Tribunal not consider submitted affidavits supporting SQC’s alibi

David Bergman

The tribunal that passed the death sentence on opposition leader Salauddin Quader Chowdhury for offences committed during the independence war of Bangladesh did not consider in its judgment the contents of six affidavits which supported his claim that he was not in Chittagong at the time the offences were committed.

The affidavits supported the accused’s alibi defence that on 29 March 1971 he flew out of Dhaka to Karachi where he stayed for three weeks, then travelling on to Lahore where he studied, until August of that year, for a degree at Punjab University.

Chowdhury’s lawyers had submitted the evidence in the form of written statements as the tribunal had earlier restricted to five the number of witnesses which the defence could bring. In the end, due to time restrictions imposed by the tribunal, Chowdhury could only bring four witnesses.

The affidavits were from people whose names were contained on a long list of 1153 people which the defence had initially provided to the tribunal as possible witnesses.

The prosecution had no limits placed on the number of people it could bring to testify in court – with 41 people giving evidence.

In its final judgment, the tribunal stated ‘some documents’ had been submitted at ‘the fag end of [the] defence argument’ but said that this was done so ‘in violation of the provision’ of the law, and that the lawyers had ‘intentionally refrained from proving those documents by recalling defence witnesses.’

It then went onto state that the ‘defence has miserably failed to prove its plea by documentary evidence that the accused stayed in West Pakistan during [the] whole period of the Liberation War of Bangladesh.’

The judgment however did not mention that the court had earlier allowed the defence lawyer ‘to submit’ the affidavits as evidence to the tribunal.

‘It is an admitted fact that there is no provision to file additional documents on behalf of the defence during trial,’ the court’s 21 July 2013 order stated, referring to these six affidavits and 49 other documents submitted by the defense.

‘Despite of this fact, for the end of justice we are inclined to give permission to the defence to submit additional documents’ and should ‘be kept with the documents filed earlier by the defence.’ The tribunal did not suggest in its order that it considered these documents had no probative value.

No appeal has yet been lodged by the defence or prosecution lawyers. 30 October is the filing deadline.

On 1 October 2013, Chowdhury was convicted for 9 offences concerned with crimes committed during the 1971 war of Independence.

Six of these nine offences – including all four of the offences which Chowdhury was sentenced to death – took place on just two days, the 13th and 17th April 1971 – within one month of the beginning of the independence war.

The thee other offences took place on 14 April, 5 July, and in the third week of July 1971. 

Apart from the Salauddin Quader Chowdhury himself, the defence lawyers presented three witnesses at the trial who supported the accused’s alibi defence.

Qayum Reza Chowdhury, told the court that he dropped the accused, his first cousin, at Tejgaon airport on 29 March 1971 to take a flight to Karachi, and that, just over a week later on 8 April, went himself to the city, along with two friends Salman Rahman and Nizamuddin.

Nizamuddin, a friend, confirmed that he had travelled with Qayum and Salman Rahman on 8 or 9 April 1971 to Karachi, and that after a few days, he had met the accused at Salman Rahman’s house.

Abdul Momen Chowdhury, who at that time was a diplomat based in Pakistan, said that in the second or third week of April 1971 he went to Karachi and met the accused for the first time at the office of an old school friend Asiqur Rahman.

In its judgment, the tribunal dismissed this evidence citing 14 eye-witnesses who had confirmed that the accused was present at the scene of the alleged offences.

The judgment also referred to evidence that showed Chowdhury was present in Chittagong in September 1971 - including a newspaper article and a special branch report which mentioned that the accused was injured in an attack on his car during that month, and the testimony of doctor who said that he had treated him on that occasion.

However, in coming to this conclusion, the tribunal did not consider the documentary evidence which the tribunal had previously accepted from the defence.

This included an affidavit from Muhammad Osman Siddique, a former United States ambassador, who had known Chowdhury since college days, which stated that he was on the same flight as the accused when he flew to Karachi.

In another statement, Karachi-based Muneeb Arjmand Khan, a friend of the accused since school days, stated that he ‘received’ Chowdhury from the airport and took him to ‘Mr Yusuf Haroon’s residence, known as Seafield.’

He also says that he was also amongst those who took Chowdhury to Karachi airport when he moved to Lahore ‘after about 3 weeks’ to go to Punjab university.

Amber Haroon Siddiqui also provided an affidavit which stated that on arrival in Karachi, Chowdhury lived at her family house, (known as ‘Seafield’) for ‘about three weeks.’

‘We used to have discussions at the dinner table where [Salauddin Quader Chowdhury] would join me, my sisters and my parents,’ it stated.

A further detailed statement was given by Ishaq Khan Khakwani, a former member of the National Assembly of Pakistan.

‘[Salauddin Quader Chowhdury] arrived at Karachi a few days after … 26th March 1971,’ the affidavit stated.

‘Salauddin was picked up from the airport by our mutual friend Muneeb Khan and I spoke to both of them once they reached Mr Yusuf Haroon’s [father or Amber] residence called Seafield House.’

It goes onto state that when Chowdhury came to Lahore, ‘with great difficulty we got him admitted in the Punjab university’ and that the accused stayed within him ‘in our family house … where he stayed with me throughout till we left for London in October 1971.’

He mentioned the names of five people who would congregate with the accused ‘almost daily’ in that period, and stated that ‘Shamin Hasnain, who is now a justice of the High Court in Bangladesh’ would sometimes join them.

Ishaq also mentioned a trip taken on May 20 1971 when he and Chowhdury drove from Lahore to Malton to attend ‘the engagement ceremony of Dr Nasir Khakwani,’ a classmate of the accused from schooldays.

The statement also states how after their exams in August 1971, he and Chowdhury went along with five other named people – including that of Salman F Rahman – to the hill stations in Muree.

Amongst the documents given to the tribunal along with the affidavits was a letter written by the sitting High Court judge Shamim Hosnain to the country’s current chief justice which stated ‘[the accused] was a classmate of mine at Punjab University at Lahore. It is true that Salauddin Quader Chowdhury was at the Punjab University Campus between the first week of May 1971 till August of the same year.’

