364 =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) IN THE SUPREME COURT OF APPELLATE DIVISION (Criminal) PRESENT: Surendra Kumar Sinha, CJ Mir Quasem Ali: Syed Mahmud Hossain, J ...Appellant. Hasan Foez Siddique, J Mirza Hussain Haider, J Mohammad Bazlur Rahman, J =VS=

Date of hearing: 9th, 10th, 15th, 16th, 17th, 23rd th and 24 February, 2016. The Chief Prosecutor, International Crimes Date of Judgment: 8th March, 2016. Tribunal, , Bangladesh: Result:Appeal is allowed in part (See para 218) ...Respondent. CRIMINAL APPEAL NO.144 OF 2014. (From the judgment and order dated 02.11.2014 passed by the International Crimes Tribunal No.2 (ICT-2) ICT-BD Case No.03 of 2013) ADVOCATES WHO APPEARED IN THESE CASE: For the Appellant: Mr. Khondaker Mahbub Hossain, Senior Advocate (with Mr. S.M. Shahjahan, Advocate), instructed by Mr. Zainul Abedin, Advocate-on-Record. For the Respondent: Mr. Mahbubey Alaam, Attorey General, Bangladesh, (with Mr. Murad Reza, Additional Attorney General, Mr. Momtaz Uddin Fakir, Additional Attorney General, Mr. Biswajit Debnath, Deputy Attorney General, Mr. Md. Ekramul Haque, Deputy Attorney General, Mr. Kh. Diliruzzaman, Deputy Attorney General, Mr. Masud Hasan Chowdhury, Deputy Attorney General, and Mr. Bashir Ahmed, Assistant Attorney General), instructed by Mrs. Mahmuda Parveen, Advocate-on-Record. STATUTES REFERRED: 01. Section 3 of the International Crimes Tribunal Act of 1973 (Paras-164, 202) 02. Section 3(2) of the International Crimes Tribunal Act of 1973 (Paras-192, 201) 03. Section 3(2)(a)(g)(h) of the International Crimes Tribunal Act of 1973 (Paras-67, 75, 83, 88, 92, 94, 101, 108, 194, 206, 207) 04. Section 4(1) of the International Crimes Tribunal Act of 1973 (Paras-67, 75, 83, 88, 94, 101, 108, 194, 201, 207) 05. Section 4(2) of the International Crimes Tribunal Act of 1973 (Paras-67, 75, 88, 94, 101, 108, 145, 158, 164, 190, 194, 206, 207) 06. Section 9 of the International Crimes Tribunal Act of 1973 (Para-203) 07. Section 16 of the International Crimes Tribunal Act of 1973 (Para-204) 08. Section 19(3) of the International Crimes Tribunal Act of 1973 (Para-149) THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 365 09. Section 20(2) of the International Crimes Tribunal Act of 1973 (Paras-67, 75, 83, 88, 92, 207, 217) 10. Section 34 of the Penal Code (Para-201) 11. Rule 43(2), rule 50 of the International Crimes (Tribunal-1) Rules of Procedure, 2010 (Para-192) CASES REFERRED: 01. Ali Ahshan Mohammad Mujahid- Vs. the Chief Prosecutor, 20 BLC (AP)266 (Para-53) 02. Prosecutor V. Bagilishema (ICTR-95-IA-(Appeals Chamber) July 3, 2002 para 79; Muvunyi V. Prosecutor, Case No. ICTR-200-55-A-A(Appeals Chamber) August 29, 2008; Kayelijeli V. Prosecutor, Case No. ICTR 98-44A-A (Appeal Chamber) May 23, 2005 (Para-73) 03. Prosecutor V. Staisic and Stojan Jupljan (Para-135) 04. Crimes Against Humanity by Geoffrey Robertson. P 316-317 (Para-141) 05. W. Slaney V. State of M.P., AIR 1956 S.C. 116, Gurbachan Singh V. State of Punjab, AIR 1957 S.C. 623 (Para-162) 06. Case No.IT-01-44T, ICTR and affirmed by Zlatko Aleksovski, in case No.IT-95-14/1-T, ICTY; Milorad Knojelac, case No.IT-97-25-A, ICTY; Enver Hadzihasanovic and Amir Kubura, case No.IT-01-47-A, ICTY. (Para-170) 07. Vs. The Chief Prosecutor, International Crimes Tribunal, Dhaka, Bangladesh (Criminal Appeal No. 62 of 2003) (Para-203) HEAD NOTE: The members of Badar bahini were ÒJamat-e-Islami nominated army– Admittedly, the appellant Mir Quasem Ali was leader of ICS town unit in 1971. It is also admitted that he became the Secretary General East ICS on 7th November, 1971. Admittedly, he was selected as Secretary General of ICS considering his performance and activities as leader of Chittagong ICS and Al- Badar Bahini. It is evident that while discharging his duties as Secretary General of ICS he was given charge of of ICS as well. Such promotion and prize post were given definitely on consideration of his effective activities and performance as leader of ICS Chittagong town unit. In the case of Ali Ahshan Mohammad Mujahid- Vs. the Chief Prosecutor, 20 BLC (AP)266 and in the unreported case of , this Division held that the Al-Badar Bahini was formed with the members of ICS. The Pakistani politicians admitted that the members of Badar bahini were ÒJamat-e-Islami nominated armyÓ. ...(Para-53) Plea of alibi– Mr. Khondker Mahbub Hossain, learned Counsel appearing on behalf of the appellant drew our attention to the issues of some newspapers dated 08.11.1971 , 11.11.1971, 23.11.1971, 8.12.1971 and 11.12.1971 and submitted that the appellant was in Dhaka and communication between Chittagong and Dhaka was in fact collapsed from the month of November 1971 to 16 December, 1971. Learned Counsel failed to show any evidence that the communication was totally disrupted at the relevant time and that all the ways of movement from Dhaka to Chittagong were disconnected. His submission is unacceptable in view of the documentary evidence published in “The Dainik Azadi” on 04.12.1971. Contents of which were: ÒAvR c~e© cvwK¯Ív‡bi Bmjvg QvÎms‡Ni mfvcwZi PÆMªv‡g AvMgbÓ evZ©v cwi‡ekK, ÒcvwK¯Ívb Bmjvgx QvÎ ms‡Ni c~e© cvwK¯Ív‡bi kvLvi mfvcwZ Rbve Avjx Avnmvb †gvnv¤§` gyRvnx‡`i 3 w`‡bi md‡i AvR XvKv ‡_‡K Avwmqv †cuvQv‡eb| GLv‡b Ae¯’vb Kv‡j wZwb `jxq Kgx©‡`i Ges ivR‣bwZK †bZ„e„›`‡`i mwnZ †`‡ki eZ©gvb cwiw¯’wZ m¤ú‡K© Av‡jvPbv Ki‡eb Ges myax mgv‡e‡k e³„Zv Kwi‡eb ewjqv GK †cªm wiwj‡R ejv nBqv‡Q Ó | THE LAW MESSENGER 366 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) From the aforesaid news item, the submission of Mr. Khandaker Mahbub Hossain is devoid of substance. It is quite natural that since the President of EP ICS went to Chittagong on 25.11.1971 after taking decision on 24.11.1971, the appellant, who was in Charge of Chittagong Division, ICS and former leader of Chittagong town unit, ICS and local commander of Al- Badar Bahini would go and stay in Chittagong between 19th November, 1971 and 15 December, 1971. So the alibi, plea taken by the appellant does not carry any force. ...(Paras-197 & 198) Inherent lacuna in conducting the prosecution case– Learned Attorney General in the opening of his argument produced a paper and submitted that the appellant Mir Quashem Ali was not only Islami Chatra Sangha Leader and Al-Badar Chief, Chittagong chapter, but also the chief financer of a big political party, which wants to frustrate the trial of offenders of crimes against humanity, war crimes and genocide and engaged a lobbyist firm on payment of US$ 25 million to influence the government of the United States with a view to postponing the trial process. ...(Para-199) International Crimes Tribunals Act [XIX 1973] Section 4(1) read with The Penal Code, 1860 Section 34 A plain reading of section 4(1) of the Act, 1973 suggests that for commission of any offence by more than one person will be deemed that each of such person is liable for the offence. This section 4(1) and section 34 of the Penal Code are cognate in nature. Where a criminal offence is committed by several persons in furtherance of common intention of all, each of such person is liable for that offence in the same manner as if it were done by him alone. ...(Para-201) Responsibility on the part of a commander or superior officer to shoulder the responsibility for commission of any crimes committed by his subordinates–It is proved that he did not participate but his subordinates committed the offence within his knowledge or that he has prepared a plan to commit any of the offences, in that case also, he cannot avoid the responsibility because law imposes a responsibility on the part of a commander or superior officer to shoulder the responsibility for commission of any crimes committed by his subordinates. ...(Para-202) International Crimes Tribunals Act [XIX 1973] Section- 3(2)(a)(g)(h)/ 4(1) and 4(2)/ 20(2)– 14 charges have been framed on the suggestion of the prosecutors. In twelve charges, the accused appellant has been arraigned for „abetting and facilitating‟ the commission of offences of abduction, confinement and torture and in two other charges, he has been arraigned to have tortured to death as crimes against humanity specified in Section 3(2)(a)(g)(h) of the International Crimes Tribunal Act of 1973, which are punishable under Section 20(2) of the Act. He was also charged under Section 4(1) and 4(2) of the Act. ...(Para-207) Dalim Hotel as the torture centre of Al-Badar forces and perpetrated crimes against humanity– We were surprised to note that in respect of charge No.11, the accusation was torture THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 367 and killing of Jasim and other 5 persons, but we do not find sufficient evidence on record to convict and sentence him for charge relating to those 5 persons. The prosecution was totally silent about them. In respect of all the charges the positive version of the prosecution is that the accused set up Dalim Hotel as the torture centre of Al-Badar forces and perpetrated crimes against humanity in the said centre with his force. ...(Para-216) International Crimes Tribunals Act [XIX 1973] Section 20(2)– Sub-Section (2) of Section 20 provides that the tribunal shall award sentence of death or such other punishment proportionate to the gravity of the crime appears to the tribunal to be just and proper. The offences of crimes against humanity or genocides are by nature serious and heinous type of offences. The tribunal awarded the sentence of death in respect of charge No.11 which according to us was „proportionate to the gravity of the crime.‟ ...(Para-217) Accused Mir Quashem Ali charge Nos. 4 and 12 acquitted– This appeal is thus allowed in part. Accused Mir Quashem Ali is found not guilty in respect of charge Nos. 4 and 12 and he is acquitted of those charges. His conviction and sentence in respect of charge Nos. 2, 3, 7, 9, 10 and 11 is maintained. ...(Para-218) JUDGMENT Surendra Kumar Sinha, CJ.: 288 out of 300 in the Provincial Assembly. In Prelude , Bhutto‟s party (PPP) won 81 seats out of 138 constituencies. In the ultimate 01. in a press conference in analysis, emerged as the Dhaka on November 27, 1969. declared that absolute majority party in the National the elections would be held on December 17 Assembly as well as in the Provincial except in the cyclone affected constituencies “Assembly acquiring thereby the which would be decided by the Election democratically to form government in the Commission. He further made it clear that until centre and therefore to frame the constitution of elections in all constituencies were completed the country at its instance. the National Assembly would not sit. Yahya 03. On January 12 and 13, 1971 Yahya further declared that it was his duty “to see that met , the majority proposed constitution assured integrity, safety and security of the country and that all those leader and his top colleagues in Dhaka and who were participating in elections accepted discussed six points. Yahya Khan made a Legal Framework Order (LFO). If they reject disclosure to the pressmen that Sheikh LFO after the elections, I will treat it as if they Mujibur Rahman was going to be the future have not participated in elections and martial Prime Minister of Pakistan. By the end of law continues in that case.” He also assured January, Bhutto came to Dhaka and learnt that all the federating units would have from Sheikh Mujibur Rahman that he was maximum autonomy. firm on six points, and that his discussions on 02. The elections were held in peaceful revenue and tax matters with Yahya Khan atmosphere. Awami League won 160 seats out were inconclusive. On February 13, Yahya of 162 constituencies in the then East Pakistan Khan announced that the National Assembly now Bangladesh in the National Assembly and would meet in Dhaka on March 3, 1971. THE LAW MESSENGER 368 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) 04. On February 15, Bhutto declared that it after a conference. Sheikh Mujibur Rahman would be pointless for PPP to attend the rejected the invitation and termed it a cruel Constituent Assembly if PPP could not joke after the killing of unarmed civilians after participate in framing the constitution. On the elections by the army in different places on February 29, Bhutto declared that he would miscellaneous pretexts. On the same date, organize all of West Pakistan in violent protest Sheikh Mujibur Rahman held a massive public if the National Assembly should be convened meeting and mourned the death of the people on March 3. To avert the deteriorating situation, killed by the army during protest Sheikh Mujibur Rahman is known to have demonstrations and before, and extended hartal developed attitude to relax provincial power up to March 6, and announced a public meeting over aid and trade within the framework of at race course to be held on March 7. He called foreign policy of the country and to clarify that upon Governor Yakub to bring back the army express constitutional provisions were to the barracks. People across „East Pakistan contemplated to empower the National had already started to build barricades to Assembly to impose a federal levy on the impede the movement of the army. There was a federating units. press report on March 6 that MLA decided on 05. On March 1, Yahya Khan made March 5 to return army to the barracks as there announcement postponing the National were no untoward incidents during the past two Assembly session without consulting Sheikh days. It would appear that the postponement of Mujibur Rahman. This gave rise to angry National Assembly session without consulting demonstration of protests, processions with Sheikh Mujibur Rahman was a blunder of Yahya Khan. Since March 1, economic, slogans against Yahya Khan, Bhutto and West industrial, and all other activities in East Pakistan. The postponement was castigated as Pakistan were carried on under order of AL. an entente with Bhutto and army to nullify Awami Leaque‟s massive victory in the 07. Bhutto with his 81 seats in the National elections. Thousands of people gathered before Assembly started to masquerade his party‟s Purbani hotel where Sheikh Mujubur Rahman majority in West Pakistan, and designed to was holding a meeting of party leaders. He at demand two Prime Ministers for Pakistan – one once convened a press conference, asked the in himself and the other in Sheikh Mujibur agitating angry people to remain peaceful and Rahman. This demand obviously meant that non-violent, declared hartal (strike) for March Bhutto‟s party would not agree to a 2. All offices, businesses, shops, institutions, parliamentary majority rule of East Pakistan in trains, airplanes etc. stopped functioning. The the centre. His demand, by definition, meant a Martial Law Administrator (MLA) called army federation of Pakistan, each part having its regional Prime Minister. Bhutto was silent as to to prevent agitation. Curfew was imposed. whether or not there would be any President in Vice-Admiral Governor Ahsan was removed his scheme to look after Pakistan. It was for his softness. Lt General Yakub was made generally presumed that Bhutto might have the new Governor. He issued punitive martial meant a confederation under a titular Yahya law order, forbidding printing, publishing Khan. He further demanded that his party‟s pictures, news items, views etc. against the consent must be taken in all matters of national integrity of Pakistan. Governor Yakub was importance. This meant that Awami League replaced by Lt General who was with an absolute majority in the National ruthlessly oppressive. Assembly would not be able to take any 06. On March 3, Yahya Khan invited majority decision in “matters of national political leaders for discussion about holding importance” – such a perception which was, in National Assembly session a few weeks later fact, undemocratic, vague and unacceptable. THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 369 Political leaders of West Pakistan other than for independence. The unarmed people were those belonging to Bhutto‟s party kept almost already roused to fury against, and hatred for, mum over what Bhutto was demanding and West Pakistan and the military rulers, and the saying. Bhutto stood firmly by his demands, speech inspired people to fight for while Sheikh Mujibur Rahman fervently independence of Bangladesh. requested the President to convene session of 10. It would appear that the speech of the National Assembly. It may be noted that Sheikh Mujibur Rahman outlined all that was there was a proclaimed Presidential Decree to be done to make the non-cooperation stand limiting 120 days from the last day of the successful and highlighted the atrocities national election to complete the framing of the perpetrated on the people of East Pakistan by constitution, and that in case of failure the the army. He, however, suggested peaceful President would be free to dissolve the settlement of the demands of East Pakistan and Parliament and call for another election. finally warned the rulers of relentless struggle 08. Military rulers calculated that Sheikh for independence without any further order if Mujibur Rahman would declare independence no heed was paid to the grievances and on March 7, and accordingly, they kept demands. There was a speculation that necessary preparation ready to strike Sheikh something was going to happen. West Pakistan Mujibur Rahman and his audience at the race leaders like Wali Khan and Asghar Khan tried course. Sheikh Mujibur Rahman sized up the vainly for a compromise. danger and decided not to make imprudent 11. On March 10, German and Japanese declaration of independence in the public citizens started to depart from Dhaka. The meeting. So, he worded his speech in a manner United Nations Secretary General, U Thant, so as to avoid the instant danger. In the speech, advised his Resident Representative to remove he prudently demanded withdrawal of martial U. N. officials if necessary. Sheikh Mujibur law, immediate transfer of power, judicial Rahman did not hesitate to comment “Removal enquiry into the killings of Bengalees by the of U. N. O. officials is not enough in the army, return of the armed forces to the barracks. He, however, urged upon the people of East context of the killing and the violation of Pakistan to get prepared for sangram (struggle) Human Rights”. Yahya Khan flew to Dhaka on and not to wait for any order from him in case March 15 with a proposal for dialogue with he would not be in a position to give further Sheikh Mujibur Rahman, while Bhutto went on order. “I am prepared to give my blood but making provocative speeches in West Pakistan. shall not betray my people”, said Sheikh Bhutto declared that majority party rule would Mujibur Rahman and proclaimed thunderously not apply in Pakistan and repeated that there “ the sangram this time is a sangram for should be two Prime Ministers in Pakistan. For liberation, the sangram this time is a sangram the dialogue, Yahya Khan brought with him for independence”. retired Chief Justice of the Supreme Court 09. The speech of March 7 was a (Justice Cornelius), the Deputy Chairman of masterpiece of Sheikh Mujibur Rahman‟s the Planning Commission (M.M Ahmed) and courage and political prudence and sagacity as some Generals and Intelligence officers. an ultimatum to the military rulers. It inspired Sheikh Mujibur Rahman joined the dialogue in Sheikh Mujibur Rahman‟s immediate listeners deep consideration of the fact that in the West and the rest of the people of East Pakistan but he was looked upon as a democrat and as such alarmed all in West Pakistan and the military he should not disappoint the Western leaders rulers. The speech created the needed implicit by rejecting the dialogue, and so he included in force of determination and for popular fighting his team some stalwarts of Awami League. THE LAW MESSENGER 370 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) 12. On March 16, Sheikh Mujibur Rahman intelligence strategists not only to reinforce met Yahya Khan with a black flag in his car Pakistan‟s military strength in East Pakistan for and proposed a judicial enquiry to find out why a massive assault but also to keep Awami army (called in civil duty) killed the people. League engaged in the dialogue, so that it could Army continued its atrocities and on March 19 not find time to organize the people for killed a lot of people at Joydebpur where resistance and offensive operations against the people under leadership of Major K. M. pre-planned military assault. Sheikh Mujibur Shafiullah vehemently resisted army movement. Rahman did not refuse to have a dialogue, The dialogue continued. Its proceedings were because he was known in the West as a strictly guarded secrets. Press releases simply champion of democracy and for peaceful mentioned “progress”. On March 21, settlement of disputes. newspapers had it that the dialogue was 15. When Awami League was in the progressing satisfactorily and that General dialogue, political agitation had not been Yahya Khan asked Awami league and Pakistan relaxed and the students were spectacularly People‟s Party of Bhutto to draft a constitution burning in agitation to get rid of the Pakistan jointly on the basis of the points agreed upon, rulers, although there was no objective armed for discussion on the floor of the National preparation in East Pakistan for an armed Assembly. confrontation. The six-point demands now lost 13. The people of East Pakistan naturally their relevance to the students who by now believed that the settlement of the political, became much more openly determined to go economic and constitutional issues was being ahead for one point (independence). March 23 made in a peaceful atmosphere. Information (Pakistan Day) was declared by Awami League soon trickled down that Bhutto raised objection as Resistance Day, which by implication to the withdrawal of martial law before final marked the end of allegiance to Pakistan. It was and conclusive settlement of the issues and on March 23, 1940 that the All-India Muslim argued that withdrawal of martial law would League in its session in Lahore (Punjab) create insurmountable legal vacuum. Justice resolved a two-nation theory for Indian sub- Cornelius, Dr. Kamal Hussain and some legal continent with the objective purpose to create three independent states under a partition stalwarts including advocate Brohi of Sind, scheme of India. And the creation of Pakistan however, did not see any insurmountable was the outcome of this resolution with radical vacuum, because an Order of the President changes in 1946 (two states in place of three), could obviously cover the interim and in 1947 (partition of Bengal and Punjab) constitutional vacuum. accepted by Muslim league without any 14. It was supposedly a wrong belief that referendum. And the people of East Pakistan the military rulers would spare East Pakistan got a territory as Bangladesh, which was not for all that was done under Sheikh Mujibur our original demand. Rahman‟s leadership since the declaration of 16. March 25 was a day of speculation as to non-cooperation. It was clear that Bhutto what was going to happen when the dialogue conspired with the military junta to undo the apparently came to a close without any election victory of Awami league. From the proclamation of result. It was not known what attitude of General Yahya Khan towards the the Awami League leaders decided about the Assembly session one could easily predict that. next course of action, after it was declared that The possibility of parliamentary government 23rd March (Pakistan Day) would be celebrated under Awami League as an absolute majority in East Pakistan (Bangladesh) as Resistance party was intolerable to the army in which East Day as a result of which Bangladesh Flag Pakistan had insignificant representation. The prepared by students was hoisted in Dhaka and so-called dialogue was devised by military and outside and in foreign missions. THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 371 17. Students held a meeting in the morning from their homes to be gunned down. The of March 23 at Paltan, which commenced with provost of the Hindu dormitory, a respected the song – “Amar Sonar Bangla ...... ” and a flag scholar of English, was dragged out of his of Bangladesh. A procession from the meeting residence and shot in the neck. Blood listed six marched to the residence of Sheikh Mujibur other faculty members “reliably reported killed Rahman and the flag was presented to him in a by troops,” with several more possibly dead. ceremonial style. The hoisting of Bangladesh One American who had visited the campus said flag on the Pakistan Day was an end of that students had been “mowed down” in their allegiance to Pakistan. On March 24, Yahya rooms or as they fled, with a residence hall in visited Dhaka cantonment and the Generals flames and youths being machine-gunned. visited garrisons outside Dhaka. Yahya left “At least two mass graves on campus,” Dhaka at 7 p.m. on March 25. Blood cabled. “Stench terrible.” There were (Extracts from SHEIKH MUJIB: 148 corpses in one of these mass graves, LIBERATION WAR: BANGLADESH by according to the workmen forced to dig them. Abdul Khaleque.) An official in the Dhaka Consulate estimated 18. On the night following March 25, 1971, that at least five hundred students had been the Pakistani army had begun a relentless killed in the first two days of the crackdown, crackdown on Bangalees, all across what was almost none of them fighting back. Blood then East Pakistan and is today an independent reckoned that the rumored toll of a thousand Bangladesh. Untold thousands of people were dead at the University was “exaggerated, shot, bombed, or burned to death in Dhaka although nothing these days is inconceivable.” alone. , the United States‟ Consul After the massacre, he reported that an General in Dacca had spent that grim night on American eyewitness had seen an empty army the roof of his official residence, watching as truck arriving to get rid of a “tightly packed tracer bullets lit up the sky, listening to pile of approximately twenty five corpses,” the clattering machine guns and thumping tank last of many such batches of human remains. guns. There were fires across the ramshackle city. He knew the people in the deathly 21. Blood detailed how Pakistan was using darkness below. He liked them. Many of the U.S. weapons-tanks, jet fighters, gigantic troop civilians facing the bullets were professional transport airplanes, jeeps, guns, ammunition-to colleagues; some were his friends. crush the Bangalees. In one of the awkward alignments of the Cold War, President Richard 19. It was, Blood and his staffers thought, Nixon had lined up the democratic United their job to relay as much of this as they States with this authoritarian government, possibly could back to Washington. Witnessing while the despots in the Soviet Union found one of the worst atrocities of the Cold War, themselves standing behind democratic India. Blood‟s Consulate documented in horrific detail the slaughter of Bangalees civilians: an 22. The onslaught would continue for area the size of two dozen city blocks that had months. The Dhaka Consulate stubbornly kept been razed by gunfire; two newspaper office up its reporting. But, Blood later recalled, his buildings in ruins; thatch-roofed villages in cables were met with “a deafening silence.” He flames; specific targeting of the ‟ was not allowed to protest to the Pakistani Hindu minority. authorities. He ratcheted up his dispatches, 20. The U.S. Consulate gave detailed sending in a blistering cable tagged “Selective accounts of the killings at Dhaka University, Genocide,” urging his bosses to speak out ordinarily a leafy, handsome enclave. At the against the atrocities being committed by the wrecked campus, professors had been hauled Pakistani military. THE LAW MESSENGER 372 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) 23. But Pakistan‟s slaughter of its necessity: “There is no r[e]p[ea]t no resistance Bangalees in 1971 was starkly different. Here being offered in Dacca to military.” the United States was allied with the killers. 27. Blood‟s team also saw the Pakistan Air The White House was actively and knowingly Force using F-86 Sabres, U.S. jet fighters supporting a murderous regime at many of the famed for their performance in the Korean War. most crucial moments. There was no question Blood reported daily sorties flown by an F-86 about whether the United States should squadron at Dhaka‟s heavily fortified airfield, intervene; it was already intervening on behalf in flights of two or four. Two F-86s were seen of a military dictatorship decimating its own taking off from Dhaka to crush Bangalee people. resistance in a nearby town. 24. Indians were overwhelmingly outraged 28. Yahya‟s slaughter drove Bangalees to by the atrocities in East Pakistan. In a take up arms. The nucleus of the resistance was factionalized country where popular harmony trained Bangalees serving in Pakistan‟s military, is a surpassingly rare thing, there was a in units called the East Pakistan Rifles and the remarkable consensus: Pakistan was behaving Regiment, as well as police horrifically; the Bangalees were in the right; officers. Unable to stomach the crackdown, India had to act in defense of democracy and many of these Bangalees rebelled. They innocent lives. Almost the entire Indian became early targets for Yahya‟s assault. As political spectrum, form Hindu nationalists on Archer Blood remembered, the Pakistani army the right to socialists and communists on the “deliberately set out first to destroy any left, lined up behind the Bangalees. Bengali units in Dacca which might have a 25. still mourn their losses military capability,” particularly the Bangalee from not so long ago. This book (The Blood troops in the East Pakistan Rifles. “And so they Telegram) is not – and does not purport to be – just attacked their barracks and killed all of anything like a comprehensive account of these them that they could.” Scott Butcher, the junior crimes against humanity. It mostly documents political officer in the U.S. Consulate in Dhaka, the American eyewitness perspective on them, says that the swiftly turned on which is obviously only a part of the complete the Bangalees in their ranks: “a lot of the record of horrors. Still, this is an important gunfire we heard were executions of some of portion, because it is the true local viewpoint of those personnel.” the Pakistani Government‟s superpower ally. 29. As one of Yahya Khan‟s ministers later After all, Archer Blood and the other U.S. wrote, “The Pakistan Army‟s brutal actions . . . officials reporting back to the Nixon can never be condoned or justified in any way. administration knew they had every career The Army‟s murderous campaign in which incentive to downplay the enormity of what many thousands of innocent people including they saw; their stark reporting thus stands as a women, the old and sick, and even children, crucial and credible part of that wider story. were brutally murdered while millions fled 26. Yahya Khan had a green light for his from their homes to take shelter either in killing campaign. At the White House, Richard remote places or in India, constituted a Nixon and Henry Kissinger knew that a fierce measureless tragedy,”. Days after the shooting assault was starting, but made no move to stop stopped, Bhutto set up a judicial commission to or slow it. He recounted the killing of investigate the battlefield defeat in East politicians, professors, and students. The streets Pakistan led by Pakistan‟s chief justice were flooded with Hindus and others trying as well as two other desperately to get out of Dhaka. This assault, eminent judges. It produced a scathing official he wrote, could not be justified by military record condemning the military for corruption, THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 373 turpitude, and brutality, and demanding courts- last President of united Pakistan, Yahya khan, martial for Yahya, Niazi, and other disgraced suddenly flew home to West Pakistan. Just military leaders. While the report concentrates prior to mid-night when the city was about to on military defeats, it includes frank testimony seek refuge from all the hustle and bustle of on the atrocities from senior army officers and daily chores, the attack came. The Pakistani civilian officials. This judicial commission army indiscriminately attacked the Bangalees. convinced that “there can be no doubt that a 33. Army tanks went in different directions very large number of unprovoked and to demolish different targets. One contingent vindictive atrocities did in fact take place,” rolled through the main street from airport to urged Pakistan‟s government to set up a “high- the city and attacked a newspaper office in powered court or commission of inquiry” to front of the Radio Pakistan Dhaka office, and “hold trials of those who indulged in these the same contingent took over the control of atrocities, brought a bad name to the Pakistan the radio station. Another went towards Dhaka Army and alienated the sympathies of the local University and attacked students‟ dorms. This population by their acts of wanton cruelty and attack was actually video tapped by a professor immorality against our own people.” of Dhaka Engineering University, and the tape 30. But nothing happened. The report was was smuggled out of the country as a first hand so harsh on the military that it was suppressed, report of the massacre to the outside world. The and only came to light in an Indian magazine in area where the attack took place in the student 2000 and in Karachi‟s intrepid Dawn dorms, there were also selective break-ins at newspaper in 2001. While Bhutto was keen to the faculty residences and a couple of discredit the likes of Yahya Khan and Niazi, he professors were killed on that fearful night. – far from facing up to the horrors – refused to 34. U.S M-24 tanks led the Punjabi-Baluchi accept losing Bangladesh and insisted on the assault upon student dormitories on the campus necessity of the crackdown. “I would have of the . Iqbal and Jaganath done it with more intelligence, more halls were filled with sleeping students and scientifically, less brutally,” Bhutto told an faculty when the tanks opened fire and interviewer, heaping all blame on “Yahya Khan continued shooting at least five minutes. and his gang of illiterate psychopaths.” Bhutto Soldiers crouched behind the tanks then put the notorious General Tikka Khan in charge charged into the shell-battered dorms with of the army, insisting that during the massacres “he was a soldier doing a soldier‟s job.” fixed bayonets and killed all persons still alive: students, professors, caretakers, and servants. 31. As for the women who were raped and killed, he flatly said, “I don‟t believe it.” While 35. The highly equipped Pakistani army saying that “such brutality” against the people attack Dhaka city‟s largest police station was unnecessary, Bhutto defended the use of (Police Line/Barrack at Rajarbag. The local force at home: “You can‟t build without police responded with their three-not three destroying. To build a country, Stalin was rifles. They were in their beds when the attack obliged to use force and kill. Mao Tse-tung was took place. Thus, they were in their traditional obliged to use force and kill.” night suit-a loongy and a ganji. They scattered all over the neighborhood to escape the attack, (The Blood Telegram by Gray J. Bass - then started organizing a resistance. It was extractions) beyond their imagination that the Pakistani 32. On March 25, 1971, the army army would attack law enforcement officers of occupation of East Pakistan turned into a the same country when there was no genocide. On the late afternoon of 25 March, declaration of war and there were no charges the political confusion ended abruptly when the against the local police about major violations THE LAW MESSENGER 374 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) of the law of the land. The attack was swift and military regime‟s fumbling an unsuccessful brutal. There were no accounts of the deaths as attempt to maintain its repressive rule over its the army wiped out evidence and cleaned the de facto eastern colony (Fickell, 1973:130). city after seizing control. Before the so-called 38. Obviously, it was a fact that West control of Dhaka city it was “a night of Pakistani armies committed genocide in East infamy” ... one could watch with horror the Pakistan. People may try to ignore the veracity constant flash of tracer bullets across the dark of the attack and downplay the atrocities sky and listened to the more ominous clatter of committed by the Pakistani army and some of machine gun fire and the heavy clump of tank their stooges like the members of Al-Badar and guns...(Blood, 2002: 195). “that night, the Al Shams, “two separate wings” of holocaust began” (Loshak, 1971:79). organization. “Well-educated and properly 36. The administration took maximum motivated students from the schools and measures to keep the operation completely madrasas were put in Al-Badar Wing, where away from any foreign journalists. However, they were trained to undertake „Specialized two journalists, Michel Laurent, a French Operations‟ while the reminder were grouped photographer working for the Associated Press together under Al-Shams, which was news agency, and Simon Dring, of the Daily responsible for the protection of bridges, vital Telegraph of London, resourcefully evaded the points, and other areas,” - - Niazi wrote (1998: administration‟s control. In his report, Dring 78). However, Niazi did not elaborate on gave the first eyewitness account of the terror “Specialized Operations, ” but those who lived campaign, which Pakistan‟s leaders had through the period were very much aware of designed to “save” the “integrity” of their the meaning of “Specialized Operations” – nation. “The first targets as the tanks rolled into killing innocent Bangalees. Dacca”, Dring reported, “were the students. 39. The West Pakistani attack in March was Caught completely by surprise, some 200 an attack on a specific ethnic group to suppress students were killed in Iqbal Hall,...as shells their hopes and aspirations, destroy their slammed into the building and their rooms identity and eliminate their existence; thus it were sprayed with machine gun fire” (Loshak, was genocide. Genocide is the deliberate act, 1971:80). As the Pakistani army violated the typically of a state, to destroy a specific group, trust of the local police forces consequently typically defined in ethnic terms (Dictionary of many Bangalee lawenforcement agents left the Sociology, 2000). The word is derived from the force and joined the freedom fight. After the genos (people or race) and the Latin caedere crack down the political protests turned into a (to kill). The target of Pakistani armies was the resistance movement with the goal of creating a Bangalees and not any other ethnic group. nation state-Bangladesh. 40. When thousands of innocent people 37. These selective attacks were also were being massacred and their houses were followed by many more random attacks. The burnt, and women were being raped, the two rampage the West Pakistani army unlashed most powerful nations in the world- America against the Bangalees of Dhaka City was not an and China- were engaged in diplomatic isolated incidence. The West Pakistani army networking, and the facilitator was the actually initiated a calculated and well instrumental of the genocide. History coordinated attack on Bangalees across the repeatedly confirms that political dynamics country. The attack of 25th March was a behave strangely and are mostly devoid of planned attack. The tragic events of 1971 need humanity or justice. not be re-catalogued. Genocide, torture, , 41. The calculated genocide on the part of rape all were characteristic of West Pakistan‟s West Pakistani army and administration created THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 375 a backlash for the rulers. A resistance force was Bangladesh was among the most carefully and born which was known as with centrally planned of modern genocide‟s. the total support of the people of the country Records suggest that a group of five generals except a handful of disgruntled political planned and orchestrated the genocide : Yahya activists who did not believe in the power of Khan, Tikka Khan, Chief of staff Pirzada, people and supported genocide for their security chief Umar Khan, and intelligence personal gains. The West Pakistani Army did chief Akbar Khan. None of the generals or the not get the picture of the situation. “Despite lower ranking officers involved on the ground their long and careful preparations, the has ever been brought to trial. generals‟ plans misfired... The plan recoiled. 44. In a secondary sense, Zulfiqar Ali For the military elite never had any conception Bhutto is to be accused of complicity in the of the strength of Bengali feeling, nor the genocide. But the Jamaat-i-Islami in both the faintest idea of the determined spirit that would wings, was the main back-up political force inspire the Bangla Desh resistance movement” that had its distorted and obscurantist Islamic (Loshak, 1971:88). The spirited Bangalee rose ideology at the services of the genocidal like a Royal Bengal Tiger and gave birth of military junta. another movement Shadinater Songram – Movement for Freedom- and the fighters were 45. But as far as trial of the perpetrators of known as “Mukti Bahani” or “Mukti Fauz”. genocide in Bangladesh is concerned our immediate focus is on those who are called (From Protest to Freedom : The Birth of razakars, who in 1971, belonged either to Bangladesh by Mokerrom Hossain by Jamat-i-Islami in the then East Pakistan and its Mokerrom Hossain) student wing Islami Chatra Sangha. Moreover, 42. For Genocide hard evidence of both there were other collaborators who did not local and foreign provenance abound to the belong to these organisations, had their own effect that the primary responsibility is to be political platforms, but shared the ideology of fixed on the Pakistani military that authored the razakars in opposing Bangladesh and actively “” and unleashed the participating in the genocide. To this category genocide. To be added to this category of belonged such rightist political parties as the complicity is the role of the local collaborators Muslims League, (Council/Convention) and the called razakars. Robert Payne gives a chilling Nejam-i-Islam. Of the many political account of the Pakistani genocide in his widely personalities quarters who aided and allotted read book Massacre : “For month after month genocide special wanton should be made of late in all the regions of East Pakistan the Fazlul Quader Chowdhury and his son massacres went on. They were not the small Salahuddin Quader Chowdhury. casual killings of young officers who wanted to (Genocide in Bangladesh, 1971 : Fixing demonstrate their efficiency, but organised Responsibility By Dr. Syed Anwar Husain, massacres conducted by sophisticated staff published in ‘Bangladesh Genocide 1971 And officers, who knew exactly what they were The Quest For Justice’) doing. Muslim soldiers sent out to kill Muslim 46. International Media highlighted the peasants, went about their work mechanically massacre and efficiently until killing defenseless people became a habit like smoking cigarettes or The Times London drinking wine... The slaughter in East Pakistan. 43. Such a narrative, among the many “The more than news from East Pakistan blood-curdling and heart-rending ones, clearly accumulates, the more horrowing it demonstrates that the mass killing in becomes. Senseless murder hysterical THE LAW MESSENGER 376 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) cruelty and what must be a creeping fear Death in East Pakistan run like a current throughout this packed “----- A New York Times correspondent, mass of human beings. “ who crossed from India into East Pakistan, 16.04.1971 reported that government troops, acting on New Statesman orders from Karachi, have killed engineers, doctors, professors and students “The Blood of Bangladesh, If blood is in an attempt to eradicate the future the price of a people‟s right to Bengali leadership.” independence Bangladesh has overpaid. “ 03.05.1971 05.04.1971 Time The Time Magazine “Dacca, City of the Dead. Pakistan Toppling over the Brink. ----- a Westerner heard soldiers cry, “ Kill “In Dacca, army tanks and truckloads of the bastards !” troops with fixed bayonets came clattering out of their suburban base shouting 15.06.1971 “victory of Allah” and “ victory to The Washington Daily News Pakistan” --- Dan Coggin reported: Before Slaughter in East Pakistan long, howitzer tank, artillery and rocket blasts rocket half a dozen scattered “Eyewitness reports, one more ghasty sections of Dacca. Tracers arched over the than another, continue to filter out of East darkened city.” Pakistan, telling of the massacre of the Bengali people by Pakistani Army------07.04.1971 evidence mounts that it is cold bloodedly The New York Times murdering minority Hindus, Bengali Bloodbath in Bengal. separatists, intellectuals, doctors, professors, students, in short those who “---- On any basis, the United States could lead a self governing East Pakistan.“ would have a humanitarian duty to speak against bloodbath in Bengal.” 28.06.1971 12.04.1971 News Week. Time The terrible blood bath of Tikka Khan “---Reports coming out of the East via “----- Anthoney Mascaranhas, a Karachi diplomats, frightened refugees and newsman who also writes for the London clandestine broadcasts varied wildly. Sunday Times was so horrified by the Estimates of the total dead ran as high as events he witnessed that he and his family 300000.” fled to London to publish the story. He wrote , “ I‟ve seen people literally strick 14.04.1971 dumb by the horror of seeing their children The New York Times murdered in front of them or their “----- The Pakistan military are using jet daughters dragged off into sexual slavery. I fighter bombers, heavy artillery and gun have no doubt at all that there have been boats mostly supplied by the United States, a hundred “Mylaies and Liddices” in East the Soviet Union and Communist China.” Pakistan and I think, there will be more.” 17.04.1971 02.08.1971 The Evening Star Times Magazine THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 377 The Ravaging of Golden Bengal. estimates are over a million have died “----- Kushtia a city of 40,00 now looks, already. as a world Bank team, reported, “like the 31.03.1971 morning after a nuclear attack” Statement by Mr. Russel Johnston, 13.06.1971 Member, House of Commons, U.K. on The Sunday Times March 31, 1971. According to eye witness reports, have Gencocide been savage and indiscriminate and have By Anthony Mascarenhas resulted in the widespread slaughter of “For six days as I travelled with officers civilians. “ of the 9th Division head quarters at 24.04.1971 Comilla, I witnessed at close quarters the Avb›` evRvi extent of the killing, I saw Hindus, hunted Ò c~e©es‡M MYnZ¨v m¤ú‡K© e„wUk cvj©v‡g‡›Ui cÖkvmwbK from village to village and door to door `jxq m`m¨ wgt eªæm WMjvm g¨vb Gi e³e¨| shot off hand after a cursory “short arm inspection” showed they were Òwf‡qZbv‡g ÒgvBjvBÓ GKwU e¨wZµg, Avi uncircumcised. I have heard the screams of †MvUv c~e©e½B gvBjvB-evqvd«vi m‡½ Zzjbv nq bv| men bludgeoned to death in the compound evsjv‡`‡ki Ae¯’v‡K A‡b‡K evqvd«vi m‡½ Zzjbv of Circuit House ( Civil administration K‡i‡Qb wKš‘ kªx g¨v‡bi g‡Z, evqvd«vi m‡½ GLvbKvi head quarters) in Comilla. I have cwiw¯’wZi ZzjbvB nq bv| evqvd«v‡Z c~e©evsjvi gZ GK witnessed the brutality of “kill and burn wbe©vPb nq wb|Ó missions” as the army units, after clearing April, 1971 out the rebels, pursued the pogrom in the towns and the village” Jhon Stonehouse‟s interview with B.B.C. 10.07.1971 “What happened in East Bengal “makes Vietnam look like a tea- party .” The Sunday Times 05.07.1971 A Regime of Thugs and Bigots The Statesman An account by Murray Sayle. ÒBritish M.P. Arther Bottomley said this “---- From Satkhira I proceeded to had been the most horrowing mission he , administrative capital of the had undertaken in his entire public life. district. ------A quarter of the population of the whole district, which was more than Oxfam Report three million at the last census, is missing , The testimony of 60 on the crisis in Bengal. dead or gone to India. “ They are eye witnesses, and the story 14.05.1971 they tell is horrifying. It is a story of millions hounded, homeless and dying. It is Friday, too a story of the world community House of Commons engaged in a communal ostrich act. Ó Estimates of the numbers who have died. Senator Edward Kenedy - “The official estimate of the West ÒThe tragedy of East Bengal is not only a Pakistan Government is that only 15,000 tragedy for Pakistan. It is not only a have died, but the lowest independent tragedy for India. It is a tragedy for the estimates start at 100,000 and many entire world community, and it is the THE LAW MESSENGER 378 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) responsibility of that community to act The blame for the catastrophe rightly together to ease the crises. Ó enough belongs to the men who run the Nicolas Tomalian West Pakistan Government. The sheme Ò belongs to all of us. Almost from the start, The Paksitan crises is the worst the World community could have stopped disaster that has faced the world for the it; And it must be stopped now by whatever past 30 years. manner or means. Our children will inherit The villains, those Pakistani generals enough shame.“ who ordered a military attack on their own th John Drewary, Canadian Broadcasting countrymen last March 25 , are more Corporation. obviously in the wrong than any military aggressors since the Hitler war. Ó “I found it impossible to shut away the memories of what I saw, in the refugee John Pilger, Daily Mirror camps of west Bengal and along with “The life, or death, of Bangladesh is the trials leading out of East Pakistan, in that single most important issue the world has corner of my mind reserved for other had to face since the decision to use horrors I witnessed during wards I covered nuclear weapons as a means of political in Korea, the Congo, Egypt , Vietnam and blackmail . It is that because never before Biafra. It is not that the brutization of the have the world‟s poor confronted the people of East Pakistan is worse than what world‟s rich with such a mighty mirror of has happened to countless others Man‟s inhumanity.” throughout history. The effect of sword, Dr. R.C. Hioman, MRCP, Save the Children fire and starvation differ very little in fund, Bengal. degree on the individual body and spirit. “Tens of thousands of children have It is simply that the magnitude of the already died in the refugee camps in the tragedy is so immense, so overwhelming, it India border area.“ overshadows all other things. The cry for James Cameron, Journalist help coming out of in and East Pakistan is echoing all around the world. If we ignore “For six months we have stood by in it we are killing our future too.” shocked surprise and watched disaster grow into catastrophe and hourly nearer to May 12, 1971 Congressional record- tragedy and we still stand by and watch.” Extension of Remarks P190- Claude Azonlay, Paris Match A letter written by an American Family Evacuated from East Pakistan in the House of “The whole world stands accused of Representatives. inaction while seven million people are in danger of death. A graveyard of children.-- “We have been witness to what amounts ----. In Bengal two million children are to genocide. The west Pakistan army used dying, killed by hanger, and we remain idle tanks, heavy artillery and machine guns on and no sanctions will be imposed on us unarmed civilians killed 1,600 police while except may be-of so remote-that of guilt. “ sleeping in their barracks, demolished the student dormitories at Dacca University Ernest Hillen, Weekend Magazine (Canada) and excavated a mass grave for the “Unprecedented numbers of people are thousands of students; they systematically suffering and dying, and the members are eliminated the intelligentsia of the country, growing, there is widespread famine, and wiped out entire villages I could go on and there is the very real of war. on. Its hard to believe it happened------THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 379 That was great human tragedies of modern accounts relating to the tragic incidents in times.” East Pakistan. Senator Tany Congressional record Senate Mr. Saxbe readout an articles July 7, 1971. The war in East Pakistan. published in the Boston Sunday Globe July 11, 1971. U.S. Arms for Pakistan . A shameful record. Title was : “This is, we submit, an astonishing and shameful record, with two meanings. East Pakistan a mounting crisis – witness reports on Death, Destruction . The first is that, for the shabbiest of political reasons, the United States is 47. An eye witness account of the supplying military equipment to a brutal devastations left by West Pakistani troops, regime that has killed an estimated fanning out along the river leading from Dacca 200,000 of its citizens and driven me six to the Bay of Bengal, is told in the following million others out of their country.” exparts from a tapeletter recorded in the area in late May, Congressional record-Senate William H. Ellies, a Canadian engineer July 20, 1971- Tragedy in Pakistan. working on coastal embankments near the Bay “The tragedy in Pakistan worsens each day.” of Bengal , recorded his comments on an University of California. unofficial and highly dangerous survey of the area in which he worked------14 Professors of Univeristy of California. ------Barisal was Loss Angeles, Calif, May 17, 1971. Wrote completely deserted, only the dogs on the a letter to the Editor streets although it was still an hour and a half Loss Angeles Times. before curfew. I traveled to Jessore------a road that I have traveled many times before ---- They said; ---- villages on both sides of the road have been “We, the under signed scholars of burnt. As was pointed out to me, there is not a Asian Studies on the faculty of UCLA write family in this whole country that has not been to express our profound sense of anguish affected that has not lost members that have not and shock at the news we have read and been shot or not looted, or had their women personally received of the brutal and raped, or young girls taken away.” protracted massacres of Bengali civilians July 23, 1971. by West Pakistan‟s armed forces since March 25, 1971. From every creditable Congressional record- Senate report we have seen it appears that The situation in East Pakistan. General Yahya Khan‟s Army directed the “Mr. McGovern, Mr. President, the full strength of its fire power at such present situation of bloodshed and bastions of “resistance” to his military repression in the East Pakistan should dictatorship as the unarmed camp of concern us all -----. One need only read Dacca University.” the report of the mission of the World Bank July 20,1971. to be moved by the sufferings of the Congressional record- Senate Bengalies, For example, in the town of Jessore, where 80,000 lived a few months “Tragic incidents in East Pakistan. ago, only 15,000 to 20,000 people Mr. Saxbe, Mr. President, I invite the remained; 20,000 have been killed and the attention of Senators to further events and rest of the population has fled into the THE LAW MESSENGER 380 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) country side. Thousands of East Pakistani Al-Badar are being slaughtered daily in a Gestapo 49. Islami Chhatra Sangha (ICS) was the like orgy of killing.” student organization of Jamat-e-Islami. Solim Some other news headings of the most Monsur Khaled, a Pakistani researcher, made a influential and widely circulated newspapers research work on Al-Badar Bahini. He took and magazines in the world regarding genocide interviews of the members of Al-Badar Bahini committed in Bangladesh are mentioned here. who fled away to Pakistan after the War of 48. Genocide (the Sunday Times, London Liberation as well as their friends in 13.06.1971), A regime of Thugs and Bigots Bangladesh who were members of “Badar (The Sunday Times, London-11.07.1971), In Bahini” and their organisers. He wrote a book Dacca, Troops use artillery to held revolt (The named “Al-Badar” published by Talaba New York times, 28.03.1971), Plunge into Publishers Lahore, Pakistan. It has been chaos (The Synday Morning Herald- narrated in the said book that on 10th March, 29.03.1971), Pakistan Tragedy (the AGE,- 1971 a meeting of ICS was held in Dhaka Canberra-29.03.1971), A Massacre in Pakistan where members of Mazlish-e-Sura and District (The Guardian, London 31.03.1971), In the Nazems of ICS were present. In four days name of Pakistan (The New York Times- meeting, the participants discussed about the 31.03.1971), Weep for Bengal(The New prevalent situation of the country and led the Stateman, London-02.04.1971), The Slaughter following three proposals for the members of in East Pakistan (The Times, London- ICS. 03.04.1971), The Holocaust in East Pakistan 1| cwiw¯’wZ wb‡Ri MwZ‡Z Pj‡Z w`‡q must be ended (The New Nation-Singapore- wew”QbœZvev`x‡`i m½x n‡q hvIqv| 06.04.1971), Mass murder in Bengali (Expression, Stock home 12.04.1971), Blood of 2| cwiw¯’wZ wb‡Ri MwZ‡Z Pj‡Z †`qv Ges wbi‡cÿ Bangladesh (The New Stateman, London- f~wgKv cvjb Kiv| 16.04.1971), Death in East Pakistan (The 3| cwiw¯’wZi †gvo Nywi‡q †`qv| Baltimore Sun-04.05.1971), Genocide in East Pakistan, (The Saturday review, USA- 50. Out of those three proposals, the ICS decided to follow the 3rd proposal, that is, 22.05.1971), East Bengal tragedy, (The Ò Guardian, London-27.05.1971), Tragedy in cwiw¯’wZi †gvo Nywi‡q †`qv” ignoring the Bengalis, (Commentary Broadcast in the afro mandate of people given in the election held in Asian Service of Radio Prague Zechoslovakia- 1970 in which Awami League got absolute 14.06.1971). Another Genghis, (The Hongkong majority in the National Assembly, ICS took Standard-25.06.1971), Guilt and disaster over aforesaid cruel/inhuman decision against the Pakistan (The Manila Chronicle-05.07.1971), will of the people. In that meeting it was Ò East Pakistanis cry for help, (The Palaver resolved, ------my‡hvM G‡m‡Q hv‡Z GLv‡b Avjø Avi `ywbqvi Weekly-Ghana-08.07.1971); Normalse with vni Øxb‡K Zvi Avmj AvK…wZ‡Z Kv‡qg Kiv e mvÿ bayonets (Vecernje Novosti-Yogoslvia- mvg‡b Gi mZ¨Zvi ev¯Í ¨ †ck Kiv| Avgv‡`i Rb¨ 08.07.1971), Pakistan condemned (The New GwU me‡P‡q eo †bqvgZ| Avgiv PvB †h cvwK¯Ív‡bi RbK York Times-14.07.1971). The Bengal the cªwZwU gymjgv‡bi g‡a¨ GB †bqvg‡Zi gh©v`v `v‡bi murder of people , ( The News Week – m„wó Kie| Zv‡`i ü`‡q AšÍ‡i GB wPšÍvwU ewm‡q †`e †h, 02.08.1971); Cruel steps against population of GB †bqvg‡Zi †ndvh‡Zi Rb¨ †h †Kvb Kzievbx ¯^xKvi East Pakistan (USSR Press, trued-02.04.1971), Kiv KwVb bq| ----- Avi RbK wb‡q kvnv`Z bmxe n‡j Premeditated brutality (Le-Monde, Paris- Zv n‡e eû DbœZgv‡bi kvnv`vZ| ---- Avgv‡`i 09.04.1971), Stop this genocide (DJakarta cvwK¯Ív‡bi GB Ask‡K †ndvRZ Ki‡Z n‡e| wVK Times-15.04.1971), Army Terror (The Sun, Ggbfv‡e †hfv‡e gmwR` †ndvRZ Kiv nq| ---- Bmjvgx London-26.04.1971). QvÎ msN cvwK¯Ív‡bi AÿzbœZv I RbM‡bi Rvbgvj I B¾Z THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 381 †ndvR‡Zi Rb¨ mvg‡b AMªmi n‡e| ------Avgiv Gw`‡K wbj | Avgiv mv`v †Wª‡m KvR KiZvg| ----- PÆMªv‡gi Bmjvgx kw³ wb‡q `ykg‡bi mv‡_ gq`v‡b msNv‡Z AeZx©b †fZi wZbwU A¯¿ †K›`ª wQj| GKwU ga¨Lv‡b, GKwU ne Ab¨w`‡K ÿgZvi KvQvKvwQ †c․‡Q Zvi ms‡kva‡bi gZ Dˇi, Av‡iKwU wQj `wÿ‡b|Ó Lt. Gen. A.A.K. Niazi Avgv‡`i gZ K‡i †Póv Kie|Ó Though Pakistani in his book, “Betrayal of East Pakistan”, stated Army slaughtred and destroyed united about the formation of Badar Bahini with the Pakistan and buried their own country on the following words: th night following 25 March, 1971 by opening ÒTwo separate wings called Al-Badar and fire and shelling using tanks, heavy machine Al-Shams were organized. Well educated and guns etc. and thereby massacred thousands of properly motivated students from the schools innocent unarmed people when they were and madrasas were put in Al- Badar Wing, sleeping, the members of ICS started where they were trained to undertake “ collaborating with the Pak army to save Specialized OperationsÓ while the remainder Pakistan in the name of Islam and thereby were grouped together under Al-Shams, which frustrated the mandate of the people. In order was responsible for the protection of bridges, to form a separate Rajaker force ICS took vital points, and other areas.Ó (underlined by decision in a meeting on 15.05.1971. th us) Thereafter, on 16 May, 1971 , Major Ò Riyad Hossain Malik, of 13 Baluch Regiment 51. The campaign confirmed the IJT‟s started giving training to 47 ICS members. On place in national politics, especially in May 21.05.1971, they were named as “Al Badar” 1971 , when the IJT ( Islami Jamiete Tulba= Bahini. In the said book the author narrated the Chatro Sangho) joined the army‟s formation and activities of Al-Badar Bahini in counterinsurgency campaign in West Chittagong as under: Pakistan. With the help of the Army the IJT organized two paramilitary units, called al- ÒPÆMªvg GLv‡b 10‡g 1971 †j. K‡Y©j AvRg I Badar and al-Shams,to fight the Bengali Acv‡ikb Pxd dv‡Zgx QvÎ ms‡Ni `vwqZ¡kxj‡`i mv‡_ guerrillas. Most of al-Badar consisted of IJT civgk© K‡ib| GB ch©v‡q GKwU wgwUs †bfvj members, who also galvanized support for the †nW‡KvqvU©‡i Avi GKwU †mbv hvÎx QvDwb‡Z n‡qwQj| operation among the Muhajir community Bmjvgx QvÎ ms‡Ni PÆMªv‡gi bv‡Rg mnvqZv `v‡bi e¨vcv‡i settled in East Pakistan, Matiur Rahman kZ©v‡ivc K‡ib Ges e‡jb †h, Avcbviv hw` mwZ¨B Nizami, the IJT‟s nazim-I a‟la ( supreme head Avgv‡`i Kv‡Q mnvqZv Pvb Zvn‡j †Kvb Acv‡ikbB or organizer) at the time, organized al-Badar civgk© e¨wZ‡i‡K n‡e bv| GB K_vwU g~jbxwZ wn‡m‡e and al- Shams from Dhaka University,” [Seyyd P~ovšÍ K‡i †jLv nq| e¯‘Zt Ryb Gi gvSvgvwS mg‡q PÆMªvg Vali Reza Nasr, The Vanguard of the Islamic kn‡i myjZvb Lv‡j` web Iqvwj`, RwniæwÏb gynvg¥` evei Revolution: The Jama‟at Islami of Pakistan] I Zv‡iK web wiqv‡`i bv‡g Avj- e`‡ii KÕwU †Kv¤úvwb (emphasis supplied) MVb Kiv nq| mgMª †Rjvq 37wU cøvUzb wQj| GLv‡b cvK Ò evwnbxi 24 d«wóqvi †dvm© †iwR‡g›U †gvZv‡qb wQj| ----- Hussain Haqqani in his book Pakistan Ó - AvevwmK GjvKv ¸‡jvi wRg¥v`vi wQj Avj e`i Gi Dci| Between Mosque and Military has narrated ------PÆMªvg †m±‡i Avj- e`‡ii me‡P‡q ‡ekx KvR wQj the formation of Al- Badar Bahini which is as wmwfj cªkvmb‡K cªkvmwbK I cªwZiÿvi Kv‡R mnvqZv follows: Kiv|Ó The author published the extracts of the 52. ÒArmy decided to raise a Razakaar interview given by Abdur Rahman ( (volunteer) force of one hundred thousand from Chittagong), one of the members of Badar the civilian non Bengalis settled in East Bahini. He said : Òc~e© cvwK¯Ív‡bi `~¯‥„wZKvix‡`i Pakistan and the Pro Pakistan Islamic groups. g~‡jv‡”Q` Kivi Rb¨ cvKevwnbx hLb ZrciZv ïiæ Kij , The Jammat-e-Islami and specially its students ZLbKvi QvÎ msN Gi Kgx© †jUvi c¨v‡W Qwe jvwM‡q wmwfj wing, the Islami Jamiat-e-Talaba (IJT), joined I mvgwiK cªkvmb †_‡K mZ¨vwqZ K‡i wbZ| GwUB nZ the military‟s efforts in to launch, Zv‡`i AvB,wW, KvW©| ---- Avj e`‡ii wZbwU e¨vP †U«wbs two paramilitary counterinsurgency units. The THE LAW MESSENGER 382 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) IJT provided a large number of recruits. By above crimes undoubtedly rank first after Nazi September, a force of fifty thousand Razakaars holocaust during the Second World War, had been raised. Secular West Pakistani followed by genocide committed by Khemr Politicians complained about “an army of Rouge regime of Pol Pot in mid-seventies in Jamaat-e-Islami nominees”. The two special Cambodia, brutal elimination of about one brigades of Islamis cadres were named Al- million Hutus by the Tutsis in Rwanda in the Shams ( the sun, in Arabic) and Al- Badar ( the late eighties and the ethnic cleansing of the Moon). The names were significant for their Muslims by the Serbs in Bosnia in the early symbolic value. Islam‟s first battle, under nineties of the last century. While these latter Prophet Muhammad, had been the battle of offenders had been prosecuted, or are being Badar, and these paramilitary brigades saw prosecuted, it is preposterous that the crimes themselves as the sun at the crescent of Islamic committed in Bangladesh during 1971 have revival in South Asia.Ó (underlined by us) remained to date with impunity. 53. Admittedly, the appellant Mir Quasem The rationality of holding the trial can be Ali was leader of ICS Chittagong town unit in explained from several perspectives: 1971. It is also admitted that he became the  These crimes are so heinous in Secretary General East Pakistan ICS on 7th nature that it shocks the conscience of the November, 1971. Admittedly, he was selected human kind. It shakes the foundation of as Secretary General of ICS considering his human civilization itself. The perpetrators performance and activities as leader of are regarded as the hostis humani generis Chittagong ICS and Al- Badar Bahini. It is i.e. enemy of the human kind under evident that while discharging his duties as international law. That is why such crimes Secretary General of East Pakistan ICS he was should not go unpunished. given charge of Chittagong Division of ICS as  Peaceful co-existence is not possible well. Such promotion and prize post were between the violators and the victims. given definitely on consideration of his From the viewpoints of restorative justice effective activities and performance as leader even after so many years such trial should of ICS Chittagong town unit. In the case of Ali be held. Ahshan Mohammad Mujahid- Vs. the Chief  Holding of such trial also deserves Prosecutor, 20 BLC (AP)266 and in the significance for the sake of revival of the unreported case of Motiur Rahman Nizami, spirit of liberation war and the ideals for this Division held that the Al-Badar Bahini was which the people fought in 1971. To get formed with the members of ICS. The relief of ignominy (we have for not able to Pakistani politicians admitted that the members punish the committers) such trial is of Badar bahini were ÒJamat-e-Islami necessary. nominated armyÓ.  From a sense of deterrence, that is, to 54. There are overwhelming strong create an example for the future violators evidence that the above crimes were committed (holding of trials of) the suspected by Pakistani regular and auxiliary forces during criminals should be brought to justice. the Bangladesh War of Liberation in 1971  In order to show respects to the (anti-liberation forces call it civil war which, departed souls of 1971, the trial should take however, in no way diminishes the criminal place. liability of the perpetrators). In terms of (War Crimes and Genocide 1971: number of people killed (about three million), Bringing the Perpetrators of Justice by Dr. women raped (two hundred thousand) and Mizanur Rahman and S. M. Masum Billah, persons forced to flee their homes to turn published in Bangladesh Genocide 1971 And refugees (ten million took shelter in India), the The Quest Fr Justice). THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 383 55. Newsweek in its 28th June, 1971 issue m¤ú„³ bvix I cyiæ‡li Kvwnbx¸‡jv msMªn‡bi cª‡qvRbxqZv published a news with the heading “The ¯cófv‡e dz‡U D‡V‡Q| Avgv‡`i A‡b‡KB GLb m¼xY© terrible Blood Bath of Tikka Khan” in which ivRbxwZi †eovRv‡j Ave× n‡q Av‡Qb| Avi Gi d‡j descriptions of brutality were given with BwZnvmwe¯§„wZ‡Z AvµvšÍ n‡”Q Avgv‡`i RvZxq eqvb| following words: “ Other foreigners, too, were cvVK‡`i g‡b ivLv cª‡qvRb, Avgvi cª‡kœi DËi dubious about the atrocities at first, but the LyuR‡Z wM‡q W. †Wwfm cªvq 32 eQi Av‡MiKvi NUbvewj endless repetition of stories from different m¥ib Kivi †Póv KiwQ‡jb| G Kvi‡Y K‡qK ¯’v‡b Zvi sources confined them. “ I am certain that Reve A¯úó g‡b n‡Z cv‡i| wmWwb , GbmWeøy , A‡ówjqvi troops have thrown babies into the air and GK †gwW‡Kj MªvRy‡qU W. †Rwd« †Wwfm 1972 mv‡ji caught them on their bayonets” says Briton, gvP© †_‡K cªvq Qq gvm evsjv‡`‡k KvR K‡i‡Qb| wZwb John Hastings, a Methodist missionary who B›Uvib¨¨kbvj cø¨vbW c¨v‡i›UûW , BDGbGdwcG Ges Weøy have lived in Bengal for twenty years “ I am GBPI Gi c„ó‡cvlKZvq KvR K‡i‡Qb| ¯§„wZPvibvi ïiæ‡ZB certain that troops have raped girls repeatedly, wZwb Rvbvb, Zvi Kv‡Ri AZ¨všÍ ¯úk©KvZi cªK…wZi Kvi‡b then killed them by pushing their bayonets up †Kvb msMVbB Zv‡K Zv‡`i †jvK wnmv‡e `vex Ki‡Z ivwR between their legs”. In the said news item wQj bv| another fact, which goes deep into the heart, wZPv was narrated which was “ Another woman, the W. †Wwfm ¯§„ iY Ki‡Z wM‡q e‡jb, cwðg bones in her upper leg shattered by bullets, cvwK¯Ívwb •mb¨iv Zv‡`i K¨v‡¤ú ev½vwj †g‡q‡`i ew›` cradles an instant in her arms . She had given K‡i ivLvi mgq Rb¥v‡bv †hme wkï †eu‡P ‡M‡Q, Zv‡`i‡K birth prematurely in a paddy field after she wUwK‡q ivLvi †Póv KiwQjvg Avgiv| GQvov Avgv‡`i Ici was shot. Yet , holding her newborn child in wb‡`©k wQj, †h mg¯Í bvixi åæY Rb¥Mªn‡Yi Rb¨ •Zix nq one hand and pulling herself along with the bvB Zv‡`i Mf©cvZ NUv‡bvi †Póv Kiv hv‡Z Zv‡`i‡K other she finally reached the border”. The †ivMvµvšÍ I cywónxb wkïi Rb¥ w`‡Z bv nq| Avi G Kv‡R most brutal armed anti-civilian state machinery Avgiv mdj n‡qwQ| GUv wVK †h, wbh©vwZZ †g‡qi msL¨v in modern times, taking help of Razakars, Al- wQj wecyj| Z‡e Avgiv †mLv‡b †c․uQv‡bvi Av‡MB A‡bK Badar, Al- shams bahinies committed such gwnjv‡K †g‡i †djv n‡qwQj| A_ev A‡b‡KB Zv‡`i genocide. cwiev‡i †diZ cvVv‡bv n‡qwQj| cwiw¯’wZ wQj 56. Pictures of rape committed by brute AvZ¼RbK| Avgiv eySjvg, Avgv‡`i e‡m _vK‡j Pj‡e Pakistani army and their auxiliary forces came bv| Kx Kiv hvq †mUv †f‡e †ei Kivi †Póv KiwQjvg| out in the light in the interview of Dr. Jefree †mmgq Bsj¨vÛ †_‡KI Av‡iKRb G‡mwQ‡jb| wKš‘ c‡i Davis taken by one Bena De Costa which was Avwg Zvi †LvuR nvwi‡q †dwj| cwiw¯’wZUv mwZ¨ exfrm translated by Shilabrata Borman and published wQj| MYnZ¨v in the book “ ” of Ain –O-Shalish cªkœ t Avcwb wK †¯^”Qvcª‡Yvw`Z n‡q †mLv‡b Kendra. Relevant portions of the contents of wM‡qwQ‡jb? the said interview are as follows: ‡Rwd«t nu¨v, †¯^”Qvcª‡Yvw`Z n‡qB †MwQ| W. †Rwd« †Wwfm cªkœ t GB KvR Kivi B‡”Q Avcbvi †Kb n‡qwQj? hy×wea¡¯Í evsjv‡`‡ki †¯^”Qv‡mex GKRb Wv³vi exYv wW K¯Ív ‡Rwd«t GWfvÝ †cªM‡bwÝ Uvw©g‡bU Kivi †K․kj Rvbv wQj Avgvi | Avwg g~jZ Bsj¨vÛ †_‡K †U«wbs wb‡qwQ| hv Avwg bvix gyw³‡hv×v, mgvRKgx©, exiv½bv cªgy‡Li †nvK Avwg mvavibZ 30 mßv‡ni wb‡Pi †cªM‡bwÝ Uvwg©‡bU mvÿ¨vrKvi MªnY I Kvwnbx msMªn Kivi GK ch©v‡q bw_c‡Î KiwQjvg| Wt †Rwd« †Wwfm bv‡g GK wPwKrm‡Ki D‡jøL cvB, whwb

