IN THE SUPREME COURT OF BANGLADESH

APPELLATE DIVISION

PRESENT:

Mr. Justice Md. Muzammel Hossain, Chief Justice Mr. Justice Surendra Kumar Sinha

Mr. Justice Md. Abdul Wahhab Miah

Mr. Justice Hasan Foez Siddique

Mr. Justice A.H.M. Shamsuddin Choudhury

CRIMINAL APPEAL NOS.39-40 OF 2013.

(From the judgment and order dated 28th February, 2013 passed by the International Crimes Tribunal No.1, Dhaka in ICT-BD Case No.01 of 2011.)

Allama Delwar Hossain Sayedee:  Appellant. (In Crl. A. No.39 of 2013)

The Government of the People’s Republic of

Bangladesh,  represented  by  the  Chief

prosecutor, International Crimes Tribunal,  Appellant. Dhaka, Bangladesh:  (In Crl. A. No.40 of 2013)

=Versus=

The Government of the People’s Republic of

Bangladesh,  represented  by  the  Chief

prosecutor, International Crimes Tribunal,  Respondent. Dhaka, Bangladesh:  (In Crl.A.No.39 of 2013)

Delwar Hossain Sayeedi @ Delu:  Respondent.

(In Crl.A.No.40 of 2013) For the Appellant:  Mr. S.M. Shahjahan, Advocate, instructed by

(In Crl. A. No.39 of 2013)  Mr. Zainul Abedin, Advocate-on-Record.

For the Appellant:

(In Crl. A. No.40 of 2013)

For the Respondent: (In Crl. A. No.39 of 2013)

For the Respondent:

(In Crl. A. No.40 of 2013)

Mr.  Mahbubey  Alam,  Attorney  General, instructed  by  Mr.  Syed  Mahbubur  Rahman, Advocate-on-Record.

Mr.  Mahbubey  Alam,  Attorney  General, instructed  by  Mr.  Syed  Mahbubur  Rahman, Advocate-on-Record.

Mr. S.M. Shahjahan, Advocate, instructed by Mr. Zainul Abedin, Advocate-on-Record.

Date of hearing: 24th, 25th, 26th, 29th, 30th September, 2013, 1st, 2nd, 3rd, 6th, 7th, 8th October, 2013, 14th, 18th, 19th, 20th, 24th, 25th November, 2013, 13th, 14th, 16th, 19th, 20th, 21st, 28th, 29th, 30th January, 2014, 2nd, 5th, 10th, 11th, 13th, 23rd, 24th, 25th, 26th, 27th February, 2014, 5th, 6th, 9th, 10th, 11th March, 2014, 1st, 10th, 13th, 15th and 16th April, 2014. 

Date of Judgment:17th September, 2014.

J U D G M E N T

Md. Muzammel Hossain, CJ: I have gone through the judgments prepared by my learned brothers Surendra Kumar Sinha and Md. Abdul Wahhab Miah, JJ. I agree with the judgment prepared by my learned brother Surendra Kumar Sinha, J.

                                             CJ.

Surendra Kumar Sinha,J: These appeals, one at the instance of the convict Allama Delwar Hossain Sayedee (Criminal Appeal No.39 of 2013), is against his conviction and sentence and the other, at the instance of the State (Criminal Appeal No.40 of 2013) is against non-awarding of sentence in respect of charge Nos.6, 7, 11, 14, 16 and 19 despite finding him guilty on those counts. Upon hearing the above appeals this Division allowed both the appeals in part by majority. The operating part of the short order is as follows:

“The Criminal Appeal No.39 of 2013 is allowed in part by majority. The Criminal Appeal No.40 of 2013 is allowed in part by majority.

Appellant-Allama Delwar Hossain Sayedee (in Crl. A. No.39 of 2013) is acquitted of charge Nos.6, 11 and 14 and part of charge No.8 by majority. Appellant-Allama Delwar Hossain Sayedee is sentenced to 10(ten) years rigorous imprisonment by majority in respect of charge No.7. Appellant-Allama Delwar Hossain Sayedee’s sentence in respect of charge No.8 is altered to 12(twelve) years rigorous imprisonment by majority. Appellant-Allama Delwar Hossain Sayedee’s sentence in respect of charge No.10 is commuted to imprisonment for life i.e. rest of his natural life by majority. Appellant-Allama Delwar Hossain Sayedee is sentenced to imprisonment for life i.e. rest of his natural life in respect of charge Nos.16 and 19 by majority.

The judgment in detail would follow.”

The appellant was put on trial before the International Crimes Tribunal No.1, Dhaka, (the Tribunal) to face 20 count of charges, of them, the Tribunal found the appellant guilty of offences in respect of charge Nos.6, 7, 8, 10, 11, 14, 16 and 19 and gave him the benefit of doubt in respect of charge Nos.1-5, 9, 12, 13, 15, 17, 18 and 20 and acquitted him of the said charges. Though it found the appellant guilty of eight counts of murder, abduction, torture, rape, persecution, forcible religious conversion, awarded him sentence in respect of charge Nos.8 and 10 only and refrained from passing any separate sentence in respect of charge Nos.6, 7, 11, 14, 16 and 19 on the reasoning that no fruitful purpose would be served to award him lesser sentence since death sentence has been awarded in two counts.

In support of the charges, the prosecution has examined 28 witnesses and the defence has examined 17 witnesses. Both the parties have also relied upon documentary evidence in support of their respective case. The defence has admitted the perpetration of almost all the offences of Crimes against Humanity, which are punishable under section 3(2)(a) of the International Crimes (Tribunals) Act, 1973 (Act of 1973) by giving suggestions to the prosecution witnesses and also by examining witnesses at different places of Pirojpur, but it takes a plea of alibi of the appellant's complicity in those crimes. The substance of defence version is that though all those atrocities stated by the prosecution had been perpetrated at Parerhat, Baduria, Chitholia, Nolbunia, Umedpur, Hoglabunia, Indur Kani villages under the then Pirojpur Sub-Division from 7th May, 1971, to June 1971, the appellant was not present at the crime site during the relevant time, and as he was staying at New Town, Jessore, and then he took shelter to villages Sheikhhati, Dhanghata, Mohiron under Bagharpara thana, Jessore district, he was not involved in the commission of those crimes. His claim is that after the commission of those crimes, he returned to Parerhat sometimes in mid July, 1971, and that those crimes were perpetrated by the Pakistani force in collaboration with the local Peace Committee members and Razakars. Since no appeal was preferred by the State against the order of acquittal in respect of count Nos.1, 2, 3, 4, 5, 9, 12, 13, 15, 17, 18 and 20, I shall confine my decision in respect of count Nos.6, 7, 8, 10, 11, 14, 16 and 19.