A letter signed by Dr Umbreen Javaid, the Chairperson of the Department of Political Science at the University of Punjab, dated 24 January 1971, certified that Salauddin Quader Chowdhury was a student of political science ‘who secured 233/500 for the academic session of 1970-71’ having appeared in the ‘final examination in August 1971.

Two other affidavits - that of Mohamedmian Soomro, and Riaz Ahmed Noon - also supported different elements of the alibi defense.

Zead-Al Malum, the prosecutor in Chowdhury’s case told New Age that, it was not relevant that the tribunal had earlier allowed the defence to submit the documents; what was at issue was whether the documents had ‘probative value’ or not.

‘Documents only claim probative value if they have been exhibited by the witnesses of the respected parties,’ and these documents were not, he stated.

He added that, ‘At time of pronouncement of judgment the tribunal legally passed its opinion that the documents additionally submitted by the defence was in violation of the law,’ in that they had not been included in a list of documents submitted at the beginning of the trial.

Chowdhury judgement: extract on 'Plea of Alibi'

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

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

XVIII. Plea of Alibi

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Chowdhury July 2013 order on submission of additional documents

This is the order passed in relation to the trial of Salauddin  Quader Chowdhury on 21 July 2013. This post is linked to an article on the following page: 'Court not consider contents of submittedaffidavits supporting SQC’s alibi'

ICT-BD Case No 02 of 2011
The Chief Prosecution versus Salauddin Quader Chowdhury (Accused)
Order No 201
Dated 21.07.2013 

Accused Salauddin Quader Chowdhury has been produced before the tribunal by the prison authority. 

Today is fixed for further cross examination of DW3 

Mr AKM Fakrul Islam the learned counsel is present in the court room 

Mr Sultan Mahmud the learned prosecutor concluded cross examination of DW3 Qayum Reza Chowdhury 

An application on behalf of the defence has been filed praying for permission to submit addiational documents in support of the defence case, Teh defence side also filed another supplementary application for submitting additional documents as mentioned in the application. 

Mr AKM Fakrul Islam, the learned counsel for the defence submits that the defence could not file some documents at the time of initial stage on behalf of the defence in the Tribunal. The learned counsel further submits that the defence may kindly be permitted to submit the documents mentioned in the applications otherwise the defence will be prejudiced in the trial. 

Mr Zead-Al-Malum the learned prosecutor vehemently opposes the application for submitting additional documents on behalf of the defence on the ground that there is no provision in the Act of 1973 to file any additional document on behealf of the defence during trial stage and as such this application is liable to be rejected for want of provision of law. 

We have perused the application praying for submitting additional documents supported by supplementary application for the same purpose filed by the defense. It is an admitted fact that there is no provision to file additional documents on beahlf of the defence during trial. Despite of this fact, for the ends of justice, we are inclined to give permission to the defence to submit additional documents and accordingly, the defence is permitted to submit the additional documents as mentioned in the application and these documents be kept with the documents filed earlier by the defense. 

Mr AKM Fakrul Islam the learned counsel by filing an application submits that he could not prodcue DW4 today as his witness is not available and as such he prays for an adjournment to produce defence witnesses. Thus the adjournment prayer is also allowed as a last chance. 

Let the case be fixed on 23.07.2013 for examination of DW4. 

Fazle Kabir, Jahangir Hossain, Anwarul Haque

Unreliability of witness testimony is reason alone why Molla should not be hanged

It is impossible not to have enormous pools of sympathy for Momena Begum, whose immediate family was massacred in Mirpur on 26 March 1971, less than a day after Pakistan began its military crackdown which started the war for the Independence of Bangladesh.

No one questions that Momena, who was 12 or 13 years of age during the 1971 war, suffered a huge tragedy in her life and it is very unfortunate - having gone through so much - that her testimony in the international crimes tribunal now must come under close scrutiny.

This, though is somewhat inevitable since her testimony, about which the tribunal said that there was ‘no earthly reason to disbelieve’, is the sole reason why the Jamaat-e-Islami leader Abdul Quader Molla now faces a death penalty.

On 7 October, a report in New Age detailed how Momena’s testimony in court differed in highly relevant matters to previous two statements - one to a liberation war museum researcher in 2007 and another to the tribunal investigation officer in the case in 2010. [Please note you can access here all the documents referred to in the original New Age article, and below) in the annotated version]

In neither statement did she mention that Molla was present at the scene of the crime – in both statements she claimed that it was Biharis who came to her family’s house accompanied by Pakistan military. No mention of any Bengali man, yet alone a person called Molla in either.

In the statement to the liberation war museum researcher she even said that she was not an eye-witness, having travelled two days earlier to her in-law’s house.

The inconsistencies in these statements – which go to the very heart of the prosecution’s case – raise serious doubts as to merit of the conviction.

Conviction requires that an offence be proved ‘beyond reasonable doubt’.

In the context of this offence, this must mean that the tribunal had (putting to other various legal issues) to be ‘sure’ or ‘convinced’ of the truth of Momena’s claim made in her testimony in court that Molla was present when her family was massacred.

The trial concerns events 42 years ago - a long period of time to have passed prior to a trial taking place.

Witness testimony is, at the best of times, now considered of questionable reliability – and so particular scrutiny needs to be given when considering a witness who gave uncorroborated testimony 42 years after the event, and on the basis of which a person has been convicted and given the death penalty.

It is possible for a single uncorroborated witness to be the basis of a conviction for the offence of murder in Bangladesh law or for a ‘war crime’ in international law.

However, for this to happen, the court has to be very certain of the reliability of the witness’s evidence – and the consistency of the accounts given by that witness over time is one crucial component of judging that.

And it is the lack of consistency in Momena’s evidence which is concerning.

For the whole of the last 43 years since the incident on 26 March 1971, it appears that Momena never told anybody that Quader Molla had been present at the time of her family's murder.*

Prior statements made by a witness which are consistent with subsequent testimony in court can help to increase a view that witness is reliable – but in relation to Molla’s presence at the crime scene, there was no such prior supportive evidence.

