Bangladesh War Crimes Tribunal: February 2013

Wednesday, February 20, 2013

Abdul Quader Mollah trial proceeding index

Index of proceedings relating to the trial of Abdul Quader Mollah

Convicted: Mollah

Tuesday, February 19, 2013

5 Feb 2013: Mollah final judgment, part 7

This is the seventh and final section of the judgment dealing with the conclusion and sentencing

To see part 1, click here - introductory sections

To see part 2, click here - introductory sections

To see part 3, click here - relevant and decisive factual aspects and charge no 1

To see part 4, click here - dealing with charges nos 2, 3 and 4

To see part 5, click here - dealing with charges, 5 and 6
To see part 6, click here - dealing with contextual requirements to quality offenses as crimes against humanity and other defense arguments

XXIV. Conclusion

418. Despite lapse of long 40 years time the testimony of P.W.s of whom three are live witnesses to the incidents of atrocities narrated in the charges does not appear to have been suffered from any material infirmity. Besides, no significant inconsistencies between their testimony made before the Tribunal and their earlier statement made to the Investigation Officer could be found.

419. Now, another question comes forward as to whether the accused can be brought within the jurisdiction of the Tribunal if we consider that the prosecution has not been able to prove that the accused committed the crimes proved as a member of Al-Badar force? The answer is ‘yes’. Section 3(1) provides jurisdiction of trying and punishing even any ‘individual’ or ‘group of individuals’ who commits or has committed, in the territory of Bangladesh any of crimes mentioned in section 3(2) of the Act. We have resolved the issue on the phrase ‘individual’ or ‘group of individuals’, as contained in section 3(1) of the Act of 1973, by way of amending the statute in 2009 together with the relevant Article of our Constitution. On this score as well, the accused cannot be relieved from being prosecuted and tried under the Act of 1973.

420. According to Section 3(1) of the Act of 1973 it is manifested that even any person (individual or a member of group of individuals) is liable to be prosecuted if he is found to have committed the offences specified in section 3(2) of the Act. That is to say, accused Abdul Quader Molla, even in the capacity of an ‘individual’ or member of ‘group of individuals’ comes within the jurisdiction of the Tribunal if he is alleged to have committed crimes specified in section 3(1) of the Act.

421. We are convinced from the evidence, oral and documentary, led by the prosecution that the accused, at the relevant time of commission of alleged crimes proved, acted as an atrocious member of ‘group of individuals’ in perpetrating the crimes. Accused's culpable association and conduct---antecedent, contemporaneous and subsequent, as have been found---all point to his guilt and are well consistent with his 'complicity' and 'participation' in the commission of crimes proved. As a result, we conclude that the accused Abdul Quader Molla had ‘complicity’ to the commission of the offences in relation to charge nos. 1, 2 and 3 for which he has been charged in the capacity of an ‘individual’ and a member of atrocious ‘group of individuals’.

422. According to section 4(1) of the Act of 1973 an individual incurs criminal liability for the direct commission of a crime, whether as an individual or jointly. In the case in hand, in dealing with the charge nos. 5 and 6 we have found that the accused Abdul Quader Molla himself had participated and accompanied the armed gang of perpetrators to the accomplishment of crimes and as such he is held criminally responsible under section 4(1) of the Act of 1973 for the commission of crimes proved as listed in charge nos. 5 and 6.

423. C.L. Sulzberger wrote in the New York Times, June 16, 1971 describing the horrific nature and untold extent of atrocities committed in the territory of Bangladesh. It shakes the conscious of mankind. It imprints colossal pains to the Bangalee nation. C.L. Sulzberger wrote that- “Hiroshima and Nagasaki are vividly remembered by the mind’s eye primarily because of the novel means that brought holocaust to those cities. Statistically comparable disasters in Hamburg and Dresden are more easily forgotten; they were produced by what we already then conceived of as “conventional” methods. Against this background one must view the appalling catastrophe of East Pakistan whose scale is so immense that it exceeds the dolorimeter capacity by which human sympathy is measured. No one can hope to count the dead, wounded, missing, homeless or stricken whose number grows each day. “ [Source: Bangladesh Documents: Volume, page 442: Ministry of External Affairs, New Delhi]

424. The above observation made on 16 June 1971 gives an impression as to the scale and dreadful nature of atrocities which were carried out through out the war of liberation in 1971. The offences for which the accused Abdul Quader Molla has been found responsible are the part of such atrocities committed in context of the war of liberation, 1971 in collaboration of anti-liberation and antagonistic political organisations namely Jamat E Islami, Muslim League, Nejam E Islami, group of pro- Pakistan people and the occupation Pakistani army with intent to annihilate the Bengali nation by resisting in achieving its independence.

425. Therefore, it must be borne in mind too that no guilty man should be allowed to go unpunished, merely for any faint doubt, particularly in a case involving prosecution of crimes against humanity and genocide committed in 1971 in violation of customary international law during the War of Liberation. Because, wrong acquittal has its chain reactions, the law breakers would continue to break the law with impunity.

426. ‘No innocent person be convicted, let hundreds guilty be acquitted’—the principle has been changed in the present time. In this regard it has been observed by the Indian Supreme Court that: “A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties.” [ Per Viscount Simon in Stirland vs. Director of Public Prosecution: 1944 AC(PC) 315: quoted in State of U.P Vs. Anil Singh : AIR 1988 SC 1998]

XXIV. VERDICT ON CONVICTION

427. For the reasons set out in this Judgement and having considered all evidence, materials on record and arguments advanced by the learned counsels in course of summing up of their respective cases , the Tribunal unanimously finds the accused Abdul Quader Molla

Charge No.1: GUILTY of the offence of ‘complicity’ to commit murder as ‘crimes against humanity’ as specified in section 3(2)(a)(h) of the Act of 1973 and he be convicted and sentenced under section 20(2) of the said Act.

Charge No.2: GUILTY of the offence of ‘complicity’ to commit murder as ‘crimes against humanity’ as specified in section 3(2)(a)(h) of the Act of 1973 and he be convicted and sentenced under section 20(2) of the said Act.

Charge No.3: GUILTY of the offence of ‘complicity’ to commit murder as ‘crimes against humanity’ as specified in section 3(2)(a)(h) of the Act of 1973 and he be convicted and sentenced under section 20(2) of the said Act.

Charge No.4: NOT GUILTY of the offence of ‘abetting’ or in the alternative ‘complicity’ to commit murders as ‘crimes against humanity’as specified in section 3(2)(a)(g)(h) of the Act of 1973 and he be acquitted thereof accordingly.

