Saturday, March 24, 2012

26 Feb 2012: Chowdhury charge framing

After the tribunal dealt with the contempt application by the defence against the jonkhonto newspaper the tribunal moved onto dealing with the discharge application relating to the charges against Salauddin Quader Chowdhury. Prior to this the most recent hearing on this matter was on 22 February. (Please note that some of the summary of the arguments made here by the lawyer are not set out clearly, and will be clarified shortly.)

Chowdhury, the accused, from the back of the court, made a request to pass an order to transfer him to another jail. He said that the emvironment was not tolerable in jail and he was suffering from insecurity.

Advocate Fakhrul Islam, Chowdhury’s lawyer then got up and continued with his arguments.

He said that by the 1st Amendment of the Constitution, Article 47A has been inserted. It had prohibited a person to whom is specified in Article 47(3) to move the Supreme Court for any kind of the remedies. Article 47(3) of the Constitution, he said, relates 4 classes of people [member of armed, or defence or auxillary forces or who is a prisoner of war]

He then read from the debate in the parliament about the amendment.

Justice Nizamul Huq then said, ‘You’re trying to say the purpose of trial was only for those 195 people. Right?’

Advocate Fakhrul Islam then told the court that Article 47(3) of the Constitution refers to 4 categories effected by the First amendment but the International Crimes Tribunal Act-1973 refers to only 3 categories.

Justice Nizamul Huq: The Act stands as it is now.

Advocate Fakhrul Islam: My Lord, 1st amendment of the Constitution was passed before Bangabandhu. The bill was the will of the father of the nation. My Lord are we now trying to defy the intention of Bangabandhu.

Justice Nizamul Huq: It is the matter of Parliament.

Advocate Fakhrul Islam: My Lord; my humble petition is to let me go till the end.

Justice Nizamul Huq: Please proceed. The law stands as it is today.

Advocate Fakhrul Islam: My Lord, please look at page-91. The legal issue about the amendment is…

Justice Nizamul Huq: Mr. Fakhrul it is not the headache of the Tribunal to think about whether the amendment of 2009 of ICT Act was good or bad.

Advocate Fakhrul Islam: My Lord, it is a serious issue. Though this is not a Constitutional Court but no Court can go outside Constitution.

My Lord, please look at page-91. The ICT Bill has been passed by 255 vote, including Bangabandhu, there were no ‘no’ votes and 3 people abstained from voting. So, my humble submission is that other than 4 categories, no other categories of people could be accused. The whole question should be brought before the nation. Whether the amendment [allowing individuals to be prosecuted] is right or wrong. My colleagues were also surprised that how could parliament could deny the intention of Bangabandhu.

Please look at page-127—Sec-3 of the ICT Act defines the people who could commit the crime; this has been clearly said that these 3 classes of people would be fallen under the categories of the crime.

So, my Lord, in 1973 the intention which has been inserted could not be changed even after 200 years. Now there is another question. Please see Sec-4 of the ICT Act.—each and every person would be liable not specified. This Section 4 allows other persons as well as the people specified to be prosecuted. Under 1st amendment there were 4 categories and now under ICT Act there are 3 categories of people ['being a member of any armed, defence or auxiliary forces']

Sec 2 of the ICT Act defines auxiliary forces. So Section 4 connects with Section 3. So, you can  not go beyond this. Now the question is whether the accused falls under any category. I’ll announce it towards the whole world that the intention of the Great Leader Bangabandhu has been frustrated.

Justice Nizamul Huq: The amendment has been passed in 2009.

Justice AKM Zaheer: The grounds for amendment of 1973 has been provided; now could you please read out the grounds for the amendment of 2009.

Justice Nizamul Huq: You’re going to the same point again and again that- the intention of Bangabandhu has been frustrated.

Advocate Fakhrul Islam: My Lord, please look at page 134. This is a Bill actually. It is a Bill to amend ICT-1973: ‘This Act has been promulgated for the trial of various kinds of offences committed on 1971. The present Government is committed about the trial, so this amendment bill has been passed,’ it states.

Justice Nizamul Huq: Please read Para-4.

Advocate Fakhrul Islam: To comply with the international standards the amendment bill has been passed.

Justice Nizamul Huq: Yes, this is the reason about which we’re talking about.

S.Q. Chowdhury, then asked to speak to his defence counsel.

After coming back from S.Q Chowdhury, Advocate Fakhrul Islam, then said: ‘the serious question is this. Can any person could be brought under this Tribunal, is this justifiable. Actually the object of amendment is for improvement or to bring new provisions. If the amendment is brought for any other purpose,  the amendment will be totally illegal.

Justice Nizamul Huq: This tribunal was not formed to declare anything wrong and ultra-vires.

Advocate Fakhrul Islam: I’m not praying for that, My Lord. I’m saying whether the amendment which has curtailed the Fundamental Rights infringed the dream of Bangabandhu. I would like to submit a case My Lord.

Justice Nizamul Huq: Are you talking about 8th amendment case.

Advocate Fakhrul Islam: Yes, My Lord. The Judgment of 8th Amendment which is the type of judgment which reflects the wisdom of the citizens. So the power to amend should not be the power to construct.

Justice Nizamul Huq: Substance of the Natural Character of the constitution cannot be changed.

Advocate Fakhrul Islam: For this reason, I appreciate the case. It has also been stated that the fundamental character of the constitution cannot be changed.

Justice Nizamul Huq: So, now tell us whether there is any change of natural character.

Advocate Fakhrul Islam: By bringing another class of individuals - every citizens are included here, which infringes the Fundamental Rights.

He then referred to the General Clauses Act which is the part of the Constitution under Article- 152(2) (a) and asked whether the amendment made 30 years before is retroactive. I am going to give an example- In a Parent Act a footnote is given to show the date of promulgation. Section-5 of the General Clauses Act says that-Where any Act of Parliament is not expressed to come into operation on any particular day, and then it shall come into operation—in the case of an Act of Parliament to which this Act was applicable before the 26th of March, 1971, on the date on which it receives assent.

So, here it has been said the Act which has been adopted by the parliament has been approved by the President on 14th July, 2009 but after that it has been stated, it will come into effect as early as possible.

My humble submission is that since General Clauses Act is the part of the Constitution, so this amendment as a separate bill should be brought before parliament, like 15th amendment.

Justice Nizamul Huq: All laws promulgated by the parliament are legal, unless and until it is ultra-vires. What is your opinion regarding this?

Advocate Fakhrul Islam: This amendment has been passed two years ago. Since General Clauses Act is a part of the Constitution. Parliament could easily backdate the piece of law.

Please look at the Money laundering Act- 2009 which has been declared to be effective from 15th April, 2008.

Justice Nizamul Huq: Parliament could exercise backdate.

Advocate Fakhrul Islam then defined the term defined the term ‘Amendment’ and 'Amended' from various sources

So the term Amendment connotes the term ‘to correct’.

The tribunal was adjourned until 2pm

Fakhrul Islam continued with his discharge petition. He said that the Amendment which has been brought is fully outside the ambit of the constitution and has been brought for political purpose. He then read from a speech of Sheikh Mujibar Rahman: ‘Dear countryman, we have become the member of Commonwealth, UN general assembly and NAM during the last one year. We are now an established country and have a full support of these organizations. We have a good relation with our neighbouring country; we have pardoned the war criminals as well’

Justice Nizamul Huq said Fakhrul Islam then both told the lawyer that you “just have to submit before us why formal charge against the petitioner is not maintainable”

Fakhrul Islam: Yes, my lord I am trying to do it.

Then Ahsanul Huq Hena came to the dais and summed up the discharge petition of Fakhrul Islam.

This tribunal is a good piece of legislature. Some laws are drafted well and some are bad. But, everything should be done in good faith. And my lord, discharge petition has been submitted as there is no prima facie case against the accused petitioner in formal charge.

In formal charge it has been mentioned that Sallahuddin Kader chowdhury is only Intermediate pass. But the petitioner is B.A honours in Political Science. He was not involved in politics before 1979 or never was the member of any auxiliary force. From 1979 to till date he is the Parliament member under the Government Awami league, BNP and all other party. Actually “He is a brand by itself”.

Investigation, done after arrest is not acceptable anywhere. My lord, what it the motive of the Government?

Whether this case is barred by law or not? Why this case has not been filed before, why it has taken 37 years to file. This Government was in power before also. What about the care-taker Government? Why they did not take any initiative. So I think, there is a motive of this Government.

When a cognizance has been taken under sec.4 of the collaborators Act 1972 then ICT has no authority to transfer this case from the collaborators Act. It will be considered as violation of Article 35(2) since the same case is pending under the collaborators Act 1972.

My lord there are in total 25 charges, I am not saying to discharge all of 25 charges, I am only here to discharge of only 6 charges which are not maintainable.

My lord, is it possible that only these 6 persons were involved to the killing of 3 million people? My lord, petitioner has been arbitrarily detained in custody till framing of formal charge from the time of arrest.

Justice Nizamul Huq: Mr. Hena, an accused can never raise a question whether it is arbitrary or not.

A.H Huq: My lord, I am not the accused, I am the lawyer on behalf of the accused-petitioner.

Then A.H. Huq Hena said my lord, a fair trial should not be held by an incomplete formal charge. Formal charge is not considered as according to the law if the prosecution did not include proper investigation report to the formal charges.
Bail petition by the Ahsanul Huq Hena
Following this, an application for bail was argued:
Ground no.1: We are here for the provisional release of the accused. Accused-petitioner is the Member of Parliament from Chittagong 2 and son of Fazlul kader Chowdhury. There is no chance of absconding.

Accused-petitioner is highly qualified politician. Formal charge is baseless, motivated and without any substance.

He was the members of Parliament for last 6 consecutive elections. He was the parliamentary adviser of former Prime Minister Khaleda zia.

Ground no.2: Accused-petitioner has been arrested on 16.12.2010. Ramna Thana case no 55(6)2010. He is in custody for a long time.

People from Chittagong 2 constituencies has been suffering from different types problems e.g. they are not able to take any project or any type of initiative for the development since the accused-petitioner is in jail for a long time. We know it is Parliament member of that region who takes all initiatives for developments.

Investigation was started after the arrest of the petitioner which is not permissible at law. However, it cannot be complete formal charge for fair trial.

For being crime against humanity there should be a motive. Killing always is done in pursuance of a motive. If there is no motive, then it would be considered as accidental killing. But fact is that accused-petitioner was not the member of Auxiliary force, he was not in any way benefitted by this as well, and he was not involved in politics before 1979. Therefore, it is clear that there should be a motive for being crime against humanity which is totally absent in respect of this accused-petitioner.

Then, Justice Nizamul Huq adjourned by saying that “you will be given tomorrow another half an hour for completing your bail petition”.

26 Feb 2012: Jonokhonto contempt order

The hearing started with the tribunal dealing with the contempt application relating to an article in Daily Janakantha. by Bikash Dutta. The application was made on 23 February

The chairman asked whether the journalist was present in the court, and Mr. Bikash confirmed his presence.

Justice Nizamul Huq said ‘I’m requesting the reporters to be very careful. You’re dealing with a tribunal of a very sensitive nature, so you should be very cautious. We’ve said it at the previous day that we’ve thickened our skin. What’s going on it’s not clear. We’re telling one thing and you’re publishing another thing. Please Journalists, be careful about the Tribunal. I would be pleased if it is the last incident of this kind. To err is human. As you’re not taking the certified copy, so there would be some mistakes. But you’ve to keep it in your mind that- reporting must be correct as much as possible. We do read a lot of papers; it makes us feel bad to read that wrong news.’

Justice AKM Zaheer added, ‘You should be much more careful, so that no one will get any wrong signals. Prosecution, defence, tribunal, accused, the rights of everyone should be ensured by publishing proper news.’