The prosecution did not collect any statement from a single person stating that Momena had told him or her that Molla, who in the last few decades had become a well known politician, was involved in the murders.

Is it feasible that throughout, this whole 43 years she did not tell anybody – not even a friend or wider family member – and then out of the blue suddenly tells a court of law?

When asked about this in her cross examination, Momena said: ‘Many people came to me and snapped my photos but I didn’t tell the name of Quader Molla and Aktar Gunda to anybody out of fear.’

One can appreciate, why a woman, whose whole family has been murdered, might not want to inform a stray journalist or other such person that Molla, a powerful politician, was involved in her family’s murder.

But if it was in fact true that Molla was present when her family was killed, and she witnessed this, it is difficult to understand why she never told anyone else at all in all of these years.

Her failure to have done should raise some initial concerns about the reliability of her subsequent testimony in court.

However, it is not just the lack of prior corroborative statements, it is the presence of two statements Momena previously provided which were substantively inconsistent with her testimony that are really significant.

In Momena’s 2007 statement to the Liberation War Museum researcher, she says that she was not present at the time of the murder. The liberation war museum researcher wrote: ‘Because the elder daughter of Hazrat Ali, Momena Begum, left for her father in law’s house two days earlier, she remained alive. … After a few days the elder daughter of Hazrat Ali Momena Begum knew everything about what happened, but as the situation in Mirpur was still problematic, she was not able to come to Mirpur.’

In its judgment, the tribunal did not engage directly with the statement Momena made in 2007, but did consider the overall relevancy of the statements taken by the liberation war museum researchers. It stated: ‘The tribunal refrains from taking the account made to a non-judicial body into consideration for the purpose of determining credibility of testimony of witnesses made before the tribunal.’

It gave a number of reasons for this.

First, that the ‘photographed copy’ of the alleged statement submitted before this Tribunal was not authenticated.

However, the tribunal had earlier refused an application by the defence lawyers asking it to request the original documents from the museum – something which it had the power to do.

Secondly, it stated that the ‘photographed copy of statement’ did not form part of documents submitted by the defence at the commencement of the trial and so could not be taken into account.

It is true that the defence did not submit these statements at that time – but that is because they only came to light at the end of the trial. This statement of Momena’s is clearly a significant piece of evidence and it is difficult to appreciate why the tribunal would not want to make use of its  ‘inherent power … to meet the ends of justice,’ not only just to access the original document, but to consider recalling her as a witness even at the late stage.

Moreover, there is another relevant issue here. It is difficult to believe that the tribunal investigators were unaware of this statement – since it was the museum in Jallad Kanna that helped set up the investigation officer’s interview with Momena.

This suggests that the prosecution failed to inform the tribunal – or the defence – of the existence of a very relevant piece of evidence necessary to assist in the determination of an offence.

Whilst Bangladesh law – unlike international law - does not require that the prosecution provide the defence with exonerating evidence, its apparent failure to make such a statement available does raise questions about the probity of the state appointed lawyers. The strong possibility that the prosecution had been aware of Momena’s 2007 statement throughout the trial, should arguably have been a factor that the tribunal considered in deciding whether to seek the original copy.

The third reason why the tribunal refused to give any consideration to the statement, was because it was not sworn testimony.  The judges stated that the value attached to the statements is ‘considerably less than direct sworn testimony before the Tribunal, the truth of which has been subjected to the test of cross-examination’ and as a result the ‘statement cannot be taken into consideration for determining inconsistencies of statement of witnesses with their earlier statement.’

The tribunal here seems to be saying that only prior statements given in court which have been subjected to judicial cross-examination can be used to question the reliability of testimony subsequently given in court. However, law in Bangladesh along with law in other jurisdictions, prior 'non-judicial' statements, can be relevant in dealing with the question of witness reliability.

Moreover, the tribunal’s position on this contradicts what it has said elsewhere in the judgment.

In dealing with another charge against Molla, the tribunal had to consider a contradiction between the testimony made by a witness in court and his prior (inconsistent) witness statement to an investigation officer.

In relation to this the tribunal stated (at para 269 of the judgement) that if the contradiction is minor, not affecting the core of a prosecution case it will not have an impact.

“In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Thus, exaggerations per se do not render the evidence brittle. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety.’

There is no doubt that what Momena said to the museum researcher is far from trivial and does absolutely ‘affect the core’ of the case -  whether Molla was present or not.

So the tribunal’s decision not to consider the relevancy of the statement Momena gave in 2007 is concerning.

The prosecutor, Mohammad Ali told New Age that at the time of giving this statement, Momena may well have feared repercussions and it would be entirely reasonable for her to lie about Molla’s presence. 

Whilst, this was not mentioned by the tribunal in its discussion of the liberation war museum statement, the point does need consideration.

The museum statement was taken 36 years after the event, at a time when the Bangladesh Nationalist Party/Jamaat-e-Islami were not in power, during a state of emergency when there was a widespread campaign to hold trials and it was given by Momena to a liberation war museum researcher, someone clearly sympathetic to her plight.

In that situation, would it have been reasonable to imagine that she would have lied about whether she was an eye-witness or not? Whilst one can’t discount this possibility, it is also not that probable.

Momena’s 2010 statement to the investigation officer, who had been specifically assigned to investigate Molla, is again different from her subsequent testimony.

This time she says that she was present at the time her family was massacred. Assuming that on this occasion, Momena is telling the truth, it is important to note that she again does not state that Molla was present at the time of her family’s massacre.

Momena did not tell the investigation officer – as she subsequently did in her testimony in court - that her father rushed into the house and said that Molla was chasing him; that Molla grabbed her father by the collar; and that she was told subsequently by two people that Molla was involved.

The failure to mention Molla at part of the gang is particularly relevant since Momena does tell the investigation officer that a Bihari called Akhter Gunda was in fact present.

If Molla had been present, why would Momena not have mentioned it to the officer who was actually investigating Molla?