Charge No.5: GUILTY of the offence of murders as ‘crimes against humanity’ as specified in section 3(2)(a) of the Act of 1973 and he be convicted and sentenced under section 20(2) of the said Act.

Charge No.6: GUILTY of the offences of murder and rape as ‘crimes against humanity’as specified in section 3(2)(a) of the Act 1973 he be convicted and sentenced under section 20(2) of the said Act.

XXV. VERDICT ON SENTENCE

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

429. We are of agreed view that justice be met if for the crimes as listed in charge nos. 5 and 6 the accused Abdul Quader Molla who has been found guilty beyond reasonable doubt is condemned to a single sentence of ‘imprisonment for life’ And for the crimes as listed in charge nos. 1, 2 and 3 to a single sentence of ‘imprisonment for fifteen (15) years’ under section 20(2) of the Act of 1973. Accordingly, we do hereby render the following unanimous ORDER on SENTENCE.

Hence, it is

ORDERED

That the accused Abdul Quader Molla son of late Sanaullah Molla of village Amirabad Police Station Sadarpur District-Faridpur at present Flat No. 8/A, Green Valley Apartment, 493, Boro Moghbazar PS. Ramna, Dhaka is found guilty of the offences of ‘crimes against humanity’ enumerated in section 3(2) of the International Crimes (Tribunals) Act, 1973 as listed in charge no.s 1, 2, 3, 5 and 6 and he be convicted and condemned to a single sentence of ‘ imprisonment for life’ for charge nos. 5 and 6 And also for the crimes as listed in charge nos. 1, 2 and 3 to a single sentence of ‘imprisonment for fifteen (15) years’ under section 20(2) of the Act of 1973. The accused Abdul Quader Molla is however found not guilty of offence of crimes against humanity as listed in charge no.4 and he be acquitted thereof. However, as the convict Abdul Quader Molla is sentenced to ‘imprisonment for life’, the sentence of ‘imprisonment for 15 years’ will naturally get merged into the sentence of ‘imprisonment for life’. This sentence shall be carried out under section 20(3) of the Act of 1973.

The sentence so awarded shall commence forthwith from the date of this judgment as required under Rule 46(2) of the Rules of Procedure, 2012 (ROP) of the Tribunal-2(ICT-2) and the convict be sent to the prison with a conviction warrant to serve out the sentence accordingly.

Let copy of the judgment be sent to the District Magistrate, Dhaka for information and causing necessary action.

Let certified copy of the judgment be furnished to the prosecution and the convict at once.

Justice Obaidul Hassan, Chairman
Justice Md. Mozibur Rahman Miah, Member Judge Md. Shahinur Islam, Member

5 Feb 2013: Mollah final judgement, part 6

This is the sixth part of the Mollah judgement dealing with contextual requirements to quality offenses as crimes against humanity and other defense arguments

To see part 1, click here - introductory sections

To see part 2, click here - introductory sections

To see part 3, click here - relevant and decisive factual aspects and charge no 1

To see part 4, click here - dealing with charges nos 2, 3 and 4

To see part 5, click here - dealing with charges, 5 and 6

To see part 7, click here - conclusion and sentence

XX. Contextual requirement to qualify the offences proved as crimes against humanity

368. Defence argued that crimes as narrated in charge 1 and 3 were isolated in nature apart from the fact that accused had no involvement with the commission of any of alleged crimes, in any manner.

369. From the segment of our discussion on adjudication of charges we have found the events of atrocities constituting crimes against humanity were perpetrated directing the unarmed civilians belonging to pro- liberation ideology. The offences narrated in charge nos. 1,2,3,5 and 6 took place between 26th March 1971 to 24th April 1971 i.e within the period of one month of ‘operation search light’ on 25 March 1971. Only the event narrated in charge no.4 allegedly took place on 25.11.1971.

370. Admittedly. Accused was the President of Islami Chatra Sangha (ICS), Shahidullah Hall Unit, University of Dhaka, at the relevant time.We have also found from the Exhibit-2 a book titled ‘Sunset at Midday’ written by Mohi Uddin Chowdhury , a leader of Peace committee , Noakhali district in 1971 who left Bangladesh for Pakistan in May 1972 [(Publisher’s note): Qirtas Publications, 1998, Karachi, Pakistan] , wherein the paragraph two at page 97 speaks that “To face the situation Razakar Force, consisting of Pro- Pakistani elements was formed. This was the first experiment in East Pakistan, which was a successful experiment. Following this strategy Razakar Force was being organized throughout East Pakistan. This force was, later on Named Al-Badr and Al-Shams and Al- Mujahid. The workers belonging to purely Islami Chatra Sangha were called Al-Badar, the general patriotic public belonging to Jamaat-e-Islami, Muslim League, Nizam-e-Islami etc were called Al-Shams and the Urdu-speaking generally known as Bihari were called al-Mujahid.”

371. But in absence of any other evidence it would be rather confusing to infer that the accused acted during the period of 26th March 1971 to 24th April 1971 as a member of Al-Badar to the commission of offences narrated in charge nos. 1,2,3,5 and 6. Rather, it is found that the accused acted and participated by accompanying the principals as an ‘individual’ and a member of ‘group of individuals’ to the actual commission of crimes alleged.

372. However, We have also found it proved from evidence as discussed above that the accused Abdul Quader Molla physically accompanied the principals and acted with knowledge and common intent or had complicity to the commission of those atrocities and he (accused) committed criminal acts in the capacity of a member of ‘group of individuals’ (relating to charge nos. 1,2,3, and 6) and in the capacity of an ‘armed member’ of ‘group of individuals’ (relating to charge no.5) Under what context the accused committed such acts forming part of attack directed against civilian population? We need to have look to the contextual backdrop of perpetration of such crimes in furtherance of ‘operation search light ‘on 25 March 1971.

373. It is essential to be established that the crimes for which the accused has been found criminally liable and guilty, as discussed above, were not isolated in nature and the same were committed under a different context and pattern in implementation of organizational policy and plan, although policy or plan are not considered as elements of the offence of crime against humanity which has already been discussed and resolved in the preceding paragraphs.

374. Thus, crime must not, however, be an isolated act. A crime would be regarded as an “isolated act” when it is so far removed from that attack. The expression ‘directed against civilian population’ is an expression which specifies that in the context of a crime against humanity the civilian population is the primary object of the attack.