The pertinent question is whether the appellant was present during the relevant time at Parerhat or that he was staying elsewhere. If it is found that he was not present at or near the place of occurrence at the time of the commission of atrocities, it would rather be a futile attempt to discuss the prosecution evidence in support of those charges, despite finding him guilty. To substantiate his claim of temporary absence from the crime site where the offences of Crimes against Humanity were perpetrated, the appellant has examined five witnesses, such as, Md. Abul Hossain (D.W.4), Roushan Ali (D.W.6), Md. Kobad Ali (D.W.8), Md. Hafizul Huq (D.W.12) and Md. Enam Hossain (D.W.14). Besides, he has also exhibited some documents showing that he was not involved in the perpetration of the crimes. The other witnesses examined on his behalf deposed that those incidents were perpetrated by the Pakistani army with the help of local auxiliary forces in different manner and not in the manner as stated by the prosecution. On the other hand, the prosecution witnesses stated that the appellant was physically present from the very beginning of the liberatioin struggle at Pirojpur, took active part in the formation of Razakars Bahini and Shanti Committee at Parerhat area, received the Pakistani army while they were entering into Pirojpur, as he was the one who had proficiency in Urdu speaking and that he had actively participated in all the atrocities committed at Parerhat, Pirojpur.

The Tribunal after sifting the evidence on record disbelieved the plea of alibi. It observed that the accused was a prominent member of Razakars Bahini of Parerhat area during the liberation struggle of Bangladesh and that he had actively participated in different atrocious activities by forming Razakars Bahibi as auxiliary force of Pakistani occupation force. It has considered exhibit 151, the nomination paper of the appellant Delwar Hossain Sayedee and the suggestions given to the prosecution witnesses Mahabubul Alam Howlader (P.W.1), Ruhul Amin Nabi (P.W.2), Sultan Ahmed Howlader (P.W.4), Mahatab Uddin Howlader (P.W.5), Manik Posari (P.W.6), Mustafa Howlader (P.W.8), Altaf Hossain Howlader (P.W.9), Basudev Mistri (P.W.10), A.K.M. Awal (P.W.12) and Gouranga Chandra Saha (P.W.13). The Tribunal held that exhibit 151, the nomination paper submitted by the appellant showed that he had four sons, of them, his eldest son Rafiq Bin Sayedee was alone born in 1970 but DWs 4 and 6 stted in cross-examination that Sayedee had two sons when he resided in Jessore town; that the defence suggested to P.Ws.1, 2, 4, 5, 6, 8, 9, 10, 12 and 13 that Sayedee was in Jessore since before the war of liberation till mid July, 1971, but these witnesses denied the suggestions; that these witnesses and Sayedee hail from the same locality and these witnesses categorically stated that Sayedee was involved in the atrocities committed at Parerhat since May, 1971; that P.W.2, a commander of the freedom fighters categorically stated that he tried to arrest Delwar Hossain Sayedee in December, 1971 but failed to apprehend him as he fled away from the locality; that the evidence revealed that Delwar Hossain Sayedee went into hiding and took shelter to Jessore in the houses of Abul Hossain (D.W.4) and Rawshan Ali (D.W.6).

The Tribunal did not discuss elaborately or consider the evidence of Md. Abul Hossain (D.W.4), Roushan Ali (D.W.6), Md. Kobad Ali (D.W.8), Md. Hafizul Huq (D.W.12) and Md. Emran Hossain (D.W.14) in arriving at such conclusion. Though I agree with the penultimate decision of the Tribunal, I am of the view that it ought to have considered the defence evidence while arriving at such conclusion. If we consider the oral evidence of D.Ws.4, 6, 8, 12 and 14, the documentary evidence and those of the prosecution, it will be evident that the defence plea is false and concocted. These defence witnesses have been set up with a view to create confusion as to the accused’s involvement in those crimes. On a close scrutiney of their testimonies it would not be difficult to arrive at the conclusion that these witnesses were procured and tutored witnesses, and that the prosecution version narrated by P.Ws.1, 2, 4, 5, 6, 8, 9, 10, 12, 13 and Ashish Kumar MOndal, (ext.254), Sumoti Rani Mondal, (ext 255), Samar Mistri, (ext 256), Suresh Chandra Mondal, (ext 257), Abdul Latif Howlader, (ext 258), Anil Chandra Mondal, (ext 259), Sukha Ranjan Bali, (ext 260), Shahidul Islam Khan, (ext 261), Md. Ayub Ali Howlader, (ext 262), Ajit Kumar Shil, (ext 264), Rani Begum, (ext 265), Sitara Begum (ext 266), Md. Mostafa, (ext 267), Ganesh Chandra Saha, (ext 268), Mukunda Chakrabarty, (ext.269) that Delwar Hossain Sayedee was physically present at Perojpur during the entire period of war of liberation and that he was the ring leader, who raised and organized the local militia groups like Razakars, Peace Committee and collaborated the Pak occupation army in the perpetration of those inhuman crimes was true to the knowledge of the accused.

The theory of a plea of alibi is such that the fact of presence of the accused at the scene of the crime and the time alleged is essentially inconsistent and therefore, his personal participation as an offender in the act is false. Will’s Circumstantial Evidence at page 279-80 stated, it is obviously essential to prove an alibi that it should cover an account for whole of the time of the transaction in question, or at least for so much of it as to render it impossible that the offender could have committed the imputed act-it is not enough that it render his guilt improbable merely, and if the time is not exactly fixed and the place of which the offender is alleged by the defence to have been is not far off, the question then becomes one of opposing probabilities. While it is the burden of the prosecution to prove beyond reasonable doubt that the accused was present at the scene of the crime at the time of its commission, the burden of going forward with the evidence in regard to a fact which is specially within his knowledge, the accused has to show that he was elsewhere at the moment of the crime and that he remained there for such a period of time as will reasonably exclude the probability that he was in the place of the crime when it was committed.

It is now well settled law that, in regard to this burden of going forward with the evidence is to be discharged by the accused, if he raises a reasonable doubt of his presence at the scene of the crime at the time that it was committed, it is not incumbent upon the accused to prove his alibi beyond a reasonable doubt. Accused took the plea of alibi only to show that during the relevant time of crimes, he was not at Parerhat, Pirojpur. It should be kept in mind that whenever a defence plea of alibi is set up and the defence utterly break down, it is a strong inference that if the offender was not in fact where he says he was, then in all probability, he was where the prosecution says he was. Though the onus of establishing the plea of alibi set up by the accused is upon him, no presumption of his complicity in the crimes arise from his failure to establish the plea. The witnesses’ falsity of an alibi is not a sufficient ground for holding that the case for the prosecution is thereby proved.