The differences between the statement given to the investigation officer and the court testimony are clearly not minor ‘contradictions’, ‘inconsistencies’, ‘embellishments’ or ‘improvement on trivial matters’ – which the tribunal, as noted above, considered could be seen to have no impact upon the credibility of the witness.

This contradiction goes to the core of the case.

It is notable that in its judgment the tribunal, when assessing Momena’s court testimony, appears not to have chosen to refer to - yet alone consider - the contradictory statement Momena made to the investigation officer.

There are two further points – though less significant – which are relevant to the assessment of the witness’s reliability.

First, Momena did admit in her evidence that after her family’s murder she had a mental breakdown that lasted for two years, requiring her to be ‘chained’ up.

Whilst clearly, a person can have a breakdown and still retain her memory, it is arguably a factor that would need to be taken into account in terms of her reliability about an event 43 years ago.

In addition, in its assessment of Momena’s evidence, the tribunal in its judgment pointed out that Momena was ‘a natural live witness’.

It is of course difficult to second guess the view of the tribunal on this, but it is notable that when she gave her testimony, Momena was wearing a hijab – so her whole face was covered except for her eyes. One can question whether the tribunal can really argue, in such a situation, that she was such a ‘natural’ witness when the court could not even see her demeanor.

So in summary: the sole basis of Molla’s death sentence is the uncorroborated testimony of a single witness who said (having suffered a mental breakdown, and whilst wearing a hijab) that the accused was present at a crime scene, in recollection of events 43 years previously when she was 12 or 13 years of age, and where she had, uptil that point, never mentioned his presence at the scene, and where her testimony was inconsistent with two other statements she had given (including one to an investigation officer).

Whilst it is of course it is certainly possible that Molla was present at the time of the massacre, in light of all the combination of the reasons above, there remains sufficient doubt about the reliability of Momena’s testimony, that it really should not be the basis to convict him for this offence and, significantly, be the reason why he is put to death.

It is just as likely, with this context above, that prior to the trial this vulnerable women was pressed to include the name of Molla in her testimony. Something that the tribunal did not consider at all.

The detailed grounds of why the appellate division thought that a death penalty was appropriate have not yet been published.

It will obviously be interesting to see why in light of the above, the court felt it appropriate not just to uphold the conviction but also to pass the death penalty.

However, at least this is not the end of the road: the appellate division does have the opportunity to correct itself if it considers to review its decision.

If it does not, whilst Molla’s death may satisfy those convinced of his guilt, it will, to say the very least, not be a golden day in the country’s criminal justice system.

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* Correction: This sentence has been corrected so that last phrase reads 'her family's murder'. (Thanks for Shayam Alvee for bringing this to my attention)

Sole witness in Molla death penalty case gave contradictory accounts

This is the annotated version of my article in today's New Age (6 October 2013) relating to the offence for which Molla has been given the death penalty. It contains links to relevant statements and orders.

Sole witness in Molla death penalty case gave contradictory accounts

David Bergman

The sole witness in the 1971 war crimes case where the Appellate Division ruled that Jamaat leader Quader Molla should receive the death penalty had given two previous accounts in which she did not mention Molla’s presence at the scene of her family’s murder.

In one of the accounts, given in September 2007 to a Liberation War Museum researcher, Momena Begum even told the interviewer that she had not been present when her family was massacred, having left the area two days before it happened.

In the second account, given in July 2010 to a tribunal investigation officer, Momena, who was 13 years old in 1971, stated that the men who entered her family house ‘were Biharis’ and Pakistani soldiers. There was no mention of the presence of any Bengali.

Both of Momena’s previous accounts were inconsistent with the oral evidence she subsequently gave in the court — the only evidence that the prosecution adduced in support of its allegation — in which she placed Molla at the scene of her family’s massacre more than 40 years ago.

The International Crimes Tribunal appears to have been aware of both inconsistent statements.

In its judgement, the tribunal did not mention Momena’s statement to the investigation officer and, in relation to the statement given to the museum researcher, ruled that it should not be considered in determining the witness’s ‘credibility.’

Mohammad Ali, the prosecutor in the case, told New Age that Molla’s presence at the scene was ‘inadvertently not recorded by the investigation officer.’

About both statements, he added, ‘When a victim is involved in an atrocity, he or she is not prepared to make entire disclosure [due to fear] but whatever she states in oath before the tribunal that is wholly to be relied on. All other statements should not be relied on.’

In July 2012, Momena Begum gave an oral testimony to the tribunal with only the judges and lawyers present.

Whilst wearing a hijab, Momena told the court that on March 26, 1971, a group of men had come to her father’s house and killed six members of the family.

‘My father was running towards the house and said “Qader Molla will kill me”,’ she said.

When the men entered the room ‘Quader Molla pulled my father by the collar,’ and dragged him out of the house, she said. The men then killed her mother, three sisters (one of whom was first raped) and baby brother.

After the incident, she said, ‘A person called Kamal Khan who served tea to freedom fighters told me, “Quader Molla killed my parents.” My Ukil Baba [marriage witness] Akkas Molla also told me the same thing ...’

In its judgement, the tribunal stated that there was ‘no earthly reason to disbelieve [Momena].… Rather, she seems to be a natural live witness ….’

However, before she gave her evidence in court, Momena had given two interviews which contradict her testimony that she knew that Molla was present at the scene.

The first was on September 28, 2007 when she was interviewed by a researcher, working at Jallad Khana, the annexe of the Liberation War Museum at Mirpur.

In the statement, there is no mention of Molla. ‘Biharis surrounded [Momena’s father’s house] house and took [her father] away,’ the statement reads.

It also states that Momena had told the researcher that she was not present during the incident: ‘Because the elder daughter of Hazrat Ali, Momena Begum, left for her father-in-law’s house two days earlier, she remained alive.’

It went on: ‘After a few days, the elder daughter of Hazrat Ali, Momena Begum, came to know everything about what happened but as the situation in Mirpur was still problematic, she was not able to come to Mirpur.’

Momena’s statement to the researcher only became known to Molla’s defence lawyers near the end of the trial.

In January 2013, at the time of closing arguments, the defence requested that the tribunal obtain the original document from the museum.