375. In determining the fact as to whether the atrocious acts which are already proved to have been committed were directed against Bengali civilian population constituting the crimes against humanity in 1971 during the War of Liberation, it is to be considered that the criminal acts committed in violation of customary international law constituting the offences enumerated in section 3(2)(a) of the Act of 1973 were connected to some policy of the government or an organization. It is to be noted too that such policy and plan are not the required elements to constitute the offence of crimes against humanity. These may be taken into consideration as factors for the purpose of deciding the context upon which the offences were committed.

376. As regards elements to qualify the ‘attack’ as a ‘systematic character’ the Trial Chamber of ICTY in the case of Blaskic [(Trial Chamber) , March 3, 2000, para 203] has observed as below: “The systematic character refers to four elements which.........may be expressed as follows: [1] the existence of a political objective, a plan pursuant to which the attack is perpetrated or an ideology, in the broad sense of the word, that is, to destroy, persecute or weaken a community; [2] the perpetration of a criminal act on a very large scale against a group of civilians or the repeated and continuous commission of inhuman acts linked to one another; [3] the perpetration and use of significant public or private resources, whether military or other; [4] the implementation of high-level political and/or military authorities in the definition and establishment of the methodical plan’”

Context prevailing in 1971 in the territory of Bangladesh
377. It is indeed a history now that the Pakistani army with the aid of its auxiliary forces, pro-Pakistan political organizations implemented the commission of atrocities in 1971 in the territory of Bangladesh in furtherance of following policies:
- Policy was to target the self-determined Bangladeshi civilian population
- High level political or military authorities, resources military or other were involved to implement the policy
- Auxiliary forces were established in aiding the implementation of the policy

The regular and continuous horrific pattern of atrocities perpetrated against the targeted non combatant civilian population.
378. The above facts in relation to policies are not only widely known but also beyond reasonable dispute. The context itself reflected from above policies is sufficient to prove that the offences of crimes against humanity as specified in section 3(2)(a) of the Act of 1973 were the inevitable effect of part of systematic attack directed against civilian population. This view finds support from the observation made by the Trial Chamber of ICTY in the case of Blaskic as mentioned above.

379. It is quite coherent from the facts of common knowledge involving the backdrop of our war of liberation for the cause of self determination that the Pakistani armed force, in execution of government’s plan and policy in collaboration with the local anti liberation section belonging to JEI and its student wing ICS, Muslim League and other pro-Pakistan political parties namely Pakistan Democratic Party(PDP), Nejam E Islami etc. and auxiliary forces, had to deploy public and private resources. The target of such policy and plan was the unarmed civilian Bangalee population, pro-liberation people, and Hindu community and pursuant to such plan and policy, atrocities were committed to them as a ‘part of a regular pattern basis’ through out the long nine months of war of liberation. It may be legitimately inferred from the phrase “committed against any civilian population” as contained in the Act of 1973 that the acts of the accused comprise part of a pattern of ‘systematic’ crimes directed against civilian population.

380. The basis for planning of the ‘operation search light’ master plan, which was carried out with brute force by Pakistan army to annihilate the Bengalis reads as below:

OPERATION SEARCH LIGHT BASIS FOR PLANNING
1. A.L [Awami League action and reactions to be treated as rebellion and those who support or defy M.L[Martial Law] action be dealt with as hostile elements.
2. As A.L has widespread support even amongst the E.P[East Pakistan] elements in the Army the operation has to be launched with great cunningness, surprise, deception and speed combined with shock action. [ Source: ‘Songram Theke Swadhinata’: Published in December 2010’ Published By ; Ministry of Liberation War Affairs, Bangladesh; Page 182]

381. Anthony Mascarenhas in a report titled ‘Genocide’ published in The Sunday Times , June 13, 1971 found as below: “SO THE ARMY is not going to pull out. The Government’s policy for East Bengal was spelled out to me in the Eastern Command headquarters at Dacca. It has three elements:- (1)The Bengalis have proved themselves “unreliable” and must be ruled by West Pakistanis;
(2) The Bengalis will have to be re-educated along proper Islamic lines. The “Islamisation of the masses” – this is the official jargon – is intended to eliminate secessionist tendencies and provide a strong religious bond with West Pakistan;
(3) When the Hindus have been eliminated by death and flight, their property will be used as a golden carrot to win over the under-privileged Muslim.” [Source: http://www.docstrangelove.com/uploads/1971/foreign/19710613_tst_genocide_center_page.pdf : See also: Bangladesh Documents, page 371: Ministry of External Affairs, New Delhi]

382. Therefore, the crimes for which the accused Abdul Quader Molla has been found guilty were not isolated crimes, rather these were part of organized and planned attack intended to commit the offence of crimes against humanity as enumerated in section 3(2) of the Act, in furtherance of policy and plan.

383. From the backdrop and context it is thus quite evident that the existence of factors, as discussed above, lends assurance that the atrocious criminal acts ‘directed against civilian population’ formed part of ‘systematic attack’. Section 3(2) (a) of the Act of 1973 enumerates which acts are categorized as the offence of crimes against humanity. Any of such acts is committed ‘against any civilian population’ shall fall within the offence of crimes against humanity. The notion of ‘attack’ thus embodies the notion of acting purposefully to the detriment of the interest or well being of a civilian population and the ‘population’ need not be the entire population of a state, city, or town or village.

384. Thus, the phrase ‘acts committed against any civilian population’ as occurred in section 3(2)(a) clearly signifies that the acts forming attack must be directed against the target population to the accomplishment of the crimes against humanity and the accused need only know his acts are part thereof .

385. On the other hand, defence has not been able to establish even a hint that the murder was not a part of planned and systematic attack and the crimes for which the accused has been charged and found criminally liable were isolated crimes. Therefore, the facts and circumstances inevitably have proved the elements to constitute the offences of murder, rape, abduction, confinement and torture as crimes against humanity.

XXI. Some other issues agitated by the defence

(i) Investigation procedure
386. On Investigation procedure, Mr. Abdus Sobhan Tarafder, the learned defence counsel, at the very outset, has submitted that the basis of institution of the case is not clear. The Act does not provide provision as to how a case is to be instituted under the Act. But the Rule 2(6) of the ROP defines; ‘complaint’ on the basis of which investigation is to be done. However the IO has not disclosed the basis of initiating investigation. The IO has considered the compliant petitions of two cases of Pallabi police station and Keraniganj police station. There has been no provision of transferring these two cases to the ICT by the Magistrate Court. Thus investigation into information obtained from the said complaint petition under the Act done by the P.W.12 is not founded on any legal basis and as such it is flawed and thereby submission of report on conclusion of investigation becomes doubted and flawed too. According to the IO the investigation was done by a ‘team’ which is not permitted by the Act and the ROP.

