal failed to appreciate to consider the evidence adduced by the defence in it’s perspective and benefit of doubt is always in favor of the accused and against prosecution and as such the impugned judgment and order of conviction and sentence is liable to set aside.
LXXXII. For that the conviction and sentence is too severe and as such the impugned judgment and order of conviction and sentence is liable to set aside.
LXXXIII. For that in the impugned judgment the Tribunal consideration some evidence not on record and not even relied upon by the prosecution and did not allow the defence any opportunity to challenge or controvert the said evidences and hence the impugned judgment is bad in law and the conviction and sentence are liable to be set aside.
LXXXIV. For that the Tribunal did not apply the correct standard of proof in the impugned judgment and lowered the same from the required standard of ‘beyond reasonable doubt’ and hence the impugned judgment is bad in law and the same is liable to be set aside.
LXXXV. For that the evidence on records is in favor of acquittal and against the conviction and sentence of the convict-appellant and as such the impugned judgment and order of conviction and sentence is liable to be set aside.
Wherefore, it is most humbly prayed that your Lordships may be graciously pleased to allow the Appeal from the Judgment and Order dated 5th February 2013 passed by the International Crimes Tribunal No. 2 (ICT-2) in ICT-BD Case No. 02 of 2012 convicting the Appellant on 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 and sentencing him to ‘imprisonment for life’, set aside the order of conviction and sentence and or pass such other or further order or orders as your Lordships man deem fit and proper.
And for this act of kindness the petitioner as in duty bound, shall ever pray.
