Tuesday, September 17, 2013

Quader Molla appeal, day 11: Defence arguments

2 May 2013
To see previous day's proceedings

Mr Hossain went the dais however, he was just wondering where to start. Mahmood J. helped him saying that, “You were at PW8’s testimony yesterday.”

Mr Hossain then moved to the testimony of the I.O.  “The place of genocide is Ghatarchar. PW8 Nurujahan was 13 in 1971, however, I did not ask her to show her national identity/voter card to confirm her age. On 30/06/12 he been to PW8 Nurjahan’s house. The distance between the place of incident and Nurjahan’s house is about 5 km. I been to her house alone; there was no one with me.”

Mr Hossain then submitted referring the testimony of the PW8, “She found her husband dead at her husband uncle’s place. Now the issue is- there is no proof that he was killed at the place of genocide.”

Sinha J., disagreed with his submission asked him to explain further. Mr Hossain explained, “Her husband been to his uncle’s place hearing the firing and later on her husband’s aunt came and informed her (PW8) that her husband was dead. Further, the firing started at the time of Fazr prayer (normally between 4:30 am to 5:30 am) and she (PW8) came out of the house after the firing stopped (around 11 am as per witness testimony)” 

Mr Hossain then quoted from PW8’s testimony, “…hearing that, I been to my uncle’s husband’s place...a short black guy aimed something like a rifle to me and I returned home due to fear and then again I went to my husband uncle’s house and found my husband laying on the ground in backside up position. When I turned him back I found blood…I heard from the word of mouth of my father-in-law that a person named Quader Mollah of Jamat killed my husband.” 

Mr Hossain then added, “No such thing was told to I.O.”

He then moved to I.O.’s cross examination at last paragraph of page 437 to show the contradiction. He read it out and submitted, “she has not testified the same to I.O.” 

About the PW7 he submitted, “His family left the village and instead of running away with them, walked 5 km alone and saw the incident hiding in a bush!” Mr Sinha J. asked, “Why that will be so?” Mr Hossain replied, “the I.O. has testified that the distance between Nurjahan’s place and the place of incident is 5 km far.”

Mr Hossain then submitted, “the charged was framed on 28/05/12 and witness testimony was started on 03/07/12. PW1 is not the witness of the genocide; witnesses are mainly PW7 and PW8. And the PW7 and PW8 did not mention the name of the respondent Abdul Quader Mollah and both are hearsay i.e. after the incident they came to know the name of the respondent. And hearsay is not admissible.”

At this point Sinha J. readout from the statement of PW, “the incident took place on 25/11/71 and he testified on 15/01/11.” In response Mr Hossain readout a part from the testimony of I.O. “On 30/06/12, for the purpose of investigation…” Sinha J. again argued, “You are saying she did not testify the same at all.” K M Hossain argued, “I.O. visited the place of incident on 30/06/12, why did not he visit the place at the time of taking the testimony or immediately after that? 

Sinha J. disagreed with him and asked him to read the testimony again.

There was an adjournment

K M Hossain went to the dais and started to make his submission. At this stage he focused on the history of this case. He submitted the case was transferred to ITCB on 21/07/2010 and the charge-sheet was submitted on 03/10/2011. He then moved to the 2nd paragraph of I.O.’s statement where he testified that the date of incident is 25/11/1971 and he visited the place on 15/01/2011. CJ interrupted and explained, “There are 2 incident here- one is act of genocide and another is killing of PW8 Nurjahan’s husband.” K M Hossain then further argued, “I.O went to Nurjahan’s place after the charge-sheet was submitted; the case was closed then already.” He made some further arguments after that.

Finally, Mr Hossain finished his submission on 12:30 pm. Once he finished, Mr Abdur Razzaq stood up and said he will make some further argument and the Court allowed him to do so. Mr Razzaq came to the dais and made following submission:

“My Lords, first of all I shall readout the section 20 and 21 of ICT Act 1973 regarding the provision of appeal (he read out accordingly). Now, my lord, may I invite your lordship to move section 20 (2)? (he read out accordingly). Now the issue is- whether an acquittal under section 21 means acquittal entirely or it means acquittal from a charge only? My submission is- here acquittal means acquittal entirely. Now let me readout the definition of acquittal from page 25, 3rd paragraph from top of Black’s Law Dictionary (the most authentic law dictionary in the world). (he gave copy to each judge and then readout the same. It is lengthy definition, however, as per the dictionary meaning acquittal mean ‘to set free to walk’ in short.) Thus, my humble submission is- acquittal means someone walking outside of the custody freely.”

Then he moved to Code of Criminal Procedure (CrPC) 1898. He submitted, “Although the CrPC is not applicable in this case but we can take some assistance from that to interpret the ICT Act. According to CrPC, an ‘order for acquittal’ means an accused is walking free. Thus, my submission is- ‘acquittal’ means ‘acquittal in total; not in a particular charge’. Further, the provision was not in the original Act, it was inserted after the judgement has been pronounced.”

“May I invite your lordship to the amendments of the ICT Act. By the 2nd amendment (on 14/07/2009), the provision of appeal (section 21) was changed which is, ‘the Government shall have right of appeal against an order of acquittal. Here, acquittal mean acquittal in total i.e. set walking free’.”

“My lord, the Act was further changed by the last amendment which is now the current law- ‘government shall have the right of appeal against an order of acquittal and order of sentence’. Now, my humble submission is, the government appeal is incompetent. It is also incompetent because of other grounds as well. The accused respondent was convicted on 5th February 2013 and the amendment was passed far after the judgement on 18th February 2013. Further, CrPC, CPC, Evidence Act is not applicable to this case. Therefore, my submission is stricter interpretation is required. My further submission is- any ambiguity will go in my client’s favour.”

He then read section 20 and submitted, “according to the provision of this section, the trial court can use their diligence irrespective to their findings- guilt or innocence; and decide whatever in their opinion ‘just and proper’. Your lordship should take a note of that. It has been further supported by rule 46 (3)- ‘deemed fit and proper to the tribunal’.”

“Now may I invite your lordships to look section 302 (punishment for murder) of the Penal Code for assistance. Here the provision is, ‘shall be punishable with death or imprisonment for life’. In the ICT Act, according to the sub-section 2, the provision is ‘death or any other punishment’- which is similar to the Penal Code. The AG has submitted that the punishment must be ‘the death’ because ‘death’ is in the first place. My submission is- it is totally wrong.”

Justice Wahab said, “No, he (AG) said death sentence is the provision and ‘proportionality’ is the exception.”

Chowdhury J. added, “And the ‘proportionality principle’ applies only to non-death sentences.”

Mahmood J. said, “In India, according to the recent change, they have swapped the positions; ‘imprisonment for life’ comes first then ‘death’ sentence has been placed and special order/permission is required for imposing death sentence.”

In response to that Barrister Abdur Razzaq said, “My submission is, they can give any sentence in accordance with the proportionality and gravity of the offence.” Mahmood J. replied, “yes, you can argue it.”

Wahab J. further explained, “Only in the Nari O Shishu Nirjatan Daman Ain (Law against the violence against the woman and child) for the offence of ‘rape with killing’ the punishment is ‘ONLY death’; no other option. Parliament has not left any option in that case but here in this case there are options.”

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