D.W.4 is a resident of Jessore. He stated that his parents were residing at House No.A/185, Jessore New Town, during the early part of 1971; that adjacent to their

house was house No.184, where Shahidul Islam, a primary teacher had resided and contiguous to that house was the house No.183, where another school teacher had resided and next to that one was the house No.182, where Delwar Hossain Sayedee with his family had resided till the last part of March, 1971; that after the Pakistani occupation army pounded on the civilians and started shelling from Jessore Cantonment towards the town, many families started leaving Jessore town for safety; that at that time the above four families left Jessore on 3rd or 4th April to Sheikhhati; that they stayed one night there and from there they moved to Dhanghata village in the maternal uncle's house of Abul Khayer where they stayed 7/8 days, and thereafter, it was decided after discussions that his family and the family of Shahidul Islam would take shelter to India and the resident of house No.183 Abul Khayer would stay with his maternal uncle's house and that Sayedee would stay in the house of Pir of Mohiron village.

In course of cross-examination, he expressed his ignorance about Sayedee's village home. This statement raised suspicion about his claim that he was a neighbour of Delwar Hossain Sayedee and resided at New town, Jessore, and also that after the Pak army started shelling towards the town, his family left Jessore Town with Sayedee’s family to take shelter at Sheikhhti. According to him, he was so close with Sayedee that during the crucial period of the liberation struggle his family chose to move at a safe place with Delwar Hossain Sayedee’s family and stayed with them jointly at Dhanghata village for 7/8 days in the same house. It was natural under such circumstances to come to the conclusion that he knew about Sayedee’s village home if had really moved from one place to the other place for safety and before that he was a neighbour of Sayedee, and also knew about his profession as well. It is pertinent to note that according to him, his family and the family of Shahidul Islam left India for safety as they felt insecurity at the remote villages of Jessore but Sayedee chose to stay at his Pir’s house, which raised suspicion about the defence plea, inasmuch as, if Delwar Hossain Sayedee had realized that the atmosphere then prevailing at Jessore town was not congenial because of shelling by Pak army, it was natural that he would have returned to his own house instead of taking shelter to other places, because according to this

D.W.6 is a resident of Bagharpara, Jessore. He stated that during the period between 1969 and 1970, Sayedee was delivering religious speeches at village Dohakola under Bhagarpara police station; that in 1971, he was nursing garden and looking after his cultivation; that he was acquainted with Sayedee through religious congregations; that Sayedee was staying at Jessore town by renting a house and in the later part of March, 1971, when the people were leaving Jessore town for safety and security, Sayedee with his family took shelter in the house of Pir Sadar Uddin of Mohiron village towards mid April; that he stayed there for two weeks and thereafter, Sayedee went to his house as the Pir Hujur requested him to take Sayedee on the plea that besides being a big family, some relations of the Pir also took shelter in his house for which it was difficult on the part of Pir Hujur to accommodate Sayedee; that Delwar Hossain Sayedee stayed with him about two and half months, and towards the mid July, Sayedee left for his village home with his family. In course of cross-examination, he admitted that Sayedee was arrested after the liberation war and before 15th August, 1975, but he could not say for what reason he was arrested; that he studied at Kowmi Madrasha up to Behesti Jeor; that he knew from the print media that cases relating to arson, rape, killing of innocent persons were pending against Sayedee; that he heard from before the filing of the present case that Sayedee was involved in similar nature of offences and that during the period of war of liberation anti-liberation elements were residing

D.W.8 is a resident of Mohiran, Jessore, who stated that Sayedee was residing at New Town, Jessore in 1969-70 by hiring a house and he was then attending Wajmahafils; that when the army started shelling towards the Jessore town in 1971, Sayedee left the town and took shelter at the house of Sadaruddin of Mohiron village in mid April, 1971; that after staying 15 days in that house, as per request of Pir Hujur P.W.6 Rawshan took him at his house in the early part of May where he stayed two and half months and that towards the mid July he left his home. He admitted that he is a supporter of Jamat-e-Islami.

D.W.12 is a resident of Bamonpara, Jessore. He stated that in 1971, he was 11 years old and he is the son of Md. Shahidul Islam, who was a resident of house No.184, Jessore New Town; that Sayedee used to give religious speeches at Jessore, who was then residing at house No.182 as tenant; that after 25th March, as there was shelling mortars from Jessore Cantonment towards Jessore town, his father and other neighbours including Sayedee had discussions to leave Jessore town and then they jointly left for Sheikhhati village on 4th April and stayed the night at Joynul Abedin’s house and on the following day, they shifted to Abul Khayer’s maternal uncle’s house at Dhanghata village where they stayed 7/8 days; that then they decided to shift to other places when Delwar Hossain Sayedee told that he would move to Mohiron Pir’s house, and that his father and Hazrat Ali left for India.

In course of cross-examination, he made inconsistent statements as regards his claim that his father purchased the house in which they stayed at Jessore town as neighbour of Sayedee. He admitted that Sayedee was a resident of Pirojpur which he knew. He stated that he heard about the case pending against Sayedee for committing offences of Crimes against Humanity, but according to him before 2000, he did not hear any such allegation and that those allegations were untrue. He denied the defence suggestion that he being an activist of Jamat-e-Islami was deposing falsely. He being barely a boy of 11 years old at that time as per his admission, it was not at all believable story that he would know meticulously about the discussions, the decision taken by the elders of alleged four families to move to a safe place unless he was tutored in that regard.

D.W.14, a resident of Mohiran, Bagharpara stated that Delwar Hossain Sayedee was staying at Newtown, Jessore in 1970-71 by hiring a house; that at that time he was involved in delivering speeches at religious congregations; that when there were shelling from Jessore Cantonment, Sayedee took shelter at Sadaruddin’s house with his family towards mid May, 1971, that Delwar Hossain Sayedee thereafter took shelter to the house of Roushan Ali as directed by Pir Shaheb; that Delwar Hossain Sayedee stayed at Roushan Ali’s house for two and half months, and then his brother took him to his village home. In cross- examination, he stated that he was then studying at Paddabila Union Aliya Madrasha and that during the period of war of liberation, his Madrasha was completely closed. In reply to an another question he stated that he did not hear that Pak-occupation army, Al-Badr, Razakars and Peace Committee members committed mass killing, rape, looting, arson in 1971; that he had no idea about those atrocities;

that when the trial before the Tribunal was proceeding, Delwar Hossain Sayedee’s elder son came to the Pir Saheb’s house and assembled the people of the locality and told them that during the war of liberation his father (Sayedee) was staying in that locality and that as per his (Sayedee’s son’s) version, he was deposing before the Tribunal. So, the evidence of this witness revealed the true picture as regards the plea of alibi taken by the defence to disprove the appellant’s presence at the crime site. He admitted that on the request of Sayedee’s son that Sayedee was staying at his village, he was requested to depose that fact. He was barely a student of Madrasha but he knew that Delwar Hossain Sayedee was then delivering speeches to Wazmahafils in Jessore which is totally absurd. More so, how he could know that Sayedee was staying in Jessore town unless he was tutored to say this story.