The chairman then read out the following order:
‘This is an application filed on behalf of Allama Delwar Hossain Sayeedi prayng for drawing up contempt proceeding under section 11(4) of the Intemational Crimes (ftibunals) Act,1973 against 2(two) persons namely Mr. Mohammad Atiqullah Khan Masud, Editor, Publisher and Printer of the daily Jonokhonto, and Mr. Bikash Datta, staff Reporter covering news on ICT for the Daily Janakantha.

Mr. Tajul Islam, the learned counsel for the applicant submits that 2(two) reports have been annexed with this petition which clearly specifies wrong reporting against the proceeding of the Tdbunal in respect of the applicant which is nothing but contemptuous and action undet section 11(4) of the International Crimes Tribunal Act, 1973 ought to be taken against them. We have perused the application. On our query on 23d February as to whether the Opposite Parry No.2 Mt. Bikash Datta is present in Tribunal, we found him absent and we fixed today for hearing as we wanted that the matter be heard in his presence. To day we find Mr. Bikash Datta present in the Tribunal.

We have gone through the application. Regarding the first report, we remember that we have already in presence of persons in the Tribunal, told that this reporting is contemptuous and we requested every body to be careful in reporting the proceeding of this Tribunal. The second report has been annexed which is a report regarding the statement of the witnesses in the Tribunal. Without going into this matter we are of the view that this type of report is unwarranted for fair trial. In open court we request all the journalist present including the Opposite Party No.2 to restrain themselves from wrong reportings. This Tribunal is dealing with serious type of cases and the whole world are looking to this Tribunal and its proceedings. We request the journalists class to be careful as we found frequent wrong reportings from all sides. We are reluctant to take action against journalists and as such we caution the Opposite Party No.2 to be more careful in future and request all the journalists so that report regarding the Tribunal remains truthful. We told them that we are to protect the interest of the Tribunal, the prosecutor, the defence, the prosecution and also the accused. We are to look after all. We believe that the journalist as a class will be helpfrul to us in achieving our goal. Mr. Bikash Datta. the opposite Party No.02 is asked to give a reioinder within two days in the news paper Janakantha regarding the wrong reporting and also asked to be careful in future. The application is thus disposed of.'
Following this, the tribunal then began again to hear the application of Salaussin Quader Chowdhury for dismissal of the formal charge against him. This is dealt with in a separate post.

Thursday, March 22, 2012

23 Feb 2012: Azam bail rejection

The Tribunal read out its order on the bail application relating to Gholam Azam. A summary of the arguments made for and against bail made on 15 February can be found here. A previous bail application had been rejected on 11 January (unfortunately, there is no post on that)
'This is an application filed on behalf of the applicant Professor Golam Azam praying for bail of him in the case. Mr. Abdur Razzak the learned counsel appearing for the applicant submitted that on the Tribunal took cognizance of offences against the applicant and thereafter the applicant's counsel was asked to produce him before the Tribunal on 11.01.2012. Accordingly the applicant was produced on 11. 01.2012 and the Tribunal upon consideration of a petition for bail rejected the prayer and sent him to custody. On that date in the afternoon considering his physical condition he was sent to the prison cell of Bangabandhu Sheikh Mujib Medical University and since then he is being detained there. The applicant is highly educated person and was the general secretary of the Students Union, who presented historic Dhaka University Central memorandum to the Prime Miflistet of Pakistan demanding Bengali to be a state language on 21.11,.1948. He was the ameer of Jamaat Islami Bangladesh and in 1999 he retired from active politics.

It was also submitted that there is no reasonable ground for believing that the applicant has committed offences as alleged and no charge has yet been framed against him. The applicant is aged about 89 years and suffers from a number of old age complications and ailments including hypertension and diabetes mellitus, he also suffers from back pain and pain in neck and knee joints. The applicant also suffers from electro lights imbalance, loss of vision in the right eye, osteoarthritis in both knee joints and cervical and lumbar spondilytis with radiculopathy. He has also an enlarged prostate and experiences pain in his thighs and legs when walking. On 05.11.2011, a medical boatd after examining him advised him absolute bed rest to continue present treatment with continuation of physiotherapy and restrictions of physical activities and to use of lumber corset and walking wlth elbow sticks.

The applicant being 89 years old is incapable of moving around freely and needs the assistance of an attendant in order to move from one place to another. Prior to being taken into custody the applicant's movements were strictly limited to going to the adiacent mosque to perform his daily player and that too with assistance of an attendant.

After being taken to hospital a medical board was onsulted to monitor the medical condition of him. Thereafter the hospital authorities conducted an x-ray which revealed several complications with his bones as a result of his old age. An ultrasonogram revealed that there were numerous stones in the applicant's gallbladder. He requires special care and attention which is not possible to be given in the prison ceil in Bangabandhu Sheikh Mujib Medical university (B.S.M.M.U). He has a special dietary requirement which is required to be followed strictly at all times and any deviation is seriously detrimental to his health condition. The standard of food is unsuitable for him and as such he can not take all the food items supplied to him by Bangabandhu Sheikh Muiib Medical university. He was losing his weight and his health condition is also being aggravated. He is not getting physiotherapy regularly. He also has not been provided hot water in the morning to perform his ablution as such he is compelled to use cold water which is detrimental to his health. On 25.01.2012 while taking bath he fell down on the floor and with the help of security guard he was rescued but his knees had been badly bruised. His application for allowing division facilities has been rejected on 14.01. 2012.
His wife by application to the authority requested to allow home-cooked food to be supplied to the applicant but it has not been made available to him. As such considering all these, it was submitted to release the applicant on bail.

It was further submitted that there is no reasonable suspicion to satisfy, an obiective observer that he has committed the offence and even there is no reasonable ground for believing that he will be convicted in this case. As such he is entitled to be released on bail. There being no chance of tempering with the evidence or with any witness as the investigation has been completed and formal charge have been submitted. There is a presumption in favour of bail in national or international law to prevent individuals from being arbitrarily deprived of liberty and to ensure that the period of detention following arrest stops as soon as possible. It was also submitted that till one man is convicted he is presumed to be innocent and as such the applicant may be enlarged on bail. Last of all the leamed counsel for the applicant prayed for conditional bail on conditions that he will surrender his passport before the competent authority, not apply for any travel documents without the prior permission from the Tribunal, will reside in the address stated above will report to the Tribunal when directed to do so, will not travel to any crime scene without prior permission from the Tribunal', and will not contact any of the Prosecution witnesses.

Mr. Golam Arif Tipu, the learned chief prosecutor opposed the prayer for bail and submitted that the formal charge has been submitted against the applicant and the Tribunal has taken cognizance of the offences finding prima-facie case against him under section 3(2) 4(1) and 4(2) of the International Crimes (Tribunals) Act, 1973, being satisfied upon the materials submitted by the prosecution which prima facie brings allegations against him that he was the mastermind of the atrocities committed by the shanti committee, Al Badr, A1 Shams, Razakars duting the liberation war of 1971. He has become the symbol of war criminals. For his heath condition, he is now being treated in Bangabandhu Sheikh Muiib Medical university B.S.M.M.U keeping in prison cell and being given highest level of treatment available in this country. There is no allegation that the accused petitioner is not getting proper treatment. All the benefits as available in the jail code are being given to him. His physical condition is not so bad as has been stated in the petition for bail and submitted by the learned counsel for the applicant. He has been found meeting with the press and giving statements. There was constant claim from the public at large to arrest him since the Tribunal was formed but the authority did not do so rather kept mum and completed the investigation and submitted the formal charge and only after cognisance was taken by the Tribunal he appeared as directed by the Tribunal and after that considering all these aspects, he has been sent to custody after rejecting the prayer for bail just on 11 January, 2012. There is no new ground urged by the applicant to enlarge him on bail and as such the instant petition is liable to be rejected.

We have heard the learned counsels for the petitioner and for the prosecution and perused the materials on record. Mr. Abdur Razzak the learned counsel appearing for the applicant has placed before us the case of Khalid Saigol vs the State reported in 14 DLR (SC) page 321, and submitted that "mere heinousness of the offence is not by itself a circumstance sufficient to take away the discretion of a Court to grant bail but in addition to this there must also exist reasonable grounds for believing that the person seeking bail has been guilty of such an offence." He also placed before us the case of State vs Mrs. Jobaida Rashid reported in 1997 v BLT (AD) page 131. And submitted that. "It will be sufficient to observe at this stage that there is nothing on the record except that alleged statement of a co-accused that the real planning for the occurrence was done by the respondent. Even the' alleged confession belies the allege statement. Without saying anything more, the materials on record so far in our opinion are plainly insufficient to think that there are reasonable grounds for believing that the respondent has been guilty of the alleged offence of criminal conspiracy." Relying on these two decisions, Mr. Razzak submitted that in a case where reasonable grounds to believe that the applicant was involved in the offence committed are absent, the accused should not be continued in detention and should be enlarged on bail and in this case there being no reasonable grounds to believe that the applicant was involved in the atrocities committed in 1971 and regarding his involvement no materials having been submitted before the Tribunal, the accused petitioner is entitled to be enlarged on bail.

He also placed before us some decisions of the European Court of Human Rights. First he referred to the case of Neumeister Vs Austria, application no. 1936/63 judgment on 27.6.1968 known as Neumeister case and submitted that in dealing with a petition for bail the court is to consider the length of detention of remand, length of proceedings against him, whether there was any failure to observe the principle of equality of arms. The reasonableness of the time spent by an accused person in detention up to the beginning of the trial must be assessed in relation to the very fact of the detention. The judicial authorities are to choose between either bringing accused to trial within a reasonable time to granting him provisional release even subject to guarantees. Until conviction he must be presumed innocent and the purpose of the law is essentially to require his provisional release once his continuing detention ceases to be reasonable. In referring the case of Wemhoff vs Germany passed by the same Court known as Wemhoff case he submitted that "it is for the national authorities to mention the circumstances which led them in the general interest to consider it necessary to detain a person suspected of an offence but not convicted. Likewise such a person must, when exercising his remedies, have invoked the reasons which tend to refute the conclusions drawn by the authorities from the facts established by them, as well as other circumstances which told in favour of his release. It is in the Iight of these pointers that the court must judge whether rhe reasons given by the national authorities to justify continued detention are relevant and sufficient to show the detention was not unreasonably prolonged and contrary to the convention". He also placed before us the celebrated case of Liversidge vs Andemon judgment of which was passed by the House of Lords wherein it was observed. "ln a case in which the liberty of the subject is concerned, we can not go beyond the natural construct of the statute. In this country amid the clash of arms, the laws are not silent. They may be changed but they speak the same language in war as in peace." He submitted that even with this finding the appeal of Liversidge was dismissed but the dissenting judgment by Lord Atkin was accepted ultimately by our Courts which is now continuing on the point of objective satisfaction.

