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In the Supreme Court of Bangladesh Appellate Division Present: Criminal Appeal Nos.39-40 of 2013

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In the Supreme Court of Bangladesh Appellate Division Present: Criminal Appeal Nos.39-40 of 2013 IN THE SUPREME COURT OF BANGLADESH APPELLATE DIVISION PRESENT: Mr. Justice Md. Muzammel Hossain, Chief Justice Mr. Justice Surendra Kumar Sinha Mr. Justice Md. Abdul Wahhab Miah Mr. Justice Hasan Foez Siddique Mr. Justice A.H.M. Shamsuddin Choudhury CRIMINAL APPEAL NOS.39-40 OF 2013. (From the judgment and order dated 28th February, 2013 passed by the International Crimes Tribunal No.1, Dhaka in ICT-BD Case No.01 of 2011.) Allama Delwar Hossain Sayedee: Appellant. (In Crl. A. No.39 of 2013) The Government of the People’s Republic of Bangladesh, represented by the Chief prosecutor, International Crimes Tribunal, Appellant. Dhaka, Bangladesh: (In Crl. A. No.40 of 2013) =Versus= The Government of the People’s Republic of Bangladesh, represented by the Chief prosecutor, International Crimes Tribunal, Respondent. Dhaka, Bangladesh: (In Crl.A.No.39 of 2013) Delwar Hossain Sayeedi @ Delu: Respondent. (In Crl.A.No.40 of 2013) For the Appellant: Mr. S.M. Shahjahan, Advocate, instructed by (In Crl. A. No.39 of 2013) Mr. Zainul Abedin, Advocate-on-Record. For the Appellant: Mr. Mahbubey Alam, Attorney General, (In Crl. A. No.40 of 2013) instructed by Mr. Syed Mahbubur Rahman, Advocate-on-Record. For the Respondent: Mr. Mahbubey Alam, Attorney General, (In Crl. A. No.39 of 2013) instructed by Mr. Syed Mahbubur Rahman, Advocate-on-Record. For the Respondent: Mr. S.M. Shahjahan, Advocate, instructed by (In Crl. A. No.40 of 2013) Mr. Zainul Abedin, Advocate-on-Record. Date of hearing: 24th, 25th, 26th, 29th, 30th September, 2013, 1st, 2nd, 3rd, 6th, 7th, 8th October, 2013, 14th, 18th, 19th, 20th, 24th, 25th November, 2013, 13th, 14th, 16th, 19th, 20th, 21st, 28th, 29th, 30th January, 2014, 2nd, 5th, 10th, 11th, 13th, 23rd, 24th, 25th, 26th, 27th February, 2014, 5th, 6th, 9th, 10th, 11th March, 2014, 1st, 10th, 13th, 15th and 16th April, 2014. Date of Judgment:17th September, 2014. 2 J U D G M E N T Md. Muzammel Hossain, CJ: I have gone through the judgments prepared by my learned brothers Surendra Kumar Sinha and Md. Abdul Wahhab Miah, JJ. I agree with the judgment prepared by my learned brother Surendra Kumar Sinha, J. CJ. Surendra Kumar Sinha,J: These appeals, one at the instance of the convict Allama Delwar Hossain Sayedee (Criminal Appeal No.39 of 2013), is against his conviction and sentence and the other, at the instance of the State (Criminal Appeal No.40 of 2013) is against non-awarding of sentence in respect of charge Nos.6, 7, 11, 14, 16 and 19 despite finding him guilty on those counts. Upon hearing the above appeals this Division allowed both the appeals in part by majority. The operating part of the short order is as follows: “The Criminal Appeal No.39 of 2013 is allowed in part by majority. The Criminal Appeal No.40 of 2013 is allowed in part by majority. Appellant-Allama Delwar Hossain Sayedee (in Crl. A. No.39 of 2013) is acquitted of charge 3 Nos.6, 11 and 14 and part of charge No.8 by majority. Appellant-Allama Delwar Hossain Sayedee is sentenced to 10(ten) years rigorous imprisonment by majority in respect of charge No.7. Appellant-Allama Delwar Hossain Sayedee’s sentence in respect of charge No.8 is altered to 12(twelve) years rigorous imprisonment by majority. Appellant-Allama Delwar Hossain Sayedee’s sentence in respect of charge No.10 is commuted to imprisonment for life i.e. rest of his natural life by majority. Appellant-Allama Delwar Hossain Sayedee is sentenced to imprisonment for life i.e. rest of his natural life in respect of charge Nos.16 and 19 by majority. The judgment in detail would follow.” The appellant was put on trial before the International Crimes Tribunal No.1, Dhaka, (the Tribunal) to face 20 count of charges, of them, the Tribunal found the appellant guilty of offences in respect of charge Nos.6, 7, 8, 10, 11, 14, 16 and 19 and gave him the benefit of doubt in respect of charge Nos.1-5, 9, 12, 13, 4 15, 17, 18 and 20 and acquitted him of the said charges. Though it found the appellant guilty of eight counts of murder, abduction, torture, rape, persecution, forcible religious conversion, awarded him sentence in respect of charge Nos.8 and 10 only and refrained from passing any separate sentence in respect of charge Nos.6, 7, 11, 14, 16 and 19 on the reasoning that no fruitful purpose would be served to award him lesser sentence since death sentence has been awarded in two counts. In support of the charges, the prosecution has examined 28 witnesses and the defence has examined 17 witnesses. Both the parties have also relied upon