According to D.W.14, Sayedee went directly from Jessore town to Pir Sadaruddin’s house in the month of May, which statement is inconsistent with those of D.W.4, 6, 8 and 12. D.W.4 stated that Delwar Hossain Sayedee left Jessore town on 3rd or 4th April and stayed one night at Sheikhhati village and then he stayed 7/8 days in the maternal uncle’s house of Abdul Khayer at village Dhanghata. D.W.6 stated that Sayedee took shelter at Morihon village in mid April whereas D.W.12 stated that on 4th April Delwar Hossain Sayedee took shelter in the house of Joynul Abedin. D.W.6 stated that after the Pak occupation army started shelling, Sayedee took shelter at Pir Sadar Uddin's house of Mohiron towards mid April. We find from the above analysis of the evidence that the witnesses stated four versions. Apart from the above, there are other infirmities in its version.

D.W.12 was a boy of 11 years old and it was not believable story that he would be able to know in detail about the discussions of the elders of four families. Though D.W.4 claimed that he was a neighbour of Sayedee, he had no idea about Sayedee's village home which proved that he was making tutured story. D.W.12 made totally a different story contradicting D.Ws.6 and 8 as regards the house at which they stayed after they left Jessore. He stated that they stayed one night in the house of Joynul Abedin and on the following day they moved to the maternal uncle’s house of Abul Khair at Dhanghata, and stayed there 7/8 nights, whereas D.W.4 stated that they stayed Sheikhhati one night. D.W.6 stated that Sayedee with his family took shelter in the house of Pir Sadar Uddin after coming from Jessore and then he shifted to the house of Roushan Ali. D.W.8 stated that Sayedee stayed at Sadar Uddin’s house till mid April and then he shifted to Roushan Ali's house in the first part of May, 1971.

According to D.W.4, Sayedee stayed at Dhanghata till 12th April, 1971 and then he went to Pir’s house on the same day where he stayed for 8/9 days i.e. till 20th April, 1971 whereas, according to D.W.6, Sayedee went to Pir’s house on 15th April and if he stayed two weeks in that house, he stayed there till 30th April and then he shifted to P.W.6’s house. According to D.W.8, Delwar Sayedee took shelter in Pir’s house after coming from Jessore town and he did not stay at any other houses in the intervening period. According to D.W.12, Delwar Sayedee stayed first night at Sheikhhati village on 4th April at Jainul Abedin’s house and on the following day on 5th April, he shifted to Abul Khair’s maternal uncle’s house where he stayed for 7/8 days i.e. he stayed there till 12th or 13th and then he went to Pir’s house. He did

not say that Delwar Sayedee took shelter in the house of D.W.6, but if we believe D.Ws.6 and 8, Sayedee stayed in that house till 28th April, whereas D.W.14 stated that Sayedee went to Pir’s house in mid 28th April. D.W.14 stated that Sayedee went to Pir’s house in mid May, 1971 and if he stayed there for 15 days, then Delwar Sayedee moved to D.W.6’s house on 1st June, 1971 and then if he stayed two and half months there, he stayed there till 15th august, 1971. If that being the position, how he went to Pirojpur in mid July, 1971?

D.Ws.4, 6, 8 and 12 did not state that Delwar left for Pirojpur with his bother, but P.W.14 made a different story. This witness did not hear any sort of atrocities like rape, mass killing, looting and arson were perpetrated by Pakistani occupation army in collaboration with Al-Badr and Razakars. This shows the nature of the witnesses the defence is relying upon to prove a plea of alibi for disbelieving the direct evidence adduced by the prosecution. It is only those witnesses who supported the Pakistani occupation army believed that no such atrocities were committed during the liberation struggle period in 1971. The story disclosed by D.W.14 is that it was only when Delwar Hossain Sayedee’s elder son went to Pir Saheb’s house and requested the local people to depose in favour of his father, he deposed in support of Sayedee. Therefore, there is no gainsaying that the defence witnesses made tutored statements on the request of the elder son of Delwar Hossain Sayedee. These five witnesses made inconsistent statements as regards the date of leaving Jessore town and the places of taking shelter thereafter.

The above evidence nakedly focus about the quality of the witnesses the defence has relied upon to prove the alibi plea. One witness did not even know about Delwar Hossain Sayedee’s home although he claimed that he was living as neighbour of Sayedee for about two years. He was a minor boy during that time. Another witness was barely a boy of 11 years old. He claimed that he knew about the discussions and the decisions taken by the family elders for taking shelter in a safe place in 1971. A witness who does not believe in the atrocities perpetrated by the Pakistani army with the help of auxiliary forces in 1971 and holds the view that no such atrocities were committed, can only be taken as the one who still does not believe in our independence and sovereignty of the country. In fact he has insulted the sacrifices of the brave martyrs without their self-abnegation we would not have achieved the taste of liberation, a map, a flag and the sovereignty of the country. The Palestinians could not achieve their dream even after sacrificing millions of lives for the last 66 years but we have achieved within 9 months due to their sacrifices. If these witnesses are to be believed, the history of our liberation struggle would have to be re-written. There is no doubt that these witnesses believe in the ideology of what Delwar Hossain Sayedee does.

According to the defence as revealed from the testimony of Nurul Haque Howlader (D.W.3) that Sekandar Sikder, Danesh Molla, Moslem Moulana, Hazi Abdul Gani Gazi, Shafiz Uddin Moulavi and Asmat Ali Munshi who were the members of the Peace Committee were involved in these incidents. He consciously excluded the name of the appellant but the defence has failed to consider one vital aspect which goes against it. This witness has impliedly admitted the prosecution version of Delwar Hossain’s Sayedee’s complicity, inasmuch as, according to the prosecution, these persons are the accomplices of Sayedee. It did not deny the positive case of the prosecution that they are the accomplices of Sayedee. This witness also admitted that Gouranga Saha complained to him that the appellant Delwar Hossain Sayedee raped Bhanu Saha, daughter of Bipad Saha at the army camp (charge No.17). From this statement we may infer that the accused Sayedee was present at the crime site from March, 26 to the entire period of the liberation struggle. Similarly D.W.15 also admitted the said incident. He, however, has imputed the responsibility upon Pak Army, who in collaboration with Danesh Molla, Sekandar Sikder, Moslem Moulana, Gani Gazi, Asmat Ali Munshi, Malek Shikder committed the incidents. These persons are the accomplices of Sayedee. Sayedee raised Shanti Committee and Razakars Bahini with them. So, by this admission, the defence has practically admitted the accused’s presence at the crime site. There is consistent evidence of the prosecution in this regard. These defence witnesses intentionally absolved the responsibility of the appellant, who was the ring leader of those persons as would be evident from the discussions of the prosecution evidence in support of the charges.