1972 mv‡j hy×wea¡¯Í evsjv‡`‡ki KvR K‡i‡Qb| wb‡g¥ Zvi cªkœ t XvKvq †Kv_vq KvR K‡i‡Qb Avcwb? mvÿvrKviwU Zz‡j †`Iqv n‡jv| GB mvÿvrKv‡ii Askwe‡kl ‡Rwd«t Avwg avbgwÛi GKwU wK¬wb‡K KvR K‡iwQ| wmWwb‡Z Zvi evwo‡Z †bqv Ges evwKUv KvQvKvwQ GKwU Ab¨vb¨ kn‡i nvmcvZv‡ji †hme aŸsmve‡kl wQj, †i‡¯Ívivuq e‡m| GB mvÿvrKv‡i RvwZ MV‡bi Kg©Kv‡Û †m¸‡jv‡ZI Avwg KvR K‡iwQ| Avwg g~jZ hv K‡iwQjvg THE LAW MESSENGER 384 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) msL¨v G‡Zv wecyj wQj -- †mme kn‡ii †jvKRb‡K ‡Rwd«t nu¨v, e‡j‡Q, (Zviv e‡j‡Q) | Gi d‡j c~e© cªwkÿY w`‡Z ïiæ Kwi| Zviv wKQyUv iß K‡i †dj‡ZB cvwK¯Ív‡b Ggb GKUv †MvUv cªRb¥ m„wó n‡e, hv‡`i kix‡i Avwg c‡ii kn‡ii w`‡K cv evovB| eB‡e cwðg cvwK¯Ívwb‡`i i³ Zviv GK_vUvB e‡j‡Q| cªkœ t †iK‡W©i ¯^v‡_© Avcwb `qv K‡i ej‡eb wK, cªkœ t cvwK¯Ívwb‡`i AmsL¨ bw_c‡Î GLbI ejv nq, †mLv‡b Avcwb wVK Kx KvR KiwQ‡jb? al©‡Yi NUbvi msL¨v AZ¨všÍ evwo‡q ejv n‡”Q Avcwb wK

‡Rwd«t Avwg hvIqvi mvgvb¨ Av‡M †mLv‡b GKwU bvix Zv‡`i G `vwe mZ¨ g‡b K‡ib? c~Yev©mb msMVb •Zix Kiv nq| †mwUi `vwq‡Z¡ wQ‡jb ‡Rwd«t bv, bv, --- Zviv al©Y K‡i‡Q| m¤¢eZ Zviv cªK…ZB wePvicwZ †K,Gg, †mvenvb| Zviv Mf©eZx© mKj hv K‡i‡Q , Zvi Zzjbvq A‡bK¸Y KgmsL¨v `vwe Kiv nq| gwnjv‡K GK RvqMvq wbivc‡` ivLvi †Póv KiwQ‡jb Ges Zviv †h c×wZ‡Z kni `Lj Ki‡Zv Zvi weeiY Lye hv‡`i †ÿ‡Î m¤¢e Zv‡`i Mf©cvZ NUv‡bvi e¨e¯’v KiwQ‡jb †K․Zzn‡jvÏxcK| Zviv Zv‡`i c`vwZK evwnbx‡K †cQ‡b | Avi hviv mšÍv‡bi Rb¥ w`‡q‡Q Zv‡`i mšÍvb‡`i †i‡L †Mvj›`vR evwnbx‡K mvg‡b wb‡q Avm‡Zv | Zvici msMªn K‡i Avgiv B›Uvib¨vkbvj †mvk¨vj mvwf©‡mi nvmcvZvj, ¯‥zj-K‡jR †Mvjv Q~u‡o ¸uwo‡q w`‡Zv| Gi d‡j (AvBGmGm) nv‡Z Zz‡j w`w”Qjvg ----- | kn‡i †b‡g Avm‡Zv Pig wek„sLjv | Avi Zvici c`vwZK evwnbx kn‡i Xz‡K c‡o †g‡q‡`i †e‡Q †e‡Q Avjv`v Ki‡Zv| cªkœ t ‡mmgq Avcbvi m‡½ Avi Kviv KvR K‡iwQj wkïiv Qvov †h․bfv‡e g¨vwPIiW mKj †g‡q‡K Zviv GK‡Î g‡b Ki‡Z cv‡ib wK? R‡ov Ki‡Zv| Avi kn‡ii evwK †jvKRb‡K ew›` K‡i ‡Rwd«t hy‡×vËi cybe©vmb †K‡›`ªi cªavb wQ‡jb wePvicwZ †dj‡Zv c`vwZK evwnbxi Ab¨viv| AvIqvgx jx‡Mi m‡½ hy³ †mvenvb| Avi gyj mwµq e¨w³wU wQ‡jb fb mPzK--- wZwb mevB‡K ¸wj K‡i †g‡i †djv n‡Zv| Avi Zvici †g‡q‡`i wQ‡jb myBwWk| Zvi bv‡gi cª_g AskwU g‡b Ki‡Z cviwQ cvnvov w`‡Z K¤úvD‡Û wb‡q G‡m •mb¨‡`i gv‡S wewj‡q bv| Avgvi g‡b nq, Zvi ¯¿xi bvg wQj †gwi| Zviv A_© †`qv n‡Zv| AZ¨všÍ RNb¨ GKUv e¨vcvi wQj GUv| we‡k¡i w`‡q mvnvh¨ K‡iwQ‡jb | ev½vjx Kg©KZ©v‡`i bvg Avwg g‡b †Kv_vI KLbI Ggb NUbvi bwRi cvIhv hvq bv| ZeyI Ki‡Z cviwQ bv ----| ZvQvov †KD †Zv GB BwZnvm GgbUvB N‡UwQj| Rvb‡Z KLbI AvMªn cªKvk K‡iwb--- | cªkœ t hy‡×i AwfÁZv wb‡q wK¬wb‡Ki bvix-cyiæl ev cªkœ t G K_v †Kb g‡b n‡q‡Q Avcbvi ? †Kv‡bv mgvRKgx©‡`i I m‡½ †Kv‡bv K_v n‡q‡Q Avcbvi? we‡klZ al©Y wkwe‡ii (†ic K¨v¤ú) †g‡q‡`i AwfÁZvi ‡Rwd«t Gi KviY Gi m‡½ Mf©cvZ Ges mšÍvb `ËK e¨vcv‡i ? †bqvi welq RwoZ wQj| Av‡iKUv e¨vcvi n‡jv, cwðg cvwK¯Ívb GKwU KgbI‡qj_fz³ †`k| Avi Gi Kg©KZ©v‡`i ‡Rwd«t nu¨v, Avgiv me mgq Gme AwfÁZvi K_v mK‡jB weª‡U‡b cªwkÿYcªvß| GUv e„wUk miKv‡ii Kv‡Q wQj ïbZvg| Zviv †hme NUbvi K_v ej‡Zv Zvi †Kv‡bv AZ¨všÍ weeªZKi GKUv e¨vcvi| cwðg cvwK¯Ívwb Kg©KZ©viv †Kv‡bvUv wQj ixwZg‡Zv i³ wng Kiv| wekvj‡`nx cvwK¯Ívbx eyS‡Z cviwQj bv G wb‡q G‡Zv •n‣P Kiv n‡”Q †Kb| •mb¨‡`i Øviv evievi awl©Z nIqvi Kvwnbx ï‡bwQ Avgiv| Avwg Zv‡`i A‡b‡Ki m‡½ K_v e‡jwQ| Zviv Kzwgjøvi Avcwb wek¡vm Ki‡Z cvi‡eb bv, †KD G ai‡bi KvR Ki‡Z GKwU KvivMv‡i ew›` wQj| Lye KiæY Ae¯’vq wQj Zviv cv‡i| abx Ges my›`ix †g‡q‡`i‡K Awdmvi‡`i Rb¨ †i‡L (nvwm--- ‡hwU Zv‡`i cªvc¨ wQj)| Avi Zviv e‡jwQj, Giv †`qv n‡Zv Avi evwK‡`i Abvvb¨ i¨v‡¼i •mb¨‡`i g‡a¨ e›Ub Kx Ki‡Z Pv‡”Q ? Avgv‡`i Kx Kiv DwPr wQj e‡j Giv K‡i †`qv n‡Zv| Avi †g‡q‡`i `viæY K†ó †d‡j †`qv g‡b K‡i? GUv †Zv hy× †i fvB| n‡Zv| Zv‡`i‡K ch©vß †L‡Z †`qv n‡Zv bv| Amy¯’ n‡q co‡j Zv‡`i wPwKrmv †`qv n‡Zv bv| A‡b‡KB K¨v‡¤úi cªkœ t Zviv bvix al©‡Yi e¨vcviUv Kxfv‡e Rv‡qR Kivi ek¡vm KiwQj bv| g‡a¨ gviv †M‡Q| Gme NUbv mn‡R †KD w †Póv K‡i‡Q? G¸‡jv †h mwZ¨ NU‡Z cv‡i, GUv wek¡vm Ki‡Z †KD ivwR ‡Rwd«t I‡i evcm ! Zv‡`i Ici wU°v Lv‡bi GK cªKvi wQj bv| wKš‘ G msµvšÍ Z_¨¸‡jvB cªgvY Ki‡Q †h, Av‡`k ev wb‡`©kB wQj †h, GKRb mv”Pv gymjgvb Zvi evev NUbv¸‡jv mwZ¨| Qvov meviB m‡½B jovB Ki‡e| Kv‡RB Zv‡`i hv Ki‡Z cªkœ t n¨vu , Avcbvi K_v Avwg eyS‡Z cviwQ| Avcwb n‡e Zv n‡jv h‡ZvUv cviv hvq| †ewkmsL¨vK ev½vjx bvix‡K Mf©eZx Kiv | Rv‡bb MZ Pvi eQi a‡i Avwg wb‡RI Gme †g‡q‡K Luy‡R | GUvB wQj Zv‡`i Kv‡Ri ‡cQ‡bi ZË¡ †ei Kivi †Póv KiwQ| Zviv msL¨vq wecyj| Zv‡`i cªkœ t †g‡q‡`i Mf©eZx Ki‡Z n‡e †Kb? Gi KviYUv A‡bK‡KB cvIqv hvIqvi K_v wKš‘ Avwg wb‡R LyeB wK Avcbv‡K Zviv e‡j‡Q? KgmsL¨K †g‡q‡K L~u‡R †c‡qwQ| THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 385 ‡Rwd«t nu¨v, A‡b‡KB A¯^xKvi K‡i‡Q| Zviv e¨vcviUv cªkœ t ‡h me †g‡qiv K_v wK Avcbvi g‡b Av‡Q? G‡Kev‡i †P‡c †M‡Q| GgbUv nq| K‡ZvR‡bi Mf©cvZ NwUqv‡Qb Avcwb? cªkœ thy‡×i ciciB cwiw¯’wZ wK wKQyUv wfbœ wQj? †KD wK ‡Rwd«t mwVK cwimsL¨vb ¯§ib Kiv KwVb| Z‡e w`‡b cªvq Zvi AwfÁZv Rvwb‡q‡Q? GKk Rb K‡i| ‡Rwd«t †KD G wel‡q K_v ej‡Z ivwR wQj bv | Avcwb cªkœ t XvKvq, bv †`‡ki Ab¨vb¨ As‡k? cª‡kœi ci cªkœ K‡i hv‡eb, wK †Kv‡bv DËi cv‡eb bv| gv‡S ‡Rwd«t msL¨v D‡jøL Kiv KwVb| XvKvq M‡o w`‡b GKk gv‡S GgbI n‡q‡Q , Zviv ¯§„wZ nvwi‡q †d‡j‡Q| cyiælivI Rb K‡i, Avi †`‡ki Ab¨Î msL¨vUv IVvbvgv K‡i‡Q| †KD †KD G wel‡q GK`g K_v ej‡Z ivwR wQj bv| †Kbbv †KD KjKvZvq wM‡qwQj---- Zv‡`i g‡Z, †g‡qiv Kjw¼Z n‡q †M‡Q| Avi evsjv‡`‡k cªkœ t kZKiv nv‡i ej‡Z cvi‡eb? †hgb aiæY †g‡q‡`i gh©`v A‡bK Kg, GUvI wVK| GiKg Ae¯’vq Zviv †kªbxwfwËK, ag©wfwËK w`K †_‡K KZRb †g‡qi †`Lv m¤£g nviv‡j Zv‡`i †Kv‡bv gh©`vB Avi Aewkó _v‡K bv| †c‡q‡Qb Avcwb? Zv‡`i ZLb evuPv givi †Kv‡bv ZdvZ _v‡K bv| Avi cyiæliv Zv‡`i †g‡i †d‡j‡Q| Avwg wek¡vm Ki‡Z cviwQjvg bv| ‡Rwd«t me †kªbxi †g‡qB wQj| Zv‡`i ag© wb‡q Avgv‡`i cwðgv we‡k¡ GgbUv KíbvB Kiv hvq bv| gv_ve¨v_¨v wQj bv---Avgiv ïay Zv‡`i wec` †_‡K D×vi Kivi †Póv K‡iwQ| Z‡e †gv‡Ui Ici ejv hvq, hviv abx cªkœ t Avcwb wbðq evsjv ej‡Z cvi‡Zb bv| Avcbvi ÿ Zviv hy‡×i ciciB KjKvZv P‡j wM‡q Mf©cvZ NUv‡Z c‡ gvby‡li m‡½ K_v ej‡Z wK †eM †c‡Z n‡Zv? †c‡iwQj|