387. Under Rule 2(6) of the ROP a ‘compliant’ is defined as “any information oral or in writing obtained by the Investigation Agency including its own knowledge relating to the commission of a crime under section 3(2) of the Act”. That is to say, the Investigation Agency is authorized to initiate investigation predominantly on information it obtains. It might have obtained information even from the compliant petitions of Pallabi and Keraniganj police stations cases. But that does not mean that those compliant petitions were the sole basis of initiating investigation into the alleged criminal acts of the accused allegedly committed during the war of liberation in 1971. For the reason of absence of any legal sanction of transferring those two cases to ICT the same, after receiving by the Registry, were in fact simply sent to the Investigation Agency of the ICT as the information relating to allegations brought therein falls within the jurisdiction of the Act of 1973, as observed by the Magistrate Court.

388. Rule 5 speaks of procedure of maintaining ‘complaint register’ and not the procedure of initiating investigation. Rather Section 8 and Rule 4 contemplate the procedure of holding investigation and it appears that the IO (P.W.12) accordingly has done the task of investigation. Investigating into the criminal acts allegedly committed by the accused was done not merely on the basis of above mentioned two compliant petitions lodged before the Magistrate Courts but also on the basis of necessary information which were required to be obtained and in doing so, working as ‘team’ does not appear to be materially fatal and has caused any prejudice to the accused.

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

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

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

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

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

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

XXII. Plea of Alibi

395. No specific defence case could be attributed from the trend of cross-examination of prosecution witnesses by the defence. Rather we have found that contradictory suggestions have been put to prosecution witnesses, in order to prove the plea of alibi. The evidence adduced at trial demonstrated that for the most part, the accused did not dispute the facts alleged. He disputes by examining himself as D.W.1 that (i) since mid-March 1971 to November-December 1972, he was not in the locality of Mirpur, Dhaka (ii) he used to stay in Shahidullah hall of the University of Dhaka and on 12 March 1971 leaving Dhaka he went to his native home at Amirabad in Faridpur where he stayed till November- December 1972 (iii) he was not associated with the election campaign in 1970 and (iv) he had no link with the Jamat-e-Islami and Bihari hooligans of Mirpur locality namely Aktar goonda, Nehal goonda, Hakka goonda, etc. However, the defence case for the accused amounts to a complete denial of the responsibility of the accused for the crimes alleged against him and defence also took the specific plea of alibi in support of which it examined as many as 06 witnesses.

396. The accused has adduced and examined 06 witnesses including the accused himself, understandably to prove the plea of alibi and the assertion that accused was not at all concerned with the crimes for which he has been charged. ‘I myself was not concerned with the commission of crimes’—it is a negative assertion and thus need not be proved by evidence. Such assertion relates to ‘innocence’ which shall have to be adjudicated on weighing prosecution evidence. However, defence shall have right to take plea of alibi and to adduce evidence to substantiate it, although adjudication of guilt or innocence cannot be based solely either on success or failure of such plea. Of six(06) witnesses examined by the defence 04 have been examined to establish the plea of alibi and 02 i.e D.W.4 and D.W.5 have been examined, as perceived, to exclude complicity of accused with the crimes as listed in charge nos. 3 and 5. We have already discussed the testimony of D.W.4 and D.W.5 as relevant to find out the truth. Now we will remain confined to the adjudication of the plea of alibi only.

XXIII. Finding on the Plea of alibi on evaluation of Evidence adduced by the defence

397. D.W.1 Abdul Quader Molla (accused) claims that he had stayed at his native village Amirabad, Faridpur since middle of March 1971 to November-December 1972 and he used to run business at a shop of Peer Saheb at Chowddarshi Bazar, during the entire time of his staying there. Presumably, running business is claimed to make the plea of alibi strengthened.

398. But D.W.3 Moslem Uddin Ahmed a resident of village ‘Baish Rashi’ under sadarpur police station, Fairdpur stated that he saw Abdul Quader Molla (D.W.1) running business at Chowdda Rashi Bazar for a period of total one year i.e up to March 1972. While according to accused, he used to run business till November-December 1972.

399. Above contradictory version of D.W.1 and D.W.3 thus patently makes the claim of staying of accused at own native village and running business there becomes untrue causing reasonable taint to the plea of alibi .

400. D.W1. Abdul Quader Molla claims that in November-December 1972 he was brought back to Shahidullah Hall of university of Dhaka by Shajahan Talukder, the then Sadarpur thana Awami League President. But it has not been corroborated by any other evidence. Why he (accused) could not be able to come Dhaka even one year after the independence alone? Besides, this claim seems to be gravely unconvinced if the testimony of D.W.3 is considered simultaneously.

401. D.W.1 Abdul Quader Molla claims that at the end of July 1971 he came to Shahidullah Hall, Dhaka University and had stayed there for more than three weeks for the purpose of appearing in practical examination and again he returned back to his native village Amirabad, Fairdpur.D.W.2 and D.W 3 are from the village Amirabad, Faridpur. But none of them has corroborated D.W.1 on this fact. Additionally, accused could allegedly come to Dhaka University Hall alone even during the war of liberation but he had to come in December 1972 with the help of alleged local Awami League leader. Why? In absence of any explanation the above story does not inspire any credence at all.

402. Besides, D.W. 6 who claims to have maintained closeness with the accused when he was a resident student of Shahidullah Hall, Dhaka University stated that accused leaving Hall on 12 March 1971 had moved to his native village in Faridpur. D.W.6 was in job of Imam of the mosque at Shahidullah Hall where the accused too used to say prayer regularly. According to D.W.6 he remained at Hall throughout the period of war of liberation in 1971 and continued performing the job of Imam of the Hall mosque. If it is so, D.W.6 would have corroborated the fact of accused’s coming to Hall at the end of July 1971. Accused had stayed for more than three weeks in the Hall but D.W.6 was unaware of it. Normal human prudence never suggests believing it. Thus the story of accused’s coming to Dhaka from Amirabad, Faridpur at the end of July 1971 becomes fallacious. Consequently, the story of remaining at native village Amirabad, Faridpur does not carry any credence too. At the same time cumulative evaluation of their evidence, rather, has clearly corroded the plea of alibi.