He lastly placed before us the case of Professor Golam Azam in his nationality cancellation case involving Bangladesh citizenship order. This case was first heard by Division Bench of the High Court Division which has been reported in 45 DLR page 423. Placing this decision, the learned counsel for the applicant submitted that in paragraph 14 of that judgment Mr. Justice Md' Ismail Uddin Sarkar observed that. "Except some news items and one photograph showing that the petitioner met general Tikka Khan or general Yahya Khan there is nothing to directly implicate the petitioner in any of the atrocities alleged to have been perpetrated by the Pakistani Army or their associates the Razakars, Al Badr, or the Al Shams. Except that the petitioner was hobnobbing with the military junta during the war of liberation. We do not find anything that the petitioner was in any way directly involved in perpetrating the alleged atrocities during the war of independence. In my view none of this report is of any help for solving the legal question raised before us in this matter and as such I will refraim from mentioning any such reports of events in course of my discussion of the points raised in this matter". In the said judgment the judges of the Division Bench differed on the result and it went to the 3rd iudge and ultimately Professor Golam Azam got his nationality returned by the iudgment of the 3rd judge. The manner went to the Appellate Division and that judgment was upheld. In the Appellate Division judgment, reported tn 46 DLR (AD) page 192, Mr. justice M.H Rahman observed that ''the government placed before the High Court Division a number of books, written long after the date of notification, in support of its contention that the respondent collaborated with Pakistan and indulged in anti Bangladesh propaganda and appealed to some Muslim countries not to recognize Bangladesh. The truth or otherwise of the authors views or statements cannot be verified this summary proceedings. Advisedly the learned Attorney General did not place those books before this Court. Instead, reliance was placed on numerous reports, published in the Dainik Sangram the mouth piece of the respondent's political party, Jammat-e-Islami. Even from a casual read over of the reports, it will be clear that during the war of liberation, the respondent's allegiance and sympathies were with Pakistan and that he actively collaborated with the Pakistani authorities. He organized peace committees, led mass prayers for Pakistan and gave a clarion call to all patriotic citizens to comb every quarter, search out the enemies of Pakistan and liquidate them. The Dainik Sangram reported on 16 August 1971 that the respondent said "but God forbid, if Pakistan does not exist the Bengali Muslims will have to face the death of dishonor". The respondent said in the mid October, 1971 that for the existence of the Bengali Muslims the solidarity of Pakisan must be preserved. He termed the pro-liberation forces as enemies of Pakistan and as miscreants. He travelled to the then West Pakistan and met the policy makers. He also addressed the training camps of the Razakars, the auxiliary force of the Pakistan Army. This matters would have been straight away relevant and admissible had there been a case under Article 2B” of P.O 149 of 1972.

Regarding the observation noted by the High Court Division Mr. Justice ATM Afsal observed those to be "rightly and fairly". He also observed that those are irrelevant in this case. The learned counsel for the petitioner submitted that even the Supreme Court of Bangladesh had found.that there is no material available against this petitioner in support of the offences by him during the liberation war and as such there has been no prima facie case against the petitioner, he is entitled to be enlarged on bail.

We have heard the learned counsel and given our anxious thought over the matter. The reported decision placed before us by the learned counsel for the petitioner gives us the following views: Gravity of the offence charged is not by itself sufficient to refuse bail, a reasonable grounds for believing that the person seeking bail is guilty of such offence must exist. The foreign decision have been placed before us in support of the view that until conviction an accused must be treated innocent and the accused should not be detained in custody more than the reasonable time and for detaining person the authority is to give reasons in support of the detention and that the said reasons must be tested by objective test. 

In the Neumister case and Wemhoff case, only question of bail in pending trial was considered and the remaining case i.e. Leversidge case the question of detention by administrative authority is there. It differs with the facts of the present case. The custody time of the first two cases were much more than the present case which is only about one and a half months.

In the nationality cancellation case, the issue was quite different. His nationality was cancelled by article 3 of the P.O 149 of 1972 and it was challenged. Both the Divisions of the Supreme Court held that his activities during liberation war, is irrelevant in that case. Moreover as to the observation of Mr. Justice Md. Ismailuddin Sarkar that he does not find anything regarding the involvement of the applicant in the atrocities committed in 1971 does not favour the applicant because it was stated that photographs and news clippings were available but according to him, those does not bring direct involvement of the applicant but in a case under this Act, those materials do bring prima facie case of involvement of the applicant. The Judges got photographs and news items of his association with Pakistan government and Razakars, Al Badrr, and Al Shams. As because the observation that evidence and materials were found, do not correspond to the facts and laws of the citizenship case, those had got no bearing in the case. Even then we find that things reported and noted are very much relevant in the facts and circumstances of the present case and these brings case under the instant Act. Moreover without taking any evidence as was in the writ petition, the finding cannot be sustained.

The observation of Mr. Justice M.H. Rahman in that case in the Appellate Division Judgment finds those materials relevant for a case under Article 2B of P.O 149 of 1972. Moreover in the present case those materials are relevant. As such the observation of Mr. Justice Md. Ismail Uddin Sarker does not glven any benefit to the applicant in the case. The petitioner was taken to custody on last 1,7.01.2012and only one and half month is going to elapse that he is in custody and this custody time can in no way be considered as long custody and cannot be considered for bail.

Regarding his medical condition we have at the last time while rejected his prayer for bail considered it and the material documents which have been submitted with this petition were also placed at that time. We do not find any new materials in support of the seriousness of his illness, the prayer for bail was rejected earlier upon consideration of them. We have already observed that his age is not a factor or consideration of bail in this type of cases. The matter of President Hosne Mobarok a cancer patient and aged more than Professor Golam Azam was considered by us who is now facing trial being in custody. The case of John Demanyuk may also be stated who was also tried for committing international crimes at the age of 89 keeping in custody and ultimately he was convicted and sentenced. We do not find that old age of 89 years is a ground for release Professor Golam Azarn on bail in a case of this nature.

We have taken cognisance of the offence on last 9.07.2012 finding prima facie case against the accused petitioner and the charge hearing is going on. Formal charge has been submitted against him with the allegations that he gave statements in favour of atrocities committed by the Pakistan Army during the period of liberation war, he was the mastermind of creation of peace committee and Razakar bahini, he engaged members of jamaat-e- Islami in those groups; Al Badrs and Al Shams bahini were created by him from Islami chatra Sangha, a student wing of Jamaat-e-Islami, members of Jamaat and Chatra Sangha were engaged by him in crimes against humanity and genocide, he wanted arms from the govt. for strengthening Razakars. Al badars etc, he is personally involved in killing Seru Mia and 38 others in Brahmanbaria and he incited pak army to commit atrocities. If it is found that the material do not support the framing of charge, he will be discharged and released but when the charge hearing is going on after taking cognizance when allegations stated above are alleged against him, we do not find any matter to release him on bail at this stage.

As regards the medical condition for bail it is admitted that he is now in prison cell of Bangabandhu Sheikh Mufib Medical Univetsity (B.S.M.M.L) the highest grade hospital available in Bangladesh for the citizen of this country. There is no other place where a person can be given a better treatment than that. There is no statements that Professor Golam Azam is not getting proper treatment in the Bangabandhu Sheikh Mujib Medical University. He requires better food and other things are matters to be decided following jail code but that can not be a ground to release him on bail. We have considered all the submissions made by the learned counsel for the applicant. We do not find anything more to consider the prayer for bail at this stage. The prayer is thus rejected.
Then Abdur Razzak came to the dais and submitted that Article 31 of the Prisoners Act 1894 refers to the maintenance of certain prisoners from private sources, and that Gholam Azam was not getting proper food and that the supply of home-cooked food is not also allowed by jail authority. He said that ‘We have no other place to go as this is ICT matter. Only the Tribunal is open for us.’

Justice Nizamul Huq asked Razzak whether he was saying that the jail code was being violated?

Abdur Razzak, said 'Yes, my lord and as this is the Interantional Crimes Tribunal matter we can not go to any other criminal or civil court. Only this court is open for us. '

Justice Nizamul Huq responded by saying, 'Yes, Mr. Razzak, you are right. If it is ICT matter then you are not allowed to go anywhere but your matter is notan ICT matter, it is basically food matter of jail authority. In that case you can file a writ petition before the High court division. '

Abdur Razzak replied by saying 'My lord, then it will be violation of article 47 of our constitution if the ICT matter is not disposed of by this Tribunal.'

Justice Nizamul Huq then said, 'In case of ICT matter, there is no writ jurisdiction, it is true but when your right is violated under the jail code then you have to file a writ petition before the High court division.

At one point Razzak said excitedly there is no chance of the trial being prejudiced if applicant get permission from the Tribunal for taking home-cocked food.

Justice Nizamul Huq told Mr. Abdur Razzak to please keep his head cool. 'You know it very well that cooking material must be tested before giving it to the prisoners, there are 50 thousands under trial prisoners if everyone gets such type of permission then most of the time will be spent on testing food for the prisoners. Mr. Razzak you can apply for permission to the IG (inspector general of Police),' he said.

Abdur Razzak: My lord, Professor Ghulam Azam is Ghulam Azam. He should not be compared with other 50 thousands prisoners. The IG has no power to give permission.'

Justice Zaheer: Please at first go to IG then we will decide.

The court was then adjourned.

23 Feb 2012: Jonokontho contempt query

Sayedee Adjournment
Haider Ali, the prosecutor came to the dais and said that they were unable to produce a witness relating to the Sayedee case before the court. The following exchange took place:
Justice Nizamul Huq: Okay, then you fix the date when it will be possible for you.

Haider Ali: My lord, please fix a date which will be convenient for the Tribunal.

Justice Nizamul Huq: Learned prosecution everyday is convenient for us. You please fix a far date so that it is possible for you to produce witness.

Haider Ali: My Lord, next Tuesday is fine.

Justice Nizamul Huq: We have told you before that you should bring the witnesses to Dhaka and keep then under the custody of Investigation officer. However, 4th March is fixed for further witness in Sayedee’s matter.
Defence contempt of court application
Defence counsel Tajul Islam came to the dais and filed an application for contempt of court against the Daily Janokantha.

Tajul Islam: My lord, the paper published a report that the witness Madhusudan Ghorami said Sayedee was involved in rape during 1971, and that ‘They killed my brother in presence of Saidee.’

'The statements are wrong as well as contemptuous. We have told the tribunal earlier regarding the first statement and now they have done it again,' he said

This relates to the 27th prosecution witness, Saif Hafizur Rahman, the sitting president of the Narail District Bar Association, had told the court his brother Saif Mizanur Rahman and two other had been abducted by collaborators and later tortured and killed.  According to the witness, Sayedee was present in the car that took his elder brother, Pirojpur magistrate during the Liberation War, to the Baleshwar River.  Mizanur Rahman was then stabbed with bayonets and later shot to death. His body was thrown into the river.

The headline of a news story reporting the witness testimony of Feb 20 published in the daily newspaper on Feb 21 placed Sayedee at the scene of the  murder. The headline reads, 'Paki soldiers stabbed my brother to death in front of Sayedee'. Tajul Islam said that while the contents of the story was relatively truthful, the headline was damaging for his client.

"We would suffer prejudice with this kind of headline," he said.

He also referred to a previous headline from another witness testimony that alleged Sayedee to have raped Madhusudan Gharami's newly wedded wife. At that time, Sayedee's defence had merely brought the headline to the court's attention which Justice Nizamul Huq accepted was wrong.

Tajul Islam said there was a clear trend of maligning his client and was of the opinion that such news was contemptuous.

Justice Nizamul Huq told the counsel saying that there had been numerous reports about the tribunal and that the tribunal members had learnt to grow a thicker skin. "Do you want to set fire to an entire village with this little match stick?"

Tajul Islam referred to the famous saying of Joseph Goebbels, in charge of propaganda of Nazi Germany, saying that "But just like Goebbels had said, if you keep repeating it often enough, it becomes the truth."

Justice Nizamul Huq said that this matter would be adjourned till Sunday. We are telling Mr Bikash Dutto the opposite party no.2 to be present before the court on Sunday. He will be informed from our office also. Only to be present not to appear before the court.

Privileged communication application
Tajul Islam for the defence came to the dais and prayed for privilege communication of Quamaruzzaman’s matter. The tribunal passed the following order:

This was an application filed by the accused petitioner praying for a direction upon the Jail Authority to allow privileged communication between the accused petitioner and the defence counsel in the jail. Heard Mr. Taiul Islam, the learned Counsel appearing for the accused petitioner and also the learned Prosecutor Mr. Zead A1- Malum.