The defence stressed upon ext ‘AJ’, a book ‘¢f−l¡Sf l¤ ®Sm¡l C¢aq¡p‘ in which the appellant’s name was not included in the list ‘Razakars’ and ‘Peace Committee’, which according to the defence support the defence plea of alibi. This ext ‘AJ’ was published in July 2007 and before that, there was political polarisation of the country after the killing of Sheikh Mujibur Rahman in 1975. This court can take judicial notice that after the killing of Sheikh Mujibur Rahman, Jamat-e-Islami, a right wing religious minded political party which was banned after the liberation of the country was allowed to activate its political activities. The anti-liberation elements joined the hands with the autocrat and shared power. Delwar Hossain Sayedee became a Member of Parliament from Pirojpur twice. Ext ‘AK’, another book which was published in 1984 after the killing of Sheikh Mujibur Rahman. The accused and those who supported the Pak occupation army started the process of distorting the legal evidence in a concerted manner so that the perpetrators cannot be put to justice in future and this process continued till 1996. In this connection Muntasir Mamun, a columnist and a writer in his book ‘C¢aq¡p

cM−ml C¢aq¡p‘ has pointed out the concerted efforts made by some writers, who intentionally distorted our history of liberation, the declaration of independence and some related facts in the text books of schools and colleges. He has given the comparison of the previous issues and subsequent issues of some text books relating to historical facts and even on the point of delaration of independence. The law relating to the trial of collaborators, (The Collaborators (Spl. Tribunals) Order, 1972 (P.O.8 of 1972)) was repealed after the promulgation of Martial Law in 1975. All accused who were convicted under P.O.8 of 1972 and who were under trial were pardoned. The court may take judicial notice of those facts under sub-section (3) of section 19 of Act of 1973.

On the other hand, Mahbubul Alam Howlader (P.W.1), Ruhul Amin Nabi (P.W.2), a freedom fighter, Sultan Alam Howlader (P.W.4), an eye witness of the incident at Parerhat, Mahatab Uddin Howlader (P.W.5), another eye witness, Manik Posari (P.W.6), a victim and an eye witness, Mostafa Howlader (P.W.8), another eye witness, Altaf Hossain Howlader (P.W.9), another eye witness, Basudev Mistri (P.W.10), another eye witness, Al-haj A.K.M. Awal (P.W.12), a person of the locality and a freedom fighter, and Gouranga Chandra Shaha (P.W.13), another eye witness have vividly narrated about the incidents of atrocities committed by the Pak army with direct participation and collaboration of accused Delwar Hossain Sayedee. They stated that accused Delwar Hossain Sayedee not only took active role in all the atrocities committed at Pirojpur, he was the one, who with his Urdu Speaking proficiency was popular to the Urdu Speaking Pak army and that due to his extra quality, the Pak army took his advice and guidance to implement their objects.

P.W.1 is a freedom fighter and a resident of the same locality of Delwar Hossain Sayedee. He has narrated the vivid picture that prompted the people of this country to take arms in their hands against the military junta after 26th March, 1971. He has also narrated the role of Delwar Hossain Sayedee. He stated that Sayedee raised the Peace Committee at Parerhat with the Jamat-e-Islami leaders such as, Sekendar Ali Shikder, Danesh Ali Molla, Moulana Mosleh Uddin, Delwar Hossain Shikder renamed Delwar Hossain Sayedee; that though Sekandar Ali Shikder, Danesh Molla and Moulana Moslem Uddin were in charge of the Peace

Committee, Delwar Hossain Sayedee having the proficiency in Urdu language developed cordial relationship with Pak occupation army. Besides, P.Ws.4, 5, 6, 8, 9, 10, 12, 13, Abdul Latif Howlader, Anil Chandra Mondal, Shahidul Islam Khan Selim, Ayub Ali Howlader, Usha Rani Malaker, Ajit Kumar Shil, Rani Begum, Sitera Begum, Md. Mostafa, Ganesh Chandra Saha, all of them hail from the same locality corroborated P.W.1 about the active part played by Delwar Hossain Sayedee as the architect of the anti-liberation element of Parerhat. Their positive statements are that Sayedee was at the crime site all along and took active role in organizing and raising the auxiliary forces at Perojpur and participated almost all inhuman acts committed there. The documentary evidence, exts 8,11, 15- 22, 28, 29, 47, 48, 49 series, 50-63, 92-94, 122-150 also corroborated them. The oral statements of the neighbours of Delwar Hossain Sayedee being corroborated by documentary evidence cannot be nagated by the evidence of 5 outsider witnesses and believers of the same political idiology of Sayedee. Moreso, they made inconsistent versions.

Ext 8 is an issue of the Daily Janakantha dated 5th March, 2001. In this news paper a news item under the caption ‘l¡S¡L¡l ¢cCõ¡’ HMe jJm¡e¡ p¡Dc£’, it was reported that in 1971 during the liberation struggle period the misdeeds of Delwar Hossain Sayedee were not known to the new generation, but the people of Parerhat will never forget. Similar reportings were made in the Bhorer Kagoj issue of 4th November, 2001, ext-11 and the issue of Samakal dated 10th February, 2007, ext-34. These are amongst series of reports published in the news papers stating that Delwar Hossain Sayedee was a Razaker of Perojpur during the period of the liberation struggle; that he had actively participated in all atrocities of Parerhat as a member of anxiliary force of Pak army and that after the liberation he has changed his name in order to conceal his identity.

There is no doubt that some right minded religious people of this country supported the Pak occupation army from the very beginning of the declaration of independence and after the declaration of independence they involved in atrocities. The defence admitted that towards the mid July, 1971, Delwar Hossain Sayedee went to his own home while other three families left for India. If Delwar Hossain Sayedee did not feel safety and security in Jessore town because of the alleged shelling by Pak force, it was natural that he would have returned to his own home at Pirojpur, because he was fearful of the shelling of Pak army and not at all fearful of Pak army’s atrocities. He returned to his village home in the midst of liberation struggle while other families opted to leave the country. So, the claim of the defence that he took shelter in other places i.e. Sheikhhati, Dhanghata and Mohiron villages instead of returning to his own home is totally absurd story. More so, for giving religious speeches at Duhakula and other villages of Jessore, it is unbelievable story that he would stay at Jessore town by hiring a house, instead of staying at Pirojpur at his own house, which is located nearer to Jessore having communication links. It is not his case that he was teaching at a Madrasha of Jessore for which, it was not possible for him to move every day from Parerhat to Jessore town. It is also our common knowldege from which we may take judicial notice that Wajmahafils are being held at different parts of our country during a particular season, say, during antuma and winter seasons, and not in summer or in the rainy season,

When a Wajmahafil is arranged at a particular Madrasha, Moqtob, Mosque or other religious places, the preachers who are specialized in religion are invited from every corner of the country to deliver a speech. Even in some Wajmahafils, speakers from abroad are invited. But for preaching Wajmahafils one would stay at a different district town by hiring a house is not at all a believable story becuase, as stated above, Wajmahafils are being arranged in a particular season. It was not also a believable story that the accused would take refuge to some remote villages of Jessore for fear of Pak army’s shelling towards Jessore town instead of returning to his village home because his idiology and line of thinking and those of Pakistani rullers were identical. Pakistan was created solely on politics of religion, the basis of which was on Lahore Resolution made on March, 1940. It was stated ‘that geographically continuous units’ are demarcated into regions which should be so constituted, with such territorial adjustments as may be necessary, that the areas in which the Muslims are in a majority, as in north-west and eastern zones of India, should be grouped to constitute independent states in which the constituent units shall be autonomous and sovereign’.