403. Defence case is meant to confront the prosecution case for removing or shaking the truthfulness of complicity of accused with the commission of offence with which he is charged. A person accused of a criminal charge is presumed to be innocent until he is proven guilty. Therefore, the defence is not obligated to plead any case of his own to prove his innocence until he is found guilty through trial and the burden squarely lies upon the prosecution to prove the accused guilty of the charges. However, defence suggested specific defence case to P.W.4 Kazi Rosy that not the accused Abdul Quader Molla but one Qauder Molla who was a butcher by profession had committed the atrocities in 1971. P.W.4 denied it. However, defence, to substantiate this specific defence case has not adduced any evidence. Even the accused as D.W.1 does not aver so. Thus this suggestion too, in other words, offers an admission that accused Abdul Quader Molla was a co-perpetrator of the crime alleged in charge no.2.

404. However, despite the above legal position, in course of trial the defence shall have right to put his defence case or plea of alibi, while cross-examining the prosecution witnesses. But the Tribunal notes that no specific defence case can be attributed from the trend of cross- examination of prosecution excepting the plea of alibi. Even it has not been suggested as defence case that to any of prosecution witnesses that during the war of liberation accused Abdul Quader Molla had been at his native village Amirabad under Sadarpur police station, Faridpur and used to run business at Chowddarashi Bazar till he returned back to Dhaka in November-December 1972, and that he came to Dhaka University hall at the end of July 1971 and had stayed for more than three weeks for appearing in practical examination. That is to say, without eliciting or disclosing any specific defence case earlier suddenly the defence has come up with a story of his staying and running business at native village by examining witnesses.

405. As has been held by the Appeals Chamber in the Celibici Case, the submission of an alibi by the Defence does not constitute a defence in its proper sense. It has been observed in the judgment that:“It is a common misuse of the word to describe an alibi as a “Defence”. If a defendant raises an alibi, he is merely denying that he was in a position to commit the crime with which he is charged. That is not a Defence in its true sense at all. By raising this issue, the defendant does no more [than] require the Prosecution to eliminate the reasonable possibility that the alibi is true.”

406. However, in order to establish the plea of alibi, defence has come up with another story. D.W.1 Abdul Quader Molla stated that on 23 March 1971 in the locality of his native village one Mafizur Rahman started organizing training for freedom fighters locally and accordingly he and 30-40 others received training till the Pakistani army entered into Faridpur on 30 April 1971.

407. But the above defence cases do not appear to have confronted the prosecution case for excluding complicity of the accused. Besides, how far the claim of receiving training at own native village for joining freedom fight is believable? Admittedly, the accused was the president of Islami Chatra Sangha, Shahidulla Hall Unit, Dhaka University and prior to it he was the president of this student wing of Jamat E Islami (JEI) when he was student of Faridpur Rajendra College. We do not find any rationale to believe that being a potential leader of the student wing of a regimented political organisation Jamat E Islami accused Abdul Quader Molla was inspired to receive such training to join as freedom fighter.

408. Though the burden on the prosecution is not lessened because of plea of alibi taken by the accused and such a plea is to be considered only when the prosecution has discharged the onus placed on it, once it is done, it is then for the accused to prove alibi with absolute certainty so as to exclude the possibility of his presence at the spot at the time of commission of the offence (AIR 1997 SC 322, Rajesh Kumar v Dharambir and others). It was held in Mohan Lal Vs. State of H.P. that plea of alibi must be proved with absolute certainty.

409. But it appears that the defence has failed to prove the plea of alibi with certainty to exclude the possibility of presence of the accused at the crime sites. On contrary, prosecution by adducing credible and relevant evidence has been successful in discharging its onus to prove complicity of the accused with the crimes committed. Besides, we have found from evidence of P.W.9 that in the month of March 1971, accused Abdul Quader Molla provided training to local Biharis of Mirpur being accompanied by 70-80 members belonging to Islami Chatra Sangha. In remains unshaken in cross-examination.

410. P.W.9 further stated that even after 16 December 1971 when the locality of Mirpur remained occupied, 7-8 hundred members of Al-Badar force led by accused Abdul Quader Molla and some Panjabi coming from Mohammadpur Physical Institute assembled with Biharis in Mirpur, hoisted Pakistani flag and intended to convert Bangladesh to Pakistan. Defence neither denied nor contradicted this version.

411. We have also found from testimony of P.W.1 Mozaffar Ahmed Khan that during the war of liberation in the month of November 1971 he came to Mohammadpur, Dhaka in disguise and on the way of his return to home he found accused Abdul Quader Molla being accompanied by his accomplices standing in front of Mohammadpur Physical Training Center which was known as the ‘torture cell’ of Al- Badar having rifle in hand. Tribunal notes that this version has been re- affirmed in cross-examination.

412. We have found that defence put contradictory suggestions to prosecution witnesses, in order to prove the plea of alibi which are: (a) Suggested to P.W.2 Syed Shahidul Huq Mama: since 07 March to 31 January 1972 Abdul Quader Molla had not been in Dhaka (b) Suggested to P.W.3 Momena Begum: at the relevant time Abdul Quader Molla did not reside in Mirpur (c) Suggested to P.W.4 Kazi Rosy: since first part of 1971 to March 1972 Abdul Quader Molla had not been in Dhaka city (d) Suggested to P.W.5 Khandokar Abul Ahsan: Abdul Quader Molla had not been in Dhaka city during 1971 and first part of 1972.

413. The plea of alibi is to be proved by the defence, true. But the above contradictory suggestions put to prosecution witnesses do not appear to be compatible in composing the plea of alibi believable with absolute certainty.

414. The above relevant facts as well sufficiently and beyond reasonable doubt prove that (i) accused Abdul Quader Molla who was admittedly a potential leader of Islami Chatra Sangha (ICS), the student wing of jamat E Islami (JEI) became an armed member of Al-Badar and (ii) he had been staying in Dhaka during the war of liberation in 1971.

415. Exhibit-2 a book titled ‘Sunset at Midday’ wherein the seventh line of paragraph two at page 97 that “The workers belonging to purely Islami Chatra Sangha were called Al-Badar”. Fox Butterfield wrote in the New York Times, January 3, 1972 that—“ Al Badar is believed to have been the action section of Jamat-e-Islami, carefully organised after the Pakistani crackdown last March.” Therefore, story of receiving training by accused Abdul Quader Molla at own native village, in the month of March 1971, to join freedom fight is nothing but a cock and bull story.

416. The accused while examining himself as D.W.1 appears to have suppressed deliberately that he was associated with ICS while he was student of Dhaka University. We have found from Exhibit-4 (Jibone Ja Dekhlam-Vol-5, page 153) a book written by Professor Ghulam Azam that the accused was a leader of ICS of Dhaka University. Thus, the plea of alibi and statement of D.W.1 in this regard does not inspire any amount of credence and appears to be a futile effort with intent to evade the charges brought against him.