‡Rwd«t bv| Avgvi GKRb †`vfvlx wQ‡jb| GKRb cyiæl cªkœ t Mf©cvZ NUv‡Z ivwR wKbv †g‡q‡`i Kv‡Q †mUv wK †`vfvlx| Zviv mevB Lye `ªæZ msMwVZ n‡q wM‡qwQj| Zviv Rvb‡Z PvIqv n‡Zv? Zv‡`i B”Qv- Awb”Qvi e¨vcvi wQj wK? Avgv‡K GKUv j¨vÛ‡ivfvi †hvMvo K‡i w`j| GKRb WªvBfvi Avi GKRb wdì Awdmvi †c‡qwQjvg Avwg| IB ‡Rwd«t n¨uv , Aek¨B | Avgvi h‡ZvRb †g‡q †c‡qwQjvg wdì Awdmvi Avgvi †`vfvlxi KvR K‡i w`‡Zb| WªvBfv‡ii Zv‡`i mevB Mf©cvZ NUv‡Z †P‡qwQj| G‡Z ivwR bq| Ggb bvg wQj ggZvR | Z‡e wdì Awdmv‡ii bvg Ki‡Z cviwQ KvD‡K Avgiv cvBwb| Ab¨w`‡K †hme †g‡q mšÍv‡bi Rb¥ cybe©vmb bv| wZwb GKRb miKvix PvKz‡i wQ‡jb| miKvwi Kg©KZ©v‡`i w`‡qwQj, Zviv Zv‡`i mšÍvb‡K msMV‡bi nv‡Z AwaKvskB Bs‡iRx‡Z K_v ej‡Z cvi‡Zb| wZDwbwkqvq †h Zz‡j w`‡qwQj| Avi Gfv‡e Gme wkï AvBGmG‡mi Kv‡Q Ges Ab¨vb¨ †`‡k †c․u‡Q‡Q| Z‡e Zviv msL¨vq K‡Zv Avgvi Kó Ki‡Z n‡q‡Q, GLv‡b †mUv nqwb (W. †Wwfm wZDwbwkqvq RbmsL¨v Kvh©µ‡gi KvR K‡i‡Qb)| ‡Kv‡bv avibv †bB| gv cªkœ t †g‡qiv †Kb G e¨vcv‡i bxie wQj, Avcbvi Kx g‡b cªkœ t G e¨vcv‡i wek` cªkœ Kivq Avwg Avcbvi Kv‡Q ÿ nq? †P‡q wbw”Q | Z‡e cybe©vmb Kg©Kv‡Û Zv‡`i gZvgZ ev B”Qv- Awb”Qvi my‡hvM ivLv n‡qwQj wKbv G e¨vcv‡i Avgvi ‡Rwd«t AvZ‡¼ | Zviv mevB `yt¯^cœ †`L‡Zv| †mB AvZ¼ mwZ¨Kvi †K․Zznj i‡q‡Q| Mf©cvZ NUv‡bvi mgq †Kv‡bv KL‡bvB KvwU‡q IVv hvq bv| AwaKvs‡kiB fxlb m èvqweK gwnjv Kvu`wQj ev gvbwmKfv‡e †f‡½ c‡owQj Ggb †Kv‡bv D‡ØM †`Lv †`q| Avi ZvQvov Avgiv wQjvg we‡`wk| Zviv NUbv wK g‡b Ki‡Z cv‡ib? †Kv‡bv we‡`wk‡K wek¡vm Ki‡Z cviwQj bv | Zv‡`i‡K wb‡q ‡Rwd«t bv Zv‡`i †KDB Kv‡`bx| Zviv LyeB k³g‡bi Avgiv Kx Ki‡Z hvw”Q Zviv Rvb‡Zv bv--- cwiPq w`‡qwQj| Zviv G‡Kev‡iB KvbœvKvwU K‡iwb| Zviv cªkœ t al©Y wkwei¸‡jv †hLv‡b wQj, †miKg †Kv‡bv G‡Kev‡i kvšÍ †_‡K‡Q| I, Ck¡i‡K aY¨ev`| Gi d‡j RvqMvq wK Avcwb †M‡Qb? Avgv‡`i c‡¶ KvRUv mnR n‡qwQj| ‡Rwd«t al©Y wkwei¸‡jv Z‡Zvw`‡b Zz‡j †`qv n‡qwQj cªkœ t Avcwb e‡j‡Qb, †hme gwnjv Mf©cvZ NUv‡Z ivwR Ges cybe©vmb msMVb †mLvb †_‡K †g‡q‡`i‡K Zv‡`i wQ‡jb, Avcwb ïay Zv‡`iB wPwKrmv w`‡q‡Qb| Avwg Avgvi wbR wbR Mªvg I kn‡i cvwV‡q †`qvi †Póv KiwQj| †m cªm‡½ wd‡i †h‡Z PvB| gwnjviv Zv‡`i mg¥wZ Kv‡K Z‡e A‡bK ‡ÿ‡Î †hUv N‡U‡Q †h, ¯¿x‡K ¯^vgxi Kv‡Q Rvwb‡qwQj? mswkøó Wv³vi‡`i, bvm©‡`i, mgvR-Kgx©‡`i? †diZ cvVv‡bvi ci ¯^vgx ¯¿x‡K †g‡i †d‡j| †Kbbv ¯¿x ‡Rwd«t I nu¨v| Zvi m¤£g nvwi‡q‡Q| A‡bK †ÿ‡Î Kx N‡U‡Q RvbviI

†Póv Ki‡Zv bv Zviv | †`‡ki cªZ¨šÍ A‡j, hgybv cªkœ t Zv‡`i wK †Kv‡bv KvM‡R ¯^vÿi Ki‡Z n‡q‡Q? b`x‡Z jvk fvm‡Z †`Lv †M‡Q| G NUbvwU BD‡iv‡c ‡Rwd« t Avgvi g‡b nq Zv‡`i‡K mg¥wZm~PK GKUv D‡ØM m„wó K‡iwQj| wKš‘ G¸‡jv Ae¨vnZ wQj| WKy‡g›U ¯^vÿi Ki‡Z n‡qwQj| Z‡e Avwg wbwðZ bB| THE LAW MESSENGER 386 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) miKvi c‡ivÿfv‡e e¨vcviUv Av‡qvRb K‡iwQj| GUvi AvKvi wbðqB wekvj wQj| Z‡e Avwg †mLv‡b hvIqvi Av‡qvRb gyjZ K‡iwQj c~Yev©mb msMVb Ges Avi †hme Av‡MB †m¸‡jv eÜ K‡i ‡`qv n‡qwQj| gwnjv Zv‡`i mvnvh¨ K‡iwQj Zviv| Z‡e GUv wbwðZ †h, cªkœ t XvKv kn‡ii evB‡i †hme RvqMvq Avcwb †M‡Qb hviv Mf©cvZ NUv‡Z ivwR wQj bv, Zviv †KD wK¬wb‡Ki Kv‡Q †m¸‡jvi Ae¯’v ‡Kgb wQj? †mLv‡b Kx ai‡Yi my‡hvM- †Nu‡lwb| Kv‡RB GUv †Kv‡bv Bmy¨ wQj bv| myweav Avcbviv †c‡q‡Qb| ? cªkœ t Avcwb wK †kl ch©šÍ Mf©cvZ NwU‡q‡Qb ? †mUv †Zv ‡Rwd«t nvmcvZvj Avi cybev©mb msMVb --- †mUvi bvg Kx Mf©avi‡Yi GKUv AMªmi ch©vq nIqvi K_v, ZvB bv? wQj, Avwg g‡b Ki‡Z cviwQ bv| m¤¢eZ evsjv‡`k RvZxq ‡Rwd«t nu¨v , †mLv‡b Avgvi Qq gv‡mi Ae¯’vbKv‡j cy‡iv bvix cybe©vmb msMVb ev G RvZxq wKQy | †ewki fvM eo mgqUvB Avwg Mf©cvZ NwU‡qwQ | gwnjviv Ggb Zxeª †K›`ª¸‡jvi GivB KvR KiwQj | Avgvi hvIqvi Av‡M Acywó‡Z fzMwQj †h, 40 mßv‡ni åæY cªvq 18 mßv‡ni GKwU åæ †mLv‡b Lye AímsL¨K Mf©cvZ Kiv n‡qwQj| †Kbbv †KD ‡bi mgvb n‡Zv| †mUv Ki‡Z Pvw”Qj bv | nvmcvZv‡ji †gwWK¨vj óvd‡`i cªkœ t bvix‡`i †Kv‡bviKg civgk© †`qv n‡Zv wKbv g‡b †ewki fvM g‡b KiwQj GUv †e-AvBbx KvR| hv †nvK, Ki‡Z cv‡ib? Avgvi KvR Aby‡gv`b K‡i Avwg ¯^ivó mwPe ie †P․ayixi ‡Rwd«t civgk©? cyYev©mb msMVb Zv w`‡Zv| †mLv‡b KvQ †_‡K GKwU wPwV †c‡qwQjvg| †mLv‡b ejv n‡qwQj , bvix mgvRKgx©iv Zv‡`i m‡½ K_v ej‡Zb| Avgvi g‡b nq Avwg hv Ki‡Z Pvw”Q, Zv AvBbwm× Ges Zviv meiKg bv Zv‡Z Zv‡`i Lye GKUv jvf n‡Zv| ‡Kbbv Zviv mevB mvnvh¨ w`‡Z ivwR Av‡Qb| wPwVUv Avwg GLb Avi Luy‡R wQj Acywó‡Z †fvMv| †h․b‡ivM I AcywóRwbZ †ei Ki‡Z cvi‡ev bv| GUv m¤¢eZ GLv‡bB †Kv_vI Av‡Q-- †ivMevjvB‡q AvµvšÍ wQj Zviv | Lye fq¼i cwiw¯’wZ wQj - evsjv‡`k msµvšÍ cªPzi KvMRcÎ Rwg‡q †i‡LwQ Avwg--- †mUv | †`‡k ZLb Gme mgm¨v †gvKvwejvi g‡Zv m¤ú` , - G¸‡jv‡K Avgvi ¸iæZ¡c~Y© g‡b n‡q‡Q, †Kbbv Avgvi g‡b JlacÎ ev my‡hvM myweav G‡Kev‡iB wQj bv| mxwgZ m¤ú` n‡q‡Q, evsjv‡`‡k hv †`‡LwQ †ZgbUv c„w_exi Avi †Kv_vI hvwQj ZvI hy×vnZ •mb¨‡`i Rb¨ ivLv wQj| †g‡q‡`i Rb¨ NU‡Z †`L‡ev bv Avwg| Kv‡RB Avwg Gme KvMRcÎ †i‡L wKQyB Aewkó wQj bv| Avgv‡`i wb‡R‡`i óvd wb‡q Avm‡Z w`‡qwQ| †mmgq G¸‡jv LyeB fq¼i g‡b nw”Qj| n‡qwQj| cªkœ t †g‡q‡`i mevB wK Mf©cvZ Kiv‡Z ev mšÍvb‡K cªkœ t Avcbviv mieivn †Kv_v †_‡K †c‡Zb ? †m¸‡jv `ËK w`‡Z ivwR n‡q‡Q? wK h‡_ó wQj? ‡KD wK mšÍvb‡K †i‡L w`‡Z Pvqwb? ‡Rwd«t Bsj¨vÛ †_‡K | Avgv‡K Avgvi wb‡Ri cª‡qvRbxq wRwbmcÎ wb‡q Avm‡Z ejv n‡qwQj| GQvov Avwg `yB †mU ‡Rwd«t nu¨v --- `y‡qKRb †P‡q‡Q--- hš¿cvwZ I Gw›Uev‡qvwUK m‡½ wb‡qwQjvg| cªkœ t Avcwb wK Rv‡bb Zv‡`i fv‡M¨ Kx N‡UwQj ? cªkœ t Qqgvm a‡i Mf©cvZ NUv‡bvi Kv‡R Avcwb gvÎ `yB ‡Rwd«t Avgvi †Kvb avibv †bB | AvBGmGm †mLv‡b

†mU hš¿cvwZ e¨envi K‡iwQ‡jb? h‡Zv wkï cviv hvq msMªn K‡i‡Q| †Kbbv Av‡gwiKv I ‡Rwd«t nu¨v | ¯’vbxq nvmcvZv‡ji hš¿cvwZMy‡jv me aŸsm cwðg BD‡iv‡c ZLb `ËK †bqvi g‡Zv wkïi Afve †`Lv K‡i †djv n‡qwQj| IlyacÎ hv Aewkó wQj, Zvi meB w`‡qwQj| Avi Zviv h‡ZvUv cviv hvq †ewkmsL¨K wkï wQj hy×vnZ‡`i Rb¨| msMªn Kivi †Póv KiwQj| cªkœ t ‡mB hš¿cvwZMy‡jvwK kvixwiKfv‡e wbivc` wQj? cªkœ t B›Uvib¨vkbvj †mvk¨vj mvwf©‡mm ? ‡Rwd«t n¨uv | we‡klÁ Aí eqmx‡`i †ÿ‡Î †mme ‡Rwd«t nu¨v| ms¯’vwU IqvwksUb wWwm wfwËK | `ËK †ivMevjvB kix‡i wb‡q mšÍvb Rb¥ †`qvi †P‡q GUvB eis msµvšÍ cª_g mvwii ms¯’v| wbivc` wQj| cªkœ t gv‡q‡`‡i Kx n‡Zv ? cªkœ t Avcwb wK Mf©cvZ I `ËK MªnY Dfq Kg©Kv‡Ûi ‡Rwd«t Mf©cvZ ev mšÍvb Rb¥ †`Iqvi ci Zviv m‡½B hy³ wQ‡jb? wKQyw`b †mLv‡b _vK‡Zv Avi Zvici Îvb cybe©vmb †K‡›`ª ‡Rwd«t nu¨v| Z‡e `ËK Kg©m~Pxi †ÿ‡Î ïay wkï‡`i wM‡q Avkªq wb‡Zv| Zviv h‡Zvw`b Lywk †mLv‡b _vK‡Z AvBGmG‡mi nv‡Z Zz‡j †`qv Avgvi KvR wQj| Mf©cvZ cvi‡Zv| Zvici Zviv bvbviKg †K‡›`ª wM‡q Avkªq wb‡Zv| NUv‡bv I Rb¥ †bIqv wkïi msL¨v wQj wecyj| hy‡×i mgq h‡Zvw`b Lywk †mLv‡b _vK‡Z cvi‡Zv| Zvici Zviv †g‡q‡`i ‡hme mvgwiK K¤úvD‡Û ivLv n‡qwQj, †m¸‡jvi bvbviKg cªwkÿY Kg©mywP‡Z †hvM w`‡Zv| Avwg Zv‡`i THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 387 `y‡qKRb †`‡LwQ| evwbwR¨K wfwËK †cvkvK •Zix 58. It appears from this defence document KiwQj Zviv| XvKv, w`bvRcyi, iscyi †bvqvLvjx‡Z GgbUv that the author holding research and inquiry †`‡LwQ| over the subject matter for few years found the mvÿvrKvi †`Iqvi Rb¨ W. †Wwfm‡K Avgvi AvšÍwiK following places as slaughter centres and aY¨ev`| Zvui KvQ †_‡K we`vq †bqvi Av‡M Avgiv Av‡iKevi concentration camp of Pakistani army, Badar Zvui evsjv‡`k md‡ii e¨vcv‡i we¯ÍvwiZ Av‡jvPbv K‡iwQ| Bahini and other auxiliary forces who Avgv‡`i Av‡jvPbvq ¯^vfvweKfv‡eB fwel¨‡Z GKwU committed genocide in Chittagong : hy×vciva UvBey¨bvj MV‡bi m¤¢ve¨Zvi cªm‡½ G‡m c‡o| “1. Kalurghat Betar Kendra, 2, Shershah †Rwd« Avgvi nvZ k³ K‡i a‡i †mwU Zviu ey‡K iv‡Lb| Zvui Housing Estate, Parbat Rifle Club, behind Dr. †Pv‡L AkÖæ| evsjv‡`k b¨vq wePvi cvIqvi †Póv Ki‡j wZwb Mazhar High School, Chandmari. 3. Infront Zvi mv‡a¨ mewKQy Ki‡eb e‡j Rvbvb| cªv_wgK c`‡ÿc of Medical College and behind of Appello wn‡m‡e Avwg mwZ¨ Avkv Kwi,GB mvÿvrKvi AvMªnx MÖæc‡K Pharmacy, 4. Nashirabad Housing Society, Zvui Kvwnbx AvbyôvwbKfv‡e wjwce× Ki‡Z DrmvwnZ Road No.2, 5. Between Enam Khar Pahar Ki‡e|Ó field and Forest Research Institute, 6. Infront of the Central Store of Bangladesh Betar 57. Appellant Mir Quasem Ali, produced cªvgvb¨ `wjj- PÆMªvg Central Store, 7. Nathpara and Abdurpara, exhibit-“B” gyw³hy‡× written South Kawkhali, 8. Sholoshahar Rail Station, by Gazi Salauddin and relied on this book. 9. Hill of Probortok Shangha, 10. Panchlaish Since he himself relied on this book, he could Police Station 11. In front of Pahartali Eye not question the reliability and authencity of Hospital , 12. West Rampura (Sabujbagh), 13. the contents of the book. From the book it Chasma Pahar, Sholoshahar, 14. West appears that the father of the author was killed Rampura ( Sabujbagh), 15. South Kattoli at Pahartoli slaughter centre in Chittagong. In Jelepara,16. Purba Pahartoli Bhaddya Bhumi the preface of the said book the author stated – (more than 10,000 persons were killed here) “evsjv‡`‡ki gyw³hy‡×i bq gv‡m wÎk jvL ev½vjx knx` 17. Besides of Custom Academy and nIqv, `yBjvL gv- †evb‡K al©Y Kiv Ges ------¸wj I Chittagong Divisional Stadium , 18. South RevB K‡i cvwLi gZ nZ¨v K‡i‡Q Acvgi Rb mvavib‡K| Kattoli (east side of Rail Line) Sddique Zv‡`i G nZ¨vKvÛ †_‡K †invB cvqwb 90 eQ‡ii e„× †_‡K Counsiler‟s house, 19. East side of City Gate, gv‡qi †Kv‡ji `y‡ai wkï ch©šÍ| Mªv‡gi ci Mªvg AwMœ`» Dhaka Trunk Road, 20. No.11, South Kattoli, K‡i‡Q| G nZ¨vKv‡Û Zv‡`i‡K mnvqZv K‡i‡Q G †`kxq house of Mohammad Chowdhury, 21. `vjvj ivRvKvi Avj-e`i, Avj- kvgm, Rvgv‡qZ Bmjvgx Godown of Leather, Chaktai Khal,22. Chaktai gymwjg jxM, †bRvgx Bmjvgx mg_©K ev½vjx bicï I Khalpar, 23. Middle place of New Market, Ice wenvixiv| He added- gyw³hy× PjvKvjxb cvK evwnbx I Factory Road, 24. South Corner of Gulbabahar Zv‡`i †`vki ivRvKvi, Avj-e`i, Avj-kvgm, Rvgvqv‡Z Hamdu Miah Road, 25. Mohamaya Dalim Bmjvgx I wenvixiv †h b„ksm a¡skhÁ Pvwj‡qwQj Zv AvR Bhaban, infront of T & T Bhaban, 26. Goods ev½vwji ¯§„wZ †_‡K nvwi‡q †h‡Z e‡m‡Q hvi Ab¨Zg KviY Hill, Chittagong, 27. Chittagong Circuit House, GKw`‡K ¯^vaxbZv we‡ivax P‡µi my‡K․kj AwfmwÜ, 28. Army Camp besides Chittagong Stadium Ab¨w`‡K msiÿ‡bi Afve| Ó 29. Hotel Dewan, Dewan Hat More, 30. The publisher of the Chandrapura Rajakar Camp, 31. Hotel Tower, ÒG‡Z Av‡Q book in his comment has said- Jamalkhan Torture Cell, 32. C.R.B. Torture GKvˇi cvwK¯Ívbx nvbv`vi evwnbx I Zv‡`i mn‡hvMx‡`i avivcvZ| Cell, 33. Banglo in front of Hill, Sarson b„ksm ee©iZv Ges †Mwijv hy‡×i `vwjwjK Road, 34. Chittagong General Post Office, 35. Mª‡š’i mKjZ_¨ DcvË ev½vjx RvwZmËvi Avb›` †e`bvi Lalkhan Pahar, 36. Al Badar Bahini Camp, AkÖæcvZ|Ó ...... ×i ÒGB eB‡Z PÆMªvg †Rjvq gyw³hy‡ Panchlaish, 37. Railway Banglo of Batali Hill, bq gv‡m PÆMªv‡g Kx Kx N‡UwQj, †Kv_vq †Kv_vq cvK 38. Ispahani Moar (at present Highway nvbv`vi evwnbx I Zv‡`i †`vmiiv gyw³‡hv×v I wbixn Plaza Bhabon), 39. Tulshi Dham, 40. ev½vjx‡K nZ¨v K‡i‡Q Zv mwbœ‡ewkZ n‡q‡Q|Ó Lalkhan Bazar, 41. South Bakolia Mozaher THE LAW MESSENGER 388 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) Ulum Madrasha, 42. Sowat ship massacre in Purba Mondakini, 86. Dewan Nagar, 87. South Karnaphuli river, 43. Eid Ga Radio Store Ishamoti, 88. South of Rangunia College, 89. Army Camp, 44.Dampara Police Line, 45. Pemra Rangunia, 90. Datmara, 91.Narayanhat, Chittagong Police Line, Old Gate Grave yard, Datmara boarder, 92. Hashnabat ( Chowhdury 46. Char Chaktai Khalpar, 47. Jhautala Bihari Mazhirbari) Dathmara, Ultavita, 93. Binajuri ( Colony, 48. Labonghata, Middle place of Sadar Nanupur), 94. Taleipara Khal, West of Ghat and Majhi Ghat,49. Army Camp of Maizbhander, 95. Karnafuli Tea Garden, Jamburi Math, 50. Ambagan, Railway Gopalghata, 96. South Kanchannagar, Workshop, 51. Pahartoli Hazi Camp Torture Gomosta Pukurpar, 97. Gopal Ghata, Cell, 52. Dewan Hat Civil Godown, 53. Char Shahnagar/ Lelang, 98. Raktachhari ( Chaktai Khalpar, 54. Sulkabahar, Hamdu Miah Kanchannagar), 99. Choumohoni , Road, 55. Doublemooring Navy Camp Club, Kanchannagar, 100. In front of Fatikchhari 56.1 No.1, Jetty Gate Booking Office, 57. Police Station, 101. Khankaiya Khal , Bandor Army Camp, beside of Bandar Police Dharmapur, 102. Nazir Hat, 103. Jamijuri Station, 58. Pakistan Bazar Camp, 59. Baddyabhumi, 104. Bular Bhalook Palpara, Chittagong Port, Jetty No.1 to no.15, 60. 105. Muzaffarabad, 106. Potia, 107. Sadarghat Rajakar Camp ( Torture Cell and Chandanaish, 108. Dohazari Shankha River Slaughter House), 61. Pahartali Railway Bridge, 109. Kanchana Baddyabhumi, 110. School, 62. Railway Safety Tank, 63. Tigerpass Churamoni Baddyabhumi, Awchira Union, Neval Office, 64. Behind of Hazrat Garib Ullah 111. Keranihat Baddyabhumi, 112. Raikhali Shah Mazar, 65. House of Saadi, in front of Raisarmar Ghat, Paschimgomti, Boalkhali Ambagar School, 66. Hallishahar Bihari Upazila Sadar, 113. Kaloorghat Bridge of Colony, 67. E.P.R. Camp, 68. Semen‟s Hostel, Karnafuli River, 114. West Shakpura, 115. 69. Airport Army Camp, 70. Zelepara Baddya Kadhurkhil Girls Primary School, 116. Bhumi, 71. Navy Head Quarter, Patenga, 72. Banshkhali Degree College adjacent, 117. Chittagong Dock Yard camp, 73. South Maddyapara Shirod Chandra Dash Pukurpar Chittagong Airport, 74. Inside of Padma Oil adjacent to Banigram, 118. Kilpara Ward No.1, Company Ltd., 75. Khoiyarchara Purba Pool 119. South Bandar Baddyabhumi, 120. Moghra, Dr. Ahmed Shobhan Sarak Station Poroykora High School Pukurpar, Bakhuapara, Road, Trunk Road, under the bridge of Purba Kannara, 121. Bandar Baddyabhumi, Barotakia Bazar, 76. Zorargonj Baddyabhumi, 122. Surma Pukurpar, 123. East Barkhayen south east point of Chhuti Kha Digi and South Pukurpar, 124. West of Joykali Bazar, 125. east point of Babu Kha Dighi, 77. Besides of Foyes Lake slaughter centre (more than 10,000 Highlu Pool, south side of Highlu Court, civilians were killed here)” (emphasis given). Dumghat Rail Station, 78. Adjacent of 59. Many news item, regarding the Eshakhali Lushakhali Jhulanta Bridge, 79. genocide committed in Chittagong by brute Middle Mirsharai Sadar Trunk Road and Pak army and its auxiliary forces namely Al- Mirsharai Station Road Uttor Bhalbaria, 80. Badar, Al-Shams, Razakars etc., were Jagoth Mallapara, Raozan, 81. 9 No Pahartoli Union , Ward No.2, Unasattarpara, 81. No.9, published in different news papers in Pahartoli Union, Ward No.7, Unasattwarpara, subsequent after 16.12.1971. Two of those 82. Sitakhunda Urban area, Railway Station news items published were as follows: adjacent to Railway Colony, 83. Sitakunda ‰`wbK evsjv Urban area Railway Station to Chandranath 03-02-1972 Mandar Road, Sitamondir, 84. In front of Avi GK ea¨f~wg PÆMªv‡gi `vgcvov Mahantabari, Sitakunda Urban area Railway Station to Chandranath Mandari Road, 85. Rjøv` evwnbx GLv‡b K‡qK nvRvi †jvK nZ¨v K‡i‡Q|

THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 389 t wbR¯^ cªwZwbwat wbqwgZ GB †jvgnl©K nZ¨vKv‡Ûi AviI `yBRb mvÿx

Ò PU«Mªvg, 31 †k Rvbyqvix | GB kn‡ii `vgcvovq cvIqv ‡M‡Q|Ó Mixeyjøvn kvni gvRv‡ii cv‡k GKwU †jvgnl©K ea¨f~wg PÆMªv‡gi 20wU ea¨f~wg‡Z ev½vjx wbaYhÁ P‡j‡Q Avwe¯‥„Z n‡q‡Q| MZ 30‡k gvP© †_‡K wW‡m¤^i cª_g mßvn t c~e©‡`k cªwZwbwat ch©šÍ GB ea¨f~wg‡Z ee©i cvK evwnbx cªvq K‡qK nvRvi PU«Mªvg, 12B Rvbyqvix| -PÆMªvg kni I kniZjx GjvKv †jvK‡K nZ¨v K‡i‡Q e‡j Abygvb Kiv n‡”Q| ea¨f~wgi m‡gZ †Rjvi Av‡iv 9wU _vbv‡Z nvbv`vi Lvb †mbviv ¯’vbwU Avgv‡K †`wL‡qwQj Mixeyjøvn kvni gvRv‡ii msjMœ g`| me©‡gvU 20wU ea¨f~wg‡Z ev½vjx wbaYhÁ Abyôvb †`vKvb`vi bvwmi Avn Pvwj‡q‡Q| kni I kniZjx GjvKvi 10wU ea¨fzwgi g‡a¨ MZ 25 †k gvP© †_‡K 16B wW‡m¤^i evsjv‡`k AvUwU‡Z M‡o cvuP nvRvi K‡i ev½vjx‡K nZ¨v Kiv n‡q‡Q ¯^vaxb bv nIqv ch©šÍ GB nZ¨vKv‡Ûi †lvj AvbvB wZwb e‡j AbygwZ n‡”Q|

¯^P‡ÿ †`‡L‡Qb| GB `xN© mgq wZwb Zuvi †`vKv‡bB wQ‡jb| GQvov †cvU© GjvKv Ges †bfx e¨vivK GjvKv‡Z my`xN© 9 bvwmi Avng` Avgv‡K e‡j‡Qb , MZ 30‡k gvP© †_‡K gvme¨vcx gvbyl‡K nZ¨v K‡i wK nv‡i KY©dzwj b`x‡Z fvwm‡q wW‡m¤^i cª_g mßvn ch©šÍ AwZwi³ e„wói w`b Qvov cªZ¨n †`qv n‡q‡Q , Zvi †Kvb nw`mI †ei Kiv m¤¢e bq| PÆMªvg mÜvq Kov wgwjUvix cvnvivq cvuP †_‡K Qq U«vK †evSvB kni I kniZjx GjvKvi 10wU Ges Mªvg A‡ji †MvUv †jvK wb‡q Avmv nZ| cvu‡PK ea¨f~wg BwZg‡a¨ Avwg Ny‡i †`‡LwQ| GB nZfvM¨‡`i †PvL Kvco w`‡q evuav _vK‡Zv| Zv‡`i Gme ea¨f~wg ev½vjx nZ¨vi mwVK msL¨v nq‡Zv cvIqv ea¨f~wg‡Z bvwg‡q w`‡q U«vK¸wj P‡j †h‡Zv| GB hv‡e bv, wKš‘ GL‡bv miKvi hw` e¨vcK AbymÜvb I Z_¨ nZfvM¨‡`i ea¨f~wg‡Z jvBb w`‡q `vuo Kwi‡q ¸wj K‡i msMª‡ni Rb¨ GwM‡q Av‡mb Z‡e nZ¨vh‡Ái e¨vcKZvmn nZ¨v Kiv n‡Zv| Zvici Ab¨ GK`j wgwjUvix U«vK wb‡q GKUv AvbygvwbK msL¨vI wbb©q Ki‡Z cvi‡eb e‡j wek¡vm| ea¨f~wg‡Z G‡m jvk¸wj U«vK †evSvB K‡i AbÎ mwi‡q †Kvb †Kvb gnj PÆMªv‡g wbnZ †jv‡Ki msL¨v 1 jvL n‡e wb‡q †hZ| bvwmi Avng` Avgv‡K Av‡iv e‡j‡Qb †h, e‡j Abygvb Ki‡Qb| wbqwgZ GB nZ¨vh‡Ái ïiæ‡Z jvk cuyZevi Rb¨ ea¨f~wgi wKš‘ Avgvi g‡b nq, wewfbœ _vbvmn I msL¨v AšÍZt wZb cv‡k GKwU Mfxi MZ© Lbb Kiv nq| jv‡L `vuov‡e| kni I kniZjxi Avg evMvb, Iqvi‡jm gvÎ K‡qK w`‡b jv‡k GB Mfxi MZ© fwZ© n‡q †M‡j K‡jvbx, †kikvn K‡jvbx I d‡qR †jKmn †MvUv cvnvox m`¨giv jvk¸wj‡K U«v‡K Pwo‡q Ab¨Î mwi‡q †djvi e¨e¯’v GjvKv‡Z GL‡bv 20 †_‡K 25 nvRvi ev½vjxi gv_vi Lywj Kiv nq| Avgvi Aby‡iv‡a bvwmi Avng¥` GB M‡Z©i gyL cvIqv hv‡e| GQvovI i‡q‡Q Pvu`MvI, jvjLvb evRvi, †_‡K mvgvb¨ gvwU mwi‡q cvuPwU biKsKvj DVvb| Zvui g‡Z nvwjkni, KvjyiNvU I †cvU© K‡jvbx BZ¨vw` ea¨fzwg| PÆMªvg †mB M‡Z© Kgc‡ÿ cvuP nvRvi biKsKvj i‡q‡Q| GB K¨v›Ub‡g›U I mvwK©U nvD‡mI nvRvi nvRvi †jvK‡K a‡i

†jvgnl©K ea¨fzwg‡Z Pvwiw`‡K cvnvo w`‡q †Niv | ea¨f~wgi wb‡q nZ¨v Kiv n‡q‡Q| Pvwiw`‡K wewÿßfv‡e Qwo‡q i‡q‡Q nZfvM¨‡`i Rvgv-Kvco Mªvgv‡j wg‡ik¡ivB I mxZvKz‡Ûi cvnvo, ivDRvb, cwUqv RyZv cªf…wZ | gvwU‡Z i‡q‡Q Pvc Pvc we¯Íi i‡³i `vM hv mvZKvwbqv Ges evukLvjxi ebv‡ji I nvRvi nvRvi cªgvb K‡i‡Q †h MZ wW‡m¤^‡ii cª_g w`‡K GLv‡b K‡qKk ev½vjx‡K nZ¨v Kiv n‡q‡Q| †emiKvix D‡`¨v‡M mg¯Í †jvK‡K nZ¨v Kiv n‡q‡Q| GjvKvq wi‡cvU© msMªn A‡bKUv KwVb KvR| Avgvi ea¨f~wgi cv‡k nvuUvi mg‡q gvwU‡Z Avwg †MvUv `k my¨U e¨w³MZ AwfÁZv Abyhvqx mviv PÆMªv‡g †Rjv‡Z wZb jvL