Accused Delwar Sayedee did not explain his role in 1971, whether he supported Pakistan’s ruller or he was neutral or that he supported the war of liberation. What he claimed was that till March, 1971, Wazmahafils were his only source of income and that he was delivering speeches in the Wajmahfils at different places of Jessore. If it was his profession, why not he delivered such speeches in other districts particularly in his own district Pirojpur. If he was a religious preacher, in view of his educational background, he ought to have delivered such speeches to other places outside Jessore district. This was natural, but if we accept his plea, it was not possible on his part to deliver such speeches to other districts. Secondly, if he could move to his village home without harbouring any fear of Pak army in July, 1971 he could return to his home. So, the defence plea that he stayed elsewhere at the time of commission of atrocities at Parerhat, Pirojpur for fear of Pak occupation army is totally a concocted story. His admission that after two and half months he returned to his home at Pirojpur is sufficient to come to the conclusion that he never took shelter in villages Sheikhhati, Dhanghata, Mohiron from New Town Road, Jessore, for safety and security, and that he was all along present at Parerhat, Perojpur and raised the forces of Peace Committee and Razakars etc. at Parerhat. The story of alibi introduced by Delwar Hossain Sayedee was totally false, concocted and imaginary.  

On an analysis of the above evidence we are satisfied that the defence witnesses are politically motivated witnesses and that the defence plea is not only plagued by absurdities but also unreliable and false. On consideration of the evidence in totality in support of the plea of alibi, we may arrive at the conclusion that the defence has set up an absurd story that Sayedee was staying at different villages of Jessore during the relevant time. It is also absurd story that Sayedee being a right minded preacher of religion would take refuge to village Sheikhhati or Dhanghata for safety of his life from the onslaught of Pak occupation army despite that he has his home at Pirojpur. More so, as observed above, the defence has impliedly admitted the presence of accused at the crime site.

It is on record that due to pressure of Pak Junta, all schools, Madrahas, colleges and universities resumed academic education in May, 1971 and also compelled the institutions to hold examinations to show to the world community about the restoration of normalcy in the country, but D.W.14 stated that his Madrasha was closed during the whole period of war of liberation. Lt. General Kamal Matinuddin (Rtd.) of Pakistan army in his book ‘Tragedy of Errors-East Pakistan Crisis 1968-1971’ at page 255 stated ‘By middle of May the Government had restored normalcy over almost all of East Pakistan. Shops were opened, factories started running, schools and colleges begun functioning, offices shorted normal attendance, TV and radio stations were under the control of administration’. If that being the position and the condition of the country which has been expressed by none other than a military general of Pak army but, a witness for the defence claimed that his Madrasha was closed. It is thus difficult to rely upon these witnesses and believe the defence plea that Delwar Hossain Sayedee was at remote villages of Jessore till mid July, 1971. More so, these witnesses also made inconsistent statements regarding Sayedee’s number of issues in 1971 as noticed from the evidence by the Tribunal from which it may be concluded that Sayedee never stayed at Jessore in 1970-1971 by renting a house. Therefore, there is no truth to the claim of the defence version. All these witnesses made tutored and contradictory versions.

Admittedly, during the liberation struggle period the Pak occupation army with the active collaboration of local Razakars, Al-Badr, al-shams and Peace Committee members killed millions of people, raped women, set ablaze of the houses of minority community and supporters of Awami League, compelled the minority community to convert to Islam and those barbarous acts could only be compared with those of Genghis Khan. It was not possible on the part of Pak army to commit such barbarous and inhuman crimes without the collaboration of these aberrated right-minded religious people like Delwar Hossain Sayedee. During that time some reporters including The New Delhi correspondent of ‘The New York Times’ were expelled from East Pakistan only because they published news in the medias disclosing the true picture of atrocities committed by the Pak army. The role of the local right-wing religious people during the relevant time was reported by the New York Times issue of June, 30 as under:

“Throughout East Pakistan the army is training now para-military home guards or simply arming ‘loyal’ civilians, some of whom are formed into peace committees. Besides Biharis and other non-Bengali, Urdu-speaking Moslems, the recruits include the small minority of Bengali Moslems who have long supported the army-adherents of the right-wing religious parties such as the Moslem League and Jamat-e- Islami’ (Bangladesh Documents, Volume one, page 414).

About the commission of atrocities and massacres of the innocent people, Anthony Mascarenhas, a Pakistani journalist termed the acts of Pak army as ‘Genocide’. ‘The Guardian’ London in its May, 27, 1971 issue wrote:

‘There are scores of survivors of firing- squad line-ups. Hundreds of witnesses to the machine-gunning of political leaders, professors, doctors, teachers and students.

‘Villages have been surrounded, at any time of day or might, and the frightened villagers have fled where they could, or been slaughtered where they have been found, or enticed out to the fields and mown down in heaps. Women have been raped, girls carried off to barracks, unarmed peasants battered or bayoneted by the thousands.

‘The pattern, after seven weeks, is still the same. Even the least credible stories, of babies thrown up to be caught on bayonets, of women stripped and bayoneted vertically, or of children sliced up like meat, are credible not only because they are told by so many people, but because they are told by people without sufficient sophistication to make up such stories for political motives.

‘We saw amputation of a mother’s arm and a child’s foot. These were too far from the boarder, and gangrene developed from their bullet-wounds. Many saw their daughters raped and the heads of their children smashed in. Some watched their husbands, sons, and grandsons tied up at the wrists and shot in more selective male elimination.

‘No sedative will calm a girl now in Bongaon Hospital-she is in a permanent delirium crying, “They will kill us all, they will kill us all”. Next to her is a girl still trembling from day- long raping and a vaginal bayonet wound’.

‘About 400 were killed at Chuadanga while on their way to India, surrounded and massacred. Why? Lest they take tales to India? or because choosing a certain democratic system under Sheikh Mujib means forfeiting the right to live in any country.’

(Bangladesh Documents, Vol-one, Page 403-04) Admittedly Delwar Hossain Sayedee got his education

in Madrasha and he has been involved in Jamat-e-Islami politics from his early life. He was closely associated with Golam Azam, the founder of East Pakistan Jamat-e-

Islami, which is a right-wing religious political party.