417. In view of reasons enumerated above we are thus persuaded to conclude that the accused herein has miserably failed to bring on record any credible facts or circumstances which would make the plea of his absence even probable, let alone, being proved beyond reasonable doubt. But it could not be proved with absolute certainty so as to completely exclude the possibility of the presence of the accused in the locality of Mirpur, Dhaka at the relevant time.

5 Feb 2013: Mollah final judgment, part 5

This is the fifth part of the Mollah judgement dealing with charge number 5 and 6

To see part 1, click here - introductory sections

To see part 2, click here - introductory sections

To see part 3, click here - relevant and decisive factual aspects and charge no 1

To see part 4, click here - dealing with charges nos 2, 3 and 4

To see part 6, click here - dealing with contextual requirements to quality offenses as crimes against humanity and other defense arguments
To see part 7, click here - conclusion and sentence

Adjudication of Charge No.05 [Alubdi Mass Killing]

306. Summary Charge No.05: During the period of War of Liberation ,on 24.4.1971 at about 04:30 am, the members of the accused Abdul Quader Molla one of leaders of Islami Chatra Sangha and as well as prominent member of Al-Badar or member of group of individuals accompanied the Pakistani armed forces in launching the attack directed against civilian population of the village Alubdi (Pallabi, Mirpur) and suddenly by opening indiscriminate gun firing caused mass killing of 344 civilians including the persons listed in the charge no.05 constituting the offence of their murder and thereby the accused had committed the offence of 'murder as crime against humanity', 'aiding and abetting’ to the commission of such offences or in the alternative he committed the offence of 'complicity in committing such offence' as mentioned in section 3(2)(a)(g)(h) of the International Crimes (Tribunals) Act,1973 which are punishable under section 20(2) read with section 3(1) of the Act.

Witnesses
307. Prosecution has adduced and examined two witnesses in relation to this charge. The witnesses are P.W.6 Shafiuddin Mulla and P.W.9 Md. Amir Hossain Molla. They claim to have witnessed the atrocious event of mass killing participated by the accused Abdul Qauder Molla with the principal perpetrators. At the relevant time they were residents of the crime village Alubdi under police station Mirpur, Dhaka.

Discussion of Evidence
308. P.W.6 Shafiuddin Mulla(60) , at the relevant time , was an inhabitant of Alubdi village. He was 19 years of age at the time of the alleged event of mass killing happened at their village. He narrated that on 24 April 1971 in the early morning, on hearing sound of helicopter, he came out of the house and found a helicopter landing at a place near the bank of river which was western part of the village and he instantly heard sound of indiscriminate gun firing and then being frightened they started running within the village. At a stage, he found dead bodies of some persons here and there. He then remained in hiding beneath a bush at the northern side of the village and there from had witnessed, from western side, the Pakistani army bringing the villagers and the paddy harvesting laborers. There after, he also found that the accused Abdul Quader Molla, his Bihari accomplices and Pakistani army brought the villagers and the paddy harvesting laborers from eastern side and made all of them assembled at the same place.

309. P.W.6 further stated that after a short while he saw the accused Abdul Quader Molla talking with the officers of Pakistani force in Urdu, although he could not exactly hear it from far and then gun shooting was started targeting the apprehended civilians and Quader Molla (accused) also had fired by the rifle in his hand and thus, in this way, they had killed 360/370 Bangalee civilians including 70/80 paddy harvesting laborers and his own uncle Nabiullah. The massacre continued till 11:00 am and the perpetrators also committed looting and burnt houses of civilians.

310. Defence, however, could not dislodge the fact of the incident of atrocious and planned mass killing in Alubdi village, in any manner. From cross-examination of P.W.6 it has been revealed that since 24 April 1971, the date of the incident of mass killing, they had been in the locality of Savar, leaving their own village Alubdi. This fact is a corroborative indication to the commission of the horrific massacre. Because, they would not have preferred their shelter elsewhere leaving their own place if actually no such horrific incident would not happen. We do not find any reason that the P.W.6 has testified falsely as to witnessing the incident and presence of the accused Abdul Quader Mollah with the Pakistani army with a rifle in his hand at the crime site.

311. Now the question may validly come forward as to how the P.W.6 could recognize the accused at the crime site? Had he any opportunity to know the accused from earlier? P.W.6 blatantly denied the suggestion put to him by the defence that he did not know the accused Quader Mollah in 1970-71. Rather, P.W.6 stated that he was associated with the ‘Chatra League’ (student wing of Awami League) and during 1970 election he had participated in the campaign in favour of the Awami league candidate Advocate Zahir Uddin(Mirpur constituency) while accused Abdul Qauder Molla, the then leader of Islami Chatra Sangha (ICS) and the Biharis were engaged in campaign in support of the candidate having symbol of ‘dari palla’.

312. Thus we see that the P.W.6 was actively associated with the student wing of the Awami League, a pro-liberation political party, while accused Abdul Quader Molla had worked actively for the opponent in 1970 general election in favour of the Jamat-E-Islami candidate, in the locality of Mirpur. It has been corroborated by P.W.2 Syed Shahidul Huq Mama. Admittedly, in 1971 the Alubdi village was under Mirpur Police Station and we have found from evidence of P.W.5 Khandoker Abul Ahsan that the accused Abdul Quader Molla was also a resident of this locality (Duaripara, Mirpur). Therefore, we may legitimately presume that the P.W.6 had enough reason and occasion to know the accused Quader Molla since prior to the incident of Alubdi and thus he could recognize him even at the crime site accompanying the Pakistani army to the accomplishment of the crimes alleged.

313. Another live witness P.W.9 Amir Hossain Molla testified that Abdul Quader Molla had directly participated in the killing of around 400 people at Alubdi of Pallabi in Dhaka on April 24, 1971during the Liberation War. It is seen that the above version of P.W.9 has been corroborated by P.W.5 Shafiuddin Molla, another live witness of the incident who has also stated that Abdul Quader Molla directly took part in the killing of 360-370 Bangalees in Alubdi.

314. Freedom fighter P.W.9 Amir Hossain Molla, (66), used to reside at Duaripara the neighboring locality of Alubdi, at the relevant time. P.W.9 stated that Abdul Quader Molla along with 70-80 members of Islami Chatra Sangha, the then student wing of Jamat E Islami, had trained non-Bangalee Biharis to “protect Pakistan” ahead of the Liberation War. This unshaken piece of evidence sufficiently indicates that P.W.9 knew the accused Abdul Quader Molla even since prior to the event alleged.