Mr. Tajul Islam, the learned Counsel submitted that in order to prepare the defence case they need to meet the accused petitioner to go through the allegations made in the formal charge and consult them and that they require to take instruction ftom the accused petitioner for the preparation of the defence case. He further submitted that similar petitions in this Court were allowed with the similar prayer in respect of different accuseds and as such he prayed for similar direction in this respect.

Mr. Zead-Al-Malum, the leamed Prosecutor submitted that for a fair trial the accused counsels may be allowed to take instruction from the accused person in accordance with the Jail Code. He candidly submitted that if the prayer is allowed, that may be subject to the condition of JaiI Code and in that case, he has got flo obiection in the prayer.

We have heard the learned counsel Mr. Tajul lslam for the petitioner and the learned prosecutor Mr. Zead-Al-Malum.

Upon consideration of the fact that similar prayers have been allowed by this Tribunal, we are also inclined to allow this prayer in accordance with the Jail Code on conditions that afly two counsels of the three mentioned here that is Mr. Ehsan Siddiq, Mr. Imtan Siddiq and Mr. Shishir Md. Munir allowed to meet and have discussions with the accused petitioner Mr. Md. Kamrazuaman. Let the Jail Authonty be directed the allow privileged communication of the accused petitionet with his two leamed counsels out of three names given in this order on 03.03.2012, 10.03.2012 and 17.03.2012 from10.00 a.m. to 1.00 p.m. and they will be allowed to consult with the accused petitioner during office hour and this communication of them will be a privileged communication that means  nobody will be allowed to be present at the time of communication except the security personnel who will be allowed to see the communication but not to heat the consultations. With this, the petition is allowed.

Mujahid adjournment application
Defence Munshi Ahsan Kabir filed an application for an adjournment Order of Ali Ahsan Mujahid’s matter.

Munshi Ahsan Kabir said My lord, we have received documents of prosecution on 8th February and it is not possible for us to read 6680 pages within thist short time. Therefore, we seek an adjournment order from the court. And my lord, it is my first application for adjournment Order before the court.

Then 11th March 2012 was then fixed for Ali Ahsan Mujahid’s matter.

After this the court read out the order relating to Gholam Azam bail application. To read that, go to this post.

Monday, March 19, 2012

22 Feb 2012: Chowdhury frame charging

After the end of the hearing relating to Gholam Azam's frame charge application, the tribunal then heard a continuation of the arguments against the framing of charges against Salauddin Quader Chowdhury. This previous hearing on this issue was on 23 January

Defence counsel Mr. Fakhrul Islam came to the dais and submitted that the Collaborators Act-1972 was repealed by the 5th amendment and in 2011 5th amendment was challenged and repealed by 15th amendment. Therefore, Collaborators Act-1972 has now come back as part of our constitution.

Defence counsel Ahsanul Huq Hena then got up to say that there are a total of 6 cases against Chowdhury, among them 3 are pending before the collaborators Act 1972, and 3 are pending before the Penal code 1860.

He said that offences under the collaborators Act 1972 and International crimes Act 1973 were not the same. My lord, offence under collaborators Act can not come under the ICT Act 1973, and the ICT has no authority to transfer a collaborators Act case to it.

He said that killing of one person cannot be considered as Genocide.

He said that when cognizance has been taken under section 4 of the collaborators Act then it cannot be transferred to any other Act as the case is pending.

He said that there are total 25 charges against the accused among them 6 are already pending. If these 6 cases are not discharged from this formal charge then it will be considered as violation of Article 35(2) of the constitution.

Morning session finished.

After lunch, defence counsel Ahsanul Haq Hena went to the dais and continued his submission in respect of charge hearing matter:

“I have mentioned 6 cases under the Collaborator’s Act where the parties are exactly the same. Now my submission is these cases should be excluded from the formal charge.”

Tribunal Chairman Justice Nizamul Huq said: “On 2 grounds – (i) parties are same, and (ii) those cases are pending under the Collaborators Act, right?”

Ahsanul Haq Hena: “Yes, my lord. I do not want to submit further on this matter.”

Justice Nizamul Huq: “What about the other matter (discharge petition on behalf of the accused which is being heard by the Tribunal simultaneously)?”

The new defence counsel Fokhrul Islam came to the dais to make his submission in respect of the discharge petition which in the following way
“My lord, at page 2 paragraph 1 of our submission, your lordship will find that a gazette (copy the gazette attached at page 41) was published by the Pakistan government mentioning the names of the elected members of the National Assembly (MNAs) in 1970. Bangabondhu Sheikh Muzib was elected from 2 seats - Dhaka 8 and Dhaka 9. At page 44 your lordship will find that Mr Khaled was elected from the seat where accused petitioner’s father was defeated.”
Justice Zaheer interrupted and asked him, “Do you want to say that he (accused petitioner’s father) did not have good terms with Yahya Khan?”

Fokhrul Islam replied, “You are absolutely right my lord.” Then he continued his submission:
“At page 49, your lordship will find a list of the seats declared vacated under section 11 of the Pakistan National and Provincial Election Act read with article 7 of the Legal Framework Order 1970 and section 96 of the same (Pakistan National and Provincial Election) Act. If your lordship carefully examines it, neither Sheikh Mujib seats nor Mr. Khaled seat was declared vacant. If accused petitioner’s father had good terms with the President then Mr. Khaled’s seat would have been declared vacant and accused petitioner’s father would get chance to be MNA from that seat.”
Tribunal Chairman Justice Nizamul Huq argued, “What do you mean? Sheikh Muzib had also good terms with Yahya! He was no way Yahya’s friend. May be Sheikh Muzib and Mr Khaled did not fall under the grounds of declaring their seat as vacant.”

Defence counsel Forkhrul Islam replied, “We shall see that my lord.” Then he continued his submission:
“I am reading out from page 3, paragraph 3. The bank account of the Conventional Muslim League was seized (accused petitioner’s father was the top leader of that Conventional Muslim League. Tribunal members were bit confused about the division of Muslim League in East Pakistan.
Accused petitioner Salauddin Quader Chowdhury then explained that in the parties named Muslim League there were differences in ideology and not all of those Mulsim Leaguers had good terms with the government). The lawyer continued:
Your lordship will find the gazette ordering the same at page 57. (He read out the gazette then)”
Tribunal Member AKM Zaheer Ahmed then asked “Mr Islam, it does not say so (that the account was seized or to be seized). It merely says that who have received the money/donation on behalf or in the name of Muslim League they were directed to deposit the money in the account of Muslim League.”

Defence counsel Fokhrul Islam replied, “Whatever it was, practically under this gazette the transaction in the account of the Conventional Muslim League was stopped.”

Tribinal Chairman Justice Nizamul Huq said, “Well, I understand. You want to submit that accused petitioner’s father Fazlul Quader Chowdhury did not have friendly relation with President Yahya Khan, thats it?”

Fokhrul Islam replied, “Absolutely correct, my lord.” Then he continued his further submission on discharge petition:
“At page 6 paragraph 13, your lordship will find the preamble of the Act. Again at paragraph 14 of the same page you shall find that under Simla Agreement except 195 (actually 200, however, everywhere reference was given as 195) members of the Pakistani force who were directly involved in war crimes, others to be sent back to Pakistan. Bangladesh was not a party to that agreement. However, the agreement was endorsed by Bangladesh.

Now let us have a look on the 1st Amendment Bill (of the Constitution of Bangladesh) as it was presented in the Parliament which has been attached at page 82 of our bundle. The wording of the section 3 of the draft Bill was ‘punishment of any person of including a person who is a member of armed, defence or auxiliary force’. Now let us look into the purpose of the Bill which is attached at page 83. (He read out a part of the initial consultation)”
Tribunal Chairman Justice Nizamul Huq interrupted and asked for an explanation, “It is just the Bill. What about the Act actually passed in the Parliament finally?”

Defence counsel Fokhrul Islam replied, “We shall see that as well my lord.” Then he continued his submission:
“At paragraph 17, page 8 we referred the debate in the Parliament on this said Bill. The debate on this Bill can be found at page 84 of our bundle submitted before your lordship.”
Justice Nassim said, “We do not have the time to read the debate now. What is your submission?”

Fokhrul Islam said:“My lord, please kindly have a look at paragraph 2247 of the debate where it was proposed that the words in section of the Bill ‘including a person’ to be omitted. The then Law Minister Monoronjon Dhar who presented the Bill also accepted that in the presence of Bongobodhu Sheikh Muzibur Rahman.”

Justice Nassim asked him, “Can you please confirm whether it was passed or not omitting those words?”

Fokhrul Islam replied, “Please have look at page 91 where paragraph 2247 of the parliamentary consultation it has been written that it was proposed that the words ‘including the person’ to be omitted. And finally, on 15th July 1973, the Act was passed in the parliament.”

(He then read out the 1st Amendment from a book with him and upon reading out he supplied the book to the tribunal chairman Justice Nizamul Huq. He went through the relevant part of the amendment and satisfied the words ‘including any person was omitted’. He then handed over the book to other members for their consideration. The other 2 members were satisfied as well.)

Defence counsel Fokhrul Islam then added referring to Asaduzzaman, “The leader (Bongbondhu Sheikh Muzibur Rahman) was agreed as well.”

Then he continued his further submissions:
“Now may I invite your lordship to look into paragraph 18 at page 8 where we have referred that the 1st Amendment of 1973 was passed with retrospective effect. Now let us come to the International Crimes (Tribunal) Act 1973. Now may I please invite your lordship to jump to page 103? The then Law Minister brought the Bill before the Parliament. Now let us go through section 3 of that Bill. As per the section 3, the Tribunal has power to try 3 classes of people, a member of (i) army, (ii) defence force, and (iii) auxiliary force.

Now let us come to the objective of the Act which is very much important. (defence counsel Fokhrul Islam read it out before the Tribunal) It has been confirmed from the objective, the same 3 classes of people to be tried under this 1973 Act. Most importantly, Law Minister Monoronjon Dhar presented the Bill in the presence of Sheikh Muzibur Rahman.

Now at page 103, you will also find that ‘auxiliary force’ has been defined in section 2 of the International Crimes (Tribunal) Act 1973. The Act has recently been amended though. However, I shall show that the amendment was not in accordance with law.”

Tribunal chairman Justice Nizamul Huq clarified their position on that issue saying that, “Can we consider the legality of the Act under the constitution, being a Tribunal constituted under the Act in question? We can just follow the Act.”

Defence counsel Fokhrul Islam then again continued his submission by reading out the then Law Minister Monoronjon Dhar’s speech at the parliament while presenting the Bill before it. Then he submitted as under:

“We have agreed to return all Pakistani armed force members except those 195 (ref: page 119). Now at page 12 your lordship will find the list of the names of those 195 (basically 200) members of the Pakistani force.”
Tribunal chairman Justice Nizamul Huq then asked, “What is the authenticity of this list?” He further said, “In the original Act there was provision for Military Tribunal. However, this tribunal is not the same. This Tribunal established upon an amendment in the Act in 2009 and it actually started to work from 25th March 2010.”

Defence counsel Fokhrul Islam replied, “That is exactly what I want to say. My submission is- originally it was designed to try army personnel under Military Tribunal.”

He then further drew attention the tribunal members to paragraphs 121, 122 and 123 of ‘Annexure L’ of the petition bundle. According to those paragraph, Dr. Kamal Hossain empowered by the then Head of the State Sheikh Muzibur Rahman, signed an agreement with Pakistan Government. According to that agreement, President of Pakistan would come to Bangladesh and would apologize for their act in 1971. On the other hand, President of Bangladesh Sheikh Muzib will forgive the Pakistanis on behalf of the people of Bangladesh.