The tribunal rejected the request saying that the ‘photographed copy’ of the document would ‘be taken into due notice at the time of passing our final verdict.’

In its judgement, the tribunal ruled that the statement could not be used to consider Momena’s credibility as there was no authenticated copy, that the statement had not been given to the court earlier in the proceedings, and it had not been subject to judicial questioning.

‘Inaccuracies or inconsistencies between the content of testimony made under solemn declaration to the tribunal and their earlier statement made to any person, non-judicial body or organisation alone is not a ground for believing that the witnesses have given false testimony,’ the tribunal stated in the judgement.

The second inconsistent account given by Momena was to Mohana Begum, the deputy investigating officer assigned to investigate the case against Molla.

Whilst in this statement, Momena said that on March 26, 1971, she was in the house when her family was killed, there is, again, no mention of Molla’s presence.

Instead, Momena told the investigation officer, as she had previously told the museum researcher, that the men who came ‘were Biharis. They entered along with the Pakistani soldiers.’

Momena specifically told the officer that one person was present. ‘I know all the Biharis. Aktar Gunda was with them. He was known as a gunda (criminal) in our locality,’ she stated.

Molla’s name is mentioned twice in the investigation officer’s report.

Momena is quoted as saying: ‘When the war broke out, [Akter Gunda] joined with Quader Molla of Duaripara and started to kill people in Mirpur’ and subsequently, ‘I heard about Quader Molla and Aktar Gunda and their force from people around.’

However, the statement contains no allegation that Molla was present at the time of this offence.

In its cross-examination of Momena in July 2012, the defence failed to ask her about her previous statement to the investigation officer.

In November, the lawyers made an application to the tribunal requesting that the witness return to court so they could do so.

The tribunal rejected the application stating that it was ‘a tactic to cause unreasonable delay’ and there was no legal provision to recall a witness for ‘cross-examination.’

During her testimony in court, Momena acknowledged that she had not previously told anyone that Molla was involved in the offence.

‘Many people came to me and took my photograph but, out of fear, I did not tell anybody the name of Quader Molla and Aktar Gunda,’ she said.

The Appellate Division of the Supreme Court has not yet published its written judgement on the appeal.

Tribunal findings on Molla death penalty charge

The appellate division on 17 September 2013  dismissed appeals made by Quader Molla's lawyers against his conviction on five counts of crimes against humanity. Instead the court upheld unanimously that his acquittal on charge no 4 should be reversed and should stand as a conviction, and most significantly that, by a majority, the sentence on charge no 6 (the murder of a family), should be changed from life imprisonment to a death penalty.

No full judgment was read out. A written judgement will be made available in due course.

Below is an extract from the original ICT judgment relating to charge no 6.

You can read the rest of the judgement and other details of the trial proceedings here

Adjudication of Charge No.06 [Killing of Hazrat Ali and his family and Rape] 

335. Summary Charge No.06: During the period of War of Liberation , on 26.3.1971 at about 06:00 pm the accused Abdul Quader Molla one of leaders of Islami Chatra Sangha and as well as prominent member of Al-Badar or member of group of individuals being accompanied by some biharis and Pakistani army went to the house of Hajrat Ali at 21, Kalapani Lane No. 5 at Mirpur Section-12 and entering inside the house forcibly, with intent to kill Bangalee civilians, his accomplices under his leadership and on his order killed Hazrat Ali by gun fire, his wife Amina was gunned down and then slaughtered to death, their two minor daughters named Khatija and Tahmina were also slaughtered to death, their son Babu aged 02 years was also killed by dashing him to the ground violently. During the same transaction of the attack 12 accomplices of the accused committed gang rape upon a minor Amela aged 11 years but another minor daughter Momena who remained into hiding, on seeing the atrocious acts, eventually escaped herself from the clutches of the perpetrators. By such acts and conduct the accused had actively participated, facilitated, aided and substantially contributed to the attack directed upon the unarmed civilians, causing commission of the horrific murders and rape by launching planned attack directing the non-combatant civilians and thereby committed the offence of ‘murder’ as ‘crime against humanity', ‘rape’ as ‘crime against humanity’, 'aiding and abetting the commission of such crimes' or in the alternative the offence of 'complicity in committing such offences' 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. 

Witness 

336. Prosecution adduced and examined only one witness in support of this charge. It examined Momena Begum as P.W.3. She is the only survived member of victim family and daughter of Hazrat Ali. She witnessed the horrendous event of killing and rape. The event happened inside their house and thus naturally none else had occasion to see the event committed. P.W.3 Momena Begum testified in camera as permitted by the Tribunal. She made heartrending narration of the atrocious event that she witnessed with choked voice. At the relevant time she was 13 years old and newly wedded. 

Discussion of Evidence 

337. P.W.3 Momena Begum has testified that she is the only survived member of their family. The event took place on 26th March 1971. According to P.W.3 at the relevant time they had been living in the house no. 21 of no. 5 Kalapani lane of Mirpur 12. It remains unshaken and undisputed too. 

338. P.W.3 while narrating the incident on witness box stated that on 26th March 1971 just immediate before the dusk her father hastily came back to home and was telling frightened that Qauder Molla would kill him. Aktar goonda and his Bihari accomplices and Pakistani army were chasing her father to kill him. Her father entering inside house closed the door and at that time her parents and brothers and sisters were inside the room. On being asked by her father she and her sister Amena kept themselves in hiding under the cot. She heard that Quader Molla and biharis coming in front of the door started telling- “son of a bitch, open the door, otherwise we will throw bomb”. They threw a bomb as her father did not open the door and thereafter, her mother having a ‘dao’ in hand opened the door and instantly they gunned down her mother. Her father attempted to hold her mother and then accused Quader Molla holding collar of wearing shirt of her father was telling- “ son of a pig, would you not do now Awami league? Would you not follow Bangabandhu? Would you not utter the slogan ‘Joy Bangla’?” Then her father folded hands begged Quader Molla and Aktar goonda to spare him. But the accused Abdul Quader Molla dragged her father outside the room. His accomplices slaughtered her mother with a ‘dao’, also slaughtered her sisters Khodeja and Taslima with a ‘chapati’ (at this stage, P.W.3 on dock started crying shedding tears). 