315. In narrating the horrific event, P.W.9 stated that around the time of Fajr prayers on April 24, 1971, a helicopter landed on the bank of the Turag river on the west side of his village. From the east, 100-150 Biharis and Bangalees led by Abdul Quader Molla entered the village and opened fire indiscriminately causing killing of many people. Thereafter, they picked 64-65 villagers from their homes and lined them up in the north side of the village and 300-350 people who had come to the village for harvesting paddy were also lined up on the same place and then they opened fire on them.

316. P.W. 9 further stated he saw Abdul Quader Molla standing there (crime site) having rifle in his hand and there was also a rifle in Aktar Goonda's (Quader's associate) hand. They along with Panjabi people (Pakistan army) opened fire, said the P.W.9, adding, approximately 400 people were killed there. On cross-examination P.W.9 stated that he knew Aktar goonda who was sent to jail after 31 January 1972. He lost his 21 relatives who were killed during the event. P.W.9 has re-affirmed, in his cross-examination that he and his father witnessed the event remaining in hiding at the west-north side of the village Alubdi.

Evaluation of Evidence and Finding
317. Mr. Abdus Sobhan Tarafder , an associate of Mr. Abdur Razzak, the learned senior counsel for the defence argued that P.W.6 and P.W.9 had not been at the crime village at the relevant time and as such they had no opportunity to see the event. Their version as to seeing the accused accompanying the gang of perpetrators is not believable as they made inconsistent statement. P.W.6 just in the early morning when the attack was launched was sent to Birulia village, Savar by his uncle Nabiulla, as stated by D.W.5 Altab Uddin Molla, the younger brother of P.W.6. P.W.9 is not a credible witness as he is closely affiliated to the party in power and had faced numerous civil and criminal cases.

318. Conversely, the learned prosecutor argued that both the witnesses are live witnesses and they have made corroborating testimony as to the commission of event and involvement of accused thereto. Mere discrepancies cannot ipso facto make the sworn testimony untrue in its entirety. Involvement with civil and criminal case does not indicate one’s ill character and merely for this reason his sworn testimony cannot go on air. Besides, defence has made a futile attempt to exclude the culpability of accused with the commission of the event of massacre by examining the younger brother of P.W.6-- Altab Uddin Molla (D.W.5) who was merely a boy of 7 years and he had not been at the crime village at the relevant time.

319. The incident took place only about one month after the ‘crack down’ in the night of 25 march 1971 and thus the Pakistani troops who were here coming thousand of miles far from Pakistan naturally did not have any idea and knowledge about the location of any particular place and when, how and which group of population would be targeted of their attack, in execution of the policy and plan of the Pakistani government and armed forces. Logically only the local pro-Pakistani people, at that time, were considered as right persons to assist, guide and to collaborate them to implement the operation by committing atrocity. We may take this fact of common knowledge, considering the context of war of liberation 1971 into notice.

320. It is thus validly inferred that the Pakistani troops had to take effective assistance and collaboration of the local people who were perfectly pro-Pakistani and affiliated with the politics of Jamat E Islami. Admittedly, accused Abdul Quader Molla was a leader of Islami Chatra Sangha, the student wing of the JEI. It has been established even from the Exhibit-2 and 4, the two books one of which (Exhibit-4: Jibone Ja Dekhlam) is written by Ghulam Azam who contested 1970 election from Mirpur locality as a candidate of JEI.

321. Context, activities and political affiliation of the accused, just prior to 1971 war of liberation, as has already been discussed reasonably and unambiguously inspire us to believe the testimony of P.W.6 in respect of presence of the accused at the crime site of Alubdi and the fact that he himself also fired from the rifle in his hand while principally the Pakistani army perpetrated the mass killing of civilians.

322. It is to be noted that defence adduced and examined Altab Uddin Molla, the younger brother of P.W.6 as D.W.5. As it appears, D.W.5 has testified mainly to exclude complicity of the accused with event of massacre (as listed in charge no.5). At the relevant time he was only about 7 years old. He does not dispute the commission of the massacre. Although the burden squarely lies upon the prosecution to prove involvement or complicity of the accused with the crime committed we consider it relevant to have look to what has been testified by the D.W.5 to determine the weight of testimony of P.W.6.

323. D.W.5 Altab Uddin Molla has corroborated that his family members took refuge to village Birulia under Savar police station after the gang of 4/5 thousand Bihari lead by the Pakistani army along with Aktar Goonda, Doma, Gul Mohammad had attacked their village Alubdi in the night of 25 March. D.W.5 also stated that his brother Shafiuddin Molla (P.W.6) had been at village Alubdi at the time of the event and in the morning of 24 April when the Pakistani army’s helicopter had landed at their village his uncle Nabiullah Molla had sent him (P.W.6) to Birulia, Savar. How D.W.5 became aware of this fact? It remains unexplained.

324. The Tribunal notes it with surprise that how D.W.5 came to know that his uncle Nabiullah had sent his brother Shafiuddin Molla to Birulia, Savar, particularly when it is admitted that Nabiullah Molla was also killed in conjunction of the massacre? D.W.5 remained silent in this regard. Admittedly D.W.5 since prior to the alleged event had been at village Birulia, Savar with his family. If it is so, he is not a competent person to say whether accused Abdul Qauder Molla accompanied the perpetrators at the crime site.

325. It appears too that D.W.5 has stated that accused Abdul Qauder Molla was not at the crime site and he did not see him there. D.W.5 in next breath stated that he had not heard the name of Abdul Qauder Molla prior to initiation of this case. If it so, he is not at all able to say whether accused Abdul Quader Molla accompanied the perpetrators to the crime site and the version that he did not see the accused at the crime site is patently an untrue version aiming to exclude involvement of the accused with the commission of massacre alleged.

326. Drawing attention to the testimony defence suggested to P.W.9 that he did not state to IO that Abdul Quader Molla had accompanied the perpetrators having rifle in hand and participated the commission of mass killing of 400 civilians by gun firing. P.W.9 denied it. The Investigation officer P.W.12 stated that this witness stated to him that “140-150 persons including Asim, Aktar goonda, Newaj, Latif, Doma led by accused Abdul Quader Molla encircled the village Alubdi approaching from the east part of village.” Besides, the Tribunal notes that minor discrepancies, if any, could be due to the fallibility of perception and memory and the operation of the passage of time and it does not corrode the credibility of testimony made here before the Tribunal. Hence it would be wrong and unjust to treat forgetfulness as being synonymous with giving false testimony.