Justice Nizamul Huq said in reply, “Later part of the agreement has been performed i.e. we have forgiven the Pakistanis, however, President of Pakistan did not apologize for their act in 1971; he visited Bangladesh though.”

Finally the defence counsel Fokhrul Islam submitted on the basis of his argument so far that the collaborators should try under the Act No. 8 of 1972 i.e. Collaborator’s Act 1972; not under the International Crimes (Tribunal) Act, 1973 as it was originally designed to try military personnel. The accused petitioner Salauddin Quader Chowdhury then shouted repeatedly from the dock, “correct..correct..correct..”

Tribunal chairman Justice Nizamul Huq then said, “We knew all those fact, however, today we have seen it (through defence submission).”

Defence counsel Fokhrul Islam then asked for an adjournment and Tribunal agreed. However, the counsel informed that further submission on this matter is required and it will take approximately an hour. However, he will not be able to make it on the next day he needs to be present before a bench of the High Court Division of the Supreme Court and if does not go there an arrest warrant will be issued against him.

The tribunal chairman decided the matter will be heard again on Sunday 26th February 2012.

22 Feb 2012: Azam frame charging 4

Prosecution Haider Ali first came to the dais and sought permission for an adjournment on Delwar Hossain Sayedee’s matter as they were not able to produce witness before the court today. The Tribunal granted the prayer.

Gholam Azam frame-charging application (continued)
The prosecutor Saiful Islam continued to read out the charge frame application (previous hearing on this matter can be found here)
7.4. International crime of complicity 
Complicity to commit crimes mentioned in section 3(2) of the International Crimes (Tribunals) act, 1973 as crime under section 3(2) (h) of the International Crimes (Tribunals) Act, 1973 are mentioned here: 

7.4.1. Convict’s strong support for the crime committed by the military from March 25 to April 04 clearly indicates his complicity to commit crimes. Accused met Lieutenant General Tikka Khan, military ruler of East Pakistan “B” territory, on April 04, 1971 evening at the governor’s house (present Bangabhaban) in Dhaka. Other than him in that delegation team, there were 12 members -  Pakistan Democratic Party head Nurul Amin, Moulovi Farid Ahmed, Khaja Khayer Uddin, A K M Shafiqul Islam, Maulana Nurjjaman, Hamidul Haque Chowdhury, president of Jami’te Ulama’ye Islam Mohsin Uddin Ahmed and advocate Saadi. This meeting was held at a time, when genocide had already been committed through “operation searchlight” on March 25 night and the army had been running slaughter throughout the country for long nine days. Not only his participation in that meeting but also his complete support to their activities proves his complicity to the crime committed by Pakistani army from March 25 to April 04 and thereon. [Daily Sangram, April 06, 1971] 

7.4.2. On 06.04.71, accused met again military ruler General Tikka Khan in a personal meeting and gave his full commitment to help army in order to bring back peace and tranquility. He showed anxiety about the interference of India and sending Indian infiltrators into Pakistan. He gave his full support to assist the army by his organizational workers, which proved again his complicity to the crime committed by the Pakistan army undoubtedly. [Daily Azad, April 07, 1971; Daily Pakistan, , April 07,1971; Daily Purbodesh, April 07,1971] 

7.4.3. In order to assist the attack of Pakistani army, commit crimes, torment and suppress activity of  common people, they increase the number of peace committee to 140 members, in where accused was in third position in the organizational hierarchy. It is also mentionable here that this increased peace committee members were given the duty to control local branch of peace committee in unions, moholla and locality. Accused was a high command in this committee and the aim of forming this committee was to assist army in several ways as well as committing crime by their own, hence he has complicity to these crimes. [Daily Azad, April 11, 1971; Daily Pakistan, April 11, 1971] 

7.4.4. With the same purpose, criminal organization ‘Nagorik Peace Committee’ had been changed to “Central Peace Committee” in order to conduct all its activities perfectly. The reason was to spread out the activity of this committee throughout the country. At the same time they formed an action committee consisting 21 members and accused was the third member of this committee. They formed district and Mohokuma sub-units to actualize its purpose. Other members were- (1) Mr. S.K. Khayer Uddin, (2) Mr. A.Q.M. Shafiqul Islam, (3) Mr. Mahmud Ali, (4) Moulana Siddique Ahmed, (5) Mr. Abdul Jobbar Khoddor, (6) Mr. Abul Kashem, (7) Moulana Sayed Mohammad Masum,(8) Mr, Abdul Matin, (9) Professor Golam Sarwar, (10) Barrister Akhter Uddin, (11) A.S.M Solayman, (12) A.K. Rafiqul Islam, (13) Mr. Nuruzzaman, (14) Mr. Ataul Haque Khan, (15) Mr. Toyaha Bin Habib, (16) Mr. Yousuf Ali Chowdhury (Mohon mia), (17) Major Afser Uddin, (18) Dewan Barasat Ali, (19) Peer Mohsen Uddin, (20) Hakim Irtezur Rahman. Accused was the leader of this Action committee and since the purpose of forming this committee was to assist crimes committed by invading army and he himself was to keep direct role in these crime, thus his complicity to crime undoubtedly became evidenced. [Daily Azad, April 16, 1971; Daily Pakistan, April 17, 1971] 

7.4.5. According to a report of Daily Paygam on 22.05.71, accused visited several places of Bangladesh mostly Jessore, Khulna, Mirpur, Lalbag, Chok, Lalmatia and Thatari bazaar of Dhaka. Here he met with other leaders and participated quite a lot of conferences and delivered speech. Moreover, he along with other leaders encouraged Pakistani Military to safeguarding Pakistan in this critical situation. His speech undoubtedly supports crimes committed by army and their collaborators and this is enough proof for his complicity with crimes. [Daily Paygam, May 22, 1971] 

7.4.6. His complicity with several crimes committed by army are proved by a speech given to the press at Lahore airport on 18.06.71. In his speech, he directly refused to transfer power to the elected people’s representatives instead he supported the army’s activities and crimes throughout the country. Besides, he mentioned the elected people’s representatives were considered illegal. Actually, the invading army gave this announcement. He also mentioned that he would discuss with the president Yahya Khan in Rawalpindi about how to improve the collapsed situation of East Pakistan. These consecutive events evidently proved his connection with the incidents going on in East Pakistan. Accused identified the freedom seekers as ‘offenders’ and their just activities as ‘Devastating’, which clearly indicated his definite support to the invading army and their crimes. He along with his follower auxiliary forces gave commitment for complete support to the Pakistani army and at the same time, they demanded to seize so-called ‘offenders’ in order to suppress the movement. [Daily Sangram, June 19, 1971; Daily Azad, June 19, 1971; Daily Pakistan, June 19,1971; Daily Purbodesh, June 19,1971; Daily Ittefaq, June 19, 1971.] 

7.4.7. Evidence of complicity of the Accused with Pakistani army’s committed crime across the country found more vigorously from the subject matters of his discussion with the president Yahya Khan in Rawalpindi on 19.06.71. and subsequent speech before the press. After the meeting he said, “Those people are not friend of Pakistan who do not have any support to the Pakistan ideology.” By agreeing with the military rulers, he identified the Bangalee freedom seekers as “offenders” and committed himself to protest them strongly. In front of the press, he requested the government to supply arms in order to protest the so-called offenders. Noted here, he mainly categorized the members and leaders of Al-badr, Al-Shams, Razakar, Al-Mujahid, Peace committee, and Jamat-e-Islami as believers of Pakistani ideology and unity. He recommended making these so-called patriots armed so that they could play strong role to suppress and put down offenders and rebellions who were the freedom seekers. [Daily Sangram, June 20, 1971] 

7.4.8. As a chief of Jamt-e-Islami, accused described the overall situation of Bangladesh and action plans in a press conference in held in headquarter of Jamat-e-Islami in Lahore, West Pakistan on 20.06.71. He demanded that the so-called offenders were still active and to protest their activities, the purported ‘peace seekers’, according to his language, should have been armed. Here, he meant the leaders of Al-Badr, Al-Shams etc. auxiliary forces, which were actually criminal organizations as ‘peace seekers’. Though he talked about the personal safety of these leaders, actually he indicated the destruction of so-called ‘offenders’ indirectly. The position of Pakistani army and the blue print to equipped so-called ‘peace seekers’ with arms in order to wipe out freedom seekers of Bangladesh ultimately indicated his complicity to commit crimes. [Daily Azad, June 21, 1971] 

7.4.9. Accused praised heavily the armed forces of Pakistan in putting down the secessionist’s movement in a speech given to the party men in their office in Lahore on 21.06.71. He said there was no alternative to keep unity of Pakistan other than army action. This speech conferred his complete support to the military oppressors and hence proved his complicity to commit crimes. [Daily Sangram, June 22, 1971; Daily Azad, June 22, 1971; Daily Pakistan, June 22, 1971] 

7.4.10. On 22.06.71, accused told the press in a conference, held in a hotel in Karachi that East Pakistani would always live peacefully with their brother West Pakistani in order to keep their existence. He added that the main purpose of six-clause demand by banned Awami league was to be separated from West Pakistan. He requested the government to ban those political groups who started movement (according to accused ‘secessionist movement’) by stating six-clause demand and those who motivated people (according to accused ‘make people excited’) for the liberation of East Pakistan. He also requested to bring back people’s confidence by protesting so-called offenders and rebellions. Jamaat leaders applauded Pakistani army for taking necessary steps to safeguard Pakistan from being destroyed, actually which was nothing but suppression and crimes. He told his followers and others to bring back ostensible ‘normality’ and therefore, they have to work with excellence and assist the authority properly. Supporting the military oppressors, calling people to assist them, and participating directly to the suppression if necessary, all of these activities of the accused clearly indicated his complicity to the crime. [Daily Sangram, June 23, 1971] 

7.4.11. Local peace committee arranged a public meeting at the field of Jessore public library of grabbed Bangladesh at any time on 06.08.71. The accused has named Awami league as “India’s agent” and Sheikh Mujib as “traitor” in that public meeting. The accused states about the necessity of sacrifice to be independent from under the predominance of Hindus. The accused stated that bangali Hindus grabbed Bangladesh as conspirators t. The accused calls the people for assisting peace committee and authority to protest against the awami league and bangali Hindus naming them as “miscreants” and “rebels”. Here, calling people, he indicates the auxiliary forces including Jamat e Islami, peace committee and Razakars, over whom he had the dominance and authority. And the accused gave thanks to the achievements of the Military to protect the unity of Pakistan through “taking steps at proper time” and made a prayer. Here the term “proper time” is meant to taking steps by Pakistan Military at the convenient time and “taking steps” is meant to completely suppress the Bangali civilians on the side of independence whom they would call as “miscreants and rebels”. By this the accused conforms/ expresses uniformity with the Pakistani Military and fully supports the crimes committed by them. These statements of the accused express the call for full support of all to the Pakistan Military authority; and his thanks to Allah and thanks to the Pakistan Military for their activities prove his support to them. And this indicates the clear complicity of the accused to the criminal activities done by the Pakistan Military. [The Daily Sangram, August 8, 1971; The Daily Pakistan, August 9, 1971; The Daily Azad, August 8, 1971; Fortnightly Report on Political Situation, for the 2nd Half of August, 1971 from special Branch, East Pakistan, Dacca. Secret No. 14 of 1971 Para 12] 

7.4.12 The accused of this case was present in the meeting of Central Council of Pakistan Jamaat e Islami presided over by Assistant Chief Moulana Abdur Rahim at Lahore of the then West Pakistan on 20.08.1971. With the help of other councilors present at the meeting, the accused gave his complete assent to the steps taken by the Pakistan Government to prevent the “arm rebellion” of Awami League which was declared as illegal. It should be noted that the preventive activities of the Pakistan government were offences/ crimes. Giving “full support” to those criminal activities, the accused expressed clear proofs of his ‘complicity’ with those criminal activities. [The Daily Ittefaq, August 21, 1971] 

7.4.13. A press conference takes place at peshwar of the then Pakistan at any time on 26.08.71, the accused gives speech there. The accused, in his speech, stated the rebels against Pakistan as “mirjafari” (act like Mir Jafar), and said that the Military has protected the pakistan from the conspiracy of India. Here, he stated rebels against Pakistan as “Miscreants and trespassers” and Awami League as “facists”. He also said the people of the grabbed Pakistan to fully assist the Pakistan Military in order to destroy them (AL and Rebels). Here he means the criminal activities committed on them by using words “destroying miscreants, trespassers and facists”. And here ‘people’ is meant to members of all the auxiliary forces under the control of the accused. These speeches of the accused show his call to all for the full support to the Pakistan Military Authority and support it by mentioning their activities; and this indicates the clear complicity of the accused to the criminal activities done by the Pakistan Military. [The Daily Sangram, August 27, 1971; The Daily Azad, August 27, 1971; The Daily Purbodesh, August 27,1971; the Daily Ittefaq, August 27, 1971] 

7.4.14 In a workers (supporters) conference in Peshwar of the then Pakistan on 26.08.71 afternoon, the then Amir of Jamat e Islami and the accused of this Case expressed his cordial respect to the Military for protecting the undivided Pakistan in severe obstructing situation. He further said the loss which has been occurred in East Pakistan by a “group of separatist rebels’ cannot be remedied only by slogans. 