339. P.W.3 further stated, by memorizing the horrendous event that her two years old brother Babu started crying but he was also killed by dashing him to the ground violently. On hearing cry of Babu, her sister Amena started howling and then they dragged Amena from under the cot and tortured her by ragging her wearing clothes. Amena had raised cry to save her and at a stage her cry came to an end. Thereafter, they also had dragged her out from under the cot by causing injury with some sharpen object and then she raised cry and lost her sense. When she regained her sense she felt severe pain at abdomen and she could not walk and found her wearing pant in ragged condition. She somehow, there from, came to one house at ‘Fakirbari’ where its inmates found her in bleeding condition wearing ragged pant and then they made arrangement of her treatment by calling a doctor on the following day and then on being informed by them her father-in-law came there and brought her to his house where she was given necessary treatment. 

340. P.W.3 further stated that in 1971 she could not forget the scene of killing of her parents, brother and sisters which she herself witnessed and being traumatized she was almost mentally imbalanced and now she is in fact dead although still alive. At the time of identifying the accused on dock P.W.3 carrying immense heartache stated that she wanted to ask the accused—‘where is my father’? 

341. The above narration as to the commission of horrific event could not be dislodged by the defence in any manner. Rather, P.W.3, on cross- examination has re-affirmed that at the time of event they all were inside one room of their house. She could not see who killed her father but she, remaining in hiding under a cot, saw Quader Molla dragging her father out. 

342. P.W.3 , in cross-examination, in reply to question elicited to her by defence stated that the Bangalee person accompanying the Biharis and Pakistani army who was speaking in Bangla and dragged her father out holding his shirt’s collar was Quader Molla and she saw it remaining in hiding under the cot. Thus, the presence of accused Abdul Qauder Molla at the crime site has been re-affirmed by P.W.3. 

343. On cross-examination, P.W.3 has reaffirmed the horrific incident of killing and torture. She stated that her mother was slaughtered inside the room when her father was forcibly dragged out and she did not see her father’s killing. Thereafter, Biharis slaughtered her sisters Khodeja and Taslima inside the room. The Pakistani army and Biharis killed her brother by dashing him to the ground violently. They dragged out her sister Amena and caused successive torture. 

344. As regards father’s killing P.W.3 stated in cross-examination that after independence Akkas member informed her that Quader Molla had killed her father. She also stated that gang of 10-12 persons attacked their house and of them only one person wearing Pajama-Panjabi who was speaking in Bangla was Quader Molla. 

Evaluation of Evidence and Finding 

345. Defence does not deny an orgy of atrocities that took place on the date time and in the manner. But it refutes the charge that the accused was at the very centre of the web of these crimes as have been brought in charge number 6. It has been argued by the learned defence counsel that P.W.3 Momena Begum is not the daughter of victim Hazrat Ali Laskar. Prosecution has failed to bring any corroborative evidence to substantiate the charge. There has been no evidence to show that accused Abdul Quader Molla has overt act to the commission of alleged crimes. 

346. First, the argument that P.W.3 Momena Begum is not a daughter of victim Hazrat Ali Laskar is deprecated one. Without any evidence or putting suggestion to P.W.3 on the basis of any tangible evidence no such argument stands lawful and correct. Besides, on cross-examination, in reply to question put to her, P.W.3 stated that her father was running a tailoring shop at Mirpur 01 in front of Majar and she also used to work there prior to her marriage. 

347. It appears that the charge does not allege that the accused himself personally committed the crime of murder of inmates of P.W.3. But ‘murder’ as a crime against humanity does not require the prosecution to establish that the accused personally committed the killing. The crimes alleged are not isolated crimes. We are not agreed with the argument advanced by the learned defence counsel Mr. Abdus Sobhan Tarafder that the accused cannot be held responsible for the offence of murder as listed in charge no.6 as the prosecution has failed to establish the overt act of the accused. The case in hand involves the offences enumerated in the Act of 1973 which are also considered as system crimes committed in violation of customary international law. Overt act of accused Abdul Quader Molla is immaterial as he has not been charged for committing any isolated crime. He is alleged to have accompanied the gang of perpetrators to the crime site. Jurisprudence evolved suggests that even a single act on part of accused may lawfully be characterized as the offence of crimes against humanity. 

348. In the case in hand, we are just to adjudicate how the accused incurs responsibility for the accomplishment of the crime. What of his conducts or acts has made him responsible? It is to be noted that even a single or limited number of acts on the accused’s part would qualify an offence as crime against humanity. In addition, in certain circumstances, a single act of the accused has comprised a crime against humanity when it occurred within the necessary context. 

349. It has been proved beyond reasonable doubt that P.W.3 had witnessed the incident of killing her parents, sisters and minor brother committed at their own house. Miraculously she escaped. She is a traumatized witness and a survived victim. At the time of incident she was a girl of 13 years of age. One can say that how she can memorize the incident long 41 years after the incident took place? It is true that with the passage of time human memory becomes faded. But it is also the reality that human memory is quite capable of reserving some significant moment or incident in the hard disc of his or her memory which is considered as long term memory (LTM) and it is never erased from human memory.
350. We have found that the following version of P.W.3 remains unshaken: “the accused Quader Molla holding collar of wearing shirt of her father was telling- “son of a pig, would you do now Awami league? Would you not follow Bangabandhu? Would you not utter the slogan ‘Joi Bangla’?” Then her father folded hands begged Quader Molla and Aktar goonda (terrorist) to leave him. But the accused Abdul Quader Molla dragged her father outside the room and since then he could not be traced. His accomplices slaughtered her mother with a ‘dao’; slaughtered her sisters Khodeja and Taslima with a ‘chapati’.” 

351. It is need less to say that the horrific event that the P.W.3 herself experienced is inevitably still retained in her memory. There has been no earthly reason to disbelieve this witness. Rather, she seems to be a natural live witness who sustained severe mental trauma experiencing the horrific killing of her parents, sisters and minor brother in front of herself. 