From this background if the people like him did not join the hands of the butchers or collaborate them by forming Peace Committee, Razakars Bahini etc. as auxiliary forces, the history of our liberation struggle would have been otherwise. It was not at all practicable on the part of Pak occupation army to commit atrocities after taking control of the country without the active collaboration of the right minded religious people like Sayedee. It was not at all possible for them to perpetrate those barbarous activities like killing of unarmed innocent three million people, rape of women and girls, maiming, conversion and committing massacres by destruction of houses by fire. The international medias including ‘The Guardian’ and the ‘New York Times’ supported the prosecution claim of the formation of Peace Committee and raising Razakars force with the right minded religions leaders and supporters. The war lingered for nine months only because the right- wing religious minded people like Delwar Hossain Sayedee supported them and attempted to divert the minds of illiterate religious minded people towards Pakistan by using the trumpcard of Islam, and exterminated the minority community and pro-liberation minded people. The reports in ‘New York Times’ and ‘The Guardian’ were not disputed by any one else till now.

The oral and the historical documents are sufficient to hold the view that the accused not only was physically present at the crime site during the relevant times, he also raised the Razakars Bahini at Parerhat and Pirojpur as auxiliary force of Pakistani army as defined in section 2(a) of the Act of 1973 and with his proficiency in Urdu, he became a close associate of the army. The accused was rightly prosecuted as a member of auxiliary force under section 3(1) of the Act of 1973 for committing the offences specified in section 3(2) of the Act. The above relevant facts have proved that at the time of commission of horrific crimes at Parerhat, the status of the accused was a potential leader of Peace Committee and Razakars Bahini and a close accomplice of Pakistani occupation army. The Tribunal, in the premises, was perfectly justified in its view that the prosecution witnesses proved beyond all shadow of doubt that Delwar Hossain Sayedee was present at Parerhat at the time of commission of atrocious acts.

Accused’s plea of staying at Jessore town for delivering religious speeches of Wajmahafils at different places of Jessore is not borne out by reliable evidence because his village home is also situated nearer to Jessore. If he could move to the villages of Jessore from the town, it was also probable on his part to move those areas from Pirojpur because Wajmahafils are not arranged every day.

Despite a plea of alibi being taken and not proved, the burden is upon the prosecution to prove the charges against the accused. While it is the burden of the prosecution to prove beyond reasonable doubt that the accused was present at the scene of the crime at the time of its commission, the burden of going forward with the evidence in regard to a fact which is specially within his knowledge, the accused has to show that he was elsewhere at the moment of the crime. If the burden of going forward with the evidence to be discharged by the accused raised a reasonable doubt of his presence at the scene of the crime at the time that it was committed, it is not incumbent upon him to prove his alibi beyond a reasonable doubt or by a preponderance of evidence. In view of the statement of law discussed above, let us now consider whether the Tribunal was justified in finding the accused guilty of the charges.

There is no gainsaying that the offences of Crime against Humanity, War Crimes, Genocide etc. are perpetrated by autocrats or authoritarians, their forces and auxiliary forces. When international organizations, human rights organizations and activists raised voice against such atrocious activities, it is seen that the autocrats tried to suppress those facts, caused disappearance of evidence and sometimes constitute commissions for ascertaining the excesses as an eye wash. The Pakistani ruller also constituted a commission headed by Hamoodur Rahman,J. In most cases, the perpetrators destroy and/or disappear the legal evidence of their atrocious acts. Normally the investigation, the prosecution and the adjudication of those crimes often take place years or even decades after their actual commission. In Bangladesh this has caused because of fragile political environment and the apathy of the succeeding government. In case of Bangladesh the process has started after 40 years. After the killing of Sheikh Mujibur Rahman by some aberrated army officers, the killers were rewarded instead of putting them to justice and the perpetrators of those inhuman crimes in 1971 were repatriated, and the cases then pending against them were dropped, and the convicted persons were pardoned. This delayed prosecution is nevertheless supported by various international legal actors.

Naturally these trials are based on the old evidence. One of the challenges associated with the delayed criminal justice for such crimes is the location, treatment and assessment of old evidence. Evidence collection and interpretation in atrocity cases is complicated by the instability of post-atrocity environments which results in much evidence being lost or inadequately preserved and the apathy of the witnesses to disclose the real story after such long delay under the changed circumstances. In this connection Alphons M.M. Orie, a Judge of International Criminal Tribunal for the former Yogoslavia (ICTY) in the Hague, in an article namely ‘Adjudicating Core International Crimes cases in which Old Evidence is Introduced’ on “The limits of the Legal Approach to Old Evidence” observed ‘It might therefore be that the legal approach does not produce a fully satisfactory answer to the challenges encountered when dealing with ‘Old Evidence’ about events that have long since passed’. On the question of probative value of witness evidence, Judge Alphons M.M. Orie was of the view that even if the evidence of a witness was recorded at a point of time closer to the occurrence, it may enable the comparison of a witness statement given almost immediately after the event, with the evidence of the same witness given in 40/50 years later. Even if the statement is unreliable, it does not mean that the witness lied but rather that this needs to be further explored so as to discover the exact explanation for its shortcoming. So if, on the basis of an early recording, discrepancies are formed, this does not automatically mean that old evidence is bad.

Martin Witteveen, an Investigation Judge for International Crimes in the District Court in The Hague, the Netherlands, in an article on ‘Dealing with Old Evidence’ on the question of ‘Increased appreciation of Evidential Difficulties in the Investigation and Prosecution of International Crimes’ observed ‘The crimes are perpetrated by accused persons acting in groups, rather than as individuals. Sometimes the structures of the groups are quite loose and badly documented. Sometimes the perpetrators are senior figures in an army or a paramilitary group with a well-defined structure and meticulous documentation. Tribunals, as a policy, aim their efforts at prosecuting the most responsible for the crimes under investigation, most likely the leaders of these military or paramilitary groups. ... More often these most responsible persons or leaders were not involved in the crimes directly in the sense that they personally killed or mutilated victims. They may have ordered or otherwise investigated the killers and attackers, but often they are military commanders or political leaders, who may have a more indirect criminal responsibility for the crimes’.

The perpetrators of the crimes of the nature are never been exempted from prosecution because they committed the offences against humanity. Even the perpetrators of crimes or their supporters of the Second World War are still being hounded in Germany after 70 years and being tried there. Since Einsatzgruppen trials in 1958 relating to crimes committed in world war 11 and, the beginning of the Auschwitzprozesse in Frankfurt in the early 1960s, the German courts in particular have increasingly faced difficulties concerning both the credible identification of accused persons, especially because they were for the most part relatively low level perpetrators, and also the connection of individual accused to specific criminal acts. ‘Falsification or substitution of identity documents, together with the difficulty of witnesses in identifying a person after they saw them in a Wehrmacht or SS uniform in a camp or killing site, proved to be stumbling blocks in a number of cases’. (David Cohen on ‘The Passage of time, the Vagaries of Memory, and Reaching Judgment in Mass Atrocity cases).