In that speech the accused not only did support all criminal activities of the Pakistan Military but also called the supporters of his party to assist the Pakistan Military with arms using the phrase “cannot be remedied only by slogans”; by this he gives clear proof of his complicity in the crime. [The Daily Azad, August 28, 1971] 

7.4.15 In a press conference at Hyderabad on 30.08.71, the accused claimed that the national assembly should be dissolved and a new election should be held through a distinct election process. He further claimed strengthening the hands of the so-called “patriots and Islam-loving people”. By words “patriots and Islam-loving people” he meant the people those were on the side of undivided Pakistan and the assistants of Pakistan military. He further said that these people helped to control the situation of grabbed Bangladesh. Here the words “controlling the situation” were to mean eliminating the forces on the side of liberation of Bangladesh and people of their ideology, whom he stated as “miscreants, rebels and anti-state people”. The accused also stated about the help of the so-called patriots of Pakistan to the military and administrative authority in eliminating those. By expressing “cordial thanks” to thanks to the military in his speech, the accused did support their criminal activities. The accused stated about the important contribution of Zamiat e Tolaba e Arabia, Islami Zamiat e Tolaba and the Peace Committee in preventing this so-called “miscreants and Indian Agents”. 

Beside this, he stated about the life sacrifice of about 500 to 700 members of auxiliary forces in protecting the country i.e., protecting the unity of Pakistan. Here the stating the importance of the contribution auxiliary forces by the accused proves his connection with criminal activities of the Pakistan Military. Here, through the speeches of the accused, the connection and support to the criminal activities of the Pakistan Military by the accused and the auxiliary forces under his control, and it proves his complicity. [The Daily Ittefaq, September 1,1971; The Daily Pakistan, September 1, 1971] 

7.4.16. In a press conference held at the office of Jamat e Islami at Karachi on 31.08.71, the accused has shown respect to the Pakistan Military for their contribution in “protecting the Pakistan”. Here the acused meant the protection of undividedness of Pakistan through eliminating the people on the side of the liberation of Bangladesh by using the words “protecting the Pakistan”. He stated the people on the side of the liberation of Bangaldesh as so “called non good Muslim”. By mentioning this “non good muslim” he told them so-called “separationists” and stated about the activities of so-called “solely patriots” in eliminating them. By this, he expresses his support to the criminal activities made against the people on the side of the liberation of Bangladesh and his connection to that. Beside this, praising the activities of the Razakar he clearly proves his support, complicity and connection to their criminal activities. So, the above speech of the accused clearly indicates his support, complicity and connection to the criminal activities of Pakistan Military and their auxiliary forces and it proves his complicity. [The Daily Pakistan, September 2, 1971] 

7.4.17. The accused, in a discussion meeting of the Jamaat-e-Islami (JI) leaders held on 3.9.71 at the office of the Dacca city unit of the party at 91/92, Siddiq Bazar while discussing about political as well as law and order situation, stressed the necessity of getting back the normal situation. And took the decision to eliminate the “rebels and anti-social elements” in order restore the normalcy in the country. Here he meant by words “rebels and anti-social elements” to those are civilians and the people on the side of the liberation of Bangladesh. Attending of the accused in such type of decision makes clear of his support, connection and complicity in the process of eliminating the people on the side of the liberation of Bangladesh and it proves his complicity. [Fortnightly Report on Political Situation, for the first Half of September, 1971 from special Branch, East Pakistan, Dacca. Secret No. 15 of 1971 Para 15] 

7.4.18. The accused gave a statement in Dhaka of grabbed Bangladesh on 10.09.71 in which he recommended to include knowledgeable, orator and intellectual persons in Pakistani delegations in upcoming General Assembly of United Nations. Because he thinks that, there is serious crisis in the country and there may be conspiracy against them in upcoming General Assembly of United Nations and they have to face many debates. So, according to the accused, in selecting the representing team, the question of person or personality is not important rather the question of protecting national solidarity is important. Here the accused is recommending sending the “knowledgeable, orator and intellectual persons” because he knows that they will be questioned in united Nations for the oppression, suppression, genocide and crimes against humanity which the Pakistani rulers committed through the military forces upon the residents of grabbed Bangladesh. And for that reason he likes sending of such representative team who can give the explanation of these activities. This type of recommendation of the accused clearly exposed his complicity, connection, linkage to the crimes committed by the Military Forces and their auxiliary forces and it exposed his support to this crimes and it proves his complicity. [ The daily Sangram, September 11, 1971; Fortnightly Report on Political Situation, for the first Half of September, 1971 from special Branch, East Pakistan, Dacca. Secret No. 15 of 1971 Para 17] 

7.4.19. The accused, at the middle of the September of 1971, while congratulating the newly appointed ministers under the Pakistan Military Junta, praised the expeditions of the military, and stated about the effort of the local and central peace committee to restore the peace in the country. The accused wished that the newly appointed Ministers will do better than these Peace Committees. By this statement of the accused, he expressed uniformity with the criminal activities of the Pakistan Military and the peace committee, he supports them and exposed his participation with their activities and it proves his complicity. [ The Daily Sangram, September 19, 1971; The Daily Pakistan, September 21, 1971] 

7.4.20. On 21.09 Tuesday, in a statement made addressing the General Assembly of United Nations, the Amir of East Pakistan Jamat e Islami and the accused of the present case says that, the people of the east Pakistan were to take shelter in the various refugee camps of the frontiers of India leaving their home as they were compelled by the situation. He further claims, in that statement made addressing the General Assembly of United Nations, that the India should be compelled, through the authority of the United Nations, to send back the refugees to their own country. Some issues are to be looked at in this statement of the accused. As to under what “compelled situation” the refugees have left the country he did not mention being intended to mislead the people. Because the afraid people took shelter in the refugee camps of neighboring countries as being compelled to leave the houses and countries in order to protect themselves from country-wide criminal activities of the Pakistan Military and various auxiliary forces, elimination measures of specific organizations and other oppression and suppression. The immensely miserable life in refugee camps was more safe than to live in the country and it was absent in the statement of the accused. It is also necessary to mention that the accused was by all means connected to those criminal organizations, the criminal activities of which the auxiliary forces have increased and accelerated the extend and degree of leaving the country. A deeper criminal malicious intent is embedded in this statement of the accused. 

The step to bring back the people primarily taking security in the refugee camps was a plan to bringing back the victims of country-leaving within the scope of Pakistan Military and auxiliary forces, so that it becomes possible to start the elimination, incomplete murdering and other criminal activities with a new esteem. Both meanings, of the statement addressing the General Assembly of the United Nations made by the accused, prove the criminality and complicity with the committing of crime. [The Daily Sangram, September 22, 1971; The Daily Pakistan, September 22, 1971] 

7.4.21. The accused Ghulam Azam, while giving speech in a congrats ceremony to Provincial education Minister Abbas Ali Khan and Revenue Minister Mowlana A K M Yusuf arranged by Jamat e Islami of Dhaka city, said about sending the members of Jamat e Islami to Razakar force and peace committee. He said that, the two persons joining the cabinet were forced by the Jamat e Islami to take the responsibility, and the Jamat Islami has sent them in the cabinet for the same purpose as they have sent people in the Razakar force and in the peace committee. The accused further said that, what we did to restore the “peace” in the country we sent the people in the cabinet for the same purpose. Information, of sending the people of his party to the Razakar force and peace committee the auxiliary forces of occupier Pakistan Military in the name of so-called restoration of “peace”, directly proves the criminality of the accused and complicity with committing of same. [The Daily Pakistan, September 26, 1971; “Bangladesher Shadhinota Juddho-Dalilpatra, Seventh volume”, edited by Hasan Hafizur Rahman, Page: 688-689] 

7.4.22. On 16.10.71 Saturday, while giving speech in a public meeting held on the yard of Baitul Mukarram arranged by the Jamat e Islami, the accused said that the solidarity of Pakistan must be endured for the sake of the existence and protection of the rights of Banglaee Muslims. Accusing the so-called “extremists” of illegal-declared Awami league for the crisis of the country he says, Jamat e Islami is restlessly working in the whole country through the Peace committee for establishing the non-military government. This statement of the accused clearly proves his complicity with the various criminal activities of the Pakistani Force and of the Peace committee. Because the non-democratic government project forcefully implemented by the Pakistan Military Junta instead of transferring the power to Awami League the political power elected by the general people with absolute victory in the election, the country-wide genocide and other criminal activities were preplanned way of implementing the said project. [The Daily Sangram, October 17, 1971; Fortnightly Report on Political Situation, for the first 2hd of October, 1971 from special Branch, East Pakistan, Dacca. Secret No. 18 of 1971 Para 14] 

7.4.23. On 26.11.71 after returning in Rawalpindi from Lahore of the then West Pakistan, the accused, while discussing with the journalists, praised the contribution of Razakars and claimed to provide latest weapons for them. He commented that, as a result they will be able to vanish the miscreants. In 1971, as a criminal organization, the criminal activities of the Razakar force were spread in the whole country, and it (Razakar) was constituted by the effort of Pakistani Junta basically with the members of Jamat e Islami. By praising to the “contribution” of such organization, the accused not only expresses his undoubted consent to the crimes committed by them beyond reasonable doubt but also proves his organizational and consensual complicity in the light of the existing relation between Razakar Force and Jamat e Islami and it’s the then Amir. [The Daily Purbodesh, November 27, 1971] 

7.4.24. At morning of 28.11.71, while giving speech in a meeting of United Coalition Party (UCP) held at Rawalpindi of the then West Pakistan, the accused said that the United Coalition Party (UCP) led by Nurul Amin is hard determined to protect the Ideology and solidarity of the State. He made a request to President Yahiya khan to visit the East Pakistan without any delay in order to get the assistance of so-called patriot people more effectively. He said, all the patriots of East Pakistan are working with unity and a coalition of six political parties was made to compete in the by-election of East Pakistan. The accused further said that the members of coalition party and Razakars are sacrificing their lives in protecting the country. He clearly acknowledge that he and the organizations under him assisted the government in taking measures against the so-called “separationists” and “Anti-state” people, as because he thinks it as of a duty upon them. In the above mentioned speech, to the various criminal activities of the Military Junta of West Pakistan, the continuing of the assisting and supplementary criminal activities by various auxiliary forces in East Pakistan under it to establish the same target, the personal complicity of the accused is proved beyond reasonable doubt. [The Daily Sangram, November 1971] 
Chief prosecutor came to the dais.