352. We do not find any reason to view that P.W.3 had no reason or scope to know the accused Quader Molla, particularly when statement of P.W.3 demonstrates that according to her father, Abdul Quader Molla was chasing him and her father begged life from Abdul Quader Molla and Aktar goonda. It is found that on the following day of ‘crack down’ in Dhaka the incident of brutal killing of parents and other inmates of P.W.3 Momena took place, in violation of customary international law. 

353. Already it has been found that the crimes for which the accused has been charged were not isolated in pattern and the same were the outcome of organized and systematic attack directed against the civilian population. Now, let us find what were the conducts on part of the accused prior to the commission of the crime and whether he accompanied the principal perpetrators who were local notorious Bihari and hooligans. 

354. The incident of killing of parents, two sisters and one minor brother on the day time and in the manner remains unshaken. It is a fact of common knowledge that Mirpur is a locality of the then Dhaka city having mostly bihari population and accused Abdul Quader Molla used to maintain close and culpable affiliation with the local bihari goonda and pro-Pakistani people and already we have found from evidence of P.W.2 that Abdul Quader Molla was closely associated with the Jamat E Islami (JEI) politics and was a potential leader of ICS. Admittedly, at the relevant time he was a leader of ICS of Shahidullah Hall, Dhaka University. 

355. Evidence of P.W.3 amply demonstrates that Abdul Quader Molla by accompanying the gang consisting of Biharis, local Aktar goonda and Pakistani army to the crime site, in other words, substantially facilitated and aided the commission of the horrendous killings. Why the accused, being a Bangalee civilian accompanied the local Bihari hooligans? Why he used to maintain culpable association with them even since prior to 25 march 1971? 

356. It is to be noted that now it is settled that even mere presence at the scene of the crime may, under certain circumstances, be sufficient to qualify as complicity. From the evidence of P.W. 3 , a live witness, it is found that the accused by his presence in the crime site and by his culpable acts substantially encouraged and facilitated the main perpetrators in committing the crime and also he shared the intent similar to that of the main perpetrators and thus obviously he knew the consequence of his acts which provided moral support and assistance to the principal perpetrators. Therefore, the accused cannot be relieved from criminal responsibility. In the case of Prosecutor Vs. Charles Ghankay Taylor : Trial Chamber II SCSL: Judgment 26 April 2012 Paragraph 166 it has been observed that- “The essential mental element required for aiding and abetting is that the accused knew that his acts would assist the commission of the crime by the perpetrator or that he was aware of the substantial likelihood that his acts would assist the commission of a crime by the perpetrator. In cases of specific intent crimes, such as acts of terrorism, the accused must also be aware of the specific intent of the perpetrator.” 

357. Acts and conduct of accused Abdul Quader Molla at the crime site adequately suggest inferring his intent and knowledge. It is proved that he at the launch of the event dragged Hazrat Ali Laskar out of his house and before it the gang gunned down his wife. It is patent that the accused was sufficiently aware of likelihood that his acts would assist the principals in committing crimes. Thus, the accused is found to have actively and substantially encouraged and abetted the gang of perpetrators in committing the crime of killing of family inmates of Hazrat Ali Laskar. 

358. The Tribunal notes that accused Abdul Quader Molla had physically participated in the attack targeting the father and family members of the P.W.3 as her father belonged to Awami League politics and was a pro-liberation civilian. Testimony of P.W3 demonstrates evidently that the accused, by his acts of ‘accompanying’ the gang of Bihari and local Aktar goonda and also by an act of forcibly dragging Hazrat Ali Laskar out of house, Abdul Quader Molla’s presence in the crime site made him criminally linked with the commission of the offence of killing of Bangalee civilians. Thus, it is lawfully presumed that the accused had actus reus in providing moral support and aid to the commission of offence. The actus reus of abetting requires assistance, encouragement or moral support which has a substantial effect on the perpetration of the crimes. 

359. Now the question has been raised by the defence that the principal offenders have not been identified and brought to the process of justice and thus the accused cannot be held responsible as aider and abettor. It has been held by the Appeal Chamber of ICTY, in the case of Kristic that – “A defendant may be convicted for having aided and abetted a crime which requires specific intent even where the principal perpetrators have not been tried or identified ( April 19, 2004 para 143 of the judgement) .” 

360. No person of normal human prudence will come to a conclusion that at the time of incident of part of systematic attack, the accused who accompanied the principal perpetrators had a different or innocent intent. Rather, the evidence of P.W.3 demonstrates that the accused and the principals made the attack with common intent to accomplish their explicit and similar intent of killing. 

361. Mr. Abdur Razzak the learned senior counsel for defence argued by citing the decision of Appeal Chamber: ICTR in the case of Sylvetre Gacumbitsh [Case No. ICTR-2001-64-A] that according to causation standard for aiding and abetting that the acts must have a ‘substantial effect’ on the commission of the crime. The learned counsel also drew attention to the following paragraph [Page-199-Para 688 of Prosecutor v. DU[KO TADI] ICTY Trial Chamber: Case No. IT-94-I-]: “The ILC Draft Code draws on these cases from the Nuremberg war crimes trials and other customary law, and concludes that an accused may be found culpable if it is proved that he “intentionally commits such a crime” or, inter alia, if he knowingly aids, abets or otherwise assists, directly and substantially, in the commission of such a crime.“ 

362. Presence of an accused alone in the crime site may not always be sufficient to infer his contribution and assistance of the accused in the commission of crime committed by the principals. But we have found too in the case of Prosecutor v. Tadic [ICTY Trial Chamber: Case No. IT-94-I-T] wherein it has been observed as below: “.............However, if the presence can be shown or inferred, by circumstantial or other evidence, to be knowing and to have a direct and substantial effect on the commission of the illegal act, then it is sufficient on which to base a finding of participation and assign the criminal culpability that accompanies it .” 