documentary evidence in support of their respective case. The defence has admitted the perpetration of almost all the offences of Crimes against Humanity, which are punishable under section 3(2)(a) of the International Crimes (Tribunals) Act, 1973 (Act of 1973) by giving suggestions to the prosecution witnesses and also by examining witnesses at different places of Pirojpur, but it takes a plea of alibi of the appellant's complicity in those crimes. The substance of defence version is that though all those atrocities stated by the prosecution had 5 been perpetrated at Parerhat, Baduria, Chitholia, Nolbunia, Umedpur, Hoglabunia, Indur Kani villages under the then Pirojpur Sub-Division from 7th May, 1971, to June 1971, the appellant was not present at the crime site during the relevant time, and as he was staying at New Town, Jessore, and then he took shelter to villages Sheikhhati, Dhanghata, Mohiron under Bagharpara thana, Jessore district, he was not involved in the commission of those crimes. His claim is that after the commission of those crimes, he returned to Parerhat sometimes in mid July, 1971, and that those crimes were perpetrated by the Pakistani force in collaboration with the local Peace Committee members and Razakars. Since no appeal was preferred by the State against the order of acquittal in respect of count Nos.1, 2, 3, 4, 5, 9, 12, 13, 15, 17, 18 and 20, I shall confine my decision in respect of count Nos.6, 7, 8, 10, 11, 14, 16 and 19. The pertinent question is whether the appellant was present during the relevant time at Parerhat or that he was staying elsewhere. If it is found that he was not present at or near the place of occurrence at the time of the commission of atrocities, it would rather be a futile 6 attempt to discuss the prosecution evidence in support of those charges, despite finding him guilty. To substantiate his claim of temporary absence from the crime site where the offences of Crimes against Humanity were perpetrated, the appellant has examined five witnesses, such as, Md. Abul Hossain (D.W.4), Roushan Ali (D.W.6), Md. Kobad Ali (D.W.8), Md. Hafizul Huq (D.W.12) and Md. Enam Hossain (D.W.14). Besides, he has also exhibited some documents showing that he was not involved in the perpetration of the crimes. The other witnesses examined on his behalf deposed that those incidents were perpetrated by the Pakistani army with the help of local auxiliary forces in different manner and not in the manner as stated by the prosecution. On the other hand, the prosecution witnesses stated that the appellant was physically present from the very beginning of the liberatioin struggle at Pirojpur, took active part in the formation of Razakars Bahini and Shanti Committee at Parerhat area, received the Pakistani army while they were entering into Pirojpur, as he was the one who had proficiency in Urdu speaking and that he had actively participated in all the atrocities committed at Parerhat, Pirojpur. 7 The Tribunal after sifting the evidence on record disbelieved the plea of alibi. It observed that the accused was a prominent member of Razakars Bahini of Parerhat area during the liberation struggle of Bangladesh and that he had actively participated in different atrocious activities by forming Razakars Bahibi as auxiliary force of Pakistani occupation force. It has considered exhibit 151, the nomination paper of the appellant Delwar Hossain Sayedee and the suggestions given to the prosecution witnesses Mahabubul Alam Howlader (P.W.1), Ruhul Amin Nabi (P.W.2), Sultan Ahmed Howlader (P.W.4), Mahatab Uddin Howlader (P.W.5), Manik Posari (P.W.6), Mustafa Howlader (P.W.8), Altaf Hossain Howlader (P.W.9), Basudev Mistri (P.W.10), A.K.M. Awal (P.W.12) and Gouranga Chandra Saha (P.W.13). The Tribunal held that exhibit 151, the nomination paper submitted by the appellant showed that he had four sons, of them, his eldest son Rafiq Bin Sayedee was alone born in 1970 but DWs 4 and 6 stted in cross-examination that Sayedee had two sons when he resided in Jessore town; that the defence suggested to P.Ws.1, 2, 4, 5, 6, 8, 9, 10, 12 and 13 that Sayedee was in Jessore since before the war of liberation 8 till mid July, 1971, but these witnesses denied the suggestions; that these witnesses and Sayedee hail from the same locality and these witnesses categorically stated that Sayedee was involved in the atrocities committed at Parerhat since May, 1971; that P.W.2, a commander of the freedom fighters categorically stated that he tried to arrest Delwar Hossain Sayedee in December, 1971 but failed to apprehend him as he fled away from the locality; that the evidence revealed that Delwar Hossain Sayedee went into hiding and took shelter to Jessore in the houses of Abul Hossain (D.W.4) and Rawshan Ali (D.W.6).
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