I †`L‡Z †c‡qwQ| G‡Z cªgvwYZ n‡”Q †h, †ijI‡q ‡cvU© ev½vjx‡K nZ¨v Kiv n‡q‡Q| U«vó Ges Ab¨vb¨ Awd‡mi †h me nZfvM¨ Awdmvi wbu‡LvR wewfbœ ea¨f~wg‡Z Av‡Rv eû biKsKvj BZ¯ÍZt wewÿß i‡q‡Qb, Zvu‡`i A‡bK‡KB GB ea¨f~wg‡Z nZ¨v Kiv Ae¯’vq cvIqv hv‡”Q| kn‡ii Iqvi‡jm K‡jvbx, SvDZjv I n‡q‡Q| bvwmi Avng‡`i g‡Z AZ¨vPv‡ii Kv‡jv w`b¸‡jv‡Z bvwQivev‡`i cvnvox GjvKv¸‡jv‡Z jyKvwqZ eû ee©i cvKevwnbx GB ea¨f~wg‡Z K‡qK nvRvi †jvK‡K nZ¨v biKsKv‡ji Aw¯ÍZ¡ Av‡Rv cvIqv hv‡e| BwZg‡a¨ SvDZjv K‡i‡Q| wZwb e‡j‡Qb †h, wbqwgZ GB nZ¨vh‡Ái ïiæ‡Z GjvKvi wewfbœ †mcwUK U¨v¼, cvnvox †Svc Sv‡oi g‡a¨ †PvL evuav Ae¯’vq ea¨f~wg‡Z Avbv GK`j †jvK‡K ¸wj K‡i A‡bK¸‡jv KsKvj †`L‡Z †c‡qwQ| nZ¨v Ki‡j ¸wji AvIqv‡R nZfvM¨‡`i jvBb K‡i `vuov‡bv mxZvKz‡Ûi wkebv_ cvnv‡o K‡qK nvRvi ev½vjx‡K nZ¨v Ab¨`j g„Zz¨f‡q wPrKvi Ki‡Zv e‡j c‡i ivB‡d‡j Kiv n‡q‡Q| wgi‡k¡ivB‡qi †RviviMÄ Ges Iqvi‡jm mvB‡jÝvi jvwM‡q ¸wj K‡i gvivi c×wZ cªewZ©Z nq| GjvKv‡Z gvbyl R‡en Kivi ¯’vqx‡K›`ª ¯’vcb Kiv n‡qwQj| THE LAW MESSENGER 390 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) iv¯Ívi U«vK, evm Ges †U«b †_‡K nvRvi nvRvi †jvK‡K a‡i Association and he was a man of integrity. G‡b AvUK K‡i ivLv n‡Zv Ges cªwZw`b 50 Rb A_ev 100 Advocate Shafiul Alam in the said article, Rb K‡i nZ¨v Kiv n‡Zv| published in the book Ò1971 fqven AwfÁZvÓ G mg¯Í GjvKv‡Z AmsL¨ Kei Av‡Rv †`L‡Z cvIqv hvq| edited by Rashid Haider in 1989 and in the gvby‡li cwiwnZ Kvco- †Pvco, RyZv m¨v‡Ûj BZ¨vw`I Ò•`wbK mycªfvZ evsjv‡`kÓ, had given descriptions GLv‡b c‡o Av‡Q| ¯’vbxq Rbmvavi‡bi avibv g‡Z ïay of the atrocities committed in Hotel Dalim wgi‡k¡ivB I mxZvKz‡Ûi ea¨f~wg¸‡jv‡Z 15 †_‡K 25 nvRvi which are as follows: †jvK‡K nZ¨v Kiv n‡q‡Q| `yt¯^‡cœi bi‡K t †nv‡Uj Wvwjg G Qvov ivDRvb, cwUqv I evukLvjx BZ¨vw` _vbv‡ZI cªvq Ò‡mw`bwU wQj mvZv‡k b‡f¤^i 71| mܨv †_‡KB kn‡i Abyiæcnv‡i MYnZ¨v Pvjv‡bv n‡q‡Q|Ó KviwdD| Avgvi Avkªq evwo‡Z M„nKZ©vi mv‡_ †iwWI ïbwQjvg| 60. Those are few instances out of thousands brutality committed by the Pak army miKvix wb‡`©kvewj cªPvi nw”Qjt AvBb nv‡Z wbI bv ; with the active support and participation of the c‡ivqvbv Qvov KvD‡K †MªdZvi Ki‡e bv; a„Z `y¯‥…ZKvix‡`i local auxiliary forces started on the night of _vbvq †mvc©` Ki BZ¨vw`| fvewQjvg, KZ wg_¨v Amvi G March 25,1971, which were acts of treachery Dw³¸‡jv| nVvr Kovbvovq kã ï‡b M„nKZ©v `iRv Ly‡j unparalled in contemporary history, a w`‡jb| Avi Agwb GK`j †jvK ûogywo‡q N‡i Xz‡K coj| programme of calculated genocide. From the mK‡ji nv‡Z ZvK Kiv Av‡Mœqv¯¿| bvK-gyL Kv‡jv Kvc‡o above stated news items, statements, press XvKv| m`‡c© AvZ¥cwiwPwZ nvKj; Avgiv e`ievwnbxi †jvK, releases and articles there is was no doubt to bovPov Ki‡e bv †KD| jvBb n‡q `uvwo‡q bvg ejvi wb‡`©k hold the view that it was a widespread and Kij| Avgvi bvg ej‡ZB bvK gyL XvKv Db¥xwjZ †Pv‡Li systematic attacks against civilian population. A¯¿avix `j‡bZv ejjt †Zvgv‡K †MªdZvi Kiv n‡jv| There is no reasons to believe that the appellant miKvix wb‡`©‡ki D‡jøL K‡i Avgvi †MªdZvwi c‡ivqvbv had no knowledge about the genocide and †`L‡Z PvBjvg| ejjt Avgv‡`i Ime jv‡M bv| Avm‡jB atrocities committed by Pakistani army. The jvM‡Zv bv; Av‡Rv jv‡M bv| GL‡bv Zviv hy×iZ, Av‡Rv appellant, without standing besides the nv‡Z †mB civwRZ A¯¿| AZtci `j‡bZv Avgvi nvZ †PvL helpless unfortunate people of his motherland, †e‡a †Kvg‡i iwk jvMv‡Z ûKzg w`j| wKš‘ nVvr †`wL, Avgvi involved himself with the atrocities and M„nKZ©v †m A¯¿avixi mvg‡b †`․‡o G‡m ej‡Q, bv, I‡K brutalities as deposed by the P.Ws. 1,2, 3,4,5, Avgvi evwo †_‡K wb‡Z †`‡ev bv| Avwg Rvwb, e`ievwnbx 6,7,8, 9, 10, 11, 14, 15, 16, 17 , 18, 19 and 20. gvbyl Lyb K‡i| †Zvgiv Z`šÍ K‡iv , I †Kvb `y¯‥…ZKvix bq| The oral and documentary evidence clearly `j‡bZv ivMZ¯^‡i Zv‡KI †MªdZvi Ki‡Z wb‡`©k Ki‡jv, show that he participated, instigated, suggested, Avi Agwb `yRb †jvK G‡m Zvi †Kvg‡i iwk cwi‡q w`j| aided, provoked the Pak army and also Avwg †Rvi cªwZev` Rvbvjvg, †Zvgiv Avgv‡K wb‡Z G‡mQ; involved in abduction, torturing and killing of Avwg †Zv hvw”Q| Zuv‡K †Q‡o `vI, bqZ GK cvI boe bv unarmed civilians which were crimes against Avwg| †Kvb åæ‡ÿc bv K‡i av°v‡Z av°v‡Z iv¯Ívq wb‡q humanity. G‡jv| †mLv‡b Zv‡`i KÕRb cwiwPZ †jvK| we¯ÍvwiZ cwiPq Rvbvevi ci Iiv Avgvi M„nKZ©v‡K †Q‡o w`j| AwZkq gnr Dalim Hotel : torture cell ü`‡qi AwaKvix lv‡Uva© m`vnvm¨gq G iæMœ gvbylwU wQ‡jb 61. Material exhibit VI is a book named Avg„Zz¨ ALÛ cvwK¯Ív‡b wek¡vmx| wKš‘ Ab¨vq evovevwoi mv‡_ Ò‡mB mgq Avb›` †e`bvqÓ written by Advocate Rxe‡b Av‡cvm K‡ib wb KL‡bv; ‡mw`bI bv| K‡Zv bv Ò`yt¯^‡cœi bi‡K Shafiul Alam who, in an article, gyw³‡mbv Áv‡Z, AÁv‡Z G evwo‡Z Zuvi †mèngq AvbyK~‡j¨ †nv‡Uj WvwjgÓ, had given discriptions about the kw³ mÂq K‡iwQ‡jv †mw`b| wZwb AvR †e‡P †bB| wKš‘ brutality committed in the Dalim Hotel. Mr. Avgvi me‡P‡q Av`‡ii gvbyl giûg •mq` gCbDÏxb Khandaker Mahbub Hossain, learned Counsel †nvmvBb wPiw`b †e‡P _vK‡e Avgvi ü`‡q , Avgvi ¯§i‡Y| for the appellant in course his submission admitted that Advocate Shafiul Alam was well- iv¯Ívq bvg‡ZB Iiv Avgvi †PvL `y‡Uv Kv‡jv Kvc‡oi known Advocate of Chittagong Bar k³ AvUzwb‡Z †eu‡a, nvZ `y‡UvI †cQb w`‡K gy‡o iwk w`‡q THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 391 †eu‡a †djj| K'wgwbU nuvU‡ZB †c․‡Q †Mjvg MšÍ‡e¨| mv‡_B eÜziv †PvL Avi nv‡Zi euvab c‡i wbj| e¨vcviUv Lye eySjvg, Avgv‡`i cvovi †kl cªv‡šÍi †nv‡Uj Wvwjg; GLb Avgy‡` jvMj Avgvi| GKUz ¯^vfvweK _vKvi R‡b¨ `iRv eÜ e`i evwnbxi wbh©vZb wkwei| wZbZjvq| eviv›`vi gvSvgvwS _vKvi mg‡q †PvL Avi nv‡Zi euvab nvjKv K‡i †djv Ges †c․Qy‡ZB weKU ee©i ¯^‡i †K GKRb †PuwP‡q DVj ; në| `iRv †Lvjvi kã †kvbvi mv‡j mv‡_ wbR wbR `ÿZvq Avevi Avwg `vwo‡q †Mjvg| mevB Pj‡b ej‡b mewKQy‡Z mvgwiK; D³ euvab c‡i †djvi †K․kj eÜziv B‡Zvg‡a¨B iß K‡i K_vevZ©vq D`y© Bs‡iwRi e¨enviB †ewk| nVvr `iRv †Lvjvi †d‡jwQj wKš‘ aiv c‡o †h‡Zv A‡b‡KB| kã †cjvg| `ycv †fZ‡i w`‡ZB nVvr wc‡V ey‡Ui AvNv‡Z A¯¿avix †mw›U« N‡i Xy‡KB ïiæ Kij KzrwmZ AK_¨ ûgwo †L‡q N‡ii †g‡Sq jywU‡q cojvg| g‡b n‡jv, Dcweó MvjvMvwj | Aciva, nvZ Avi †Pv‡Li euvab nvjKv ev †Lvjv kvwqZ KwZcq gvbyl †hb hš¿Yvf‡i nVvr KvZ‡i DVj| gy‡L †Kb| Zvici Kv‡iv Pzj a‡i Uvb w`j ev Kv‡KI jvw_ wKsev Mig i³ cªevn Abyfe Kijvg| `uvZ †f‡O‡Q, bqZ wRe †`qv‡ji mv‡_ gv_v Vz‡K w`‡q Pjj| ey‡Ui WMv w`‡q Avgvi †K‡U‡Q| `iRv eÜ nIqvi mv‡_ mv‡_B †K GKRb wR‡Ám Mv‡q av°v w`‡q ejj, ZzwgB eywS Kvj iv‡Zi †gngvb? me Kij, †K Zzwg fvB? bvg ej‡ZB `yRb Rwo‡q ai‡jv K_v Lvb mv‡ne‡K mwZ¨ mwZv e‡j †`‡e; bq‡Z H kvjvi ¯^‡mè‡n| Giv Avgvi AwZ wbK‡Ui gyw³‡hv×v, RvnvsMxi Avi | Zvici QvbvDjø `kv n‡e|Ó eySjvg bv wVK Kvi w`‡K wb‡`©k Kij vn †P․ayix| Avgv‡K †`qv‡ji mv‡_ †Vm w`‡q ewm‡q jvBb K‡i mevB‡K Uq‡jU iæ‡g hvIqvi wb‡`©k w`j| w`j Iiv | nvZ-†PvL Avgvi ZL‡bv evav| Avi mK‡jiI Gmgq wKQyÿ‡Yi Rb¨ nvZ I †Pv‡Li evuab †Lvjv nq| ZvB| Ggb wK c‡b‡iv w`b Av‡Mi †jvK‡`iI; GUvB RjfwZ© wU‡bi GK eo Møvm ev g‡M| G‡ZB cª‡qvRbxq GLvbKvi wbqg| mK‡j Rvb‡Z D`Mªxe evB‡ii Ae¯’v †Kgb, †k․PKvR mvi‡Z n‡e, cvjvµ‡g| GKB e¨e¯’v LvIqvi hy‡×i Ae¯’v, Kxfv‡e aiv cojvg BZ¨vw`| Avevi nVvr ey‡Ui †ejvqI| GK_vjv cvšÍv fvZ, KzwP KzwP K‡i KvUv GKgy‡Vv AvIqvR Kv‡b G‡jv| g‡b n‡jv †ek KRb µgk wbKUZi †c‡c-gyjv ZiKvwi| †Kvb g‡Z `yR‡bi Lvevi | GLb fvM n‡”Q| †mw›U« `iRv Ly‡j nuvK w`‡jv; Lvb mv‡ne G‡m‡Q, mK‡j D‡V `uvovI| evB‡i _vK‡Z ï‡bwQjvg G Lvb mv‡ne K‡i mvZR‡b †L‡Z n‡e| Avi RjfwZ© mKv‡ji IB gM | Rjcv‡bi fvb K‡i Mjv †fRvZvg mevB| A_P Kv‡iv †Kvb fqvj wbôzi kw³ai GK †jvK| GLvbKvi m`©vi| cª_‡g, bvg avg Avi wKQy mvaviY †Mv‡Qi ivRwbwZi K_v wR‡Ám Kij| †ÿvf †bB| Afz³ Z…òvZ© mvZRb †jvK cªkvšÍ g‡bB cªwZ PweŸk N›Uvq GKevi cvbvnvi ce© †kl KiZ| cªxwZ Avi g‡b n‡jv †K †hb wjLwQ‡jv Gme| nVvr †fswP D”Pvi‡Y Lvb åvZ | mv‡ne ej‡jvt ÒRq evsjv e‡jv bv?Ó ejjvg, †m‡Zv „‡Z¡i Kx Ac~e© `„óvšÍ mK‡jB ej‡Q| Avi Agwb gy‡L G‡m jvMj GK Zxeª Nywl| `ycy‡i ¯^cb G‡m ejjt AvR `v`v , cuvPRb LZg| Zvici, AK_¨ MvjvMvj, Avi Pviw`K †_‡K †ek KRb mgvb GZÿ‡b KY©dzjx‡Z fvm‡Q| Rmxg fvB †evanq evuP‡e bv Zv‡j B”Qvg‡Zv mviv Mv‡q m‡Rv‡i jvw_ Nywl †g‡i Pjj| Gevi| Qv` †_‡K jvwd‡q cvjv‡Z wM‡q †h †Q‡jwU aiv eySjvg, `vZ †f‡O‡Q Avi bvK w`‡q i³ Mwo‡q co‡Q| c‡owQj , wZbw`b A‡PZb _vKvi ci AvR gviv †M‡Q| Amn¨ AvNv‡Zi †Zv‡o †g‡Sq c‡o †Mjvg| hš¿Yvq nVvr Dn Avjø G ¯^cb wQj Avgv‡`i AÜKvi cª‡Kvô Avi e`icyixi vn kã K‡i DVjvg| Avi Agwb gy‡L m‡Rv‡i AvNvZ †hvMm~Î| K‡qK gvm Av‡M †m aiv c‡o R‣bK †n‡b ejjt Òkvjv, †jwbb Avi gvI †m Zzs ej- Avjøv- bqÓ| gyw³‡mbv‡K Zvi evoxi cv‡k¡©i †Mvcb c_ †`Lvevi Aciv‡a gvÎv †hb µgk evoj| wbh©vZ‡bi K‡Zv bv Awfbe | wek¡¯Í AvPi‡bi cyi¯‥vi wnmv‡e, GLb wK‡kvi ¯^cb Kvq`v‡K․kj | Zvici wKQyB Avi g‡b co‡jv bv| nVvr Gu‡UvRj Avi Ni‡gvQvi KvR K‡i| me N‡i Zvi Aeva KLb Nyg †f‡½ †M‡jv; VvÛv †g‡Si Ici c‡o AvwQ| mviv Mv MwZ| Kv‡Ri duv‡K ¯^M‡Zvw³i g‡Zv weoweo K‡i cªwZw`b R¡‡i cy‡o hv‡”Q| fxlY cvwbi †Zóv jvM‡Q| IVvi kw³I †m msev` I wm×v‡šÍi eû K_v Rvbv‡Zv| Avgiv †gvUvgywU †bB Avgvi| Avevi †bwZ‡q cojvg| ïbjvg `~‡i †Kv_vq mewKQy AvuP K‡i wbZvg| Avgv‡`i wVK Ic‡iB G e`icyixi KvK WvK‡Q; nqZ †fvi Avm‡Q c„w_exi ey‡K| wbh©vZb K¶| ¯^cb ejZ, Iiv bvwK e‡j ÔGUv nvweqv ‡hb †fvi †_‡KB G e`icyix‡Z †m Kx GK n¯Í`¯Í- †`vRLÕ ; †m GUvi A_© eySZ bv| †m ejZ , G Ônvweqv‡ZÕ Qy‡UvQywU Pj‡Q| wmwo eviv›`v Qv‡` m‡Rvi Pjb Avi ey‡Ui †M‡j †KD Avi †d‡i bv †Zgb| Avgv‡K ejjt Ô`v`v IVv bvgvi kã| AÜKvi cª‡Kv‡ôi cyi‡bv eÜz‡`i wbKU Avcwb GLv‡b †ewkw`b Avi _vK‡eb bv, Avcwb I Av‡iv Gm‡ei bvbv A_© Zvrch© †`Ljvg AwZ ¯úó| ¯^M‡Zvw³i PviRb , LvZvq AvR Avcbv‡`i bvg wj‡L‡QÕ| mwVK wKQy gZB A‡b‡K wdmwdm K‡i ej‡Qt Bm&! Qv` n‡Z jvk¸‡jv eySjvg bv, †mI †Zgb wKQy cwi¯‥vi †ev‡Swb| gbUv Lye fvix bvgv‡”Q ev GUv †evanq Rmx‡gi Mjvi kã wKsev, †Kb †h jvMj| MZiv‡Z ‡gv‡UB Nyg nqwb| †mwK fqvZ© ivZ| †Q‡jUv G‡Zv †ewk K_v e‡j eywS bv, A_ev, ïbQ, GUv bZzb gv_vi Ic‡i Qv‡` mvivivZ P‡j‡Q ûoyg-`yoyg j¼vKvÛ| †m Pvjvb wbðqB BZ¨vw`| kixi Avi gb `y‡UvB APj Aek n‡q Kx fqv_© eyKdvUv Kvbœv Avi AvwZ©| gv‡S gv‡S bi c‡o‡Q| Ggb mgq nVvr `iRv †Lvjvi kã †cjvg| mv‡_ wcPvk¸‡jvi wbôzi AÆnvwmi †ivj| Ônvweqv †`vRLBÕ e‡U| THE LAW MESSENGER 392 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) ‡mw`b `ycy‡i nVvr `iRv Ly‡j †M‡jv wZb PviRb †jvK †nv‡Z|ÕÕ G‡`i K_vi duv‡K eySjvg Avgv‡`i ÔmvwK©U nvDm A‡bKUv Kvu‡a Szwjqv †K GKRb‡K wb‡q G‡jv iæ‡g| QvDwb‡ZÕ Avbv n‡q‡Q| gbUv †hb AvuZ‡K DVj nVvr| A‡bKUv wb‡ÿc Kivi g‡Zv `y‡i †d‡j w`j †hb| `iRv ZL‡bv Avgv‡`i nv‡Z G evwoi K‡Zv bv Z_¨ ÔÔ B‡jKwU«K e‡Üi mv‡_ mv‡_B †PvL Avi nv‡Zi evuav Ly‡j Zv‡K †Kv‡j †Pqv‡iÕÕ kK w`‡q cªwZw`b gvbyl gviv n‡”Q GLv‡b| G‡`i Zz‡j wbjvg| Ô†fw›U‡jUiÕ duy‡o Avmv GK wPj‡Z †iv‡` Zvi MYKe‡ii Qwe m¤úªwZ Avgiv msMªn K‡iwQ| fvejvg, mgq gyLUv Zz‡j aij mK‡j | mevB AvuZ‡K DVj, G †h Rmxg| wK Z‡e G‡Kev‡e dzwi‡q G‡jv! Gi g‡a¨ GKRb •mwbK wK‡kvi gyw³‡hv×v Rmxg| gv_vUv †hb nVvr †Kvj †_‡K U«v‡K D‡V Avgv‡`i bvg-avg Z_¨ wjLwQj| GKRb e`i †mbv AvjMv n‡q †M‡jv| Kv‡iv †evSvi evwK iB‡jv bv, Rmxg ejj †Kvb wgwUs Gi gvSLv‡b †_‡K Avgv‡K a‡i‡Q| ÔÔ Avwg Avi †bB| IB GK wPj‡Z †iv‡` Zvi wbtkã gyLUv wPKwPK ejjvgt wgwUsUv wK Avwg GKvB KiwQjvg? Ab¨ †jvK¸‡jv K‡i R¡j‡Q| Kx my›`i gvqvex gyL| Z‡e †Kv_vq †Mj?ÕÕ •mb¨wU ejjt ÔÔAv‡i e`ix B‡q †Zv wejKzj wVK evr Ze Amwj evr †Kqv n¨vq evZvI|ÕÕ †m ‡mw`b we‡K‡jB `yRb G‡m Avgv‡K wb‡q †Mj IB AvgZv AvgZv K‡i K_v LuyRwQj| •mb¨wU AU«nvwm‡Z ejj, ÔÔ Ônvweqv †`vR‡LÕ| †Pv‡Li evuab Lyj‡ZB †`wL Kv‡jv †Kqv evr n¨vq evnv`yi RIqvb?ÕÕ AvgivI m‡Rv‡i †n‡m †cvkvKavix `yRb ÔRjøv`Õ †g‡Sq kvwqZ GK hye‡Ki ey‡Ki DVjvg| Ici ivLv Z³vq `vuwo‡q Av‡Q| cv‡k GKRvZxq Kv‡jv j¤^v †eë nv‡Z Av‡iv `yRb `vuwW‡q , `y‡i Av‡iv K‡qKRb nVvr Av‡`k G‡jv Avgv‡`i †diZ wb‡q hvIqvi| Pviw`‡K †Pqv‡i Dcweó| hyeKwUi cªwZ wbwÿß nw”Qj bvbv cªkœevYt Qy‡UvQywU Avi wPrKvi| KzrwmZ fvlvq MvjvMvj, ivMZ ¯^‡it ¯^xKv‡ivw³ Av`v‡qi GK •cPvwkK Kvq`v| hyeKwU m‡PZb eySjvg, Ôevnv`yi wmcvB‡`iÕ AvR Ôgyw³i ev”PvivÕ †evanq wK Aa©g„Z †evSv hvw”Qj bv| Pviw`‡K †MvUv Qv`UvB XvKv| †ek fvj gviB w`‡q‡Qt Gevi †nv‡Uj Wvwjg bq; PU«Mªvg GK fqvZ© Av‡jv- Avuav‡i g‡b n‡jv G †hb GK wecyj KvivMvi| AviI `yevi wRÁvmvev‡`i ZvwiL †cjvg| wKš‘ A¯¿fvÛvi| Pviw`‡K †Pv‡L coj iKgvwi wbh©vZb mvgMªx| Iiv Avcb cªvY euvP‡ZB e¨¯Í ZLb| †jvnvi iW, m~uB, BU, Kv‡Vi Z³v, †eq‡bUhy³ ivB‡dj Ae‡k‡l G‡jv †m KvswLZ weRq w`em †lvjB wW‡m¤^i BZ¨vw`| mewKQyi e¨enviB PjZ a„Z e¨w³‡`i Ô¯^xKv‡iv³xÕ Dwbkk GKvËi| wKš‘ Av‡Rv wK n‡q‡Q evOvwji `yt¯^‡cœi I ÔwRÁvmvev`Õ MªnYKv‡j| nVvr †`wL GK m‡Rvi jvw_i Aemvb?Ó (emphasis supplied) AvNv‡Z hyeKwU dzUe‡ji g‡Zv Mwo‡q †Mj, Avi cvke AÆnvwm‡Z Iiv †hb †d‡U coj| Avgvi `vwq‡Z¡ wb‡qvwRZ 62. If we read the oral and documentary e¨w³wU GK wbtk¡v‡m GKivk cªkœ Qy‡o ÔwVKwVKÕ Reve bv evidence regarding descriptions of brutality w`‡j Avgvi cwiYwZ Av‡iv fqen n‡e GB g‡g© mveavb K‡i committed in hotel Dalim and we have no w`j| K_v¸‡jv wQjt Ôev‡ci evox BwÛqv †_‡K KLb G‡mQ; hesitation but to draw conclusion that the Kx Kx G‡b‡Q; †Zvgvi cvwU©i Avi me †bZviv †Kv_vq Av‡Q; appellant and his accomplices are responsible kn‡i Kx `vwqZ¡ cvjb Ki; KvMRcÎ-bKkv †Kv_vq †i‡LQÕ for the holocaust committed in Dalim Hotel. It BZ¨vw`| ejjvgt ÔAvwg KL‡bv fvi‡Z hvBwb, GZw`b Mªv‡gi is proved beyond all shadow of doubt from the evwo wQjvg ; MZ Pvi gvm †_‡K kn‡i †ckvMZ Kv‡R e¨¯Í|Õ evidence of P.Ws. 1, 2,3, 4, 5, 6, 7, 8,9, 10, 11, jvw_ av°v-Nywl A¯¿ e¨envi Ki‡jv Ô¯^xKv‡ivw³Õ cª`v‡bi 14, 15, 16, 17, 18, 19 and 20 and from the R‡b¨| Avwg `„pfv‡e ejjvg| ÔGi †P‡q †ewk Avi wKQy contents of material exhibit-VI that the Dalim Avgvi ejvi †bB |ÕÕ GKUz c‡i iæ‡g wb‡q G‡jv| Avmvi Hotel was used as one of the torture cells of mgq ejjt †Zvgv‡K ÔAvmj RvqMvqÕ cvVv‡Z n‡e| Badar Bahini, Chittagong and the appellant was in command position of that brutal force. `yw`b ci †`Ljvg nVvr Ôe`icyix‡ZÕ n¯Í`¯Í †kvi‡Mvj wPrKvi c‡o‡Q| †ek KRb‡K wewfbœ iæg †_‡K wb‡P G‡b ACTIVITIES OF BADAR BAHINI GK U«v‡K DVv‡bv n‡jv, Avgv‡KI| ejj ÔGevi †mvRv 63. Let us see the news items regarding the RvbœvZÕ D‡V ‡`wL Avgvi `yRb wewkó eÜz b¨vc †bZv byiæbœex activities of Al-Badar Bahini which were mv‡ne Avi mvBdzÏxb Lvb| Aci `yRb mvsevw`K †gQevn published in the different news paper Lvb I gyw³‡hv×v †mwjg| PovB-DrivB n‡q U«vKwU †hb †Kvb subsequent after 16th December, 1971: GK DuPz RvqMvq _vgj| †Kvb GK †mbvQvDwb g‡b n‡jvt 23.12.1971 •mb¨iv D`y©‡Z K_v ejwQj| GKRb ivMZ ¯^‡i ejjt mgy‡`ª †d‡j bv w`‡q GLv‡b †Kb? Ab¨Rb ejjt ÔÔ nu¨v gvQwj- Kv The Observer †LvivK, gvQwj Lvn‡j‡Z, AvIi nvg‡jvM gvQwj Lvn‡K ‡gvUv “Al-Badar leader held- THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 393 “Abdul Khaleque, a collaborator of the ¯^vaxbZvi Dò Av‡jvi avivi mèvb K‡iI Avgiv AvR notorious fascist Al- Badar Bahini was Av‡jvi Afve Abyfe KiwQ| caught on Wednesday in Rampura. He wKš‘ g‡b cªvb Rv‡M Avgiv wK BwZnv‡mi GB b„ksmZg disclosed the names of nine Al- Badar nZ¨v Kv‡Ûi Reve L‡Ry cve bv? members who conducted the cold blooded ‡Kb GB nZ¨vKvÛ? ev½vjx RvwZ‡K Áv‡bi Av‡jv †_‡K of the intellectuals in the city prior ewÂZ Kivi Rb¨? to the shamefull surrender of the evsjvi eyw×Rxwe, mvsevw`K I wkÿ occupation arms.” vwe`‡`i GB nZ¨v Kv‡Ûi mv‡_ RwoZ KzL¨vZ K‡b©j BRvR I we‡MªwWqvi ikx` 29.12.1971 GLb †Kv_vq? GB bicky‡`i wK †MªdZvi Kiv n‡q‡Q? The Morning News. evsjv gvby‡li GB Áv‡bi cª`xc bqbgwb‡`i †kl gyû‡Z© “Nazmul Huq: Victim of Badar Bahini.” wbwðZ Kivi Rb¨ `vqx †Rbv‡ij wbqvwRi weiæ‡× wK

26.12.1971 Awf‡hvM Avbv n‡q‡Q? cªkœ D‡V‡Q GKUv RvwZ‡K wbwðý Kivi Rb¨ wbqvRx The Dainik Pakistan/ Bangla v iv ÒKzL¨vZ Avj e`i evwnbx †Mvôx †h D‡`¨ M MªnY K‡i‡Q Ges BwZg‡a¨ hv‡`i nZ¨v K n‡q‡Q †mB Awf‡hv‡M Zv‡`i weiæ‡× hy× Aciv‡ai G‡`i awi‡q w`b|Ó Awf‡hvM Avbv n‡e bv †Kb? 18.12.1971 AvšÍRvwZ©K †iWµm jxMe¨vcv‡i wK †Kvb D‡`¨vM Mªnb Ki‡Z cv‡ib bv? ï‡bwQ †nv‡Uj B›UviK‡g Ae¯’vbiZ The DainiK Purbadesh ÒKzL¨vZ Avj e`i evwnbx wkKvi H me eyw×Rxweiv AvR †iWµm Kg©KZ©vi wbnZ A_ev GLbI wb‡LvuR 155 Rb eyw×Rxwei bvg †c‡q‡Qb| †Kv_vq?Ó 23.12.1971 20.12.1971 The Dainik Purbadesh

The Dainik Purbadesh ÒAvj e`‡ii bi wcPvkiv I‡`i ürwcÛ †U‡b †ei Ò gvb‡ewZnv‡mi RNY¨Zg Aciv‡ai wePvi PvB |Ó K‡i‡Q ?Ó 28.12.1971 XvKv, 22‡k wW‡m¤^i| - MZ 1jv wW‡m¤^i †fvi PviUvi , ag©vÜ Avj-e`i evwnbxi GKRb --- The Dainik Purbadesh ‣mq` bvRgyj nK , ------ivI digvb ÒI‡`i Lyu‡R †ei Ki‡Z n‡e| Ó mv‡eK wcwUAvB Gi Pxd wi‡cvU©vi Ges Avjxi cªZ¨¶ Z`viwK‡Z KzL¨vZ e`i evwnbxi evsjvi kZ Ò`Lj`vi cvwK¯Ívbx evwnbxi †hvMmvRmKvix I kZ eyw×Rxex‡K GKB Dcv‡q AcniY K‡i Ges Zv‡`i Dci evsjv‡`‡ki KwZcq Kz-mšÍv‡bi †bZ…‡Z¡ Avj- e`i, AgvbywlK wbh©vZ‡bi ci nZ¨v K‡i| evsjvi GB me m~h©¨ Avj- kvgm I ivRvKvi evwnbx †mvbvi evsjvi Ávb mšÍvb‡`i Lybxiv cª_‡g †gvnvg¥`cyi¯’ wdwRK¨vj †U«wbs cª`xc eyw×Rxwe‡`i nZ¨vi Rb¨ hviv `vqx Zv‡`i Luy‡R ¯‥z‡j wb‡q hvq Ges iv‡qi evRv‡ii BU‡Lvjvi Kv‡Q †ei Kivi I we‡kl U«vBey¨bv‡j wePvi Kivi `vex ea¨f~wg‡Z wbôzifv‡e nZ¨v K‡i| •mq`bRgyj n‡Ki fv‡M¨ D‡V‡Q| Ó GB N‡U‡Q| 19.12.1971 Rbve n‡Ki g„Z‡`n GL‡bv Luy‡R cvIqv hvqwb Z‡e †h me nZfvM¨ †`i g„Z‡`n Luy‡R cvIqv †M‡Q Zv‡`i kix‡i AK_¨ The Dainik Purbadesh wbh©v Z‡bi wPý †`Lv †M‡Q| Kv‡iv bvK †K‡U †`qv n‡q‡Q| ÒGB b„ksm nZ¨vKv‡Ûi Reve wK ?Ó Kv‡ivi nvZ, Av½yj, Kv‡iv eyK wP‡i bi-cïiv †ei K‡i‡Q Gikv` gRyg`vi ürwcÛ| Kv‡iv †`‡n dvwj dvwj KvUvi `vM| wcPvkiv Kv‡iv

BwZnv‡mi N„Y¨Zg nvbv`vi cvK evwnbx I Zv‡`i gyL cywo‡q w`‡q‡Q GwmW w`‡q| c`‡jnx Avj-e`i I Avj kvgm ¯^vaxbZvi †mvbvjx j‡Mœ kZvwaK we‡`kx mvsevw`K †`L‡Z wM‡qwQ‡jb GB †kl ev‡ii g‡Zv wnsmª †Qvej †g‡i wPiw`‡bi g‡Z bviKxq nZ¨vKvÛ|wcPvk‡`i GB i³wccvmv †`‡L Zviv †K‡o wb‡q‡Q Avgv‡`i RvwZi Áv‡bi D¾¡j cª`xc cªvq ¯Íw¤¢Z n‡q evKiæ× n‡q †M‡Qb| Zviv e‡jb we‡k¡i `y‡kv eyw×Rxwe, wkÿvwe` I mvsevw`K‡K| BwZnv‡m Giæc wbôzi ai‡bi nZ¨vhÁ GB cª_g| THE LAW MESSENGER 394 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) GKRb we‡`kx mvsevw`K GiæcI e‡j‡Qb, ÒAvgiv †h ‡Kvb fvlvq cªKvk Kie gvbyl Zv G †`‡L wek¡vm Kivi †Kvb Dcvq ‡bB| wb‡R‡`i ÒAvj- e`i cï‡`i GB b„ksmZv | Ó gvbyl e‡j cwiPq w`‡ZI Avgv‡`i j¾v nIqv DwPZ|Ó (evsjv‡`k wi‡cvU©vi) 05.01.1972 Ò¯^vaxbZvi Avb›` D”Qv‡¯^i gv‡S MZKvj kwbevi The Dainik Purbadesh evsjv‡`‡ki ivRavbx XvKv bMix‡Z †kv‡Ki Qvq †b‡g Òe`i evwnbxi wkKvi AviI mvZRb eyw×Rxexi jvk Av‡m| gyw³i Avb›`‡K Qvwc‡q I‡V Kvbœvi †ivj| D×viÓ kZvãxi RNb¨Zg nZ¨vKvÛ msNwUZ n‡q‡Q XvKv bMix i Pi ÒbicïwU †Mvi¯Ív‡bi cv‡k `vuo Kwi‡q ¸jx K‡i Zvu‡`i I evsjv †`‡k MZ †deªæqvix †_‡K| Zv Avev ‡g †g‡i‡Q| Ó D‡VwQj gyw³i c~e©ÿ‡Y| GB b„ksm nZ¨vKvÛ Pvwj‡q‡Q MZ mßvn a‡i Rvgv‡Z Bmjvgxi Avj e`i| 27.12.1971 kn‡ii K‡qKRb eyw×Rxex I hyeK‡K G‡K G‡K The Dainik Azad a‡i wb‡q wM‡q AgvbywlKfv‡e nZ¨v K‡i----- Ó ÒAvi GKUv mßvn mgq †c‡j Iiv ev½vjx eyw×Rxex‡`i mevB‡K †g‡i †dj‡Zv|Ó 19.12.1971 Òe`i evwnbxi gvóvi cøvbÓ The Dainik Pakistan

ÒwbR¯^ wbeÜKviÓ Ò‡Kvb fvlvq cªKvk Kie ÒAvj e`iÓ cï‡`i GB b„ksmZv Ó cvwK¯Ívbx nvbv`vi evwnbxi MYnZ¨vq mvnvh¨Kvix (evsjv‡`k wi‡cvU©vi) `j¸‡jvi g‡a¨ Rvgv‡Z Bmjvgxi f~wgKv wQj me‡P‡q N„Y¨ I RNY¨| gI`y`x †Mvjvg AvRg- Ave`yi iwn‡gi Ò‣`wbK evsjv Mfxi †e`bv Ges †ÿv‡fi mv‡_ Rvbv‡”Q †bZ…‡Z¡ cwiPvwjZ Rvgv‡Z Bmjvgx evsjv‡`‡ki ‡h, Avj- e`i Ges Avj kvgm evwnbx wnsmª kvc‡`i bLi ¯^vaxbZv msMªv‡gi ïay ‡NviZi we‡ivwaZvB K‡iwb- jÿ we¯Ívi K‡i msNe×fv‡e MZ K‡qKw`‡b Avgvi †`‡ki eû jÿ ev½vjx‡K cvBKvixfv‡e nZ¨vi Kv‡R mwµq msL¨K MY¨ mvsevw`K, mvwnZ¨K wkÿK, wPwKrmK AvBbRxex mn‡hvMxZvI K‡i‡Q| Avi GB RNb¨ nZ¨vKv‡Û I Qv·K b„ksmfv‡e nZ¨v K‡i‡Q| MZ K‡qK gvm hver mn‡hvwMZv Ki‡Z wM‡q Zviv cweÎ Bmjv‡gi bvg nvbv`vi cvK evwnbxi mn‡hvMx d¨vwm÷ Rvgv‡Z Bmjvgx Ges e¨envi K‡i‡Q| a‡g©i bv‡g GZeo RNb¨ ee©iZv mf¨ Ab¨vb¨ DMª `wÿYcš’x `‡ji msMwVZ Avj - e`i I Avj- `ywbqvi Avi †Kvb †`‡k KLbI msNwUZ K‡i‡Q e‡j mvgm evwnbx evsjv †`‡ki AwaK…Z GjvKvq ga¨hyMxq KL‡bv ïbv hvq wb| ee©iZvi †P‡qI wbôzi ZvÛe jxjv Pvwj‡q hvw”Qj nvbv`vi evwnbxi Pig ci nvbv`vi cvwK¯Ívbx evwnbxi wbwe©Pv‡i MYnZ¨vi mwµq vR‡qi cªv‡šÍ G‡mI Zviv Zv Ae¨vnZ hvwM nqwb- †i‡LwQj| Av‡Mi †P‡q AwaKZi bviKxq Djøvm wb‡q Zviv mn‡ Zv K‡iB Rvgv‡Z Bmjvgx ÿvšÍ mvsevw`K, mvwnwZ¨K, wPwKrmK, evsjv‡`‡ki eyw×Rxex mgvR‡K m¤ú~Y© wbg~©j Kivi Svuwc‡q co‡j, Avgvi †`‡ki wkÿK I AvBbRxe‡`i Dci nvbv`vi cvK evwnbxi weiæ‡× D‡Ï‡k¨ Zviv M‡o Zz‡j wQj GK ¸ß mš¿vmev`x msMVb nIqvi ci Zviv evox e`i evwnbx bv‡g hv me©mvavi‡bi wbKU cwiwPZ wQj| wgÎevwnbxi Pig ch©v‡q msMªvg ïiæ cvwK¯Í evox nvbv w`‡q a‡i wb‡q †M‡jv wcªq ¯^Rb‡`it Avgvi vbx nvbv`vi evwnbxi AvZ¥mgc©‡bi †kl gyû‡Z© ------Ó GB e`i evwnbx eû msL¨K eyw×Rxex‡K iv‡Zi AÜKv‡i †`‡ki †mvbvi mšÍvb‡`i| a‡i wb‡q b„ksmfv‡e nZ¨v K‡i‡Q G Lei GLb mevB 19.12.1971 †R‡b †M‡Q| ------Ó The Dainik Ittefaq 19.12.1971 Ò‡mvbvi evsjvi b„ksmZg nZ¨vhÁ|Ó The Dainik Pakistan Òmvsevw`K, mvwnwZ¨K Aa¨vcK wPwKrmK I ÒkZvãxi RNY¨Zg nZ¨vKvÛ msNwUZ K‡i‡Q, eyw×Rxexmn kZvwaK †mvbvi `yjvj wbnZ|Ó ÒAvj- e`i ee©i evwnbx Ó 05.01.1972 eû jvk D×vi| The Dainik Ittefaq THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 395 ÒbiwcPvk‡`i Øviv AcüZ AviI KwZcq M«v‡g GKw`b hviv my‡Li bxo †e‡awQ‡jb Zviv †KD †bB| eyw×Rxexi MwjZ jvk D×vi|Ó Lvb †mbv I KzL¨vZ e`i-gyRvwn` evwnbxi •cPvwkK AZ¨vPv‡ii f‡q †KD nq‡Zv cªvY wb‡q cvjv‡Z †c‡i wQ‡jb, 12.01.1972 †KD cv‡ib wb| Zv‡`i Qvov evB‡ii AmsL¨ †jvK‡K †h The Dainik Ittefaq ILv‡b wb‡q b„ksm wbwe©Pv‡i nZ¨v K‡i‡Q Zvi my¯úó wPý Ò`yBwU inm¨gq K~c GLv‡b we`¨gvb---Ó eyw×Rxex‡`i nZ¨vi in‡m¨i bqv m~Î?|Ó 23.01.1972 19.12.1972 The Dainik Sangbad ÒGKvˇii evsjvqÓ The Dainik Ittefaq Ò knx`yj Bmjvg Ó Òb„ksmZg nZ¨vhÁ