363. In the case in hand, evidence of P,W.3 inescapably shows that the accused actively and knowing the consequence of his acts accompanied the gang of perpetrators to the crime site and by his illegal act of forcibly dragging Hazrat Ali Laskar out of house he substantially facilitated the commission of crimes committed by the principals. Therefore it cannot be said at all that the accused’s presence at the crime site and accompanying the principals were devoid of guilty intent. 

364. Accompanying the perpetrators while attacking the inmates of the P.W.3 is a significant indicia that the accused provided substantial assistance and moral support for accomplishment of the crime, although his acts had not actually caused the commission of the crime of killing in the crime site. In this regard, we may rely upon the decision of the Trial Chamber of ICTR in the case of Kamubanda [ January 22, 2004, para 597] which runs as below: “Such acts of assistance....... Need not have actually caused the commission of the crime by the actual perpetrator, but must have had a substantial effect on the commission of the crime by the actual perpetrator”. 

365. Thus, we find that the accused Abdul Quader Molla physically and having ‘awareness’ as to his acts participated and substantially abetted and encouraged to the commission of the crime. The manner time and pattern of conduct of the accused Abdul Quader Molla at the crime site and also prior to the commission of the crime is the best indication of his conscious option to commit a crime. Intent, coupled with affirmative action, is evidence of the highest degree of imputative responsibility. Acts on part of the accused at the crime site are thus qualified as crimes against humanity as the same formed part of attack directing the unarmed civilian population. His acts were of course culpable in nature which contributed to the commission of murder of Hazrat Ali Laskar and also to the commission of murder and rape committed in conjunction of the event at the crime site. 

366. The testimony of a single witness on a material fact does not, as a matter of law, require corroboration. In such situations, the Tribunal has carefully scrutinized the evidence of P.W.3 the live witness before relying upon it to a decisive extent. Since the horrific event was committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passerby will be witnesses. P.W.3 is the only survived member of victim family and thus her evidence cannot be brushed aside or viewed with suspicion. Besides, it is to be noted that the testimony of a single witness on a material fact does not, as a matter of law, require corroboration. The established jurisprudence is clear that corroboration is not a legal requirement for a finding to be made. “Corroboration of evidence is not necessarily required and a Chamber may rely on a single witness’ testimony as proof of a material fact. As such, a sole witness’ testimony could suffice to justify a conviction if the Chamber is convinced beyond all reasonable doubt.” [ Nchamihigo, (ICTR Trial Chamber), November 12, 2008, para. 14]. 

367. Indeed, within a single attack, there may exist a combination of the enumerated crimes, for example murder, rape etc. In view of discussion as made above and taking the settled jurisprudence into account eventually we are persuaded that the acts of accused Abdul Quader Molla , as has been testified by the P.W.3, in the course of implementation of the actual crime of killings and rape, render him criminally responsible for the commission of the crime that has been established to have taken place as a part of systematic attack and as such the accused Abdul Quader Molla is found to have incurred criminal liability under section 4(1) of the Act for the offence as mentioned 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.

Molla judgement excerpt about Jallad Khana statements

This posting is linked to this

This is the excerpt from the tribunal's judgement dealing with the Jallad Khana statements (including that of Momena Begum). The whole judgment can be accessed here.

On 17 September 2013, the appellate division imposed the death sentence on Molla in relation to the offence which Momena gave evidence.

This statement is linked to the annotated version of an article (originally published in New Age) which can be found here.

(ii) Application praying direction to Mirpur Zallad Khana for production of statement of four witnesses for showing inconsistencies with that made before the Tribunal (filed at the stage of summing up of case by the defence)389. After conclusion of trial and at the stage of summing up case defence filed an application together with ‘photographed copy’ of some documents allegedly the statement of P.W.3 Momena Begum, P.W.4 Kazi Rosy , P.W.5 Khandoker Abu Taleb which are claimed to have obtained from the museum of Mirpur Jallad Khana praying direction to the museum authority for production of the originals archived therein for showing contradiction and inconsistencies between the earlier narration and the testimony made in court in relation to fact described in charges. Admittedly, the same have been procured pursuant to a report published in a local daily ‘The Daily Naya Diganta’ on 13 December 2012. 

390. The learned defence counsel has submitted that the above statement needs to be considered for assessing credibility of testimony of the P.W.s relating to the martial fact. Because narration made therein earlier is inconsistent with what has been testified before the Tribunal. The Tribunal is authorized to make comparison of sworn testimony of witnesses with their earlier statement and after such comparison it would reveal that the witnesses have made untrue version relating to pertinent fact. 

391. First, the ‘photographed copy’ of alleged statement submitted before this Tribunal is not authenticated. Defence failed to satisfy how it obtained the same and when. Second, ‘photographed copy of statement’ does not form part of documents submitted by the defence under section 9(5) of the Act and thus the same cannot be taken into account. Third, the alleged statements were not made under solemn declaration and were not taken in course of any judicial proceedings. In the circumstances, the value attached to the said statements is, in our view, considerably less than direct sworn testimony before the Tribunal, the truth of which has been subjected to the test of cross-examination. Without going through the test said statement cannot be taken into consideration for determining inconsistencies of statement of witnesses with their earlier statement. 

392. We are to consider whether a witness testified to a fact here at trial that the witness omitted to state, at a prior time, when it would have been reasonable and logical for the witness to have stated the fact. In determining whether it would have been reasonable and logical for the witness to have stated the omitted fact, we may consider whether the witness's attention was called to the matter and whether the witness was specifically asked about it. The contents of a prior alleged inconsistent statement are not proof of what happened. 

393. Besides, Inaccuracies or inconsistencies between the content of testimony made under solemn declaration to the Tribunal and their earlier statement made to any person, non-judicial body or organisation alone is not a ground for believing that the witnesses have given false testimony. Additionally, false testimony requires the necessary mens rea and not a mere wrongful statement. We do not find any indication that the witnesses with mens rea have deposed before the Tribunal by making exaggeration. 

394. For the reasons above, the Tribunal refrains from taking the account made to a non-judicial body into consideration for the purpose of determining credibility of testimony of witnesses made before the tribunal.