Tuesday, February 19, 2013

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:

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.

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