7.5 Murder and Torture as Crimes Against Humanity
The accused committed Murder and torture as Crimes against humanity under section 3(2)(a) of the International Crimes (Tribunals) Act, 1973:

Murder of 38 people including Siru Miah Darogah
Date of Arrest : 21.10. 71
Time of Arrest: around 10am.
Place: Tantar Check post, Police Station- Kasba, District- Comilla
Date of committing crime: 21 .11. 71
Time: at night ending the day

Place of crime/ genocide: Slaughter-house and mass-grave adhering to Poirtola Rail Bridge, Police Station- Brahmanbaria
Killed Victim(s):
01. Siru Miah Daroga, Father- Late Amin Uddin Byapary, Sakin(Village)- Ramkrishnapur, Police Station- Homna, District- Comilla. (Working as SI in Mohammadpur Police Station of Dhaka in 1971)
02. Anowar Kamal (14), Father- Siru Miah Daroga, Sakin- amkrishnapur, Police Station- Homna, District- Comilla.
03. Nazrul Islam, Father- Late Abdul Aziz Sarker, Sakin- Sundalpur, Pollice Station- Daudkandi, Dist-Comilla. (was a student of BA (honors) in Bangla department in Dhaka University)
04. Abul Kashem, father-unknown, Sakin-unknow
Including the above 38 in toto name, identity and address of whom were not identified.

Description of the Crime: Siru Miah Daroga, Father- Late Amin Uddin Byapary, Sakin/Vill- Ramkrishnapur, Police Station- Homna, District- Comilla. He was serving in Mohammadpur Police Station as SI in 1971. Around 16 years ago he got married with Anowara Begum (70), Father- Late Ayet Ali Sarker, Vill- Ramchandrapur, Police Station- Muradnagar, Dist- Comilla. About two years after his marriage, his son Anowar Kamal was born. In 1971, Anowar Kamal studied in Matijhil Govt. Highschool in class X in Science group.

On 25 March 1971, at around 11.00 pm, SI Siru Miah went to his home situated at Chamelibag after he had seen Pakistani army coming to Mohammadpur Police Station. On 28th March he with his wife Anowara Begum, juvenile son Anowar Kamal and other relatives went, sometimes on foot, sometimes by boat, to his own home situated at Ramkrishnapur, Police Station- Homna, Dist- Comilla. Staying in his own house, he facilitated the refugee people who are bound to leave the country because of attack of the Pakistan Army and its auxiliary forces by arranging their meals and took initiative to send them to India. After 7/8 days, he went to India and returned to his home about a week later.

On 25 October 1971, Siru Miah Daroga along with his juvenile son Anowar Kamal, Nazrul, Abul Kashem, Jahangir Selim (now staying abroad) and Shafiuddin got out from own home towards India. Siru Miah was bearing a revolver and Shaheed Nazrul Islam was bearing another one.

On 27 October at around 10.00am, before entering into India, while arriving at Tantar Check post of Kasba Police Station, Razakars arrested and brought them in their camp. That time 5/6 of Pakistani army came there by army-jeep. They took that two revolvers from Siru Miah Daroga and Nazrul Islam. And tied Siru Miah and his son Anowar Kamal , Kasem, Shafiudden, Nazrul Islam and Jahangir Alam with cable and then heaved them on a rice carrying truck going to Brahmanbaria. At around 12.00pm, they had been got down from truck at a corner of Brahmnbaria town and brought in court building on foot. Leader of Peace Committee and Jamaat Leader named Peyara Miah came there and rebuked to them. 4/5 young people were with him.

They took off the watches, rings etc from their hands and brought them o foot at Razakar Manjil (Kalibari in front of Ananda School) at around 04.00/5.00pm. On the way, they were shown to people and it was being announced that, ‘special force had been caught with arms’.

After staying there a night, Peyara Miah and his people taking the arrested with them went to Dana Miah’s home situated in front o Brahmanbaria College in the morning. Pak armies used to torture them in a room that was situated at the ground floor of Dana Miah’s house. Peace Committee and Jamaat leader Peyara Miah supervised the torture procedure and he also tortured them. In other rooms of Dana Miah’s house also, the crying sound had been heard. After day-long torture, they had been kept in the detention cell of Brahmanbaria police station and in the morning, the Pakistan army, Peyara Miah and his people brutally torture them after bringing them again in Dana Miah’s home. Captain Ali Reza, Brigadier Sadat Ullah, Major Abdullah, Habildar Bashir Uddin from Pakistan army participated in torture in this centre. After torture of 2/3 days, SI Siru Miah, his son Anowar Kamal, Nazrul Islam, Abul Kashem, Jahangir Selim and Shafiuddin had been sent to Brahmanbaria prison.

Fazlur Rahman(late), the brother of Siru Miah’s wife Anowara Begum visited them in Brahmanbaria prison. Via him, Siru Miah’s son Anowar Kamal sent a letter to his mother on 01/11/1971.

Inhabitant of Brahmanbaria the accused Professor Ghulam Azam was Ameer of East Pakistan Jamaat-e-Islami and central leader of Peace Committee, having been known this fact, with the belief that he can make the all detainee including Siru Miah daroga and his son Anowar Kamal free, on 15th Ramadan,

Siru Miah’s wife Anowara Begum with his father Late Ayet Ali came to the home of his middle daughter Monowara’s husband Mohsin Ali Khan at Chowdhuripara, Khilgaon, Dhaka. Mohsin Ali Khan was then the teacher of Khilgaon Govt. School. Two sons of the accused named Azami and Amin were his student. In the request of Anowara Begum, her brother-in-law Muhsin Ali Khan met the accused at his Magabazar home then the accused said, Siru Miah Daroga and his son were freedom-fighters. They had been caught in border with arms- he knew it. He told him to come again after two days. As it is said, after two days, Muhsin Ali Khan went to Maghbazar in the acsused’s residence, he with Muhsin Ali Khan went, by car, to Jamaat’s office in Nakhalpara adhering to old parliament. Inside the car Muhsin Ali noticed the guard of Pakistan army. After several moments Ghulam Azam gave him an enveloped letter and ordered not to show that letter to anyone. He told him to deliver this letter to Peyera Miah, leader of Brahmanbaria Peace Committee. Muhsin Ali returned home with the letter and after delivering it to Anowara Begum, directed her in detail. Anowara returned home with this letter and delivered it to his brother Fazlur Rahman (Late). Fazlur Rahman arrived in Brahmanbaria and delivered the letter to the leader of Brahmanbaria Peace Committee Peyara Miah. After reading it, he showed Fazlur Rahman another letter written by Ghulam Azam where Siru Miah Daroga and his son Anowar Kamal had been ordered to be killed as identified freedom-fighters. Peyara Miah told Fazlur Rahman that, ‘the letter you have brought contains nothing new. Return home and remember ‘Allah’. Coming back to home Fazlur Rahman let Anowara begum know the matter and all family members burst into tears.

On 21 November ’71 at about 1.00am at night after day of Eid-ul-Fitr, including Siru Miah Daroga, Anowar Kamal, Nazrul, Shafiuddin Abul Kashem and 40 persons in total had been ascended in a lorry. After taking them in the lorry the left shafiuddin free in direction of Pakistani Brigadier Saad Ullah as shafiuddin could speak Urdu and he studied at Pakistan. The occupier Pakistan military and their auxiliary forces Razakars and Al-Badars brought the left 39 people at Poirtola slaughter-land. Pakistani army, with the assistance of Razakars and Al-Badars shot them and all were killed except an unknown person. One wounded was alive as of luck. Later, the Razakars and albadars buried dead bodies killed from shooting.

Crime: The accused is liable for Murder and torture as Crimes against humanity under section 3(2)(a) of the International Crimes (Tribunals) Act, 1973 as for killing of 38 people including SI Siru Miah, Anowar Kamal, Nazrul Islam and Abul Kashem according to the direct order of the accused and for torturing SI Siru Miah and Anowar Kamal.

8. Joint and individual criminal responsibility 

There is joint and individual criminal responsibility of the Accused under section 4(1) of the International Crimes (Tribunals) Act, 1973 while having superior status. The accused is not liable only for crimes committed by himself but also for the crimes of the various individuals, organizations subordinate to him and under the organizational superstructure as because of his superior status. The organizations under such superstructure are: Jamaat e Islami, Islami Chhatra Sangha, Peace Committee, Razakar Force, Al Badar force, Al Shams, Al Mujahid etc. So, the nature of liability of the accused is joint and individual criminal responsibility. For example, here it is mentioned about some individuals and organizations who were under the leadership of the accused in organizational superstructure and acted accordingly and the accused has the joint and individual criminal responsibility for their criminal activities.

8.1 Mawlana Motiur Rahman Nizami 
Mawlana Motour Rahman Nizami was the president of Nikhil Pakistan Islami Chhatra Sangha. The political activities of Nizami were started through the Islami Chhatra Sangha. During the liberation war of 1971, he was the supreme commander of Al-badar constituted with the aim of assisting the Pakistan Army. As a leader of Al badar he called for suppression on minority Hindu community. In an article published in the Daily Sangram the spokesman of Jamat e Isalmi, Nizami declared  “It is our conviction that the day is not far off when, standing side by side with our armed forces, our youth will raise the victorious flag of Islam the world over by defeating the Hindu army and finishing off Hindustan.”

Al badar force engaged into rape, abduction and murder against the Bangali. Specially in 14 December 1971, as a part of blueprint of killing the intellectuals, al badar and Pakistan Military kidnapped countless doctors, teachers, writers, engineers and other intellectuals and killed them in a preplanned way.

8.2 Ali Ahsan Mohammad Mujahid
He was the president of Islami Chhatra Sangha of Faridpur District from 1968 to 1970. In January/February of 1971 he was nominated as the president of Islami Chhatra Sangha of Dhaka District, in July he was appointed as Secretary of Provincial (the then East Pakistan) Islami Chhatra Sangha [the Daily Sangram, July 8, 1971], And later, he perform the duties as president of Provincial Islami Chhatra Sangha. Al badar force was constituted with the members of Islami Chhatra Sangha. In that force, Motiur Rahman was the chief of the force till September 1971, and from October 1971 Ali Ahsan Mohammad Mujahid becomes the chief of that force.

8.3 Mohammad Kamaruzzaman 
He took the duty of president of Islami Chhatra Sangha of greater mymensingh following the central command. Motiur Rahman Nizami was the president of Nikhil Pakistan Islami Chhatra Sangha at that time and Ali Ahsan Mohammad Mujahid was the General Secretary of Provincial Islami Chhatra Sangha. When Ali Ahsan Mohammad Mujahid was the President of East Pakistan Islami Chhatra Sangha Kamaruzzaman was office secretary of Provincial Islami Chhatra Sangha at that time. Mohammad Kamaruzzaman is the Assistant Secretary General of Jamaat Islami Bangladesh. He is the editor of Weekly Sonar Bangla, and ex-executive editor of the Daily Sangram the spokesman of Jamaat e Islami. Descriptions of the anti-liberation activities and war-crimes of Kamaruzzaman during the liberation war of 1971 are known from the newspapers of that time, Books relating the History of liberation war and from the victims. In 1971, as the appointed President of Islami Chhatra Sangha of grater mymensingh a student wing of Jamaat Islami, Kamaruzzaman performed the prime duty of organizer in constituting the first Al badar force with the selected obedient leaders and workers of Islami Chhatra Sangha in Ashok Mahmud College of Jamalpur Mohkuma in 22nd April, 1971. Within a month all the workers of Islami Chhatra Sangha of grater mymensingh were enlisted in the Al badar force under the leadership of Kamaruzzaman and after a short military training, they committed kidnapping, detention, torture, murder, genocide etc. various types of crimes against the Hindu-religion-followers and armless civilians in those areas, such as: Kishoregonj, Netrokona, Sherpur, Jamalpur, Mymensingh sadar. Besides, looting in town-city-villages, arson etc. various crimes were continued, and it forces the other people including Hindu community to leave the country.