Bnviv GLbI wb‡LvuR| Ó Ò¯^vaxbZv| DËß i‡³i e`‡j ¯^vaxbZv i‡³i mvMi Ë nv‡Z Zz‡j Avbv ¯^vaxbZv| †bK‡oi gyL n‡Z wQwb‡q (B‡ dvK wi‡cvU©) jIqv ¯^vaxbZv| G GKwU BwZnvm| GKwU b„ksm Ò`Lj`vi cvK mvgwiK evwnbxi cÿcyó ee©i e`i ee©iZvi BwZnvm| wbg©g I wbôzi BwZnvm| GKwU evwnbxi b„ksm I BwZnv‡mi RNY¨Zg nZ¨vh‡Ái Kiæb BwZnvm| †e`bvi BwZnvm| mf¨Zvi RNb¨Zg wkKvi evsjv †`‡ki AMwYZ cªwZfvi g‡a¨ MZKj¨ Aa¨v‡qi •ckvwPK BwZnvm| j¾vi BwZnvm| N„Yvi (iweevi) ch©šÍ Aa¨vcK gybxi †P․ayix, XvKv BwZnvm| KZ Rxeb| KZ cªvY| KZ cªwZfv| ¯^vgx- wek¡we`¨vj‡qi †iv‡Kqv n‡ji cª‡fvó †eMg AvLZvi evc- cyÎeay ÿq †M‡Q| ÿq n‡q †M‡Q KZ beRvZ Bgvg mn AviI K‡qK R‡bi jvk ea¨ f~wg nB‡Z wkï| ewji wkKvi n‡q‡Q jvL jvL gv‡qi mšÍvb| i Kvh©¨wbe©vn mbv³ I D×vi Kiv nBqv‡Q| B‡Ëdv‡K UzK‡iv UzK‡iv K‡i KvUv n‡q‡Q Zv‡`i| kvb †`qv m¤úv`K Rbve wmivRyÏxb †nv‡mb, •`wbK msev‡`i hyM¥ ewU‡Z RevB Kiv n‡q‡Q| iv¯Ívq iv¯Ívq †e‡q‡b‡Ui m¤cv`K Rbve knx`yjø vn Kvqmvi, Aa¨vcK †gvdv¾j †LvuPvq †LvuPvq wP‡o wP‡o cªvY †bqv n‡q‡Q KZ nvq`vi †P․ayix cªgyLmn †mvbvi evsjvi cªwZfvm¤úbœ eû vbvi Kzjeayi| DËi muvovkx w`‡q wRnev †U‡b †ei Kiv †m mšÍv‡bi AvRI †Kvb mÜvb wg‡j bvB| †Kn n‡q‡Q - †PvL Dcwo‡q †djv n‡q‡Q KZ wbixn †Kn GLbI Abygvb Kwi‡Z‡Q †h, ea¨fzwgi cvk¡©eZx© gvby‡li| nvZ- cv- bvK -Kvb †K‡U †K‡U GKUv mvZ gmwR‡`i mw›`KU¯Í GjvKvq NvZK‡`i †Kvb AÜ exfrm | gvby‡l gvbyl gv‡i | nZ¨v K‡i| RevB K‡i| cª‡Kv‡ó AcüZ‡`i †Kn †Kn nq‡Zv RxweZ Av‡Qb| mf¨Zvi GwK cwibvg Z‡e GB GjvKvq wMqv GLbI †Kvbiæc AbymÜvb ? gv‡qi eyK †_‡K wQwb‡q wb‡q‡Q Pvjv‡bv m¤¢e bq| Ó KZ wkï KZ hyeK KZ hyeZx| KZeay n‡q‡Q ¯^vgx nviv| ¯^vgx n‡q‡Q eaynviv Avi mšÍvb m¤¢ev gv‡K 09.01.1972 AvQ‡o AvQ‡o gviv n‡q‡Q| MjvwU‡c nZ¨v Kiv n‡q‡Q The Dainik Purbadesh KZ evc‡K| Òea¨f~wg wkqvjevox ‡mB 25‡k gvP© | †mw`b †_‡K ïiæ n‡jv nZ¨v| `xN© Ògxicy‡ii DcK‡Ú †Svc-Svo I cvZKzqvq nvRvi nvRvi 10wU gvm Pvjv‡jv nZ¨vjxjv| Iiv KvD‡K LvwZi biKsKvj cvIqv †M‡Q| Kvj e„n¯cwZevi ¯’vbxq GKRb K‡iwb| ÿgv K‡iwb| kªwgK-K…lK- mvsevw`K mvwnwZ¨K- †jv‡K Lei †c‡q Avgiv AKz¯’j cwi`k©b K‡i G‡mwQ| GB Wv³vi-Aa¨vcK- ivRbxwZwe`- QvÎ-hyeK Z_v evsjvi GjvKvi e‡b-ev`v‡o- jvk AmsL¨ KsKvj Qwo‡q wQwU‡q Avevjey×ewYZv mKj‡KB nZ¨v K‡i‡Q| ee©i ‣mb¨‡`i Av‡Q| cvwK¯Ív‡bi nvbv`vi `my¨ evwnbx I Zv‡`i mn‡hvMx Avj-e`i, wPZvi gZ †PvL--- A`„k¨ nvZ| m‡½vcv½‡`i KzL¨vZ Avj e`i I gyRvwn` evwnbx GB GLv‡b ¸iæZi gv †evb‡K R¨všÍ cy‡o‡Q| gvwU‡Z cy‡Z ¯’vbwU‡K ea¨f~wg wn‡m‡e wbe©vPb K‡iwQj e‡j g‡b n‡q| •cPvwkK AZ¨vPvi Pvwj‡q‡Q| Zvi K‡Úi wPrKvi ea¨f~wgi bvg wkqvjevox| GKKv‡j †h GLv‡b Rbc` wQj gg©‡f`x AvZ©bv` AvR I cw_K‡K w`‡knviv K‡i|

Zv AvR †evSvi Dcvq †bB| we¯ÍxY© AÂj †SvcSvo I fzwj‡q †`q| jZvcvZvq †Q‡q Av‡Q| c_NvU `y‡Mv©g ïay i‡³i ¯^vÿi Mv‡q ¯‘c ¯‘c nvo BZ¯ÍZ c‡o Av‡Q| nvRvi eQi ci wb‡q BwZnv‡mi KiæY Kvwnbx n‡q wb‡Ri aŸskve‡k‡li Ici †Kvb cªZœZvwZ¥K hw` Lbb Pvjvb Z‡e Lyu‡R cv‡e `vwo‡q Av‡Q wkqvjevoxi Mªvg| ------wkqvjevox DwbkÔ k GKvˇii evsjvi iæc| †Kvb BwZnvwmK hw` THE LAW MESSENGER 396 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) BwZnv‡mi wiPvm© K‡i Z‡e L~u‡R cv‡eb †Pw½k, •Zgyi, and Seraj were abducted while they were wnUjvi, g~‡mvwjbx---Ó staying in the house of Mr. Syed At 35 64. The Guinness Book of Records lists the Bokshirhut ward under Chaktai area of Baklia Bangladesh Genocide is one of the top Police Station by Pakistani invading force and genocides in the 20th Century. It was one of the members of Al-Badar Bahini. They were taken worst genocides of the world. “There is no to Mohamaya Hotel popularly known as Dalim doubt that mass killing in Bangladesh was Hotel Torture Cell at Andarkilla under Kotwali among the most carefully and centrally planned Police Station organized by you. In your of modern genocides. For month after month presence and instigation they were tortured in all the regions of East Pakistan the there. Victim Lutfar Rahman Faruk was taken massacres went on. They were not the small outside thereafter to identify houses of pro- casual killings of young officers who wanted to liberation activists and were set fire on those demonstrate their efficiency, but organized houses. Keeing Lutfar Rahman Faruk under massacres conducted by sophisticated staff torture for 2/3 days at Dalim Hotel, was handed officers, who knew exactly what they were over to Circuit House under control of doing. Muslim soldiers, sent to kill Muslim Pakistani occupation force where he was again tortured and then sent to Chittagong jail. peasants, went about their work mechanically th and efficiently until killing, defenseless people Thereafter, Faruk was freed after 16 became a habit like smoking cigarettes or December, 1971. drinking wine---- Not since Hitler invaded 67. Therefore, you are hereby charged for Russia had there been so vast a massacre” abetting and facilitating commission of (Robert Payne). Those “willing executioners” offences of abduction, confinement and torture were fuelled by an abiding anti-Bengali racism, as crimes against humanity and thereby you especially against Hindu minority.” have substantially contributed to the actual Facts commission of offence of crimes against 65. This statutory appeal is directed from a humanity as specified in section 3(2)(a)(g)(h) judgment of the International Crimes Tribunal of the International Crimes Tribunal Act of No.2 convicting the appellant Mir Quashem Ali 1973, which are punishable under section 20(2) in respect of charge Nos.2, 3, 4, 6, 7, 9, 10, 11 of the Act. You are also liable for commission and 14 analogously and sentencing him to 20 of above offences under Section 4(1) and 4(2) years in respect of charge No.2; 7 years in of the Act.‟ respect of other charges except charge No.11 in 68. In support of this charge, the which he is sentenced to death and also prosectuion examined one witness , the victim convicting him in respect of charge No.12 by P.W.20 Lutfur Rahman Faruk. From the majority and sentenced to death. He was evidence of P.W.20, it appears that he is a acquitted in respect of the charge Nos.1, 5, 8 Science Graduate and in 1971 he was aged at and 13. about 22 years. In his evidence, he stated that about 3 p.m. on 19th November, 1971 the Charge No.2 members of Al-Badar bahini, Al-Shams and 66. This charge is as follows: Pak army surrounded their shelter where „The on 19 November, 1971 at about 2.00 Munsurul Haque Chowdhury, Abul Kalam, p.m. during the War of Liberation you Mir freedom fighter Seraj and this witness were Kashem Ali being the President of Islami gossiping. At that time, his mother called him. Chhatra Sangha, Chittagong Town Unit and or He opened the door and found the members of a member of group of individuals and under Al-Badar bahini and Pak-army in front of the your leadership Victim Lutfar Rahman Faruk door. Siraj and this witness tried to flee away THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 397 but they ordered, “Hands Up” and he stood give him some water since he was fasting and up. Abul Kalam fled away. Confining Shiraj that Mir Quashem Ali directed to give him and this witness, they brought them in hotel (witness) urine instead of water. Dalim where he found Mir Quashem Ali and 70. Mr.S.M. Shahjahan repeatedly argued another person. This witness found many that in cross-examination this witness admitted people confined in hotel Dalim. As per that he married in 1979 and as such his claim direction of Mir Quashem Ali, members of that he became impotent due to torturing is not Badar bahini locked up him in blindfolding true. He further submits that wife of this condition. They, pursuant to the order of Mir witness gave birth to a child which proved that Quashem Ali, tortured this witness whole night his claim as to his impotency is not true. by electric wire. At one stage, he became senseless. When he was brought to hotel Dalim 71. The story of becoming or unbecoming he requested the appellant to give him a glass impotent is not so important in this case if it of water to for “Ifter” since he was fasting but is found that the evidence adduced by this the appellant directed to give urine instead of witness is true so far as it relates to charge water. Mir Quashem Ali uttered, Ô†Zv‡`i Avevi framed against the appellant. †ivRv wK‡mi, I‡K cªkªve `vI LvIqvi Rb¨Õ . He said 72. From the above quoted evidence, it that he was kept confined for about 7 / 8 days. appears to us that P.W.20, victim Faruk, was Every day members of Badar bahini tortured abducted by the members of Al-Badar Bahini this witness inhumanly and did not allow him and Pak-army. Thereafter, he was brought to to have food regularly. He said that Mir Hotel Dalim. He was brutally tortured by the Quashem Ali was the leader of Badar Bahini members of Al-Badar Bahini as per direction of camped in hotel Dalim. He was brought to the appellant. When he was brought to Hotel Circuit house and keeping him confined the Dalim he found the appellant there. The army tortured him brutally. At one stage, he appellant passed the order to torture this was brought to a room behind circuit house witness. Accordingly, at the instance of the where he saw deadbodies of 400-500 people. appellant, the members of Al-Badar Bahini He saw a killer killing a young man there. He assaulted him inhumanly through out the night also attempted to kill this witness. This witness by electric wire. When he was brought to Hotel added that due to inhuman torture he became Dalim he requested the appellant to give him impotent. (saying so, he started crying on a glass of water stating that he was fasting. dock). Then this appellant Mir Quasem Ali who, is a 69. In his cross-examination, he said that Muslim and according to him he was fighting Hotel Dalim is situated about 1½ Kilometer off for Islam and Islamic Republic of Pakistan, said, Ô†Zv‡`i Avevi †ivRv wK‡mi, I‡K cªkªve `vI from his house. On 19.11.1971, Mir Quasem LvIqvi Rb¨Õ Ali was the President, Islami Chhatra Sangha . of Chittagong Town Unit. To answer a 73. That was the offer of a Muslim before question put by the tribunal, this witness said “iffter” ! It appears that the date of arrest of this that he knew Mir Quashem Ali as student appellant was on 19th November, 1971. „Eid-ul- leader before his arrest on 19.11.1971. He Fitr‟ was observed in 1971 on 21st November. denied the defence suggestion that he did not That is, this witness proved beyond reasonable see the appellant Mir Quasem Ali in Dalim doubt about the date, time, place and manner Hotel and that at his instance the members of of occurrence. The testimonies of this witness, Al-Badar Bahini tortured this witness through who himself is an injured witness, are natural. out the whole night and he lost his senses. He Though there is no corroborative evidence in also denied the defence suggestion that he did respect of charge No.2, the evidence of this not request the members of Al-Badar Bahini to P.W.20 is so natural, clear and specific that we THE LAW MESSENGER 398 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) do not find anything to disbelieve the witness. Accordingly, we are of the view that the The demeanour of this witness, the plausibility Charge No.2 as framed against the appellant and clarity of his testimony are so natural that has been proved beyond all shadow of doubt. we do not find anything to discard his The Tribunal rightly convicted the appellant on testimony. It is well settled principle that this charge. conviction and sentence can be awarded on the Charge No.3: basis of testimony of a solitary witness if such testimony is free from any doubt. This witness 74. The Charge is as under: is an injured witness and his evidence is full, „That you Mir Kashem Ali being the complete and the contents of his testimony president of Islami Chhatra Sangha, Chittagong have not been shaken in any manner by the Town Unit and or a member of group of defence in cross-examination. There is no individuals and under your leadership Victim lacking in terms of the indicia of reliability as Jahangir Alam Chowdhury was abducted on 22 to be devoid of any probative value. It is also or 23 November, 1971 in the morning with the settled principle that not the quantity but the help of Al-Badar Bahini and Pakistan army quality of evidence is to be considered. There is from his rented house at Kodam Tali under no impediment in law to award conviction on Double Mooring police station. Thereafter he the basis of the testimony of single witness if was taken to Mohamaya Dalim Hotel Torture he is trustworthy. On perusal of the evidence of Cell at Andarkilla under Kotwali Police this witness it appears to us that his testimony Statiion where he was merecilessly beaten and is trustworthy and reliable. In the case of tortured at your instanace. When the countgry Prosecutor V. Bagilishema (ICTR-95-IA- was liberated then he was rescued from Dalim (Appeals Chamber) July 3, 2002 para 79 it is Hotel Torture Cell in the early morning on 16th observed that it is well settled that the December, 1971 by his relatives and pro- testimony of a single witness on a material fact liberation forces. may be accepted without the need for 75. Therefore, the appellant is charged for corroboration. The probative value to be abetting and facilitating commission of attached to testimony is determined according offences of abduction, confinement and torture to its credibility and reliability. Tribunal as crimes against humanity and thereby he has found the testimony of this witness credible substantially contributed to the actual and reliable. In Muvunyi V. Prosecutor, Case commission of offence of crimes against No. ICTR-200-55-A-A(Appeals Chamber) humanity as specified in section 3(2)(a)(g)(h) August 29, 2008 it was held that “ A Trial of the International Crimes Tribunal Act of Chamber has the discretion to rely on uncorroborated, but otherwise credible, witness 1973, which are punishable under section 20(2) testimony” . In Kayelijeli V. Prosecutor, Case of the Act. He is also liable for commission of No. ICTR 98-44A-A (Appeal Chamber) May above offences under Section 4(1) and 4(2) of 23, 2005 observed that Appeals Chamber has the Act.‟ consistently held that a Trial Chamber is in the 76. In support of the charge, the prosecution best position to evaluate the probative value of examined P.W.1, Sayed Md. Emran, P.W.2 evidence and it may, depending on its Md. Sanaullah Chowdhury, P.W.3 Nasiruddin assessment, rely on a single witness‟s Chowdhury, P.W.14 Foyez Ahmed Siddique, testimony for the proof of a material fact”. P.W.16 Jahangir Chowdhury. The victim of Acceptance of and reliance upon this charge Jahangir Alam Chowdhury uncorroborated evidence, per se does not (P.W.16) is aged about 66 years and in 1971 he constitute an error of law. We do not find any was 23 years old. He is a graduate. In 1969-70, wrong in the decision of the Tribunal. he was Sports Secretary of Chittagong City

THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 399 College Student Union. P.W. 16, the injured 79. P.W.1 Sayed Md. Emran, in his witness in his evidence said that two days after examination –in-chief said that he found the Eid-ul- Fitr in 1971, the members of Pak-army P.W.16 Jahangir Chowdhury and others and Al-Badar Bahini surrounded their house confined in a room of hotel Dalim. P.W.2 Md. and arrested him. Thereafter, he was brought at Sanaullah Chowdhury, another victim, in his Hotel Dalim where he found his brother evidence said that he had found Jahangir Dastagir Chowdhury and neighbour Mofiz who Chowdhury and others confined in a room. were also arrested and kept confined there. P.W.14 in his cross-examination said that on Firstly, he was kept confined in a room of the 16th December, 1971 he rushed to Dalim Hotel first floor of said Hotel and thereafter, was to rescue the victims and found P.W.16 along shifted in the second floor. Advocate Shafiul with others confined there. That is to say, the Alam was also arrested and confined in the testimony of injured witness P.W.16 has been said room by the members of Al-Badar Bahini corroborated by P.Ws.1,2,3 and 14. Contents of including Nurul Afsar and Mir Quasem Ali. material Ext.VI the book written by Advocate Thereafter, confining in a kitchen he was Shafiul Alam also corroborated the testimony tortured. The members of Al-Badar bahini, by the P.W.16. In that book Advocate Shaiful producing this witness before their supporters, showed the marks of violence appeared on his Alam, in 1989, stated that he was arrested by person. His face was disfigured due to assault. the members of Al-Badar Bahini and kept In one night, torturing this witness, Nurul confined in Hotel Dalim. He found Jahangir Absar brought him near the stair case and Chowdhury in that room. removing the cloth from blind- folded eyes 80. Mr. S.M. Shahjahan, learned Counsel, asked him to read out the contents written on a submits that P.W.16 did not claim that at the paper and directed him to read out the contents time of abduction, the appellant was present. in radio who expressed his inability to do so P.W.16 in his evidence stated that he was and requested them to kill him. At the time of abducted by the members of Al-Badar Bahini those conversations, Mir Quashem Ali was and Pak-army. It is true that the P.W.16 did not present. Nurul Absar directed a boy to fasten say that at the time of abduction, the appellant his eyes again who fastened his eyes and, was present but he said that he found Mir thereafter, they started torturing this witness Quasem Ali in Hotel Dalim where he was kept inhumanly, consequently, he became senseless. confined. He found the appellant when Nurul 77. He was rescued from said Dalim Hotel Afsar removed the piece of cloth from his eyes. on 16th December, 1971. He identified the In such view of the matter, we do not find any appellant in dock. force in the submission made by S.M. 78. In his cross-examination, he said that Shahjahan. he is the President of Sadarghat Thana Awami 81. On careful consideration of the League. He further said that he found Sayed evidence of P.Ws.1,2,3,14 and 16 and Md. Emran and Md. Sanaullah Chowdhury contents of material exhibit-VI, we are of the confined in Hotel Dalim. He denied the view that those witnesses corroborated each defence suggestion that it is not true that Afsar other as to the presence of the appellant in Ali and Mir Quasem Ali arrested Advocate Hotel Dalim where the P.W.16 Jahangir Shafiul Alam and kept him confined and he Chowdhury was kept confined and brutally found bleeding injury on the face of Advocate tortured after his abduction. We have no Shafiul Alam. He also denied that it is not true hesitation to hold that the prosecution has that at the time of his torturing Nurul Afsar been able to prove the charge No.3 against the and Mir Quasem Ali were not present. appellant beyond all reasonable doubt. THE LAW MESSENGER 400 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) Charge No:4 Chittagong. He assured this witness saying 82. The charge is as under: that Shaifuddin Khan is his relative as well so th he would look after him. He said that on the „In the late night of 24 November, in 1971, morning of 16th December this witness and you Mir Kashem Ali being the president of others went to Hotel Dalim and rescued all the Islami Chhatra Sangha, Chitagong Town Unit prisoners. On 17th December, 1971 his brother- and or a member of group of individuals at in-law, victim Shaifuddin Khan, was released your instanace Victim Saifuddin Khan (now from Chittagong jail who disclosed to this deadd) was abducted from Aziz colony under witnesses that on 2nd/3rd December, 1971 he Double Mooring Police jStation and kept him was sent to Chittagong Jail. He also disclosed confined in Dalim Hoteal Torture Cell under that he was severely tortured in Dalim Hotel. Andarkilla by the members of Al-Badar Bahini He also came to know from his brother-in-law where he along with others were severely that some of the prisoners of Dalim Hotel were beaten and tortured by l-Badar Bahini under nd rd severely tortured and killed and thereafter their our leadership. Thereafter, on 2 or 3 dead bodies were thrown into river Karnafully. December, at any time they were sent to Chittagong jail where victim‟s wife Nurjahan 85. Mr. S.M. Shahjahan, learned Counsel met him through Jailor and she found her appearing for the appellant, submits that except husband with blood strained injuries. On 16th this hearsay witness there is no evidence on December, 1971 in the morning he was record who said that the appellant abducted the released from jail. victim Shaifuddin Khan and tortured him in Hotel Dalim. 83. Therefore, you are hereby charged for abetting and facilitating the offences of 86. On perusal of the evidence of this adbuction, confinement and torture as crimes witness it appears that he heard that members against humanity and thereby you have of Al-Badar Bahini abducted Shaifuddin Khan substantially contributed to the actual and, thereafter, keeping him confined in Hotel commission of offence of crimes against Dalim, tortured him and, thereafter, sent him to humanity as specified in section 3(2)(a)(g)(h) Chittagong Central Jail. He simply stated, Avj- of the International Crimes Tribunal Act of " e`‡ii KgvÛvi wQ‡jb gxi Kv‡kg Avjx' | It is 1973, which are punishable under section 20(2) true that Mir Quasem Ali was the Commander of the Act. You are also liable for commission of Al-Badar Bahini but this witness did not say of above offences under Section 4(1) of the that at the time of abduction of victim Act.‟ Saifuddin Khan by the members of Al-Badar 84. In support of this charge, the bahini, the appellant Mir Quashem Ali was prosecution examined P.W.14 Foyez Ahmed present there with the Bahini or at the time of Siddique who is a commerce graduate and at his torture, the appellant was present. In the relevant time he was aged about 23/24 absence of such evidence, it is difficult to years. He in his evidence said that on 24th uphold the order of conviction of the appellant November, 1971 his brother-in-law Shifuddin in respect of charge No.4. So we are of the Khan was abducted by the members of Al- view that this appellant is entitled to get benefit Badar Bahini. Mir Quasem Ali was the of doubt in respect of this charge. He is Commander of Al-Badar bahini. Hearing the acquitted of this charge. facts of abduction of Shifuddin Khan, he Charge No.6: rushed to Hetol Dalim and found Afsar Uddin, a leader of Islami Chhatra Sangha there. Afsar 87. The charge is as under: Uddin was 2/3 years junior to this witness „On 28th November, 1971 at about 10- when he was student of Commerce College, 30/11.00 a.m. Mir Kashem Ali being the THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 401 president of Islami Chhatra Sangha, Chittagong and his several articles were published in Town Unit and or a member of group of different magazines. There are different individuals at his instance victim Harun-or- articles of the victim about the war of Rashid Khan (now dead) was abducted by the liberation. She told that her husband did not members of Al-Badar Bahini with the help of write anything implicating Mir Quashem in any Pakistani force and kept him confined holding paper. In cross-examination she denied the his hands ited and folding his eyes in Dalim defence suggestion that it is not true that Mir Hotel Torture Cell at Andarkilla under Kotwali Quasem Ali and members of Al-Badar Bahini Police Station where he was tortured. did not abduct her husband and keeping him Thereafter, at your directives on being tied and confined in Hotel Dalim and Salma Monjil folded eyes, he was taken to another Torture tortured him severely. Cell known as Salma Manjil under Paschliesh 90. It is held that Mir Quashem was the in Chittagong. He was rescued from Salma th leader of Al-Badar Bahini and in comand Manjil on 16 December, 1971 in the morning position of hotel Dalim torture cell but this by pro-liberation forces and local people when witness stated that she married the victim the country became freed from foes. Harun-Or-Rashid in 1976. Her husband 88. Therefore, you are hereby charged for disclosed about the aforesaid facts to her abetting and facilitating the offences of thereafter. Relying upon the testimony of this abduction, confinement and torture as crimes solitary hearsay witness, who heard about the against humanity and thereby you have occurrence long after the occurrence, the substantially contributed to the actual conviction of the appellant in this charge is commission of offence of crimes against unsafe. We are of the view that the appellant is humanity as specified in section 3(2)(a)(g)(h) entitled to get benefit of doubt on this charge. of the International Crimes Tribunal Act of So, he is acquitted of this charge. 1973, which are punishable under section 20(2) Charge No.7: of the Act. You are also liable for commission 91. The charge is as under: of above offences under section 4(1) and 4(2) „On 27th November, 1971 after Magrib of the Act.‟ prayer you Mir Kashem Ali being the president 89. In support of the aforesaid charge No.6, of Islami Chhatra Sangha, Chittagong Town the prosecution examined one witness who is Unit and or a member of group of individuals, P.W.15 Julekha Khatun who in her evidence at your instance victim Md. Sanaullah said that on 28th November 1971 her husband, Chowdhury, Habibur Rahman (now dead) and victim Harun-Or-Rashid Khan, was abducted Elias were abducted from 111 Uttar Nala Para by Al-Badar Bahini under the leadership of Mir under Double Mooring Police Station by the Quasem Ali. Harun-Or-Rashid was severely members of Al-Badar Bahini and kept them tortured in Hotel Dalim and was kept confined confined in the Torture Cell at hotel Mohamaya 3/4 days. Thereafter, he was shifted to Salma popularly known as Dalim Hotel at Andarkilla Monzil another torture cell of Al-Badar Bahini. of Kotwali under your control. At his He was tortured severely keeping confined in a directives, members of Al-Badar Bahini bathroom. There were other prisoners. The tortured them severely who found many people appellant tried to kill him in Salma Monjil. there in the same condition during their She, in her evidence, said that she married forceful confinement in the Torture Cell. They victim Harun-Or-Rashid in 1976 and he heard saw that some of them were taken away and about the occurrence from her husband. In her they heard that they were killed by Al-Badar cross-examination, this witness stated that Bahini at your instigation. Said Dalim Hotel Harun-Or-Rashid was author of several books was absolutely controlled by you as a high THE LAW MESSENGER 402 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) command of Al-Badar Bahini and central Wvwjg †nv‡U‡j wRÁvmvev` K‡i‡Q|'' In his cross- leader of Islami Chhatra Sangha. By Your examination by the defence, he said that before order victims Habibur Rahman and Md. the war of liberation he knew Hotel Dalim. He Sanaullah Chowdhury were released on 6th also replied in his cross-examination that he did December and 9th December, 1971 respectively not see any army or bihari in Hotel Dalim. He on condition that they would have to provide denied the defence suggestion that what he told information about the freedom fighters about Mir Quashem Ali is not true. He also regularly. said that it is not true that after 7th November 92. Therefore, your are charged for abetting 1971 Mir Quasem Ali left Chittagong. He also denied defence suggestion that he has deposed and facilitating the offences of abduction, falsely. P.W.1 Md. Sayed Md. Emran in his confinement and torture as crimes against examination-in-chief said that he saw Md. humanity and thereby you have substantially Sanaullah Chowdhury (P.W.2) confined in contributed to the actual commission of offence Hotel Dalim. P.W.13 Md. Hasan, who is a of crimes against the humanity as specified in B.Sc. engineer and was aged about 16/17 years section 3(2)(a)(g)(h) of the International during the war of liberation, said in his Crimes Tribunal Act of 1973, which are evidence that in the last part of November 1971 punishable under section 20(2) of the Act.‟ some armed personnel surrounded their house 93. In support of his charge, the prosecution and house of his uncle Bashirul Huda and examined P.W.2 Md. Sanaullah Chowdhury arrested three persons, namely, Habubur who is a graduate and during the war of Rahman, Illias and Sanaullah. Thereafter, they liberation he was aged about 25/26 years. were kept confined in Hotel Dalim. 3/4 days, P.W.2 in his evidence stated that after magrib thereafter, P.W.2 Sanaullah Chowdhury prayer on 27th November, 1971 along with his returned home who told that he was kept sister‟s husband Habibur Rahman (since dead) confined in Hotel Dalim and the members of neighbour Zafar Ahmed (since dead), Elias and Al-Badar Bahini tortured him mercilessly. That he himself were gossiping in their house. is, the testimony of injured witnesses P.W.2 Someone knocked at the door. Accordingly, has been corroborated by P.W.1 and 13. We do one of them opened the door. At that time, 7/8 not find any materials contradictions and armed personnel entered into their house and discrepancies in the evidence adduced by these started searching and found two books written three witnesses. Accordingly, we are of the by Abul Quashem of Sandip. The armed view the prosecution has been able to prove personnel arrested this witness, Habibur charge No.7 against the appellant beyond all Rahman, Elias and others and brought them to shadow of doubt. Dalim Hotel and confined them in a room. This Charge No. 9 witness found many other persons in the said room who were tortured inhumanly. Out of 94. The charge is as under: them, there were Advocate Shamsul Islam and „That on the following of 29th November, Shah Alam of Uttar Nakhalpara. He also found 1971 at about 4.00/4.30 a.m. you Mir Tuntu Sen, and Ranjit Das and others confined Quashem Ali being the president of Islami there. Thereafter, the members of Al-Badar Chhatra Sangha, Chittagong Town Unit and/or Bahini kicked a person and threw him in the a member of group of individuals made a plan said room who was crying. He was Advocate and directed your cohorts the armed members Shafiul Alam. He added, "" Avgv‡K Wvwjg †nv‡U‡j of Al- Badar Bahini who surrounded the AvUK _vKv Ae¯’vq cªvqkB wewfbœ iæ‡g wb‡q wbh©vZb Kiv Nazirbari situated under Chandgaon police n‡Zv| GB wbh©vZ‡bi mgq KLbI KLbI gxi Kv‡kg AvjxI station, abducted Nuruzzaman along with his Dcw¯’Z _vK‡Zv| gxi Kv‡kg Avjx I Avgv‡K AvUK Ae¯’vq cousins Sayed Md. Osman Hossain, Sayed Md. THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 403 Jamaluddin, Sayed Md. Kamaluddin,Sayed n‡qwQj| hLb Avgiv fxZ mš¿¯Í n‡q cªvY f‡q Avjøvni bvg Md. Sarwaruddin, Sayed Md. Golam Kibria WvKwQjvg ZLb e`i evwnbxi †jv‡Kiv hviv iæ‡gi eviv›`v and Sayed Md. Golam Raman therefrom and w`‡q nvUvnvwU KiwQj Zviv ejwQj Avjøvni bvg †W‡K jvf then took them to the Torture Centre of Al- bvB, Bw›`iv MvwÜi bvg bvI| Avwg hLb cvwbi Z…òvq Avj- Badar Bahini situated in Dalim Hotel at e`i m`m¨‡`i Kv‡Q cvwb Pvw”Qjvg ZLb Avj- e`i m`m¨iv Anderkilla under Kotowali Police Station. cªkªve K‡i Zv cvb Kivi Rb¨ Avgv‡`i mvg‡b w`Z| †h Thereafter, under your direction the members Lvevi ¸‡jv Avgv‡`i‡K mieivn Kiv n‡Zv Zv Avgv‡`i‡K of Al- Badar Bahini confined those unarmed bv w`‡q Avj- e`i evwnbxi m`m¨ivB †L‡q †dj‡Zv| AvUK civilians therein tortured them till 15th nIqvi 3 / 4 w`b c‡i Avgv‡K wbPZjv †_‡K †PvL †eu‡a December, 1971, and they were subsequently †nv‡U‡ji Z„Zxq Zjvq GKwU K‡ÿ wb‡q hvq Ges †mLv‡b released on 16th December therefrom on the wb‡q wM‡q Avgvi †Pv‡Li evuaY Ly‡j †`q| †PvL †Lvjvi Victory Day of Bangladesh.‟ ci †mLv‡b Avj- e`i KgvÛvi gxi Kv‡kg Avjx I †kv‡qe Avjx‡K †`Ljvg| †mLv‡b Avgv‡K nvZ cv †eu‡a cv „Therefore, you are charged for abetting and Dci w`K K‡i Qv‡`i †Kvb GKwU As‡ki mv‡_ Szwj‡q facilitating the offences of abduction, †mLv‡b Dcw¯’Z e`i evwnbxi m`m¨iv B‡jKwU«K Iqvi w`‡q confinement, and torture as crimes against wcUv‡Z ïiæ K‡i Ges wRÁvmv K‡i gyw³ evwnbxi Kv‡K Kv‡K humanity and thereby you have substantially Pvu`v w`‡q‡Qv Zv RvbvI| wbh©vZ‡bi GK ch©v‡q Avj- e`i contributed the commission of offence of evwnbxi m`m¨iv Avgv‡K bvwg‡q gxi Kv‡kg Avjxi wb‡`©‡k crimes against humanity as specified under jvw_ †g‡i wmuwo‡Z †d‡j †`q Ges Avwg Mov‡Z Mov‡Z section 3(2)(a), 3(2)(a)(g) and 3(2)(a)(h) of the wb‡P c‡o hvB| ZLb Avwg cªPÛ R¡‡i AvµvšÍ wQjvg| Act.‟ Avj- e`‡ii KgvÛvi wQ‡jb gxi Kv‡kg Avjx|Ó „You are also liable for commission of above He got released from the camp of Al- Badar offences under Section 4(1) and 4(2) of the th Act.‟ Bahini on 13 December 1971. 95. In support of his charge, prosecution 96. In cross examination he said that earlier examined P.W.18 S.M.Jamal Uddin who is one he was acquainted with the name of Mir of the victims .At present he is aged about 75 Quashem Ali. He denied the defence years and during the war of liberation he was suggestion that it is not true that he never saw aged about 33 years old. He in his evidence Mir Quashem Ali and he was not Al-Badar said that on 29th November 1971 at about 4/ commander. 4.30 a.m. the members of Al-Badar Bahini 97. P.W.8 Iskender Alam Chowdhury entered into his dwelling hut and arrested him. another victim witness corroborated the He was brought in front of N.M.C. High testimony of victim P.W.18 stating that on 29th School. Nurul Quddus, Nurul Hasem, Nurul November, 1971 he was arrested by the Huda, Nasir and many otehrs were also members of Al-Badar bahini and Pak-army and arrested and brought in front of the said school. brought in front of Mosque where he found Similarly, Ishkander and Zakaria were brought Salahuddin, S.M. Jamaluddin (P.W.18) Abu in front of the said school. Thereafter, they Zafar and Zakaria, wherefrom, they were were shifted to Hotel Dalim. This witness was brought to Hotel Dalim. P.W.12 Md. Hasan in kept confined in a room of ground floor of his evidence said that he was arrested by the Hotel Dalim. He found 3 / 4 dead bodies lying members of Al-Badar bahini and brought in in Hotel Dalim. He has given descriptions of front of Mosque where he found Md. Iskander. the dealings of the appellant and his Badar P.W. 18 S.M. Jamal Uddin, Md. Salahuddin bahini with him and others with the following and 12 others who were also arrested. words: Wherefrom, they were brought to hotel Dalim. Avgv‡`i hLb AvUK ivLv n‡qwQj ZLb kxZKvj wQj P.W.19 S.M. Sarwaruddin in his evidence said Ges Avgv‡`i AvUKK…Z iæ‡gi †g‡S‡Z cvwb †X‡j †`Iqv that the victim P.W.18 S.M.Jamaluddin along THE LAW MESSENGER 404 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) with Kamaluddin, Imran, Kibria and Osman 101. Therefore, you are charged for were arrested by the members of Al-Badar abetting and facilitating the offences of bahini and Pak-army and they were brought in abduction, confinement, and torture as crimes front of N.M.C. High School. Thereafter, they against humanity and thereby you have were shifted to hotel Dalim through a truck. substantially contributed the commission of P.Ws.8,12 19 in their evidence fully offence of crimes against humanity as specified corroborated the testimony of P.W.18. under section 3(2)(a), 3(2)(a)(g) and 3(2)(a)(h) 98. We do not find any material of the Act. contradictions and discrepancies in the You are also liable for commission of above evidence of P.W.18, P.W.8, P.W.12 and offences under Section 4(1) and 4(2) of the P.W.19 so far as it relates to charge No.9. Act.‟ 99. Accordingly, we are of the view that the 102. In support of this charge, prosecution prosecution has been able to prove the charge relied on the evidence of P.W.8, Iskander No.9 beyond all reasonable doubt. Alam Chowdhury, P.W. 10 Md. Zakairia, Charge No.10 P.W. 11 Nazim Uddin P.W.1 Sayed Md. 100. The charge is as under: Emran and P.W.9 Md. Salauddin @ Chutu Miah and P.W. 12 Md. Md. Hasan. „That on the following of 29th November, 1971 at about 4.30/5.00 a.m. you Mir 103. P.W.8 Iskender Alam Chowdhury , a Quashem Ali being the president of Islami Diploma Engineer, who was aged about 23 Chhatra Sangha, Chittagong Town Unit and/or years during the war of liberation, in his a member of group of individuals made a plan evidence said that with the intention to and directed your cohorts, the armed members participate in the war of liberation , he of Al- Badar Bahini who surrounded the area returned home from Pakistan and participated of Nazirbari, abducted Md. Zakaria, Md. in different fights against the Pakistani Army Salahuddin aalias Chutgtu Miah, Iskander with other freedom fighters. On 29.11.1971, at Alam Chowdhury, Md. Nazim Uddin along about 4.00 a.m., members of Al-Badar Bahini with many others therefrom and then took said and Pakistani Army surrounded his house and four civilians to infront of N.M.C. High arrested him. They brought him in front of a School first and them they were taken to the Mosque where he found P.W.9 Salauddin, Torture Centre of Al- Badar Bahini situated in P.w.11 Nazim Uddin, P.W.10 Jakaria and Dalim Hotel at Anderkilla under Kotowali Jafar under arrest and, thereafter, they were Police Station. Thereafter, under your taken in front of N.M.C. Model High School direction the members of Al- Badar Bahini wherefrom they were shifted to Dalim Hotel, confined those four persons therein tortured. Torture Cell of Al-Badar Bahini. They kept The victim Msd. Nazimuddin was released this witness confined in a small room of the from the Torture Centre on 30th November, ground floor of the Hotel along with others. ÒHiæ 1971 as he was under age, and after 7/8 days In his evidence, he added- ‡g hvevi ci †Kvb victim Md. Zakaria was released on the GKRb †jvK ej‡jv , Lvb †Kv_vq ? Dˇi †KD GKRb request of his father and uncle, and another ej‡jv gxi Kv‡kg Avjx mv‡ne Avwg AvmwQ| Gici GKRb victim Md. Salahuddin alias Chuttu Miah was Avgvi K‡ÿ cª‡ek K‡i Dch~©cwi wKj-Nywl jvw_ †g‡i †d¬v‡i released on 11/12th December, 1971, on the †d‡j †`q Ges B‡jKwU«K Iqvi w`‡q wcUv‡Z ïiæ K‡i| GB request of his relative, and finally the victim mgq Avwg K‡jgv co‡Z _vwK| GKch©v‡q wbhv©ZbKvix‡`i Iskander Alam Chowdhury was relesed from g‡a¨ GKRb Avgvi †Pv‡Li evuab Ly‡j †`Iqvi c‡i Avwg the said Torture Centre on 16th December, gxi Kv‡kg Avjxmn Av‡iK Rb‡K †`L‡Z cvB whwb m¤¢eZ 1971, the Victory Day of Bangladesh. c~‡e© D‡jøwLZ Lvb n‡Z cv‡i| THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 405 ‡PvL †Lvjvi c‡i gxi Kv‡kg Avjx Avgvi Kv‡Q †_‡K Avgv‡`i †cUv‡Z _v‡K| Gi 4/ 5 w`b ci ‡KD GKRb gyw³‡hv×v Ges Zv‡`i NvwU m¤ú‡K© Z_¨ Rvb‡Z Pvq| wKš‘ Avgv‡`i iæ‡g cª‡ek K‡i| Avgvi bvg a‡i Wv‡K| hLb Avwg Avwg ‡Kvb Z_¨ bv †`Iqvi †cªwÿ‡Z gxi Kv‡kg Avjx WvK ï‡b Zvi mvg‡b Dcw¯’Z njvg ZLb †jvKwU Avgvi Ges H iæ‡g Ae¯’vbKvix †jvKRb Avgvi Dci Avevi †PvL Ly‡j Avgv‡K †`‡L Avevi Avgvi †PvL †eu‡a Wvwjg wbh©vZb ïiæ K‡i| G ch©v‡q gxi Kv‡kg Avjx ej‡jv Avwg †nv‡U‡ji Dc‡i wb‡q hvq Ges H †jvKwU Avgv‡K e‡j †h, ÔAvgv hw` gyw³‡hv×v‡`i Ae¯’vb m¤ú‡K© Z_¨ bv †`B Zvn‡j ‡`i KgvÛvi gxi Kv‡kg Avjx †Zvgv‡K wRÁvmv Ki‡e Avgv‡K †g‡i KY©dzjx b`x‡Z †d‡j †`‡e| Gici †Kv_vq gyw³evwnbx Ae¯’vb Ki‡Q Ges †Kv_vq †Kv_vq A¯¿ Avgv‡K Wvwjg †nv‡U‡ji †`vZjv †_‡K wbPZjvq wb‡q jyKv‡bv Av‡QÕ| Gici Avwg gxi Kv‡kg Avjxi mvg‡b Avmv nq| G Ae¯’vq Avwg g„Zz¨i cªni ¸b‡Z _vwK| †M‡j †m Avgv‡K wRÁvmv K‡i, Ôe‡jv †Kv_vq A¯¿ Av‡Q Ges gyw³evwnbxiv †Kv_vq Av‡Q, bv ej‡j †Zvgv‡K †K‡U 1971 mv‡ji 15 wW‡m¤^i Wvwjg †nv‡U‡j Avj e`i UzK‡iv UzK‡iv K‡i KY©dzjx b`x‡Z fvwm‡q †`eÕ| Avwg evwnbx †jvKR‡bi Avbv†Mvbv K‡g G‡m‡Q e‡j eyS‡Z cvwi| †Kvb Z_¨ bv w`‡j gxi Kv‡kg Avjx Dcw¯’Z Avj- ciw`b 16 wW‡m¤^i mKv‡j ¯’vbxq †jvKRb Wvwjg †nv‡U‡j e`i‡`i‡K e‡j I‡K fv‡jv K‡i †avjvB K‡iv| Gi ci G‡m Avgiv †h K‡ÿ AvUKK…Z Ae¯’vq wQjvg Zvi `iRv Avj-e`iiv Avgv‡K wbh©vZb Ki‡Z _v‡K| Gi wKQyÿY ci †f‡½ Avgv‡`i‡K D×vi K‡i ------| Ó Avgv‡K †eu‡a Avevi Avgv‡K †nv‡U‡ji wb‡Pi K‡ÿ wb‡q hvq| 104. In his cross examination this witness ”. He denied the defence suggestion that said that he returned from Pakistan through he was not kept confined in a room of hotel PIA and, thereafter, he went to his house in Dalim and, thereafter, he was brought before Chittagong by road, launch and finally by train. Mir Kashem Ali who asked him about the At that time, Road and Railway whereabouts of Muktibahini and their arms communications were collapsed. He went to and, thereafter, Quasem Ali uttered that after Chandpur from Sadarghat by Launch. In his killing him his dead body would be thrown cross examination he denied the defence into river of Karnafuli and that Mir Kashem suggestion that since he fled away from Ali directed the members of Al-Badar bahini to Pakistan Airforce he was arrested and kept assault him. Another victim, witness P.W.10 confined in jail hajot. He also denied the Md. Jakaria in his evidence said that he was defence suggestion that it is not true that after aged about 30 /32 years during War of arrest he was not kept confined in a room of Liberation. He said that 5 / 7 days after Eid- Hotel Dalim and one of the members of Badar Ul-Fitr held in 1971 he was arrested by the Bahini asked, “where is Khan?” Responding, members of Al-Badar Bahini. They brought another member said “gxi Kv‡kg Avjx mve him in infront of a Mosque where he found AvmwQ”. He also denied the defence P.W.8 Iskendar, P.W.9 Salauddin , P.W.11 suggestion that he was not tortured in Hotel Nazim and others who were also arrested by Dalim. P.w.9 Salauddin @ Chutu Mia was the members of Al-Badar bahini. Thereafter, aged about 17 years in 1971. He was arrested they brought those victims in front of N.M.C. by the members of Al-Badar Bahini. He found school and then to hotel Dalim by a truck. that Jakaria, Nazim and Iskendar were also They were confined in a room on the ground arrested. They were brought to N.M.C. Model floor of the said hotel where they found other High School and thereafter, shifted to hotel prisoners. Two days thereafter, his brother Dalim. In his evidence, he said “Wvwjg †nv‡U‡ji Iskendar was taken to the first floor of the said mvg‡b hvIqvi ci Avj-e`iiv Avgv‡`i‡K U«vK †_‡K hotel who was brutally tortured. He heard the bvwg‡q †PvL †eu‡a †d‡j Ges Wvwjg †nv‡U‡ji wfZ‡i sound of crying. Thereafter, this witness was wb‡q GKwU K‡ÿi Zvjv Ly‡j Avgv‡`i‡K †mLv‡b †XvKvq| taken to the first floor. He narrated the ZLb †mLv‡b Av‡M †_‡K AvUKK…Z †jvK‡`i KvbœvKvwU subsequent facts with the following words: ïb‡Z cvB| K‡ÿ XzwK‡q Avj e`iiv evB‡i †_‡K Zvjv ÔhLb Avwg Dc‡ii Zjvq hvw”Qjvg ZLb Avgvi fvB †g‡i P‡j hvq| ILv‡b AvUK Kivi 2/ 3 w`b ci †Kvb GK G‡¯‥›`vi‡K †`vZjvq eviv›`vi wmuwo‡Z µ›`biZ Ae¯’vq iv‡Z `iRv Ly‡j B‡jKwU«K Iqvi w`‡q G‡jvcv_vwo fv‡e †`L‡Z cvB| †`vZjvq wb‡q Avj-e`iiv Avgv‡K gyw³evwnbx THE LAW MESSENGER 406 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) †Kv_vq Av‡Q ev A¯¿ †Kv_vq Av‡Q GB Z_¨ ¸‡jv †`Iqvi Ali. In his evidence he further said that he Rb¨ Pvc cª‡qvM Ki‡Z _v‡K| Avwg AcivMZv cªKvk also found Syed Md. Emran , Sayed Md. Jamal Ki‡j Avj-e`iiv Avgv‡K wbh©vZb Ki‡Z ïiæ K‡i| G , Syed Md. Sarowar, Syed Md. Kamal, Md. ch©v‡q Av‡iKUv †jvK G‡m GKB Z_¨ Rvb‡Z Pvq| Ishkender, Md. Nazim, Md. Salauddin and 10/ GeviI Avgvi AcivMZv cªKvk Kivq AvMZ †jvKwU Avj- 12 others who were arrested by the members e`i‡`i‡K e‡j, ÔAvevi wcUvIÕ ZLb Avj-e`iiv AveviI of Al-Badar Bahini . He said that he was Avgvi Dci wbh©vZb ïiæ K‡i| Gici Avgv‡K Avevi released due to his age. In his cross wb‡Pi K‡ÿ wb‡q hvq| †h Avj-e`iiv Avgv‡K G‡ZvÿY examination he denied the defence suggestion hveZ wbh©vZb KiwQj Zv‡`i G‡K Ac‡ii mv‡_ K_v that at the time of his arrest Mir Quashem Ali ejvewj †_‡K Rvb‡Z cvwi †h, †h †jvKwU cieZx©‡Z G‡m was not present and persons confined were not Avevi wcUvI e‡j Dw³wU K‡iwQj Zvi bvg gxi Kv‡kg tortured. Avjx| Õ ” 106. From the evidence stated above, it 105. In his cross examination he denied the appears that the P.W.8, 9, 10 and 11 are injured defence suggestion that the statements quoted witnesses, they were brutally tortured by the above are not true. P.W. 11 Md. Nizam Uddin members of Al-Badar Bahini including the was aged about 40 years in 1971. He is an Arts appellant. They corroborated each other as to graduate. In his evidence he said that the date, time, manner of occurrence. We do not members of Al-Badar Bahini surrounded his find anything to disbelieve testimonies of these house and arrested him. They brought him witnesses. We are of the view, that the infront of Mosque where he found his brother prosecution had been able to prove charge Choto Miah , Jakaria and others. From there, No.10 against the appellant beyond all shadow they were brought to N.M.C. Model High of doubt. School and then to hotel Dalim by truck and Charge No.11 kept confined in a room where he found other prisoners. They were brutally tortured. He 107. The charge is as follows: said ÔAvnZ e¨w³iv Avgv‡K ejj, ÔÕ†Zvgv‡KI Gfv‡e „That at any time after the Eid-ul-Fitre day wbh©vZb Kiv n‡e Õ | GK_v ï‡b Avwg f‡q Kvu`‡Z _vwK| held in 1971, you Mir Quashem Ali being the wbh©vZb e¨w³iv Av‡iv ejwQj GUv gxi Kv‡kg Avjxi president of Islami Chhatra Sangha, Chittagong †bZ…‡Z¡ GKwU wbh©vZb †K›`ª| Gi 3/ 4 w`b ci Avj- Town Unit and or a member of group of e`‡ii †jvKRb G‡m Avgv‡K iæg †_‡K †ei K‡i gxi individuals made a plan and at your instance Kv‡kg Avjxi Kv‡Q wb‡q hvq| gxi Kv‡kg Avjxi wbK‡U Avgv‡K Dcw¯’Z Ki‡j †m Avgvi wbKU gyw³‡hv×v‡`i the members of Al-Badar Bahini having m¤ú‡K© Z_¨ Rvb‡Z Pvq|Õ abducted Jasim, a freedom-fighter, from an In cross examination he unknown place of Chittagong town, took him denied the defence suggestion that Mir Quasem to the Torture Centre of Al-Badar Bahini Ali was not the leader of said torture cell and situated in Dalim Hotel at Anderkilla under this witness was produced before him. P.W.1 th Kotowali police station. Thereafter on 28 in his evidence corroborated the testimony of November, 1971 under your direction and hint, those victims witnesses. In his evidence, the members of Al-Badar Bahini having P.W.12 Md. Hasan, who was aged boy of 19 years in 1971, said that the members of Al- confined him therein tortured to death and then Badar Bahini surrounded his house and his dead body along with 5(five) other dead arrested him along with Professor Moulana bodies of unknown persons, who were also Nurul Islam his father Abdus Satter , Nurul tortured to death by the members of Al-Badar Kuddus, Nurul Hashem, Md. Ibrahim, Abdul Bahini, were thrown into the Karnafuli river. Hakim, Idris, Md. Shafi and 25 others and 108. Therefore, you are hereby charged for brought them in front of N.M.C. Model High abetting and facilitating the offences of School under the leadership of Mir Quasem abduction, confinement, torture and murder as THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 407 crimes against humanity and thereby you have one freedom fighter in the room where they substantially contributed the commission of were staying and killed him. His name was offences of crimes against humanity as Jasim Uddin, a resident of Sandwip, who was a specified under section 3(2)(a), 3(2)(a)(g) and minor freedom fighter. He came to know about 3(2)(a)(h) of the Act. the name of that freedom fighter from an You are also liable for commission of above employee of the camp (Swapan). Sanaullah offences under Section 4(1) and 4(2) of the Chowdhury knew Jasim Uddin from before. Act.‟ They also came to know that the Al-Badar forces killed 3/4 hostages in another room and Witnesses threw their dead bodies into Karnofuli river. He 109. In support of the charge, the came to know about the killing of Jasim Uddin prosecution has relied upon Syed Md. Emran from Swapan. (P.W.1), Md. Sanaullah Chowdhury (P.W.2), 111. He was thoroughly cross-examined by Nasir Uddin Chowdhury (P.W.3), Jahangir the defence. He stated that he knew about the Chowdhury (P.W.16), Hasina Khatun (P.W.17) Dalim Hotel since 1969. It was a residential and S.M. Sanowar Uddin (P.W.19) and also hotel. He expressed his ignorance about the relied upon S.M. Jamal Uddin (P.W.18), Lutfar identity of Matiur Rahman alias Moitta Gunda Rahman Faruq (P.W.20) and Nurul Islam . He made positive statements that at (P.W.24) to prove circumstantial evidence. any point of time he had heard any Razakar named Matiur Rahman. He denied the defence Besides it has also relied upon some th documentary evidence. suggestion that before 29 November, Bibirhat Razakars Camp‟s commander had been Analysis of the evidence attacked under his command or that in the said 110. P.W.1 stated that he had studied at attack Jasim Uddin died. By giving this Chittagong Collegiate School and his suggestion, the defence has practically classmates in that school were former Minister admitted the status of this witness as a veteran Dr. Afsarul Amin, Moinuddin Khan Badal and freedom fighter as well as the killing of Jasim, the accused Mir Quashem Ali. He claimed that who was also a freedom fighter. We fail to he participated in the liberation struggle as a understand why the defence gave this freedom fighter against Pakistani occupation suggestion, inasmuch as, after this suggestion, army and the commander of his force was there is hardly any scope on the part of the engineer Afsar Uddin. Their task was to keep defence to deny the killing of young freedom the Pak army at tensed situation and killing of fighter Jasim Uddin unless it proved the collaborators and disruptinig the manner of killing of Jasim Uddin that he was communication system etc. In confirmity with killed at the encounter with Razakars at their responsibilities, they involved in direct Bibirhat Razakars camp. He admitted that fight with Al-Badar forces and without any loss under his planning the freedom fighters they defeated the forces. He narrated the attacked Razakars and Al-Badars camps from incidents in respect of charge Nos.7, 9 and 10 Baddarhat to Balirhat area near Khaja Road by and then stated that at one stage, he was forming different groups. He also admitted that detained and taken to the Dalim Hotel which in the similar manner, there was a fight at was converted as Al-Badars torture camp and Chatgaon area on 29th November. He, however, in course of discussions with other detainees denied the defence suggestion that there was no namely, Sanaullah Chowdhury, Zahangir Alam existence of Al-Badars camp under Panchalais Chowdhury and advocate Shafiul Alam Thana. He reasserted his claim by making Chowhdury, he came to know that on 28th positive statement that Dalim Hotel was used November, 1971, the Al-Badar forces tortured as torture camp of Al-Badars. THE LAW MESSENGER 408 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) 112. The defence did not at all give any were trembling on the floor, of them, they suggestion to this witness denying the said could recognize advocate Shamsul Islam and positive statements with the result that it had Shah Alam. totally accepted his above positive assertions. 114. In support of charge No.11 he stated He denied the defence suggestion that the that, sometimes thereafter he saw that a person appellant Mir Quashem Ali was appointed as was thrown inside their room by kicking from General Secretary of East Pakistan Islami th his backside. The person was screaming. He Chattra Sangha or that after 7 November, was known to advocate Shafiul Alam, who 1971 he stayed at Dhaka. He then made with Jahangir helped him sit leaning towards positive statement that after 7th November, the wall. On the following day they heard the 1971, Mir Quashem Ali stayed at Chittagong screaming of the victims on the roof top due to all along. This statement also suggestive that Mir Quashem Ali never stayed at Dhaka after torture. At one stage sounds of screaming 7th November. He also denied the defence disappeared and sometimes thereafter, a person suggestion that in course of operation at was taken into their room. At that time Balirhat area, he was arrested. He denied the someone told the Al-Badar commander that the defence suggestion that Dalim Hotel was not person was still alive, who directed to throw used as torture centre of Al-Badar forces or that him inside so that other detainees could realize it was controlled by Mir Quashem Ali or that the consequence if they did not disclose the Motiur Rahman alias Moitta Gunda controlled truth. At one stage the boy was thrown inside the said house. By these suggestions also the their room, when advocate Shafiul Alam defence has impliedly admitted the positive whispering slowly that the leader was Mir claim of the prosecution that Dalim Hotel was Quashem Ali, Bangalee Khan commander of used by the Al-Badars as its torture centre, Badar Bahini. The boy who was thrown inside inasmuch as, the defence could not establish the room was on critical condition and on that there was existence of one Motiur Rahman seeing his condition, advocate Shafiul Alam Razakar, who was in charge of Dalim Hotel or Khan hugged him and told them that he was that he was involved in all the atrocities Swandip‟s minor freedom fighter Jasim. committed in the said centre. Sometimes, thereafter, the boy died on the lap 113. P.W.2 was an employee of Chittagong of Shafiul Alam. All of them were remorseful Deputy Commissioner‟s office. He stated that on seeing the brutality of the incident. After the on one occasion on 27th November, 1971, he dusk Al-Badars took the dead body of the boy. was gossiping with neighbours Habibur 115. This witness corroborated the Rahman, his brother-in-law Zafar Ahmed and testimony of P.W.1 as regards the identification Elias, and at that point of time, some one of Jasim saying that in the camp the duty boy knocked at the door and as soon as the door Swapan intimated them that Jasim was tortured was opened, 7/8 armed civilians trespassing on the roof top of the building and his dead into the house detained them on the point of body along with Tuntu Sen and 4/5 others was arms and searched the house. They took one thrown into the Karnofuli river. He stated that two-in-one transistor and two books written by when he was detained at Dalim Hotel, Mir Abul Kashem and thereafter, took them to Quashem Ali interrogated him and that the Dalim Hotel by blindfolding their eyes. They torture of the victims was perpetrated in were taken into a room in the second floor. presence of Quashem Ali. In course of cross- They could not trace out in which room Elias examination, he replied to a query that the head was taken. Later on they removed their veil of office of Al-Badars camp was set up at Dalim their eyes and saw other detainees who were Hotel. He stated that he knew Dalim Hotel kept on blindfolded condition. Some of them from before the war of liberation. The second THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 409 and third floors were used as hotel. In reply to from his lips and directed them to torture him. an another query made by the defence, he Thereafter, the Al-Badar forces tortured him stated that he did not see the Pakistani army or with lathis, iron rods and electric wire and at Beharis in the Dalim Hotel. By this statement, that stage, Mir Quashem Ali wanted to know he reasserted his claim that Dalim Hotel was the names of co-fighters, their shelter and their under the control of the appellant Mir Quashem arms. As he did not give any reply he was Ali, who was the commander; and that all tortured severely causing serious bleeding atrocities and killings were perpetrated under injuries and then they left. his direction and command. He denied the 117. In support of charge No.11, he stated defence suggestion that Mir Quashem Ali did th that he found one Swapan who was an not reside in Chittagong after 7 November till employee of Al-Badar forces. This Swapan the liberation of the country or that he was not stated that on the top floor of Dalim Hotel, the commander of Al-Badars or that he was freedom fighter Jasim, Tuntu Sen, Ranjit Das deposing being tutored. were tortured to death and their dead bodies 116. P.W.3 is a freedom fighter and a were thrown into Karnofuli river and that Mir student of higher secondary examination during Kashem Ali directly supervised the killing. In th the relevant time. He stated that after the 26 course of cross-examination he stated that Mir March declaration by Bangabandhu Sheikh Quasem Ali sustained injury on 6th December, Mujibur Rahman, he went to India for guerilla 1971 and since that date till the date of training in April and towards the mid June he liberation of the country, he did not see entered into the country. He was a member of Quashem Ali in Dalim Hotel. In reply to a Bangladesh Liberation Force commonly known query of the court, he stated that the previous as Mujib Bahini. He crossed through Boalkhali name of the hotel was Mohamaya Hotel and in and from there to Potia to Anwara to 1971, Islami Chatta Sangha took control of the Chandanaish to Satkaniya and Bashkhali and Hotel and renamed it as Dalim Hotel. He stated fought with the occupation army. Towards the that in Chittagong Al-Sham‟s forces camp was mid October, 1971, he came to Chittagong set up at Fazlur Quader Chowdhury‟s goodshill town and joined with the co-fighters to fight house and another was at Tower hotel. He with the occupation forces. At that time, he denied the defence suggestion that Dalim Hotel took shelter at Mohaddes Vhila of Andar killa owned by Nazir Ahmed Chowdhury. That was under the control of Matiur Rahman house was situated near Dalim Hotel which Razakar and that a case was instituted against was used as Al-Badars‟ head quarter. His him after the liberation of Bangladesh. secrete shelter had been leaked out towards the Therefore, this suggestion impliedly supports end of November, 1971. At dead of night the the prosecution case. members of Al-Badar gheraoed his shelter and 118. P.W.16 Jahangir Alam Chowdhury is he was taken to Dalim Hotel on blindfolding also a veteran freedom fighter. He was the condition and he was kept in a dark room. He Deputy Leader of Chittagong was tortured by the Al-Badar forces with a Force. He stated that after the declaration of view to collecting information regarding the independence by Bangabandhu, he joined the location of the arms that he kept and his co- liberation forces. He narrated about his training fighters. As he did not disclose anything, he and participation at different fronts of guerilla was taken out of the room and sometimes operation. About two days after Eid of 1971, thereafter Mir Quashem Ali came to his room the Pak army declared curfew and Al-Badar with some Al-Badar forces. Mir Quashem Ali forces gheraoed Kadamtali area. He was taken told his forces by pointing fingers at him as to out of the house by folding his hands towards whether anything could have been collected backside at Dalim Hotel where Badar Bahinis‟ THE LAW MESSENGER 410 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) camp was established. He was kept on the Jasim prayed to Almighty to give her such veranda of Dalim Hotel and tortured by the wealth which would allow her to relish polao, forces, and thereafter, he was taken into a room kurma throughout her life. At the time of his in the ground floor. He found the detainees departure Jasim sought her blessings so that there, amongst them, his young brother they could achieve their goal by liberating the Dastagir Chowdhury and neighbour Mofiz. He country. After liberation as Jasim did not return concealed his identity to them and at dusk she was perturbed and searched the Nurul Afsar and Abul Kashem threw advocate whereabouts of Jasim. At one stage, she met Shafiul Alam into their room and locked the advocate Shafiul Alam and asked about Jasim. door from outside. There was profuse bleeding Shafiul Alam wanted no know whether she was through the mouth of Shafiul Alam. At that asking about Sandwip‟s house. When she time Mir Quashem Ali and Nurul Afsar told replied in affirmative, Shafiul Alam told her Shafiul Alam that the others would get lesson that when he was detained at Dalim Hotel, on seeing his condition. Thereafter, they helped Jasim was also detained in the same room, and Shafiul Alam sit leaning towards the wall. One under the leadership of Mir Quashem Ali Al- day at noon, Nurul Afsar, Mir Quashem Ali Badar force members tortured him to death. and Jalal brought 14/15 years old boy Jasim of Shafiful Alam further told that the room was Swandip, threw him inside their room and on locked up from outside and he was blind seeing him Shafiul Alam told that the boy was folded. After Jasim was thrown inside the room no longer alive. Thereafter, the boy, namely, he was on a critical condition and soon Swapan who supplied their food, on seeing thereafter he breathed his last. On hearing the Jasim told that in the similar manner many news, she started crying and at that time, persons were killed and their dead bodies were Shafiul Alam told her to contact Saifuddin thrown into the Karnofuli river. Jasim‟s dead Khan. She then met Saifuddin Khan who had body was taken by Al-Badar forces in the also narrated the similar story. She wanted to evening. He stated that he was forced to read know about the dead body of Jasim, when out a statement on the radio proclaiming that Saifuddin Khan, told that Jasim‟s dead body there was normalcy in the country and as he was thrown into the Karnofuli river. He further refused to read out the same, Nurul Afsar and stated to her that when he was detained at Kashem pounded and tortured him. In course Dalim Hotel, one Swapan working at Dalim of cross-examination, he expressed his Hotel told him about the said fact. She stated ignorance as to whether Dalim Hotel was under that all the persons with whom she met told her the control of Matiur Rahman alias Moitta in one voice that under the leadership of Mir Gunda. He was thoroughly cross-examined by Quashem Ali, Al-Badar force members the defence but it could not elicit anything tortured and killed Jasim and threw his dead which could discredit his testimony in any body into Karnofuli river. manner. 120. In course of cross-examination, she 119. P.W.17 Hasina Khatun is the cousin stated that Jasim was 10/12 years younger to of victim Jasim. She stated that she was the her. She expressed her ignorance as to whether editor of a weekly and owned a press under the Jasim was detained by Pakistani force. By this name „Progoti Printing Press.‟ She stated that suggestion, the defence has practically Jasim was a student of intermediate. He was a admitted the prosecution‟s claim of detention freedom fighter and he used to come to their and killing. She stated that Jasim had four home regularly. On the occasion of Eid in brothers and three sisters, of them, one brother 1971, Jasim came to her house to relish polao, Dr. Rajib Humayan is the professor of Dhaka kurma. Despite limitations she served him by Univesity. She stated that the worker of Dalim cooking polao and after relishing the foods, Hotel Swapan could not be traced out after the THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 411 liberation war. In a reply to a query, she stated Defence Witnesses that throughout her lifetime she would 123. Momtaz Nur Uddin (D.W.1) is the remember the memory of commander Mir younger sister of the accused. She stated that Quashem Ali. her brother came to her Dhaka residence in the 121. P.W.18 S.M. Jamal Uddin stated that first week of November, 1971. In 1972 March on 29th November, 1971, at about 4 a.m, some she along with her husband shifted to Al-Badar forces entered into his house and Commilla as her husband got a job at Comilla detained him along with other brothers and College. Her brother left her Dhaka residence took them to N.M.C. High School field. On in March 1972 and went elsewhere. Till she left reaching there he saw Nurul Quddus, Nurul for Comilla in the first week of November, Hashem, Nurul Huda, Nasir and others who 1971, her brother was staying with her at were also brought there. Two trucks were kept Dhaka. In course of cross-examination, she standing infront of the school and all the stated that her father resided at Comilla in detainees were taken to Dalim Hotel with those connection with his service. Her brother was trucks. They were kept in a room on the ground staying with her father. She could not say when floor. When he reached to the room, he found her father came to Comilla. She then said, her 3/4 dead bodies and after removing the veil of brother came to Dhaka to give her company. his eyes, he saw Al-Badar leader Mir Quashem She stated that when she left for Comilla, her Ali. He was tortured as per direction of Mir bother left for Comilla to stay with her father. Quashem Ali. He was examined to prove On perusal of her statements we find apparent circumstantial evidence that Dalim Hotel was inconsistency in her testimony. She stated in used as torture center which was commanded chief that her bother left elsewhere in March by Mir Quashem Ali. 1972 from her residence of Agamoshi Lane, th 122. P.W.19 S.M. Sarwaruddin was a 12 Dhaka but in cross-examination she stated that standard student during the liberation period. th at the time of her departure her brother also left On 29 November, 1971, he along with his Dhaka to stay with his father in Comilla. She cousin Emran (P.W.1) was sleeping in the did not explain where her brother stayed before house. At 4 a.m, some people knocked at the November 1971. He was then a bachelor. If he door and on opening the door, some civilians came in the first week of November 1971 to with two Pak army and one Al-Badar give company to her and if he left for Comilla member entered into the house. They tortured in 1972, certainly Mir Quashem Ali stayed him, and thereafter, they tied their hands with his father at Comilla but documentary towards backside and were taken to N.M. evidence along with the oral evidence clearly High School compound, and thereafter, from showed that he was in Chittagong during the there the Al-Badar force took them to Badar relevant time. forces headquarters. At night Mir Quashem Ali and his forces tortured him and wanted to 124. Mohammad Ali (D.W.2) stated in know whether he knew Emran. He also asked chief that he was a freedom fighter and came to about the whereabouts of freedom fighters, Chittagong after taking training during the their arms and whether he joined the freedom liberation struggle period. When staying at a fight. When he denied his involvement, as secret home in Chittagong, he came to know per order of Kashem, the Al-Badar forces that Dalim Hotel was set up as torture center, tortured him. This witness was also examined which was under the control of Motiur Rahman to prove the circumstantial evidence. P.W.20 Moti with some Razakars; that said Matiur also deposed to support circumstantial Rahman was involved in antisocial activities evidence. Same is the statements with regard with the help of some Beharis and tortured the to P.W.24 Md. Nurul Islam. innocent people in the said centre. In course of THE LAW MESSENGER 412 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) cross-examination he stated that he along with 1971. He claimed that he was deposing on his other mates numbering four were provided behalf of Mir Quashem Ali as per request of his with sten guns to each of them and an son Barrister Arman, who requested him to say ammunition box. In the month of November, something about Mir Quashem Ali, as he was a they did not involve in any operation at freedom fighter since there was allegation Chittagong and in the first week of December, against his father that he was operating the they attacked a petrol pump. He expressed his torture centre at Dalim Hotel. He stated that ignorance that Mir Quashem Ali was a Dalim Hotel was used as torture center by prominent leader of Islami Chattra Sangha or Motiur Rahman and his accomplices in 1971 that he was involved with Al-Badar activities and innocent people were tortured there. He or that the leaders or the workers of Islami produced exhibits A, B, C and D, some Chattra Sangha became the members of Al- information, slips and documents. In course of Badar forces. He further stated that till cross-examination he stated that except Chatra September before he left for training, he was in League, he had no acquaintance with Chatra Chittagong town. He could not say whether Sangha or other student leaders. He then said, Shanti Committee was raised with the members he knew Mir Quashem Ali for the first time in of Muslim League and Jamat-e-Islami; that in 1983, when he became the Director of Islami Chittagong Rajakar, Al-Badars and Al-Shams Bank in connection with his visitation to the forces were in existence. He expressed his bank for bringing an advertisement in his ignorance that Razakars, Al-Badars and Al- magazine. He denied the defence suggestion Shams members killed innocent people and that Dalim Hotel was under the control of Mir threw their dead bodies in the Kornafuli river. Quashem Ali, which was used as Al-Badar‟s 125. The statements of this witness are self- torture center or that Mir Quashem Ali was the explanatory as regards the veracity of his commander of Al-Badar forces or that in 1971 testimony and no further explanation is Al-Badars, Al-Shams members captured the necessary. Even he did not know that Mir supporters of pro-liberation, tortured and killed them at Dalim Hotel. He also expressed his Quashem Ali was a prominent leader of Islami ignorance as to whether Jamat-e-Islami Chattra Sangha. He did not admit the members formed shanti committee. He involvement of Muslim League and Jamat-e- admitted that he heard Gulam Azam‟s name Islami leaders in the Shanti Committee. Even but he expressed his ignorance as to whether he did not admit the existence of Razakars, Al- Gulam Azam was in the Shanti Committee. He Badars and Al-Shams, and their atrocious denied the prosecution suggestion that in 1971, activities in Chitagong. How much interested a Gulam Azam was the Ameer of Jamat-e-Islami. witness he is will be evident from the above He expressed his ignorance as to whether in the statements? Though he claims as a freedom Central Shanti Committee, the members of fighter, in fact he is apparently a member of the Muslim League, Jamat-e-Islami, PDP, Nezam- same force which committed atrocities in i-Islami and their leaders were included. He Chitagong, otherwise he could admit at least also expressed his ignorance whether in Mir Quashem Ali‟s status as the goodshill Chitagong, Circuit House, Stadium, President/Secretary of Islami Chatra Sangha, Doshbarman Building, Dalim Hotel etc. were Chittagong chapter. He is absolutely partisan used as camps of Pakistani army, Al-Badars, and biased witness. So, no reliance can be Al-Shams, Razakars as torture centers. placed upon this witness. 