327. We are not agreed with what has been submitted by the learned defence counsel in respect of credibility of P.W.9 on ground of his ‘character’. Merely involving in civil litigations and involving with a criminal prosecution cannot brand one’s character questionable and makes him incompetent to testify in a court of law. Chiefly we are to see whether and to what extent it affects the truthfulness of that witness’s testimony. Even we are not required to reject the testimony of a witness who has been convicted of a crime or has engaged in criminal conduct. We may however consider whether a witness's criminal conviction or conduct has affected the truthfulness of the witness’s testimony. But the defence could not satisfy as to how such conduct has affected the testimony P.W.9 has made before the Tribunal.

328. There is no reasonable ground that could prompt us to hold that P.W.9 is an interested witness or is not credible as well. It is thus proved beyond reasonable doubt that the accused was present at the crime site, assisted the Pakistani troops and thereby participated, aided and substantially provided moral support to the commission of horrific mass killing of unarmed civilians of village Alubdi. Even we accept the only fact that the accused was merely present at the crime site to be true, he incurs criminal liability for encouraging and providing moral support to the commission of the crime.

329. Keeping the context of ‘operation search light’ in the night of 25 March 1971 followed by the war of Liberation and the fact of overall atrocious activities of the accused in the locality and also in 1970 general election in mind, a person of normal prudence would not hesitate to infer that the presence of accused with the Pakistani troops having rifle in hand, at the crime site, itself establishes his potential anti-liberation position in Mirpur locality and it conveys approval for those crimes which amounts to aiding and abetting .

330. Thus, his physical presence having rifle in hand is adequate indicia that he aided and assisted the Pakistani troops, the main perpetrators, to the commission of the crime at Alubdi village nearby Mirpur causing mass killing of unarmed civilians, as part of systematic attack. In the case of Furundziia, the ICTY held that-“mere presence or inaction may be sufficient to constitute the actus reus of aiding and abetting'. Therefore, at a minimum, there must be some connection between the accused's presence or inaction and the commission of the offence [Synagogue case, cited in Furundzija, note 55, para. 20S.]”

331. On final evaluation of evidence and relevant facts and circumstances, we are convinced to arrive at decision that the prosecution has been able to prove it beyond reasonable doubt by lawful and credible evidence of live witnesses that the accused knowing the intent of the main perpetrators accompanied the gang and remained physically present at the crime site having rifle in hand. Prosecution has been able to show that the accused Abdul Quader Molla, his Bihari accomplices and the Pakistani army, acting pursuant to a common design possessed the same criminal intention in accomplishment of the massacre.

332. It is validly inferred that the accused Abdul Quader Molla with full ‘awareness’ of the consequence of the attack accompanied the principals with intent to assist and encourage the execution of the ‘operation’. Such acts forming attack are sufficient to characterize the outcome of the attack causing mass killing of unarmed civilians as crimes against humanity.

333. Section 4(1) of the Act of 1973 contains provision as to liability of crimes. It reads as below: “When any crime as specified in section 3 is committed by several persons, each of such person is liable for that crime in the same manner as if it were done by him alone”.

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

Adjudication of Charge No.06 [Killing of Hazrat Ali and his family and Rape]
335. Summary Charge No.06: During the period of War of Liberation , on 26.3.1971 at about 06:00 pm the accused Abdul Quader Molla one of leaders of Islami Chatra Sangha and as well as prominent member of Al-Badar or member of group of individuals being accompanied by some biharis and Pakistani army went to the house of Hajrat Ali at 21, Kalapani Lane No. 5 at Mirpur Section-12 and entering inside the house forcibly, with intent to kill Bangalee civilians, his accomplices under his leadership and on his order killed Hazrat Ali by gun fire, his wife Amina was gunned down and then slaughtered to death, their two minor daughters named Khatija and Tahmina were also slaughtered to death, their son Babu aged 02 years was also killed by dashing him to the ground violently. During the same transaction of the attack 12 accomplices of the accused committed gang rape upon a minor Amela aged 11 years but another minor daughter Momena who remained into hiding, on seeing the atrocious acts, eventually escaped herself from the clutches of the perpetrators. By such acts and conduct the accused had actively participated, facilitated, aided and substantially contributed to the attack directed upon the unarmed civilians, causing commission of the horrific murders and rape by launching planned attack directing the non-combatant civilians and thereby committed the offence of ‘murder’ as ‘crime against humanity', ‘rape’ as ‘crime against humanity’, 'aiding and abetting the commission of such crimes' or in the alternative the offence of 'complicity in committing such offences' as mentioned in section 3(2)(a)(g)(h) of the International Crimes(Tribunals) Act,1973 which are punishable under section 20(2) read with section 3(1) of the Act.

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

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

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

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

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

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

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

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

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

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

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

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

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

349. It has been proved beyond reasonable doubt that P.W.3 had witnessed the incident of killing her parents, sisters and minor brother committed at their own house. Miraculously she escaped. She is a traumatized witness and a survived victim. At the time of incident she was a girl of 13 years of age. One can say that how she can memorize the incident long 41 years after the incident took place? It is true that with the passage of time human memory becomes faded. But it is also the reality that human memory is quite capable of reserving some significant moment or incident in the hard disc of his or her memory which is considered as long term memory (LTM) and it is never erased from human memory.

350. We have found that the following version of P.W.3 remains unshaken: “the accused Quader Molla holding collar of wearing shirt of her father was telling- “son of a pig, would you do now Awami league? Would you not follow Bangabandhu? Would you not utter the slogan ‘Joi Bangla’?” Then her father folded hands begged Quader Molla and Aktar goonda (terrorist) to leave him. But the accused Abdul Quader Molla dragged her father outside the room and since then he could not be traced. His accomplices slaughtered her mother with a ‘dao’; slaughtered her sisters Khodeja and Taslima with a ‘chapati’.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

367. Indeed, within a single attack, there may exist a combination of the enumerated crimes, for example murder, rape etc. In view of discussion as made above and taking the settled jurisprudence into account eventually we are persuaded that the acts of accused Abdul Quader Molla , as has been testified by the P.W.3, in the course of implementation of the actual crime of killings and rape, render him criminally responsible for the commission of the crime that has been established to have taken place as a part of systematic attack and as such the accused Abdul Quader Molla is found to have incurred criminal liability under section 4(1) of the Act for the offence as mentioned in section 3(2)(a) of the Act of 1973 which are punishable under section 20(2) read with section 3(1) of the said Act.

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Wednesday, February 20, 2013

Abdul Quader Mollah trial proceeding index

Tuesday, February 19, 2013

5 Feb 2013: Mollah final judgment, part 7

5 Feb 2013: Mollah final judgement, part 6

5 Feb 2013: Mollah final judgment, part 5