8.3 Abdul Kader Molla 
Abdul Kader Molla joined Jamaat Islami in 1977. before the beginning of liberation war Abdul Kader Molla was the president of Islami Chhatra Sangha of Dhaka Shahidullah Hall in 1970. He contributed in constituting Al badar force at local level with the members of Islami Chhatra Sangha.

9. Overall discussion of Crimes of the Accused 

The issues, which have been proved beyond reasonable doubt basing on the above stated information and description of the facts, are 

Superior Status of the Accused 
9.1 Firstly, superior status of the accused. There were two sides of this status. One, the actual superior status of the accused in organizational superstructure constituted with the combination of Jamaat e islami and various auxiliary forces; and two, recognition of the superior status of the accused in consideration of the Pakistan Military Junta and other supreme leaders of West Pakistan.

9.2 The superior status of the accused in view of the Pakistan Military Junta and other supreme leaders of West Pakistan and accordingly its recognition is proved by- starting from the Attack of Pakistan Military in March 25 and country-wide genocide to the facts of one after one meeting with the Pakistani rulers and Martial Law administrators in various meeting at the higher level. As published in the news papers, the accused met with Pakistan’s President Yahya Khan at least twice including once personally; the accused met Chief Martial law Administrator Lieutenant general Tikka Khan at least twice including once personally; the accused was selected from amongst the leaders of East Pakistan to inform the President of Pakistan about the updated situations. Selecting the accused to give speech before the nation on Pakistan radio (state), and to call the Arab state-chiefs against the liberation of Bangladesh, and the call for binding the refugees bound to leave the country to come back to the country addressing to the United Nations- these various facts proves the superior status of the accused beyond reasonable doubt.

9.3 In 1971, meaning at the time of commission of crimes stated in this charge-sheet, the accused Ghulam Azam was at the supreme position of leadership as Amir or Chief of Jamaat Islami of the then East Pakistan (present Bangladesh). The accused had the express or implied organizational control and dominance over his individual and over each of other organization or force within the organizational superstructure of Jamaate Iaslami. These organizations and forces are:

One, “Islami Chhatra Sangha”, which is ideologically and organizationally connected completely with Jamaate Islamin as a student wing. Islami chhatra Sangha and its main organization Jamaate Islami were under the control and dominance of the accused;

Two, “Peace Committee”, the organization was spread through its branches in every union and Moholla and the leadership of which was on its central Peace Committee, the accused of the present case was at the leading position of it. Notable that, the leaders of the Peace Committee were chosen from amongst the members of Jamaat-e Islami and the position of the accused of the present case was at the leadership of the Central committee as the third superior leader;

Three, Jamaat-e-Islami not only provided members of the Razakar force constituted by the Ordinance of the Pakistan Military Junta through the leaders and workers of the party, but also provide arms, identity card and ammunition to the said force. 

Four, the Killer elite force Al badar was constituted as distinct part of the Razakar Force, and the members were collected directly from amongst the skilled and obedient members of Islami Chhatra sangha. Beside the assistance to the criminal activities of the Pakistan military Al-badar force was assigned to conduct other various criminal activities of itself, one of which is eliminating the intellectuals before the surrender of Pakistan Army.

9.4 The mandate and work-plan of the above stated organizations and forces render them criminal organizations. The accused was solely connected with the organizational superstructure of the collectivity of these criminal organizations from the position of leadership and dominance, and he was in the position applying and spreading the leadership and dominance.

Contribution of the accused in the Conspiracy of the Criminal Activities 
9.5 The accused put his his effective contribution to the commission of crimes under section 3(2) of the International Crimes (tribunals) Act- 1973 individually and by using his superior status under the organizational superstructure . On the one side, he did conspiracy in order to establish organizational super structure to commit crimes under section 3(2); among those- conspiracy in meeting with Mawlana Abul Ala Moududi the supreme leader of Jamaate Islami of Pakistan, conspiracy in the meeting with Yahiya Khan the President of Pakistan, conspiracy in meeting with Lieutenant General Tikka Khan etc. The issues which were discussed in those conspiring meetings are as follows: to determine the effective measures to suppress and eliminate the strength on the side of liberation in the then East Pakistan, to provide the arms to the auxiliary forces and the leaders, workers and supporters within the internal circle of their own organization so that they can contribute more effectively in criminal eliminating process, to conspire about how the existing units under the own organizational superstructure can contribute more effective assistance in the crimes of Pakistan Military etc.

Contribution in Planning of Crimes and Commission of Crimes 
9.6 Beside the conspiracy of crimes stated in previous paragraph, the accused also participated in planning to  implement the policy of elimination and suppression. One of the examples of planning of criminal activities and in creating superstructure is express contribution by the accused in various union, moholla in order spread his organization and to establish “Peace Committee” etc.

Incitement to Crime commission 
9.7 Beside conspiracy and planning of various criminal activities using the personal superior status along with the leadership and dominance in the organizational superstructure, the leaders and workers within the personal organizational superstructure were called and incited to participate in the criminal activities directly by the accused. As part of his incitement plan the accused has tried to spread the animosity, hatred in the mind of the people specially of the ideological and organizational followers of the accused by declaring mainly the liberation-expecting people of the country, Hindu community, progressive secular community and supporters of awami Leaue as enemy of the country, enemy of Islam, India’s agent and as miscreants. The underlying intention of spreading this animosity and hatred was to incite in committing severe criminal activities against the above stated armless civilians either in the name of protecting Pakistan or in the name of protecting Islam, or in the name of assisting the Pakistan Military.

Most of these criminal activities are murder, torture, rape as crimes against humanity, forced conversion of religion, force to leave the country, genocide etc. which were consistent and supplementary to the blueprint of the crimes of Pakistan army.

Complicity of the accused with the Criminal Activities of the Pakistan Army 
9.8 The auxiliary forces were formed with whole of the organizational superstructure under the leadership and dominance of the accused. These organizations or forces were constituted with the aim of assisting proper implementation of the various expeditions and plan in east Pakistan by the Pakistan Military. It is notable that, the expeditions and plans of the Pakistan Army were blueprint of criminal activities, which have been more illustratively discussed in the previous part of this deed (charge-sheet). So, the assistance and supplementary contribution by the auxiliary forces to the proper implementation of this plan and activities of the Pakistan army clearly means the direct complicity with those criminal activities. Various statements and steps of the accused as exposed in the investigation, it proves, that the accused was complicit with the crimes of the Pakistan Military individually and with the organizational superstructure under his control, beyond any reasonable doubt.

Murder and Torture as Crimes against humanity 
9.9 Torture and Murder of 38 people in toto including Siru Mia as crimes against humanity

9.10 It is clearly evident from the above discussion that, the accused individually, as being the chief of Jamaate Islami and in the superior status of other auxiliary forces and organizations, committed more than one crime punishable under section 3(2) of the International Crimes (Tribunals) Act, 1973. Beside his individual responsibility of committing crimes the accused is also legally liable under section 4(2) of the Act for being in the superior status. Simultaneously, the accused is legally liable for all kinds of crimes committed by the other auxiliary forces existing in the organizational superstructure under the control and/or dominance of the accused as being in the superior status. The accused is legally individually and jointly liable under section 4(1) in the same way as being in the superior status for those crimes, which (crimes) the leaders, workers and connected people of these auxiliary forces have committed.

10. Judicial Notice of the Crimes Committed in 1971 
According to section 19(3) of the International Crimes (Tribunals) Act, 1973:

“A Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof.”

Along with this application of charge against the accused, adequate evidences of International Crimes committed in 1971 have been submitted in the annexed documents, from which the proof of crimes committed can be found beyond reasonable doubt. These committed crimes are: crimes against humanity, crimes against peace, genocide, war crimes, violation of Geneva Convention of 1949, other crimes under international law etc., which are stated in section 3(2) of the International Crimes (Tribunals) Act, 1973. These country-wide immensely-committed crimes are all known to the people of Bangladesh, of which every citizen of this country is informed.

Simultaneously, in implementing the above-mentioned criminal activities of the Occupier Pakistani Military, the auxiliary forces and organizations who performed effective and sole contribution beside them are: Jamaate Islami, Islami Chhatra Sangha, Peace Committee, Razakar force, Al-Badar force, Al-shams Force, Al-Mujahid etc.

At the same way, the fact of the country-wide criminal activities and contribution against the liberation done by these criminal organizations are all known to the people of Bangladesh, of which every citizen of this country is informed at the same way.

The International Crimes Tribunal has the jurisdiction to take judicial notice through taking cognizance of the common knowledge existing in the mind of the people about the above crimes and crime committing criminal organizations under section 19(3) of the International Crimes (Tribunals) Act, 1973.

11. In this situation, the accused Professor Ghulam Azam and his associates have committed section 3(2), 4(1) and 4(2) of the International Crimes (Tribunals) Act, 1973 during the time of liberation war of Bangladesh in 1971. For that reason, as result of being the subject matter of the case within the jurisdiction of the honorable tribunal, the honorable tribunal has the power to adjudicate and discharge these crimes (cases of these crimes).

Prayers before the Honorable Tribunal

(A) On the basis of the crimes stated in this application and annexed documents and information, the prayer is that, the honorable tribunal, accepting this application along with formal charge for the sake of justice, will take the cognizance of the crimes under section 3(2) of the International Crimes (Tribunals) Act, 1973 against the accused Professor Ghulam Azam (Father- Late Mawlana Ghulam Kabir, Mother- Late Sayida Ashrafunnisa, Resident- Birgaon, Police Station- NabiNagar, District- Brahmanbaria known as B-Baria, Present resident- 119/2 Kazi Office lane, Mogbazar, Police Station- Ramna, DMP, Dhaka);

(B) will take the judicial notice under section 19(3) of the International Crimes (Tribunals) Act, 1973 about the crimes committed in Bangladesh in 1971 such as: crimes against humanity, crimes against peace, genocide, war crimes, violation of Geneva Convention of 1949, other crimes under international law etc., which are stated in section 3(2) of the International Crimes (Tribunals) Act, 1973;

(C) will take judicial notice about auxiliary forces such as: Jamaate Islami, Islami Chhatra Sangha, Peace Committee, Razakar force, Al-Badar force, Al-shams Force, Al-Mujahid etc. as criminal organizations under section 19(3) of the International Crimes (Tribunals) Act, 1973; the auxiliary forces, of Occupier Pakistan Army in order establish their criminal activities in 1971;

(D) will make order of punishment through proper judgment against the accused Professor Ghulam Azam (Father- Late Mawlana Ghulam Kabir, Mother- Late Sayida Ashrafunnisa, Resident- Birgaon, Police Station- NabiNagar, District- Brahmanbaria known as B-Baria, Present resident- 119/2 Kazi Office lane, Mogbazar, Police Station- Ramna, DMP, Dhaka) under section 20 of the International Crimes (Tribunals) Act, 1973; 
Then Justice Zaheer Ahmed summed up the whole matter and said:
(1) He gave statement on behalf of the pakistam army.
(2) He was the active member of jamaat-i-islam.
(3) He wanted arms for the auxiliary force.
(4) He had expressive control over the Albadr, Alshams, Razakkar.
(5) He was responsible for the killing of shuru mia.
(6) He incited Bengali people against liberation.
The subsequent hearing on the same day relating to Salauddin Quader Chowdhury can be found in a seperate post