127. A plain reading of his testimony 126. Abu Taher Khan (D.W.3) claimed that clearly reveals that he is also a partisan witness, he was employed at Railway Engineering inasmuch as, he has totally denied the Department as store clerk in Chittagong in involvement of leaders of Muslim League, THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 413 Jamat-e-Islami, PDP, Nezam-iIslami in the the torture and detention camp the force formation of Shanti Committee at Chittagong. detained civilians, brought there on capture; Even he denied the existence of the camps set that it was not practicable for any stranger at all up by Al-Badars, Al-Shams, Razakars and to witness the criminal activities carried out Pakistani army at Goodshill, Circuit House, there including the act of inflicting torture to Stadium, Dalim Hotel and other places. Like Jasim; that even it was not feasible to see D.W.2, he also did not admit the complicity of exactly at what time, how and who had Razakars, Al-Badars, Al-Shams in the killing dumped the dead body of Jasim to the river of innocent persons in Chittagong. If he was Karnofuli; that for this obvious reason, the involved in East Pakistan Railways Employees prosecution in order to prove the commission League, Chittagong Unit, and involved in of the offence of murder and accused‟s liberation struggle as claimed, it is unbelievable culpability therewith, depends upon some story that he would not know Mir Qushem Ali, detainee witnesses who had occasion to see who was admittedly the president of Islami brutally injured Jasim in their room and knew Chattra Sangha, Chitagon chapter. Even he was from one Swapan, a worker at the camp in not prepared to admit Gulam Azam‟s role in respect of causing ruthless torture and 1971. dumping him; that the defence did not dispute that after the independence P.W.17 had met 128. If the statements of these three advocate Shafiul Alam and Saifuddin Khan witnesses are taken to be true, it may be for getting information about her missing inferred that there was no anti-liberation forces brother Jasim; that advocate Shafiul Alam in 1971 formed/raised with the members narrated the harrowing memoirs of his Muslim League, Jamat-e-Islami, Nezam-i- incarceration at Al-Badar camp set up at Islami, PDP, Islami Chattra Sangha and that Dalim Hotel; that from the traumatic memoir only Pakistani armies perpetrated the atrocities. in confinement at the camp, as narrated by co- Even D.W.3 denied the involvement of detainee advocate Shafiul Alam in his article Pakistani force in the atrocities. If their goes to show that one afternoon, Swapan statements are taken to be true, the history of came to their room and told “brother, today our liberation struggle has to be re-written. The five have been „finished‟ and meanwhile nature of the statements, the tenor, the manner being floated in the river Karnofuli and and the disclosures that they made are totally perhaps Jasim will not survive this time”; that absurd, imaginary and based on hypothesis. By it is proved from the evidence of P.Ws.1, 2, 3, relying upon these type of witnesses, the 16 and 19 that „system cruelties‟ practiced defence has practically denied the atrocities routinely at the Al-Badar camp; that under perpetrated by paramilitary forces raised by the explicit guidance and inducement of accused anti-liberation forces with a view to frustrating Mir Quashem Ali, detained Jasim was tortured the liberation struggle. The tribunal thus to death by Al-Badar members and then his committed no error in ignoring their evidence. dead body was dumped to the river Karnofuli; that the nature and extent of brutality forming Findings of the tribunal attack directed against civilians, as revealed, 129. The tribunal after assessment of the indeed demonstrates the grave antagonistic evidence held that it was proved that Jasim was attitude of Al-Badar members and the brutally tortured to death in confinement at Al- accused Mir Quashem Ali who had been the Badars camp at Dalim Hotel; that the killing of steering capacity of them, imbued by his Jasim, a young freedom fighter in the captivity political ideology; that the defence at the Al-Badar camp was the ending phase of documents “fË¡j¡ZÉ c¢mm-j¤¢š²k¤­Ü QVÊNË¡j” the organized and system cruelties; that as fËL¡nL¡m 2012; also shows that Jasim of revealed, as a practice, as routine activities at Sandwip is a martyr youth freedom fighter. THE LAW MESSENGER 414 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) 130. It was further held that in absence of other forces toughened to combat the pro- anything contrary, it is thus admitted by this liberation Bengali civilians, „miscreants‟ . document that Jasim was a freedom fighter and Such malignant proposal, even in the early was killed in 1971; that accused Mir Quashem part of November 1971, on part of Jamat– Ali had active affiliation and substantial e-Islami was again ensued.” influence over the Dalim Hotel camp and 132. It further noticed the Hussain thereby he could not absolve the responsibility Haqqani‟s article written in „Pakistan Between of the criminal acts of causing death of Mosque And Military‟ where he observed “Al- detainees by inflicting ruthless torture; that it Badar acted as the Pakistan army‟s „death has been proved that accused Mir Quashem Ali squads‟ and exterminated leading left wing by his conscious act and conduct, instruction, professors, journalists, litterateurs and even order, directives, instigation, inducement doctors. forming part of attack coupled with his substantial authority participated in the Submissions commission of offence; that Jasim, a brave 133. While evaluating the evidence, the youth freedom fighter laid his life at this tribunal noticed the philosophy developed in infamous Al-Badar camp in captivity due to other regions on charge of crimes against untold barbaric torture caused to him; that such humanity on hearsay evidence and approved antagonistic act or conduct, culpable presence the principles argued in Muvunyi observing as at the Al-Badar camp coupled with authority under: indicating „superior‟ position are convincingly “Hearsay evidence is not per se sufficient to conclude that the criminal acts that inadmissible before the Trial Chamber. eventually caused Jasim‟s killing were the However, in certain circumstances, there outcome of „common purpose‟ to which may be good reason for the Trial Chamber accused Mir Quashem Ali was a part and the to consider whether hearsay evidence is murder was committed with his knowledge and supported by other credible and reliable that accused Mir Quashem Ali by his act and evidence adduced by the Prosecution in being in commanding position of the Al-Badar order to support a finding of fact beyond camp contributed substantially to the reasonable doubt.” commission of murder of Jasim. 134. The tribunal also noticed the case of 131. The tribunal also noticed the Nchamihigo on the question of corroborative comments made by Prof. Golam Azam evidence observing that corroboration is not regarding the role of Mir Kashem Ali in 1971 necessarily required and a tribunal may rely on which had been published in the „Daily st a single witness testimony as proof of a Sangram‟ in the issue of 21 June, 1971 as material fact and a sole witness testimony under: could suffice to justify a conviction if the “Being a potential leader of ICS the tribunal is convinced on the testimony of the student wing of JEI accused Mir Quasem witness beyond all reasonable doubt. It quoted Ali also thus sided with that ideology with approval the findings on the question of devoid of any extent of humanity and the inconsistency in the evidence. “The events core spirit of the holy religion Islam. about which the witnesses testified occurred Objective of such proposal initiated by the more than a decade before the trial. then JEI chief to whom the accused Mir Discrepancies attributable to the lapse of time Quasem Ali was one of loyalists by virtue or the absence of record keeping, or other of his position in the ICS was indubitably satisfactory explanation, do not necessarily to make the antagonistic and ghastly affect he credibility or reliability of the criminal actions of Al-Badar, Razakar and witnesses...... The Chamber will compare THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 415 the testimony of each witness with the called Al-Badar, the general patriotic public testimony of other witness and with the belonging to purely Islami Chatra Sangha were surrounding circumstances.” called Al-Badar, the general patriotic public 135. It further noticed the case of belonging to Jamaatg-e-Islami, Muslim Prosecutor V. Staisic and Stojan Jupljan League, Nizam-e-Islami etc. were called Al- observing that in evaluating the evidence, Shams and the -speaking generally known particularly in assessing inconsistencies and as Bihari were called Al-Mujahid.‟ It also observed that the Trial Chamber took into noticed New York Times-January 3, 1972 issue account: the passage of time, the differences in written by Fox Butterfield and quoted as under: questions put to the witnesses at different “Al Badar is believed to have been the stages of investigations and in-court, and the action section of Jamat-e-Islami, carefully traumatic situations in which many of the organised after the Pakistani crackdown witnesses found themselves, not only during last March” the events about which they testified, but also 138. It also quoted with approval of the in many instances during their testimony before issue of Muktijudhdhe Dhaka 1971 as under: the Trial Chamber. Inconsequential “Avje`iiv wQj †gav m¤cbœ mk¯¿ ivR‣bwZK K¨vWvi| inconsistencies did not lead the Trial Chamber Bmjvgx QvÎ ms‡Ni †bZ…e„›` G evwnbx MVb K‡i Ges to automatically reject evidence as unreliable. †K›`ªxqfv‡e Rvgvqv‡Z Bmjvgxi wbqš¿‡b G evwnbx cwiPvwjZ 136. It further noticed the case of Tadic nq|” and concluded its argument observing that and quoted with approval on the question of admittedly, accused Mir Quashem Ali was the participation of the accused as undder: “Actual President of ICS, Chittagong town till 8th physical presence when the crime is committed November, 1971 and afterwards he was elected is not necessary...... an accused can be as the general secretary, East Pakistan ICS. considered to have participated in the However, despite this pertinent but admitted commission of a crime..... if he is found to be fact, it was observed, the prosecution requires concerned with the killing.” and concludes its to prove, by adducing evidence, accused‟s finding that hearsay evidence is to be weighed association with the AB force and his in context of its credibility, relevance and participation with its activities in Chittagong as circumstances. Keeping this legal position, the narrated in the charges framed for holding him tribunal took the advantage to weigh the responsible and guilty. „Merely on the admitted probative value of hearsay evidence of fact of his position in the ICS the accused witnesses made before it in relation to charges cannot be held liable for the atrocities allegedly framed against the accused. committed at the AB camp at Dalim Hotel. 137. As regards raising of Razakars, Al- Burden squarely lies upon the prosecution to Badars, Al-Shams forces during the relevant prove the accusation beyond reasonable doubt time, the tribunal quoted with approval from by evidence and circumstances.’ Sunset at Midday as under: 139. On behalf of the appellant it was „To face the situation Razakar Force, argued as under:- consisting of Pro-Pakistani elements was a) there is no direct evidence to implicate the formed. This was the first experiment in East convict appellant in the alleged Pakistan, which was a successful experiment. abduction, confinement, torture and Following this strategy Razakar Force was murder of Jasim and the other five being organized through out East Pakistan. unknown persons - the tribunal This force was, later on Named Al-Badar and erroneously convicted the appellant for Al-Shams and Al-Mujahid. The workers the charge only on the basis of some so- belonging to purely Islami Chatra Sangha were called circumstantial evidence. THE LAW MESSENGER 416 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) b) there is not a single witness on record to that most of the witnesses are not alive. More show that the convict appellant abducted, so, in the intervening period, the political confined and tortured or killed Jasim. scenario had been changed after the killing of Bangabandhu Sheikh Mujibur Rahman. The c) the tribunal failed to consider the evidence regime which came to power rehabilitated the which are all hearsay in nature. anti-liberation forces and the persons who d) that the charge is defective, inasmuch as, perpetrated these crimes against humanity were the date, the time and the place of also accommodated in the government. Those occurrence has not been mentioned. perpetrators perpetrated crimes against humanity in a similar manner. They not only e) P.W.17 made inconsistent statement to the screen out the legal evidence but also distorted investigating officer who also made the history of the liberation struggle lest their hearsay evidence. abhorrent roles are known by the young f) P.W.17 did not file any complaint against generation. This has done by the defeated the appellant-had he been involved, she forces of the First World War and the Nazis in would have filed the case against him. the second world wars, even thereafter, in Cambodia, Khemr Rouge regime of polpot, g) material exhibit VI series did not Tatsis in Rwanda, Serbian forces in Bosnia etc. incriminate the appellant in any way. The court can take judicial notice of this h) non-examination of Jasim‟s brother cast common practice from the history. In our doubt about the complicity of the country the admitted position is that some right appellant. wing political parties with direct cooperation and participation of the perpetrators remained i) P.Ws.1, 2, 3 and 16 made inconsistent in power from 1975 and destroyed, destructed, statements regarding the manner of and defaced almost all legal evidence in a torture, killing and identification of planned manner. Jasim at Dalim Hotel. 141. It is, therefore, sufficient to convict an j) the tribunal erred in law in relying upon accused person charged with offences of the evidence of P.W.19 in failing to crimes against humanity if it is proved that the notice that this witness said nothing in offender has some knowledge of, and sympathy support of the charge. for the inhumane policy so as to give him a k) there is no legal evidence to show the mental element more culpable than that of the presence of the appellant at the crime ordinary offender. This principle has followed scene. in other regions of the globe where similar crimes have been committed. In some cases it l) finally, the tribunal erred in law in has been held that if an offender merely awares convicting the appellant without that his crime is also being committed by considering the defence evidence. others in a widespread basis, he may be held Findings guilty of the offence. The expression 140. Let us now consider whether there is „awareness‟ must be taken to include some any direct involvement of the accused in approval of policy, as for example, in Dusko support of the charge. It is to be noted that the Tadic case, the accused was a local thug who incidents of offences of the nature have been was allowed to enter occasionally to torture perpetrated about 42 years before the trial has prisoners. He was implicated in the ethnic taken place. It is one of the challenging task to cleansing of his village, by calling out Muslim collect legal evidence because of the changes civilians from houses, forcibly separating the during this intervening period, but also the fact women and children and elderly from the older THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 417 men, and dispatching them to different camps. were allowed to come out of hiding and The tribunal held that this behabiour amounted resumed normal life under the regimes after to a crime against humanity compendiously August, 1975. Some revived Jamat-e-Islami described as „persecution‟, namely, repeated and others joined other political parties in inhuman acts of harassment, torment, power after the horrific incidents of killing in oppression and discrimination intended to 1975. Since then a culture of impunity cause suffering and inflicted because the prevailed and the perpetrators of crimes against victims belong to a different ethic group from humanity were rehabilitated in political their persecutors. The Judges are at one end of activities and allowed them to freely the spectrum, exercising a power to persuade participating in political life and even went on which foot soldiers like Tadic, at the other end, to hold high posts like Members of Parliament actually put into practice – all are guilty; their and Ministers. One of those beneficiaries is the responsibility as individuals may differ in appellant Mir Kashem Ali. He amassed a big degree, but not in kind. (Crimes Against business conglomerate as will be discussed later on by use of his political clout with Humanity by Geoffrey Robertson. P 316-317). persons in power. 142. It was held by this Court in earlier 144. The perpetrators like him not only cases that due to lapse of time, evidence destroyed the legal evidence, they also collection and use of old evidence in atrocity successfully distorted the history of liberation cases is also complicated by the instability of post-atrocity environments, which results in struggle, erased their names from the list of much evidence being lost or inadequately collaborators, persecutors, perpetrators of preserved. The investigation officers and the barbarous crimes. Naturally, it is a difficult task prosecutors have to trawl through decades-old to collect legal evidence in support of the records, track and verify witnesses. In this charges. This case should be considered in the connection Alphons M.M. Orie, a Judge of context of the changed circumstances. Even International Criminal Tribunal for the former then there are some strong uncontroverted Yogoslavia (ICTY) in the Hague, in an article evidence, which prove the appellant‟s on „Adjudicating Core International Crimes culpability and his horrific role played in 1971. cases in which Old Evidence is Introduced‟ Besides the documentary evidence, the under the heading “The limits of the Legal prosecution led ocular evidence in support of Approach to Old Evidence” observed „It might the charge. The witnesses are local and some of therefore be that the legal approach does not them knew the accused from his boyhood and produce a fully satisfactory answer to the one of them is his classmate. These evidence challenges encountered when dealing with „Old proved that Mr. Kashem Ali raised Al-Badar Evidence‟ about events that have long since forces at Chittagong and he became the passed‟. commander of the said force. He was the philosopher, architect, organiser of the forces, 143. One of the challenges associated with the planner of the killings and perpetrated the the delayed criminal justice against the killings as per his plan. perpetrators of crimes against humanity is the location, treatment, assessment of old evidence 145. In this regard we would like to and apathy of the succeeding governments in reiterate the findings arrived at by this court in power. It is an admitted fact that the members Muhammad Kamaruzzaman in Criminal of Shanti Committee and the Razakars, Al- Appeal No.62 of 2013. In that case, we had Badars, Al-Shams, who actively opposed the elaborately discussed the doctrine of superior liberation struggle and involved in the responsibility or command responsibility and commission of inhuman acts like killing, rape, also the theory of civil superior responsibility torture, arsoning, and other related activities within the meaning of section 4(2) of the Act, THE LAW MESSENGER 418 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) 1973. This court observed, this responsibility laws. The general doctrines and the principles can be taken into account as an aggravating act for proving a charge against an accused person to assess the degree of accused‟s participation on the basis of oral evidence of the witnesses to the accomplishment of criminal acts about are not applicable in this case. The procedural the role of Razakars and Al-Badar forces laws, say, Code of Criminal Procedure, the responsibility. It noticed the provisions of the Evidence Act, the Police Regulations are not East Pakistan Razakars Ordinance, 1971, the applicable. We noticed that the learned Counsel Ansars Act, 1948 and held that the Razakars has treated the case as if he were arguing a were regulated by the Razakars Ordinance after normal criminal case and the criminal repeal of the Ansars Act. Though a Director jurisprudence developed in this country will be was holding the office as chief executive applicable. Practically he failed to persuade us officer, the force was governed by Ordinance on any of the points canvassed. He raised No.X of 1971 and subsequently this force was trifling inconsistencies in the evidence and the placed under the command of army officers by hearsay evidence as if hearsay evidence is not an amendment made in the Army Act by admissible in law. th Central Government‟s notification dated 7 148. Learned Counsel failed to repel any of November, 1971. The Razakars or the the findings arrived at by the tribunal by commander of the Razakars had no command referring to any authority in support of his responsibility but in fact, the accused arguments. We have given our conscious Mohammad Kamaruzzaman performed the thought on the findings and reasonings. The responsibility as a superior commander by abusing the power as he was in the good book observations are based on established of the military junta. He was allowed to act philosophy developed in the mean time on the according to his whims and volition. trial of offenders on crimes against humanity and we find no cogent ground to depart from 146. In view of the above findings, the plea the same. taken by the defence that Razakar Motiur Rahman had control over Dalim Hotel falls 149. The expression common knowledge through. Rather it is on evidence the accused used in sub-section (3) of section 19 of the Act Mir Quashem Ali was the President of Islaami 1973 denotes facts that are commonly accepted Chatra Sangha, Chittagong chapter. He raised or universally known, such as general facts of Al-Badar forces at Chittagong and set up its history of liberation war or geography or the head quarter at Dalim Hotel. There are strong laws of the nature. When there is no direct conclusive evidence on record that this torture evidence to connect the accused with a particular incident even though the common centre was under the control of the accused. knowledge pointing fingers towards the There is nothing on record to assume that accused, the tribunal is given the liberty to Motiur Rahman or the Pakistani army accept secondary sources, such as the reports, controlled this torture centre. Although under articles, books, video interviews treating them the prevailing law, the army was at the helm of as corroborating evidence without attempting the affairs as there was no law and order to collect primary sources of evidence because prevailing in the country, these paramilitary the lapse of time impacts on the quality of forces openly perpetrated torture, killing, rape evidence. The accused was a powerful central and other horrific acts with full support, leader of Islami Chatra Sangha and leader of cooperation and logistics support of the army. Al-Badar forces which formed the killing 147. Learned Counsel for the defence squad. He is also a central leader of Jamat-e- argued the case in a manner as if the accused Islami, one of the powerful political party in has been arraigned for commission of normal the country which maintains a cadre force. This offence of murder under the prevailing criminal party has influence over a section of people at THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 419 Chittagong, and also over a good section of 29th November, 1971. The defence has also people around the country, so naturally, the admitted that this Dalim Hotel was used as witnesses remain traumatized all the time. torture center but according to it, it was 150. It was observed in Muhammad controlled by Razakar Motiur Rahman but Kamruzzman‟s case that it is a fact of common failed to substantiate its claim. This suggestion knowledge that Al-Badar was an armed para also justified the prosecution‟s claim that this militia force which was raised for „operational‟ Dalim Hotel was used as torture centre and that and „static‟ purpose of the Pakistani occupation the accused had control over the said camp as commander. army. Under the government management, Al- Badar and Razakars were provided with 152. P.W.2 asserted that when Jasim was training and allocated fire arms, exhilarated the thrown inside the room by the accused and his Al-Badar forces to perpetrate planned cohorts, advocate Shafiul Alam disclosed his systematic killing of innocent persons, freedom identify as Mir Quashem Ali - Bangalee Khan, fighters, their supporters, rape of women, Badar Bahinis commander; that the boy was in torcing houses of Awami League supporters, critical condition, and that the boy breathed his and helped the occupation army continue in last on the lap of Shafiul Alam. The defence power for a longer period causing sufferings to did not challenge this incriminating evidence the innocent persons and destroying the and the same remain uncontroverted. This economy of the country. witness made positive statement in chief that the appellant Mir Quashem Ali interrogated 151. There are unimpeachable ocular as him at Dalim Hotel. The defence has not well as circumstantial evidence which the court challenged the statement and the statement can take judicial notice. Besides those remain uncontroverted. This is a strong evidence, there are admissions of the accused circumstantial evidence to prove his role at as regards his status as superior commender Dalim Hotel and to connect him in respect of and also his role in the perpetration of crimes all inhuman acts perpetrated there that he was against humanity at Dalim Hotel particularly the killing of Jasim Uddin. By giving the main architect. The defence has not also suggestion to P.W.1 the defence has practically challenged the statement of this witness that Swapan intimated them that on the previous admitted the killing of Jasim. It was suggested th to this witness that under his command, the night of 28 November, 1971, Jasim was freedom fighters attacked Bibirhat Razakar tortured on the roof top of Dalim Hotel and that camp and in the said attack Jasim was killed. his dead body was thrown into the Karnofuli By this suggestion the defence has admitted river. On a question put by the tribunal in that Jasim was a freedom fighter and that he course of cross-examination, this witness made was killed on encounter at Bibirhat camp but it positive statement that Al-Badar Head Office failed to prove the latter suggestion, which was set up at Dalim Hotel. The defence did not manifestly prove the killing of Jasim at Dalim give any suggestion to this witness that he was Hotel. He made affirmative reply to the first deposing falsely, and therefore, there is no suggestion but negative reply in respect of the reason to disbelieve him in presence of latter one. He reasserted his claim that Dalim uncontroverted incriminating evidence. He Hotel was used as Al-Badars torture center. It made definite statement in course of cross- was also suggested to him that he was arrested examination that ÔWvwjg †nv‡U‡j Avwg cvwK¯Ívwb Avwg© at the time of attacking Razakars, Al-Badar ev wenvwi‡`i †`wLwbÕ that to say, he did not see camps from Baddarhat to Balirhar area. He Pakistani army or Beharis at Dalim Hotel. This denied the suggestion and by this suggestion as statement clearly negated the defence claim well, the defence has practically admitted this that Dalim Hotel was used as torture centre by witness‟s detention at Dalim Hotel on 28th and Matiur Rahman Razakar. THE LAW MESSENGER 420 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) 153. There is also uncontroverted statement the defence wanted to impute the blame upon of P.W.3 regarding what he heard from Swapan the Pakistani army about the killing of Jasim. and his inmates that in presence of Mir The defence had sufficient opportunity to Quashem Ali, three persons including Jasim disprove the charge of superior responsibility were tortured to death and that Mir Quashem of accused that being in command position, he Ali organized Al-Badar forces at Chittagong; planned, organised and perpetrated crimes that as per his direction the freedom loving against humanity at Dalim Hotel. The defence people were caught, brought them at the torture failed to substantiate its plea, rather its center and killed them. P.W.16 also made witnesses also admitted the atrocities statements that Swapan told him on seeing committed at Dalim Hotel, and in the absence Jasim that previously also another person was of proof that Dalim Hotel was under the control thrown into the Karnofuli river after killing and of Motiur Razakar or the Pakistani army, the that the Jasim‟s dead body was taken by Al- accused cannot avoid his superior Badar force in the evening. These statemente responsibility in respect of crimes perpetrated remain uncontroverted. These statemente there in presence of the above uncontroverted proved that Mir Quashem Ali‟s forces threw evidence. Jasim inside the room where he was staying at 156. The defence also failed to notice that Dalim Hotel and on seeing the boy, Shafiul told the situation during that time was so abnormal that the boy had already died. In view of this that normally the police had no power to positive statements about the direct investigate any normal case of murder. It is our involvement in the killing of Jasim, the common knowledge that the killing of a person submission that there is no direct evidence to at the hands of law enforcing agency or para implicate the appellant in the killing has no leg military forces or military was taken to be a to stand on. The fact that Jasim was premium for the killer. The country was under apprehended, tortured and died due to torture martial law, and the paramilitary forces were later on has also been admitted by the defence. raised with the like minded rightist and fanatic 154. It was suggested to P.W.17 that Jasim religious minded Bangalees with the object to was arrested by the Pakistani army which she frustrate the liberation of the country and with denied, but the defence failed to substantiate its that end in view they were involved in claim. It was also suggested to P.W.19 that he genocide, mass killing, looting and other was in Chittagong Jail during the relevant time crimes. The question of arrest of a witness in as accused in connection with the killing connection with a murder case during the Moulana Abdul Kasem. By giving this relevant time was an absurd story introduced suggestion, the defence has also admitted his by the defence. P.W.20 also deposed to prove detention at Dalim Hotel because the defence circumstantial evidence. He stated in chief that could not prove that he was in jail in as per order of Mir Quashem Ali, the members connection with a criminal case. The defence of Al-Badar force blindfolded him and then did not produce any document to prove that they took him to Dalim Hotel and as per order P.W.19 was an accused of the murder of of Mir Quashem Ali, the Al-Badar forces Moulana Abdul Kasem. tortured him. He further stated that Dalim 155. As regards the appellant‟s superior Hotel was under the control of Mir Quashem responsibility as commander of Al-Badar force, Ali and that he raised the Al-Badar forces at P.W.9 expressed his ignorance in reply to a Chittagong. This statement remains query made by the defence that besides Dalim uncontroverted. The defence suggested to this Hotel, the Pakistani army set up another camp. witness that the Pakistani force stayed in the By giving this suggestion also, the defence has ground floor of Dalim Hotel. He denied the admitted the prosecution version, inasmuch as, suggestion and stated that the Pakistani force THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 421 had movement in the said hotel. This statement Badar forces, which perpetrated all atrocities, also proved the prosecution version that the crimes against humanity in Dalim Hotel and Pakistani force had no control over this Hotel that killing of Jasim Uddin along with 4/5 other and that it was this appellant who was in full was perpetrated with direct participation of the command of Dalim Hotel. We also noticed the appellant. In view of the above, the uncontroverted statement of P.W.24, who submissions made the learned Counsel as noted stated that in course of investigation, he above are hypothetical and contrary to the ascertained that in 1971 Mir Quashem Ali was evidence on record. involved in the abduction, torture, killing and 158. It was submitted on behalf of the other crimes against humanity; that Al-Badar appellant that since the appellant was charged forces were raised with the cadres of Islami with for abetting and facilitating the offence of Chattra Sangha by the accused and that being abduction, confinement, torture and murder of the commander of Al-Badar forces, he Jasim along with 4/5 others, the tribunal acted expressed his solidarity with the anti-liberation illegally in awarding the sentence of death. As forces and committed atrocities in entire observed above, though the accused appellant Chittagong town. was charged with for abetement of the offence 157. In course of hearing the court drew the by the same time his attention was also drawn attention of the learned Counsel in respect of to section 4(2) of the Act 1973. This is an error these uncontroverted evidence. Learned on the part of the prosecution for charging the Counsel could not give favourable reply and accused for abetment but this error will not kept silent. These uncontroverted evidence detract the culpability of the accused in sufficiently proved beyond doubt that the awarding the maximum sentence by the accused-appellant raised Al-Badar forces in appellate court. As noticed above, in support of Chittagong; that the Dalim Hotel was taken the charge, the appellant directly participated in control by the Al-Badar forces and used as the torture, there are uncontroverted evidence troture center of Al-Badar forces; that the that the appellant‟s role in respect of all accused played the role of commander of the charges was in the capacity of superior forces; that all decisions, planning, strategy, commanding officer – he had the command raid, arrest, mode of torture and concealment of position and control over the Al-Badar forces. dead bodies after the killing were taken at The tribunal also noticed that he was the Dalim Hotel by the accused alone; that Jasim commander of Al-Badar forces and Dalim was a young freedom fighter, who was Hotel was under his control but it committed a captured and detained in Dalim Hotel; that fundamental error in framing charge arraigning Jasim along with 4/5 other innocent persons him as an abettor without portraying him as the were tortured to death on the roof top of Dalim principal offender. This is a mere error and/or Hotel and was thrown his dead body into willful laches on the part of the prosecution in Karnafuli river; that P.Ws. 2 and 16 saw the conducting the case over which I would discuss accused at the time of throwing the paralyzed later on. body of Jasim into their room; that P.Ws. 1, 3, 159. The evidence on record sufficiently 18, 19, and 20 heard from Swapan the story of proved that the accused was a commander and torture of Jasim and 4/5 others and had superior command over his force. The concealment of their dead bodies; that P.W.17 tribunal held that the duty to prevent arises corroborated them in material particulars; that when the commander acquires actual there are incriminating uncontroverted knowledge or has reasonable ground to suspect evidence on record pointing fingers at Mir that a crime is being or is about to be Kashem Ali that he was not only the committed. It has further observed that the commander but also theoretical leader of Al- prosecution has been able to prove that the THE LAW MESSENGER 422 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) system of criminal activities were carried out 162. In judging a question of prejudice, as within the knowledge of accused Mir Quashem of guilt, the tribunal must act with broad vision Ali and despite being in commanding position and look to the substance and not in of Al-Badar camp, the accused failed to technicalities. Its main concern should be to see prevent the commission of crime. This finding whether the accused had a fair trial; whether he is inconsistent with earlier findings, and this is knew what he was being tried for; whether the based on misconception of law. As a matter of main facts sought to be established against him fact, the question of preventing crime against were explained to him fairly and clearly, and him does not arise in view of the fact that there whether he was given a full and fair chance to is direct evidence that he himself had defend himself. If an accused is defended by participated in the torture being in a position of his counsel, it may in a given case be proper to commander. concede that the accused was satisfied and 160. There is no doubt that a charge is an knew just what he was being tried for and knew important step in a criminal trial. Its object is to what was being alleged against him and wanted enable defence to concentrate its attention on no further particulars, provided it is always the case that the accused has to meet. In the borne in mind that no serious defect in the alternative, it may be said that a charge is a mode of conducting the trial can be justified. precise formulation of the specific accusation Reference in this connection is on the cases of made against an offender, who is entitled to W. Slaney V. State of M.P., AIR 1956 S.C. know its nature at the very earliest stage. But 116, Gurbachan Singh V. State of Punjab, AIR due to defect of a charge, the accused person 1957 S.C. 623. These cases were decided on cannot get the benefit or avoid the actual consideration of two Privy Council cases. penalty for the offence he has perpetrated in a case if it is found that the accused has faced 163. Mr. Kh. Mahbub Hossain, learned trial and the prosecution leads evidence in his Counsel knew this principle and when the court presence and that the accused has got the pointed out this fact the learned Counsel opportunity to cross-examine the witnesses. relented. The entire evidence have led 161. It is now the established portraying the accused as the principal offender jurisprudence that mere error, omission or that he being in command position, joined the irregularity in the charge does not vitiate the commission of torture and interrogation. He trial or conviction. The accused has defended was the commander of Al-Badar forces the charge by Counsel and he knows what commonly known as the „killing squad‟ have been deposed by the witnesses against perpetrated the offence at Dalim Hotel. The him, and therefore, no prejudice is caused to defence has admitted the killing of Jasim but the accused, and the accused cannot plead in according to it, he died elsewhere. It failed to such a case that by reason of such error, a substantiate its plea. There are direct failure of justice has occasioned due to defect uncontroverted evidence of killing of Jasim and in framing the substantive charge against 4/5 others at Dalim Hotel at the instance of the him. It is now established that mere omission accused and removal of the dead bodies after to frame a proper charge will not vitiate the killing. The defence has, as observed above, trial if the accused has sufficient opportunity did not dispute this fact. In that view of the to defend the accusation and cross-examine matter, the accused cannot escape from the the witnesses. In determining whether any substantive charge of killing of young freedom error, omission or irregularity in a fighter Jasim and 4/5 others by torture. P.W. 2 proceeding has occasioned failure of justice, has narrated the horrific condition of Jasim it is the tribunal which shall consider having when his paralysed body was thrown inside the regard to the facts by reason of not framing room. The inmates were moved on seeing the of the substantive charge. manner of torture and the cruelty shown by THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 423 throwing the paralysed body inside the room been able to prove these requirements beyond only to set as example that everyone‟s fate doubt. would be destined in the similar manner had he 166. Though in Mohamamad not disclosed everything that they wanted to Kamaruzzaman, this court held that as per law know. The acts were cruel and inhuman. The then prevailing, the command responsibility incident of killing was so brutal and diabolical lies with the army, this is an exceptional case in that the accused deserved the maximum which we find that the accused had full control sentence. and command over the Al-Badar forces 164. The accused appellant‟s act attracts deployed at Dalim Hotel. This cannot be taken sub-section (2) of section 4 of Act, 1973. So as an exception, inasmuch as, in Mohammad far as it relates to „Any commander...... Kamaruzzaman case also this court held as participates in the commission of any of the under: crimes specified in section 3.....‟ Section 4(2) “In true sense there was no rule of law in of the Act, 1973 reads thus: the country in 1971. The country was run “Any commander or superior officer who by the will of the dictators. This Al-Badar orders, permits, acquiesces or participates force was raised with the object to in the commission of any of the crimes exterminate the pro-liberation forces and specified in section 3 or is connected with their supporters. In fact this force acted as any plans and activities involving the the Pakistan Army‟s „death squad‟. commission of such crimes or who fails or Hussain Haqqani, termed them as such and omits to discharge his duty to maintain the prosecution evidence also revealed that discipline, or to control or supervise the the accused‟s force acted as „killing actions of the persons under his command squad‟. However, taking into consideration or his subordinates, whereby such persons the law as stood, and the jurisprudence or subordinates or any of them commit any developed in the international arena, it is such crimes, or who fails to take necessary difficult to apply the doctrine of „Superior measures to prevent the commission of Responsibility‟ in this case.” such crimes, is guilty of such crimes.” 167. The above observation so far as it 165. The doctrine of superior command relates to last sentence was made in the facts of may be de-jure or de facto criminal that case. The tribunal rightly held in this responsibility in relation to crimes committed connection that the doctrine of superior by subordinates where, at the relevant time of responsibility is applicable even to civilian commission of crimes, he was in command superiors of paramilitary organizations. As a position and his position at the time of matter of policy, civilians should also be perpetration of crime with others was superior subject to the doctrine. Since Al-Badar „killing – subordinate relationship. If this has been squad‟ was formed with the workers of Islami established his culpability would be such that Chatra Sangha (ICS), accused Mir Quashem he knew or had reason to know that the crimes Ali, by virtue of his leading position in ICS had had been committed or were about to be acted as a potential member of Al-Badar „high committed and, with and despite that command‟ in setting up „Al-Badar torture and knowledge, wilfully and culpably failed to killing camp‟ at Dalim Hotel in Chittagong. prevent the crimes. The prosecution in order to „Accused‟s recurrent cruel activities and acts put him liable must prove that the accused had carried out at the camp, as found proved by effective control over his force. He must have evidence, demonstrates that in exercise of his had the material ability, at the time of the „commanding position‟ he rather consciously commission of crimes, to prevent or punish the induced the AB members in committing the crimes of his subordinates. The prosecution has untold recurrent torture and torture to death of THE LAW MESSENGER 424 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) civilians and non combatant freedom fighters crimes had been committed or were about kept confined there on capture, to further the to be committed and, with and despite that notorious purpose and plan of his parent knowledge, willfully and culpably failed to organisation JEI that actively sided with the prevent or punish these crimes.‟ Pakistani occupation army.‟ 170. The International law imposes a 168. Though the accused-respondent was responsibility on superiors to prevent and charged with for abetment and facilitating the punish the crimes committed by the offence of murder, it is found that he has subordinates because if he does not prevent directly involved in the commission of them, the commander should bear the torturing to death of Jasim. If an offender in the responsibility of his failure to act. The capacity of superior commander directly commander is held responsible in proportion to participates in the commission of crimes the gravity of the offences committed. This against humanity, his culpability is higher than view has been taken in case No.IT-01-44T, other offenders. It is because the superior must ICTR and affirmed by Zlatko Aleksovski, in prevent the crimes committed by his case No.IT-95-14/1-T, ICTY; Milorad subordinates and if there is failure either one or Knojelac, case No.IT-97-25-A, ICTY; Enver both of this obligations, could render his Hadzihasanovic and Amir Kubura, case No.IT- superior liability and his offence is taken as an 01-47-A, ICTY. It was emphasised that „direct aggravated one. It is now established that a and superior responsibility and it is not superior commander is required to adopt and appropriate to convict under both grounds for take necessary measures so that no crime the same count. In such a case, the accused against humanity is committed by his should be convicted for direct responsibility subordinates. The dereliction on the part of the and his superior position should be considered superior of duty attributable to him is taken to as an aggravating factor for sentencing.‟ be so gross that not any kind of failure to fulfil 171. We find no mitigating ground to his duty would automatically render a superior commute the sentence of death in respect of the responsibility. charge. The tribunal rightly held that accused 169. In an article written by Guenael Mir Quashem Ali has incurred criminal Mettranx on „The Doctrine of liability which may legitimately be taken into Superior/command Responsibility‟ and the account as an aggravating factor for the commentaries of K. Ambos „Superior purpose of determination in the degree of Responsibility‟ in A. Cassese et al., The Rome culpability and awarding sentence. I find no Statute of the International criminal court on cogent ground to depart from the above views. consideration of also 93(3) American Journal of International Law, 537 (1999) by 1. Charge No.12 Bantekas, „The contemporary Law of Superior The charge is as under: Responsibility‟, concluded his opinion as “That at any day and at any time in the under: month of November, 1971, you Mir „A Superior, whether de jure or de facto, Kashem Ali being the president of Islami may be held criminally responsible under Chhatra Sangha, Chittagong Town Unit the doctrine in relation to crimes and or a member of group of individuals committed by subordinate where, at the made a plan and directed the members of time relevant to the charges, he was in a Al-Badar Bahini who having abducted relationship of superior-subordinate with Jahamgir Alam Chowdhury (now dead) the perpetrators, knew or had reason to from the House No.139 and Ranjit Das know (or, in the case of military superiors alias Lathu and Tuntu Sen alias Raju from at the ICC, „should have known‟) that these the House No.114 both of Hindu populated THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 425 Hajari Lanek of Chittagong town and took Swapan told that on the roof top of Dalim them to the Torture Centre of Al-Badar Hotel Tuntu Sen and Ranjit Das of Hajari Goli Bahini situated in Dalim Hotel at and a freedom fighter of Sandwip namely Anderkilla under Kotowali police station Jasim were tortured to death and their dead and tortured them there. Though on the bodies were thrown into the river Karnofuli. He following day said Jahangir Alam came to know from Swapan and other inmates Chowdhury was released from the said that at the time of killing those three persons, Torture Centre, but later at your instance Mir Quashem Ali was present and as per his the members of Al-Badar Bahini killed direction, they were killed. P.W.4 Sunil Kumar Lathu and Razu and kept their dead bodies Borman alias Dulal stated that he was taken to concealed. At the time of abduction of the Dalim Hotel in a truck and kept in a room with said victims, you along with Al-Badar, other victims and found Mir Quashem Ali in Rajakar and Al-Shams Bahinis and the room. Mir Quashem Ali queried to them Pakistani Army plundered many shops and about what they knew. When they did not give about 250/300 houses were burnt and any reply Mir Quashem Ali directed to torture compelled more than one hundred families them. He further stated that he came to know to go to India as refugees.” from other detainees who were kept in the 172. In support of this charge, the ground floor that Tuntu Sen and Ranjit Das and prosecution has examined 7 witnesses - they others were killed by order of Mir Quashem are Md. Sanaullah Chowdhury (P.W.2), Nasir Ali. The wives of Tuntu Sen and Ranjit Das Uddin Chowdhury (P.W.3), Sunil Kranti queried about them and he replied to them that Bordhan (P.W.4), Shibu Das (P.W.5), Mridul they were killed. At that time, he came to know Kumar Dey (P.W.6) and Prodib Talukder that as per order of Mir Quashem Ali, Al- (P.W.7). It also relied upon exhibits VI series. Badars took them from their houses The charge relates to killing of Ranjit Das alias blindfolding them. This witness in course of cross-examination replied to a query that he Lithu and Tuntu Sen alias Razu - the killing disclosed the killing of Tuntu Sen and Ranjit was also perpetrated in Dalim Hotel. P.W.2 Das for the first time in the tribunal. stated that he was detained at Dalim Hotel, in a room of the first floor and on reaching there, he 174. P.W.5 Shibu Das stated that he was found some persons who were groaning on the three years old during the war of liberation and floor, among them, advocate Shamsul Islam the son of Ranjit Das. He stated that his father and Saha Alam. Besides them, Tuntu Sen and died in November, 1971, who was selling Ranjit Das of Hajari Goli were there. There bottles and also owned a tea stall. In was another person of Sadar gahat whose name November, 1971, under Mir Quashem Ali‟s he could not remember. In course of leadership his father was taken from the house conversation, he came to know the names of to Dalim Hotel. Tuntu Sen was also taken with Tuntu Sen and Ranjit Das. Sometimes, him and they were killed at Dalim Hotel. Dalim thereafter, he was taken to the third floor. On Hotel was used as the center of Badar force. the following day, Swapan, a worker of Al- 175. P.W.6 Mridul Kanti Day stated that in Badar camp informed him that Tuntu Sen, November 1971, Tuntu Sen and Ranjit Das Ranjit Das and 4/5 other persons died of were taken by Al-Badar forces. On the torture. He further stated that sometimes Mir following day of taking he came to know that Quashem Ali was also present at the time of under the leadership of Mir Quashem Ali these torture. two persons were tortured at Dalim Hotel by 173. P.W.3 Nasir Uddin Chowdhury, a Badar forces. After liberation he found many freedom fighter who was also victim stated that people around the Dalim Hotel including Ranjit a worker of Al-Badars namely Pankaj or Das‟s wife Prova Rani. She was telling him THE LAW MESSENGER 426 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) that she could not be traced out her husband and Ranjit Das were tortured to death in their and neighbour Tuntu Sen. He came to know captivity in AB camp headquartered at Dalim from the people standing there that the people Hotel building and their dead bodies were of Mir Quashem Ali probably killed them. The thrown into the river Karnofuli. It is thus whereabouts of Tuntu Sen and Ranjit Das lawfully inferred that the victims were brought could not trace out. In course of cross- to that camp on forcible capture. The killing of examination he admitted that nobody told him Tuntu Sen and Ranjit Das in confinement at as to when, who and how Tuntu Sen and Ranjit AB camp was not an isolated event. It was a Das were taken away. part of routine pattern of system cruelties 176. P.W.7 Prodip Talukder stated that he directed at pro-liberation civilians, in was 6/7 years old in 1971. He was staying at furtherance of common purpose and plan. The Tuntu Sen‟s house on Hajari Lane. One day in fact of confinement of Tuntu Sen and Ranjit 1971 he went to Shib Mondir with Tuntu Sen. Das has been corroborated by P.W.2 who was At that time Al-Badar members took Tuntu Sen also kept detained at the same A.B. camp since to Dalim Hotel. His grand mother Rosabala 27 November to 09 December, 1971..... went to Dalim Hotel to release Tuntu Sen. The Already it has been proved that accused Mir Al-Badar forces told her to tell the commander, Quasem Ali had been going out with the AB abut the release and without his concent they camp and its criminal activities ever since it could not release him. She quaried the name of was set up at Dalim Hotel building and he had the commander at which they told his name been in steering position of the camp. Thus, it was Mir Quashem Ali. Along with his uncle may lawfully be inferred that accused Mir Tuntu Sen, Ranjit Das was also taken by the Quasem Ali was knowingly concerned even Al-Badar forces. One day his grand mother was with the act of confinement of Tuntu Sen and moving in front of Dalim Hotel when Tuntu Ranjit Das and causing brutal torture to them Sen called her through the window and at one that resulted in their death which was a part of stage, he jumped from the third floor through organised system cruelties.‟ the window on the C.I sheet roofed house. 178. In the minority opinion, Md. Mozibur Thereafter, she kept him concealed with a mat Rahman,J. observed that the order sheet shows made of date leaves. Mir Quashem Ali then that no tentative date has been mentioned about told to catch him and at one stage he was taken the abduction and taking them to Dalim Hotel to Dalim Hotel and tortured to death. He for confining there; that P.W.7 was 6/7 years claimed that he heard those facts from his old at the relevant time and the manner of the grand mother. We are surprised to notice on incident he described regarding the capture and reading the evidence that he made out totally a torture was completely distinct from what had third case which was not only improbable but been mentioned in the charge; that P.W.5 was also inconsistent with the evidence of P.Ws.4- merely a child and no reliance could be placed 6. In course of cross-examination, he stated that upon his testimony whose evidence had not his claim of going to Shib Mondir with his been corroborated by any other witness; that uncle, taking him to Al-Badar camp, his P.Ws.2 and 3 claimed that they heard from detention by Al-Badars, the attempt taken by Swapan but these witnesses had never seen his grand mother to release his uncle and taking Tuntu Sen and Ranjit Das at Dalim Hotel; that away Ranjit Das and his uncle to Al-Badar they did not know where, when and how these force, which he disclosed for the first time in two persons were abducted; that from the the tribunal. documentary evidence it was revealed that the 177. After analysing the evidence of prosecution had relied upon an article P.Ws.2, 3, 4, 5, 6 and 7, in the majority opinion „Dushopner Norokey: Dalim Hotel‟; that had it was held that „it stands proved that Tuntu Sen such incident took place, the writer would have THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 427 mentioned the story of killing of Tuntu Sen and the relevant time and his claim of hearing Ranjit Das in the said article; that P.Ws.4 and 6 the incident from his mother was not appeared to him unreliable witnesses on the believable. face of their testimonies, inasmuch as, P.W.6 f) the tribunal erred in believing P.W.6 claimed that the victims had been abducted in who himself was not sure about the the last part of November, 1971 but in course appellant‟s complicity, inasmuch as, he of cross-examination, he admitted that none himself used the word „probably‟ Mir told him as to who, when and how the victims Quashem Ali‟s people killed Tuntu Sen had been captured; that they could say anything and Ranjit Das. about the participation of Mir Quashem Ali and g) the presence of P.W.6 at Hajari Lane in that P.W.4 in course of cross-examination 1971 is also not believable and the tribunal admitted that he had got no personal erred in law in believing him. knowledge about the killing of Tuntu Sen and Ranjit Das and in that view of the matter, the h) the tribunal erred in law in believing prosecution has hopelessly failed to prove the P.W.7 who also admitted that before Tuntu Sen was detained, all houses of Hajari Lane charge against him. were burnt by the Pak army and that his 179. On behalf of the defence the following claim that he was residing at his uncle‟s points have been agitated by the learned house is an absurd story. Counsel:- i) the tribunal failed to notice that a) the learned Judges in the majority advocate Shafiul Alam in his book „®pC ®p opinion erred in law in relying upon pju Be‡¾c ®hce¡u‟ did not implicate the P.Ws.3, 4, 5, 6 and 7 who made appellant in the killing of the victims. inconsistent statements. 180. On the other hand, learned Attorney b) the learned Judges erred in fact in General submitted that the article of advocate holding that the defence did not deny that Shafiul Alam namely „®pC ®p pju Be‡¾c ®hce¡u‟ Swapan told P.W.2 about the death of was written in the year 1989, but during the victims. relevant time of occurrence most of the c) advocate Shafiul Alam in his book freedom fighters were detained by Al-Badar forces, and P.W.2 made positive statement that „®pC ®p pju Be‡¾c ®hce¡u‟ material exhibit- VI said that he was confined at Dalim he heard from advocate shafiul Alam about the Hotel on 27th November and on the identity of the accused and that Shafiul Alam following day Shafiul Alam came to know narrated about the use of Dalim Hotel as torture centre and in the absence of drawing his from Swapan that Tuntu Sen died on that attention as to the remarks made by Shafiul day after remaining in unconscious Alam in his book, the accused cannot raise the condition for three days, from which, it point at this late stage. His further contention is was submitted that on 25th November he that P.W.2 in his statement claimed that he was wanted to escape and died on an attempt to brought to Dalim Hotel and kept in a room in escape from the roof top. which other persons were also detained in that d) P.W.2 admitted in cross-examination room and that from the conversations he came that he did not know Tuntu Sen and Ranjit to know the names of Tuntu Sen and Ranjit Das from which it is not believable story Das, and in view of this innocent statement, the that he talked with Tuntu Sen and Ranjit tribunal is justified in believing him as neutral Das on 27.11.1971. witness. e) the tribunal erred in law in believing 181. On the question of identification of P.W.5 who was barely three years old at the appellant, he further submitted that THE LAW MESSENGER 428 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) advocate Shafiul Alam recognized victim Jasim remember everything for which he could not when he was thrown into their room and at that be disbelieved. As regards the credibility of the time, he said regarding Mir Quashem Ali to claim of P.W.7 that his family had resided at P.W.2 and that Swapan also disclosed to him Hajari Lane during the relevant time, it is about Tuntu Sen and Ranjit Das. It is further submitted that Tuntu Sen not being a freedom submitted that though the evidence of P.W.3 is fighter it was not unnatural on his part to live at hearsay in nature, under the Act hearsay Hajari Lane and that P.W.7 positively stated in evidence is admissible and that no suggestion his testimony that his grand mother told him was put to P.W.3 about his testimony, and that the appellant Mir Quashem Ali was Al- therefore, his evidence remain uncontroverted. Badars commander and when his uncle tried to On the question of reliability of P.W.4, he escape as per order of Mir Quashem Ali, he submitted that on a close scrutiny of the was taken back to Dalim Hotel and that the evidence of P.W.4, it is proved that when defence has failed to discredit his testimony in P.W.4 was taken to Dalim Hotel, Mir Quashem course of cross-examination. Ali was present there and when P.W.4 did not 184. On analysing of the evidence of disclose anything about what Mir Quashem Ali P.W.2, we noticed that this witness simply said wanted to know, the latter threatened to kill that in course of discussion among the inmates him and that this witness heard from the he came to know the names of Tuntu Sen and detainees that Tuntu Sen and Ranjit Das had Ranjit Das. Nothing more he stated about been killed by order of the appellant Mir killing or abduction of these two victims or the Quashem Ali and Tuntu Sen‟s wife also told complicity of the appellant, but as regards the them as per order of appellant Tuntu Sen and appellant‟s complicity in the torture of Jasim Ranjit Das were taken by Al-Badar forces. and throwing his unconscious body he 182. He further submits in reply to the implicated the appellant. P.W.3 said that he objection raised by the defence in respect to heard from Swapan that Tuntu Sen and Ranjit violation of section 16(1)(c) Act of 1973 and Das along with Jasim were tortured on the roof Rule 20(1) of Rules that in the formal charge, top and their dead bodies were thrown into the time and the month, the name of the victims Karnofuli river. P.W.2 was also an inmate but have been mentioned and that even if it is he did not corroborate P.W.3. Though P.W.3 assumed that there is conflict between section stated as per direction of Mir Kashem Ali, 16 (1)(c) and rule 20, the substantive law will Tuntu Sen, Ranjit Das and Jasim were thrown prevail over the Rules. As regards the objection into Karnafuli river after killing, which he as to disbelieving P.W.4 in view of the fact that heard from Swapan, he made inconsistent he has been disbelieved in respect of charge statement with P.w.2 as regards this No.13, he submits that for that ground, this incriminating portion. P.W.4 was also detained witness cannot be disbelieved which is a in the Dalim Hotel and he simply stated that the distinct charge. detainees told him that as per order of Mir 183. As regards the reliability of the Quashem Ali Tuntu Sen and Ranjit Das were testimony of P.W.5, it is submitted that though killed. He made a totally different version. He P.W.5 was minor at the relevant time, he stated did not claim that Swapan told about the torture in course of cross-examination that he shifted and killing. It is not at all the claim of other from Hajari Lane only three years back and two detainees P.Ws.3 and 4. Therefore, we find that he stated that during the relevant time, his three different versions from the lips of three family resided at Hajari Lane. On the question detainees of Dalim Hotel. of credibility of P.W.6 as raised by the defence, 185. P.W.5 was barely a boy of three years it is submitted that P.W.6 deposed after 43 old and he is the son of Ranjit Das. He stated years and due to lapse of time, he could not that he heard from his mother that Al-Badar THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 429 forces killed his father. On the next breath, he their houses which he heard from his mother. stated that in November, 1971, under the P.W.7 further stated that when his grand leadership of Mir Quashem Ali his father was mother went to Dalim Hotel to release Tuntu taken from their house to Dalim Hotel and Sen, the Al-Badar forces did not release him Tuntu Sen was also taken from his house. saying that in the absence of their leader they Though he did not disclose from whom he could not release him. It was totally an absurd heard the said fact, it may be presumed that he story that during the crucial time a Hindu heard from his mother this fact, but his claim woman would dare to visit the torture center of has been totally contradicted by P.Ws.6 and 7. Al-Badar force to release her son. Though he 186. P.W.6 is a resident of Hajari Lane and did not disclose the age of his grand mother, voluntered in Chief that during the carnage in his age being 6/7 years, his grand mother might 1971 majority people of Hajari Lane left the be around 50 years old at that time or below. It locality. This is the specific defence version. is also an absurd story to believe that Tuntu He did not disclose his place of abode at that Sen would say something through the window time. He did not disclose the source wherefrom to his grand mother and then he would be able he came to know that Al-Badars took the to jump from the third floor to the contiguous victims towards the later part of November, building which had CI sheet roof. Even if it is assumed that he jumped on the roof top of CI 1971. He claimed that one day thereafter he sheet roofed building, he would be unhurt by came to know that Mir Kashem Ali‟s such jumping and that the Al-Badar force leadership the victims were taken. He also did would not hear the sound is not a believable not disclose the source from whom he knew story. In view of his later statement that ÔZLb that the accused took the victim. He did not Avgvi `x`v Zv‡K GKwU PvUvB w`qv Rwo‡q ey‡K iv‡LÕ, it is claim that he was related to the victims. He totally an unbelievable story that under such further claimed that Ranjit Das‟s wife Prova circumstances she would be able to keep Tuntu Rani told him on the following day of Sen by concealing him inside a mat built with independence that she could not trace out coarse or date leaves or palm-leaves or bamboo Ranjit Das and Tuntu Sen. He did not claim slips(Q¡V¡C). Next question is where from she that Prova Rani told him that in late November, got the Q¡V¡C. Assuming that after jumping 1971, Al-Badar forces or under the leadership she took him to her house and there she of Mir Quashem Ali, these two persons were concealed him in the manner he stated. Is it taken from their houses. He then stated that probable story that after he was targeted by the from the detainees who were found there, he Al-Badar forces he could be concealed in the came to learn that the people of Mir Quashem same house under a Q¡V¡C. Ali probably killed Tuntu Sen and Ranjit Das. He used the expression „probably‟ meaning 188. Assuming that he was not taken to his thereby he was not sure about the statements house, inasmuch as, Mir Quashem Ali directed made by the detainees. P.Ws.2, 3 and 4 were to catch Tuntu Sen. So, apparently as soon as the detainees but they did not say as such. Tuntu Sen jumped from the third floor, Mir Quashem Ali saw the incident or heard the 187. P.W.7 made totally a different story. sound or that his forces could hear the sound of He was barely 6/7 old during the relevant time jumping, and directed to catch and to detain and claimed that one day he went to Shib him. Now the question is wherefrom she got Mondir intersection with Tuntu Sen. He did not the mat to conceal the victim. From the latter disclose the month not to speak of date. On statement it is proved that the victim was not their way back he said, Al-Badars took his taken home after jumping and if that being so, uncle (mama) Tuntu Sen to Dalim Hotel. This he was not taken from his house with Ranjit statements totally contradicts the statement of Das as claimed by P.W.6. We failed to P.W.5, who stated that they were taken from understand which version is true. When these THE LAW MESSENGER 430 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) inconsistencies have been drawn to the among the detainees that he came to know that attention of the learned Attorney General, the Tuntu Sen and Ranjit Das were also detained. latter simply replied that because of long delay, In the earlier observation, it was observed that there might be some inconsistency in the this witness did not implicate the appellant so statements. This is not at all a minor far as it relates to abduction, detention and inconsistency. We are conscious about the torture and then killing of Tuntu Sen and Ranjit delayed statements and ignored minor Das. Assuming that Mir Quashem Ali being the inconsistencies in previous judgments, but it is commander of Dalim Hotel, he cannot avoid of such a nature that one version does not the responsibility of detention, torture and corroborate the other. We find six different killing of the victims in view of his superior versions from the lips of P.Ws.2, 3, 4, 5, 6 and responsibility under section 4(2) of the Act, 7. Two witness did not at all implicate the 1973. As observed above, under this provision appellant and other witnesses made completely if it is found that he has failed to „control or different versions. supervise the actions of the persons under his 189. These are the evaluations of the command or his subordinates‟ he will be held testimonies in chief of P.Ws.2, 3, 4, 5, 6 and 7 responsible for the offence. without considering their statements in course 191. In the majority opinion, the learned of cross-examination. Even if their statements Judges failed to notice that besides P.W.2, in chief are taken as true, it is difficult on our advocate Shafiul Alam was also a detainee with part to rely on any of the witnesses so far as it him. In his book „Dussapnar Narokey; Hotel relates to abduction and killing of Ranjit Das Dalim‟ exhibit-VI advocate Shafiul Alam and Tuntu Sen at the instance of the accused. vividly narrated the horrific incident What‟s more, the tribunal itself disbelieved the experienced by the author during his detention story of abduction, confinement and torture of in the Dalim Hotel. He mentioned the names of Sunil Kranti Badhan (P.W.4)in respect of the detainees among them P.Ws.2 and 16 were charge no.13 on the reasoning that he had no with him, but he (Shafiul Alam) did not utter a reason to recognize Mir Quashem Ali at the single word about the detention of Rajit Das camp as claimed and that prosecution has failed and Tuntu Sen. P.W.16 also did not disclose to prove Mir Quashem Ali‟s participation in the their names which appear to us ridiculous. Why commission of the charge. It further observed did he not narrate this incident if they were that his (P.W.4) claim of frequent movement detained and tortured at that centre? When a from his native village to Chittagong town documentary evidence and an oral statement seemed to be unusual considering the come before a tribunal relating to an incident, prevailing situation in 1971. If his presence is the documentary evidence will prevail over the disbelieved at Chittagong town during the oral testimony. Had Ranjit Das and Tuntu Sen relevant time, how he could be believed that been abducted, detained, tortured, killed and while he was in detained condition, his inmates concealed their dead bodies by the Al-Badar told him that Mir Quashem Ali‟s people as per forces by throwing them in the Karnofuli river, order of Mir Quashem Ali killed Tuntu Sen and advocate Shafiul Alam would have given at Ranjit Das. In the majority opinion the learned least a hint about them. He was conspicuously Judges were totally unmindful in this regard. silent about these two victims although he 190. So, the submission of the learned narrated the other incidents which supported Attorney General does not impress us. Besides the oral testimonies of the witnesses. This the above, the tribunal erred in law in believing exhibit VI has been relied upon by the P.W.2 so far his statements regarding the prosecution and it is not the defence document disclosure of the name of Tuntu Sen and Ranjit and we find no cogent ground to ignore this Das. He simply stated that from the discussions documentary evidence and rely upon the THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 431 testimonies of P.Ws.2, 3, 4, 5, 6 and 7 in 194. Therefore, you are hereby charged for presence of their totally absurd and imaginary abetting and facilitating the offences of statements as discussed above. In view of the abduction, confinement and torture as crimes above, we have no reason to doubt that the against humanity and thereby you have appellant is entitled to get the benefit of doubt substantially contributed to the commission of in respect of the charge. offences of crimes against humanity as specified under section 3(2)(a), 3(2)(a)(g) and 192. Sub-Rule (2) of rule 43 says that a 3(2)(a)(h) of the Act. person charged with crimes as described under section 3(2) of the Act shall be presumed You are liable for commission of above innocent until he is found guilty. This rule offences under section 4(1) and 4(2) of the speaks in clear terms that an offender who is Act.” charged with crimes against humanity shall be 195. In the support of the charge, the presumed to be innocent unless and until the prosecution examined P.Ws.1, 3, and 14. P.W.3 prosecution has proved the charge beyond is the victim Nasir Uddin Chowdhury himself. reasonable doubt. Rule 50 says that the He was aged about 17 years in 1971. He is an responsibility of proving a charge against an M.A. and journalist by profession. This injured offender exclusively lies upon the prosecution. witness in his evidence said that he was If any doubt is created in the mind of the arrested by the members of Al-Badar Bahini in tribunal, the offender shall get the benefit of last part of November, 1971 . He said -ÒAvgv‡K Nyg †_‡K RvwM‡q †PvL †eu‡a gvi‡Z gvi‡Z Avj-e`iiv doubt. In view of the forgoing discussions, we Wvwjg †nv‡U‡j wb‡q hvq †mLv‡b GKwU AÜKvi K‡ÿ have no hesitation but to hold the view that the Avgv‡K XzwK‡q gvi‡avi Ki‡Z _v‡K Ges Avgvi KvQ †_‡K prosecution has miserably failed to prove this Rvb‡Z Pvq Avgvi A¯¿m¯¿ †Kv_vq Ges Avgvi mn‡hv×viv charge beyond reasonable doubt against the †Kv_vq| Avgvi KvQ †_‡K †Kvb K_v †ei Ki‡Z bv †c‡i appellant, and therefore, the minority opinion Avj- e`iiv Avgvi Kÿ †_‡K †ei n‡q hvq Ges hvIqvi expressed by Md. Mozibur Rahman Mia,J. is Av‡M Avgvi †Pv‡Li evuab Ly‡j w`‡q hvq| wKQyÿY ci gxi perfectly correct one and that the majority Kv‡kg Avjx Ab¨vb¨ Avj- e`i‡`i‡K wb‡q Avevi Avgvi opinion is not acceptable one. K‡ÿ cª‡ek K‡i | gxi Kv‡kg Avjx ZLb Avgv‡K †`wL‡q Charge No.14 Zvi ms‡M Avmv Avj- e`i‡`i‡K e‡j Ii KvQ †_‡K wK GLbI wKQy Av`vq Ki‡Z cv‡ivwb? I‡K AviI †cUvI | 193. The charge is as under: Gici Avj- e`iiv Avgv‡K jvwV, †jvnvi iW, B‡jKwU«K “That at the end of November, 1971 Zvi BZ¨vw` w`‡q Avgv‡K B”Qvg†Zv †cUv‡Z _v‡K| GK Nasiruddin Chowdhury took shelter in the ch©v‡q gxi Kv‡kg wb‡RB Avgv‡K wRÁvmv K‡i, †Zvgvi house of A.J.M. Nasiruddin, situated at Nazir mn‡hv×v‡`i bvg wK? Zv‡`i †këvi †Kv_vq? Zv‡`i A¯¿ Ahmed Chowdhury Road under Kotowali †Kv_vq? Avwg hZB ej‡Z _vwK Avwg gyw³‡hv×v bB ev Avgvi Police Station, Chittagong Metropolitan area. Kv‡Q †Kvb A¯¿ †bB ev Avwg Gm‡ei wKQyB Rvwb bv ZLb While he was staying in that house, one day at Avgv‡K Zviv ZZB †cUv‡Z _v‡K Ges †cUv‡Z †cUv‡Z dead of night you Mir Kashem Ali as a leader Avgv‡K i³v³ K‡i GK ch©v‡q Zviv †ei n‡q hvq| of Islami Chhatra Sangha accompanied by Avgv‡K †h wewìs‡q ivLv n‡qwQj †mLvb †_‡K Avwg members of Al-Badar Bahii raided that house Av‡iv gvby‡li AvZ©bv` I †Mv½vbxi kã †cZvg| H mKj gvb and abducted Nasiruddin Chowdhury and took yl‡KI †mLv‡b wbh©vZb Kiv n‡Zv| him to the Torture Centre situated in Dalim 6 wW‡m¤^i 1971 Avj e`i m`m¨‡`i gy‡L ejvewj nw”Qj Hotel and at your direction and presence they PÆMªvg wegvb e›`‡i †evw¤^s n‡q‡Q Ges †mLv‡b gxi Kv‡kg tortured him therein for many days. On 16th Avjx AvnZ n‡q‡Q, GB K_vwU hLb cªPvwiZ nq ZLb Avj- December, 1971 victim Nasiruddin Chowdhury e`iiv Avgvi Ges Ab¨vb¨ e›`x‡`i Dci AZ¨vPv‡ii gvÎv along with 100/150 persons were released from evwo‡q †`q| Avgv‡`i‡K cªvqkB Wvwjg †nv‡U‡ji GK that Torture Centre by the local people. iæ‡g †_‡K Ab¨ iæ‡g wb‡q wbh©vZb Kiv n‡Zv| mne›`x‡`i THE LAW MESSENGER 432 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) KvQ †_‡K ZLb Av‡iv Rvb‡Z cvwi gxi Kv‡kg Avjxi 198. From the aforesaid news item, the wb‡`©‡k Ges Zvi Dcw¯’wZ‡Z A‡bK e›`x‡K wbh©vZb K‡i submission of Mr. Khandaker Mahbub Hossain nZ¨v Kiv nq Ges cieZx©‡Z wbnZ‡`i jvk KY©dzjx b`x‡Z is devoid of substance. It is quite natural that Ó †d‡j †`Iqv nq| since the President of EP ICS went to 196. Thereafter, he said that he was Chittagong on 25.11.1971 after taking decision released from the said torture cell on the on 24.11.1971, the appellant, who was in morning of 16th December, 1971. P.W.1 Charge of Chittagong Division, ICS and another victim witness, in his evidence said former leader of Chittagong town unit, ICS that Md. Nasir along with others was kept and local commander of Al-Badar Bahini confined in the said camp. P.W. 14 in his would go and stay in Chittagong between 19th evidence said that on 16th December, 1971 he November, 1971 and 15 December, 1971. So rushed into Dalim Hotel and recovered Nasir the alibi, plea taken by the appellant does not Uddin Chowdhury along with 150 others. That carry any force. is, P.W. 1, 14 in their evidence corroborated Inherent lacuna in conducting the the testimony of the victim P.W.3. We do not find any contradictions or discrepancies in the prosecution case evidence of the P.Ws. 1, 3 and 14 to disbelieve 199. Learned Attorney General in the their testimonies. We are of the view, that the opening of his argument produced a paper and Tribunal rightly held that the prosecution has submitted that the appellant Mir Quashem Ali been able to prove charge No.14 against the was not only Islami Chatra Sangha Leader and appellant beyond any shadow of doubt. Al-Badar Chief, Chittagong chapter, but also Plea of alibi the chief financer of a big political party, which wants to frustrate the trial of offenders of 197. Mr. Khondker Mahbub Hossain, crimes against humanity, war crimes and learned Counsel appearing on behalf of the genocide and engaged a lobbyist firm on appellant drew our attention to the issues of some newspapers dated 08.11.1971 , payment of US$ 25 million to influence the 11.11.1971, 23.11.1971, 8.12.1971 and government of the United States with a view to 11.12.1971 and submitted that the appellant postponing the trial process. The letter reads as was in Dhaka and communication between under: Chittagong and Dhaka was in fact collapsed Cassidy & Associates from the month of November 1971 to 16 700 thirteenth Street, NW, Suite 400 December, 1971. Learned Counsel failed to show any evidence that the communication Washington, DC 20005 was totally disrupted at the relevant time and that all the ways of movement from Dhaka to Chittagong were disconnected. His submission RECEIPT OF PAYMENT is unacceptable in view of the documentary evidence published in “The Dainik Azadi” on October 6, 2010 04.12.1971. Contents of which were: ÒAvR c~e© cvwK¯Ív‡bi Bmjvgx QvÎms‡Ni mfvcwZi PÆMªv‡g AvMgb Ó Confirmation of receipt of the Amount evZ©v cwi‡ekK, ÒcvwK¯Ívb Bmjvgx QvÎ ms‡Ni c~e© of Twenty Five Million U.S. Dollars from Mr. cvwK¯Ív‡bi kvLvi mfvcwZ Rbve Avjx Avnmvb †gvnvg¥` Mir Kashem Ali for Professional Services to be gyRvnx‡`i 3 w`‡bi md‡i AvR XvKv ‡_‡K Avwmqv Provided. Ges †cuvQv‡eb| GLv‡b Ae¯’vb Kv‡j wZwb `jxq Kgx©‡`i Cassidy & Associates Inc. ivR‣bwZK †bZ„e„›`‡`i mwnZ †`‡ki eZ©gvb cwiw¯’wZ m¤ú‡K© Av‡jvPbv Ki‡eb Ges myax mgv‡e‡k e³„Zv Kwi‡eb Robert G. Owners C.P.A. ewjqv GK †cªm wiwj‡R ejv nBqv‡Q Ó | Executive Vice President of THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 433 Finance and administration Cassidy & inferred that he is capable of engaging lobbyist Associates firm by spending US$ 25 million to frustrate the trial of offences of crimes against Robert G. Owners humanity. SENIOR VICE PRESIDENT 201. In the Act of 1973, the offences of CHIEF FINANCIAL OFFICER crimes against humanity, crimes against peace, genocide, war crimes and other offences have been described in section 3(2) which includes, 700 THIRTEENTH STREET,N.W. amongst others, attempt, abetment or SUITE 400 conspiracy to commit any of the above crimes. WASHINGTON,D.C.20005 It is also an offence if one has “complicity in or failure to prevent commission of any such ROWENS @ CASSIDY.COM crimes.‟ A plain reading of section 4(1) of the TEL: (202) 585-2080 FAX: (202) 347-0785 Act, 1973 suggests that for commission of any offence by more than one person will be 200. It is submitted on behalf of the deemed that each of such person is liable for defence that there is no basis in support of the the offence. This section 4(1) and section 34 of contention of the learned Attorney General and the Penal Code are cognate in nature. Where a this allegation has not been established. The criminal offence is committed by several fact of engaging a lobbyist firm may or may not be true, but fact remains that learned persons in furtherance of common intention of Attorney General has collected a receipt of all, each of such person is liable for that payment of US$ 25 million from which it can offence in the same manner as if it were done be inferred that the appellant is a very by him alone. resourceful person. This is evident from the 202. Sub-section (2) is altogether different materials on record as well. Accused-appellant and if any commander or superior officer under prayed for bail on 19th June, 2012 and in whose command any one of his force commits support of his prayer, he made statements any of the crimes described in section 3 or is supported by documents about his financial connected with any plans or fails to discharge solvency. The tribunal recorded an order to the his duty to maintain discipline or who fails to effect that “it was stated in the petition that the control or supervise the actions of his persons accused petitioner is a successful and under his command and if the subordinates or respectable businessman of this country. He is any one of them commits any such crime, he the Chairman and Director of Keari Limited, will be guilty of such crimes. If the superior Chairman and Director of Diganta Corporation officer participates in any of the crimes Limited, Founding Trustee and member of mentioned above, he cannot escape from Administration Ibne Sina Trust, Member superior responsibility because of the fact that Security of Islami Bank foundation, Director of his responsibility is to prevent his subordinates Ibn Sina Pharmaceutical Industries and to commit crimes. The commander is Chairman of Agro Industrial Trust, Member- responsible for failure to perform an act Secretary of Fouad Al-Khateeb Charity required by law. This omission is culpable Foundation, Member of Society for because law imposes a responsibility to prevent International Development (SID), Chairman of and punish crimes committed by his the association of Multipurpose Welfare subordinates. Even if it is proved that he did Agency and Vice-Chairman of Industrialists not participate but his subordinates committed and Businessmen Welfare Foundation.” So, the offence within his knowledge or that he has from the above it can be inferred that he has set prepared a plan to commit any of the offences, up business conglomerate from which it can be in that case also, he cannot avoid the THE LAW MESSENGER 434 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) responsibility because law imposes a 206. So it is found from the above that the responsibility on the part of a commander or accused has been portrayed as offender who superior officer to shoulder the responsibility had directly participated in the commission of for commission of any crimes committed by his crimes as well as superior commander within subordinates. the meaning of Section 4(2) along with Section 203. From the above, sub-Section (1) 3(2)(g) of the Act. Later on, on the same day, relates to joint liability and sub-Section(2) Mr. Zead-Al- Malum entered appearance and relates to superior responsibility. In this made submissions in support of framing formal connection, we have elaborately discussed the charge and the tribunal recorded the order as under: case of Muhammad Kamaruzzaman Vs. The Chief Prosecutor, International Crimes “The learned Prosecutor, before Tribunal, Dhaka, Bangladesh (Criminal Appeal drawing our attention to the facts set No. 62 of 2003). The proceedings before a out in the Formal Charge constituting tribunal commence on the basis of submission the offences allegedly committed by the of a formal charge against an offender as accused during 1971 War of provided in section 9 of the Act. Liberation, portrayed the context in brief to substantiate the organizational 204. Though Section 16 provides that the plan and policy in execution of which offender should be confronted with the the local pro-Pakistani persons particulars of the crimes sufficient to give him belonging to fundamentalist Islamic notice of the matter with which he is charged Political groups, Al-Badar Bahini and for, defect in framing charge will not vitiate the auxiliary force took part in committing conviction if the offender is not prejudiced the offences and also substantially thereby, that is to say, if he is afforded aided and abetted the Pakistani sufficient opportunity to cross-examine the occupation force in committing horrific witnesses and the evidence is recorded in his atrocities.” presence. 207. Mr. Zead-Al-Malum later on appeared 205. Taking into consideration the above and made submissions to the effect that the position of law, let us consider how the case accused „abetted the Pakistani occupation force has been conducted by the in horrific atrocities.‟ Then the tribunal prosecutor/prosecutors. The formal charge has reproduced his submissions that the accused been framed on 5th September, 2013, on which “substantially aided and abetted the Pakistani date, Mr. Sultan Mahmud and Mr. Tapash occupation force in committing horrific Kranti Paul appeared and made brief account of atrocities.” Some of the witnesses stated that the initiation of the proceeding against the the accused helped or facilitated the Pak Army offender and suggested as under: in the commission of some crimes but in respect of charge No.11, the witnesses testified “ It has been alleged in the Formal that the accused had direct involvement in the Charge that during the war of killing of Jasim. Thereafter, 14 charges have Liberation 1971, the accused as the been framed on the suggestion of the leader and President of Islami Chhatra prosecutors. In twelve charges, the accused Sangha, Chittagong Town Unit, had appellant has been arraigned for „abetting and committed crimes against humanity, facilitating‟ the commission of offences of including, abetting, aiding, abduction, confinement and torture and in two participating and providing moral other charges, he has been arraigned to have support to commit such crimes in tortured to death as crimes against humanity different places of Chittagong district.” specified in Section 3(2)(a)(g)(h) of the THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 435 International Crimes Tribunal Act of 1973, examined P.W.8, on 24th February, he has which are punishable under Section 20(2) of examined P.Ws.9 and 10, on 25th February he the Act. He was also charged under Section has examined P.Ws. 11 and 12, on 3rd March, 4(1) and 4(2) of the Act. he has examined P.Ws. 13 and 14 and on the th 208. When the learned Counsel for following, he has examined P.W. 15, on 18 March, he has examined P.W. 16 and on 19th appellant placed the charges, the Court had the rd impression that the accused appellant had been March, he has examined P.W. 17. On 23 March, Mr. Sultan Mahmud has examined charged with for abetment of the offences, but th when he placed the evidence of the witnesses, P.W. 18, on 24 March, Mr. Sultan Mahmud has examined P.W. 19, on 31st March, he has the court was bewildered to notice that in fact, th the prosecution led evidence portraying the examined P.W. 20. On 6 April, Mr. Zead-Al- Malum has examined P.Ws. 21 and 22 and on appellant as the principal offender in respect of th charge No.11. The main allegation against him 8 April he also examined P.W. 23 and the last witness P.W. 24 was examined by Mr. Sultan is that the accused appellant was the influential th leader of the Islamic Chhatra Sangha, who Mahmud on 10 April. organized Al-Badar force in Chittagong chapter 211. So, the prosecution was conducted by and carried out, perpetrated and committed two prosecutors and on none of those dates, as atrocities like crimes against humanity by mentioned above, the said two prosecutors setting up an Al-Badars torture centre at Dalim jointly conducted the case. The trial was Hotel in Chittagong town in which he was the conducted in piecemeal basis by two commander and no army or other forces were prosecutors. When a prosecutor conducts a in command. It is also on record that the army case, he chalks out a plan to prove the charge had established a torture centre at Circuit with the available witnesses by examination House and Salauddin Quader Chowdhury had and re-examination. It is like performance of a established another torture centre at Goodshill. theatre with interval scenes but there must be In these three torture centres, all atrocities of sequence from the first scene to the last scene. killing and other inhuman acts were If two directors direct scenes separately, there perpetrated. must be defect in continuity of events. This has 209. The defence wanted to make out a happened in this case. case that Dalim Hotel was under the control of 212. There is no defect in conducting the a Razakar Matiur Rahman alias Moitta Gunda case by two prosecutors; rather it is better if and also wanted to establish that in the ground more than one prosecutor conducts the case, floor the army had established a camp, but but when more prosecutors are engaged, they could not substantiate the same. should jointly conduct the case through 210. The tribunal started recording the consultation and discussion. The mistake evidence from 11th December, 2013, on which committed by the prosecutors in conducting the date, Mr. Sultan Mahmud conducted the case case is that both the prosecutors did not jointly for the prosecution and on that date P.W.1‟s conduct the case. One prosecutor examined evidence in the chief was recorded. The same some witnesses and other prosecutor examined prosecutor led the prosecution and the tribunal some other witnesses, resulting in lack of recorded the evidence of P.W.2 on 23.01.2014 sequence. For example, in support of charge and P.W. 3 on 2nd February, 2014. On 17th No.2, the prosecution has examined P.Ws. 20, February, 2014 Mr. Zead-Al-Malum led the 21 and 22. Mr. Sultan Mahmud examined prosecution and the evidence of P.W.4 was P.W. 20 and the other two witnesses were recorded. On the following day, he has examined by Mr. Zead-Al-Malum. In support examined P.W.5, on 19th February he has of charge No.3, the prosecution has examined examined P.W.6, on 23rd February he has P.Ws. 1, 2, 3, 14 and 16, of them, Mr. Sultan THE LAW MESSENGER 436 Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 2 LM (AD) 2017 (1) Mahmud examined P.Ws. 1-3, Mr. Malum of the evidence of the witnesses we have no examined P.Ws. 14 and 16. In support of hesitation to hold that there was no co- charge No.4, the prosecution has examined ordination between them. It is the witnesses only P.W.14; in support of charge No.5, the who of their own accord disclosed facts. prosecution has examined only P.W. 15; in 215. We learnt from the learned Attorney support of charge No.6, the prosecution has General that the government has appointed a examined only P.W. 15; in support of charge Chief Prosecutor and under him there are some No.7, the prosecution has examined P.Ws.1, 2, prosecutors. Of them, two prosecutors are very 13 and 16; in support of charge No.9, the experienced and competent to conduct such prosecution has examined P.Ws. 1, 12, 14, 16, cases. But mysteriously they were not entrusted 18 and 19; in support of charge No.10, the with this case. This accused was one of the prosecution has examined P.Ws.1, 8, 9, 10 and most powerful persons during the relevant time 11; in support of charge No.11, the prosecution and one of the most dreaded offender and a has examined P.Ws. 1, 2, 3, 16, 17 and 19; in commander of a force which was commonly support of charge No.12, the prosecution has known as „killing squad‟. So the prosecution examined P.Ws. 2, 3, 4, 5, 6 and 7; in support should have been more careful in handling this of charge No.13, the prosecution has examined P.Ws. 4 and 14 and in support of charge No.14, case. This country has been liberated at the cost the prosecution has examined P.Ws. 1, 3 and of three million martyrs and two hundred 14. thousand women and girls lost their chastity. No nation has sacrificed the lives similar to our 213. Both the prosecutors together were not country in achieving independence. These trials present in the tribunal in course of examination should not have been taken so lightly because in-chief and cross-examination of the the sentiments and the emotions of the near witnesses. Naturally they could not concentrate ones of the victims as well as the people of the their minds so far as regards incriminating part whole country are involved. They want justice, of evidence. Besides these witnesses, the not retaliation. prosecution has examined P.Ws. 20, 21, 22 and 216. We were surprised to note that in 23 to prove circumstantial and documentary respect of charge No.11, the accusation was evidence. P.W. 24 is the investigation officer. torture and killing of Jasim and other 5 persons, One witness also deposed in support of but we do not find sufficient evidence on different charges and under such record to convict and sentence him for charge circumstances, how could the prosecutors relating to those 5 persons. The prosecution concentrate their minds is not clear to us. was totally silent about them. In respect of all 214. Examining a witness by the the charges the positive version of the prosecution is a very difficult task. The prosecution is that the accused set up Dalim prosecutor should not only make himself Hotel as the torture centre of Al-Badar forces thoroughly acquainted with the entire facts of and perpetrated crimes against humanity in the the case, but also with the particular fact which said centre with his force. In respect of charge the witness has come to depose, the nature and No.12, the prosecution introduced a new story character of the witness and the degree of his that at the time of abduction of the victims, the intelligence. It is his duty to bring out clearly accused „along with Al-Badar, Razakar and Al- and in chronological order every relevant fact Shams Bahinis and Pakistani Army plundered to which the witness can depose. The many shops and about 250/300 houses were prosecutor must be careful in handling the burnt and compelled hundreds of families to go witnesses. The prosecutor must be careful and to India. We have dawn the attention of the put such question to the witnesses to prove the Learned Attorney General regarding the charge beyond reasonable doubt. On a perusal manner of conducting the case on behalf of the THE LAW MESSENGER 2 LM (AD) 2017 (1) Mir Quasem Ali =VS= The Chief Prosecutor (Surendra Kumar Sinha, CJ) 437 prosecution. Realising the above defects he teachers and intellectuals in the dead of night, kept silent. We hope that these trials should not the night following 25th March, 1971. The have been lightly taken because we achieved brutality and butchery were so serious that independence by sacrificing three million shocked the world‟s conscience. After a bit of martyars and the emotions of victims‟ nearones recovery from the trauma of brutality, the as well as whole of the people are involved in people of this country resisted the occupation these trials. army and started fighting to liberate the Conclusion country. It is at this stage that the local 217. This Court has given the sentencing collaborators sided with the butchers and guide lines in the case of Abdul Qader Mollah formed paramilitary forces. The accused and three other cases. The prosecutors must appellant was one of the organizers of Al- have read the principles of awarding a death Badar force at Chittagong, which was raised sentence. It is beyond our comprehension why with the aim and object of killing the pro- the prosecutors have portrayed the accused as liberation forces and minority community- the abettor at least in respect of charge No.11. force is known as „killing squad‟. The accused There are legal evidence to prove that the not only organized the force at Chittagong, he accused has directly participated in respect of had commanded the force and directly the said charge. Sub-Section (2) of Section 20 participated in the perpetration of most provides that the tribunal shall award sentence barbarous acts unknown to human civilization. of death or such other punishment He does not deserve any leniency on the proportionate to the gravity of the crime question of sentence on consideration of the appears to the tribunal to be just and proper. nature and gravity of offence. The tribunal The offences of crimes against humanity or awarded the sentence of death in respect of genocides are by nature serious and heinous charge No.11 which according to us was type of offences because the perpetrators „proportionate to the gravity of the crime.‟ committed those offences against unarmed 218. This appeal is thus allowed in part. innocent civilians. These crimes cannot be Accused Mir Quashem Ali is found not guilty compared with ordinary crimes. They are of incomparable scale and seriousness. The in respect of charge Nos. 4 and 12 and he is Bangladesh perspective with regard to the acquitted of those charges. His conviction and perpetration is quite distinct with other crimes sentence in respect of charge Nos. 2, 3, 7, 9, 10 of similar nature. The butchers suddenly and 11 is maintained. attacked the innocent citizens, university Ed.

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