John Demjanjuk was taken as a prisoner of war by German forces in the Ukraine in 1942 on the allegation that he was posted to the extermination centre at Sobibor in 1943. He emigrated to USA but in 1977, his citizenship revocation proceeding begun on the ground that he was an accused of war crimes. He was stripped of his USA citizenship and in an extradition proceeding, he was ultimately deported to stand trial in Isreal. Demjanjuk’s defence was that he had been inaccurately identified as ‘Ivan the Terrible’. His defence proved in vain and was convicted in 1988 but the Israeli Supreme Court overturned his conviction on the reasoning that he had been wrongly identified by the witnesses. He returned to USA but in 2001, he was again made accused in USA of having served as a guard at the Sobibor and Flossenburg Camps. In 2009, he was deported to German in a deportation proceeding and this time he was charged as an accessory to the murder of 20,000 persons at Sobibor. Though the prosecution could not connect him to specific crimes, rather to his role at Sobibor by working as a guard at a death camp, he was a participant in killings that took place there. He was convicted by the German Court in May, 2011. (The passage of Time (ibid) (BBC, 12 May 2011))

One of the striking things about Demjanjuk’s trial was that there were no longer any living witnesses brought to court to identify him and testify against him. With the passage of so many decades, witnesses had died or were no longer in a position to testify. The prosecution, deprived of witness identification in court that in any event would have been highly contested, relied instead upon documentary evidence. The defence claimed that in the

absence of corroborative witness identification, the documentary evidence was insufficient because his SSID was part of forgery campaign by KGB. The court found that Demjanjuk was guilty. (The passage of Time (ibid)). The German court relied on documentary evidence even after 69 years of committing crime by Demjanjuk, because the historical documents were kept and preserved intact, but in our country, it is our tragedy that almost all historical documents were distorted within 5 years of the independence. We do not feel shy to support the perpetrators of those crimes. This is totally an insult to the martyrs. We forget out past history. The past becomes something that leads up to the present, the moment of action, the future something that flows from it, and all three are inextricably intertwined and interrelated.

In a number of cases in various Tribunals, witnesses testify as if they had actually seen an event when in fact they had only heard about it. In The Prosecutor V. Akayesu, ICTR-96-4-T, para 55, the International Criminal Tribunal for Rwanda (ICTR) was confronted with the problem of whether witnesses were systematically lying and collecting evidence to ensure conviction, as the defence claimed, or whether other factors were at work. The court responded, however, by pointing out other factors that could produce the kind of inconsistencies noted by the defence. It was noted that such discrepencies could be due to the fallibility of perception and memory and the operation of the passage to time. It was observed:

“The majority of the witnesses who appeared before the Chamber were eye-witnesses, whose testimonies were based on events they had seen or heard in relation to the acts alleged in the Indictment. The Chamber noted that during the trial, for a number of these witnesses, there appeared to be contradictions or inaccuracies between, on the one hand, the content of their testimonies under solemn declaration to the Chamber, and on the other, their earlier statements to the Prosecutor and the Defence. This alone is not a ground for believing that the witnesses gave false testimony [...]. Moreover, inaccuracies and contradictions between the said statements and the testimony given before the Court are also the result of the time lapse between the two. Memory over time naturally degenerates, hence it would be wrong and unjust for the Chamber to treat forgetfulness as being synonymous with giving false testimony.”

In Prosecution V. Kunarac et al, IT-96-23-T, para 564, the International Criminal Court for the former Yugoslavia (ICTY) considered the issue of assessing credibility; memory loss, passage of time and trauma as impacting witness testimony. It many cases the trial chamber concluded that despite various inconsistencies the prosecution’s burden had been met. In regard to rape of one witness by Kunarac, the judgment concludes:

“The Trial Chamber regards this lapse of memory as being an insignificant inconsistency as far as the act of rape committed by the accused Kunarac is concerned. In particular, the Trial Chamber is satisfied of the truthfulness and completeness of the testimony of FWS-95 as to the rape by Kunarac because, apart from all noted minor inconsistencies, FWS-95 always testified clearly and without any hesitation that she had been raped by the accused Kunarac [...]. As already elaborated above, the Trial Chamber recognises the difficulties which survivors of such traumatic events have in remembering every particular detail and precise minutiae of these events and does not regard their existence as necessarily destroying the credibility of other evidence as to the essence of the events themselves.”  

Keeping in view of the above opinions, let us consider whether the prosecution has been able to prove the charges against the accused.

Charge No.6 is as under:

‘That on 7th May, 1971 accused Delwar Hossain Sayedee led a team of Peace (Shanti) Committee to receive Pakistani Army at Parerhat Bazar under Pirojpur Sadar Police Station, then the accused identified the houses and shops of the people belonging to Awami League, Hindu Community and supporters of the Liberation War. The accused as one of the perpetrators raided those shops and houses and looted away valuable including 22 seers of gold and silver from the shop of Makhanlal Saha. These acts are

considered as crime of persecution on political and religious grounds as crimes against humanity’.

In support of the charge the prosecution has examined P.Ws.1, 2, 4, 5, 6, 8, 9, 10, 12, 13 and Mizanur Rahman Talukder (P.W.3). The Tribunal after analysing the evidence held that ‘all the attacks including looting of valuables made by Pakistani Army coupled with local members of Peace Committee and Razakars bahini were directed against unarmed civilian population specially targeting Hindu Community and liberation loving people. All the aforesaid 8 prosecution witnesses have categorically testified that on 7th May, 1971, accused Delwar Hossain Sayedee was very much present at Parerhat and took active part in all occurrences of looting of goods from 25/30 shops and houses of Hindus and Awami Leagues situated at Parerhat area under Pirojpur Sub- Division. Aforesaid P.Ws. have succinctly stated that   accused Delwar Hossain Sayedee, could speak in Urdu, so he used to accompany the Pakistani forces to the place of occurrences and identified shops and houses of pro- liberation people and Hindu community for committing crimes such as looting of goods, setting fire on houses of

civilians, etc. The evidence discussed above appears to be unshaken. It sufficiently indicates that the accused substantially contributed and facilitated to the Crimes against Humanity with full knowledge’.

It was argued on behalf of the defence that the Tribunal erred in law in relying upon the evidence of P.Ws.1, 2, 3, 4, 8, 9, 12, 14 and finding the appellant guilty of the charge in failing to consider that the prosecution did not examine the victims whose shops were looted. It was further urged that the Tribunal erred in law in holding that D.Ws.1, 3, 13, 14, 16 support the charge and that it failed to consider that ext ‘V’ and ‘AJ’ which negated the charge.

It may be pointed out here that the incident in respect of this charge has admittedly been committed in the manner stated by the prosecution, inasmuch as, the defence has not disputed the incident. It has only disputed the complicity of the accused. This charge relates to the looting of valuables including 22 sears of gold and silver from the shop of Makhan Lal Saha and also from other shops and houses by the appellant and his accomplices. P.W.1 has narrated the formation of Peace Committee at Parerhat during the initial period of the liberation struggle with the anti-liberation actvists including the appellant. He also narrated the manner of arrival of Pak army at Parerhat on 7th May. He stated that Delwar Hossain Sayedee received them and spoke with captain Ejaj and took them towards Parerhat bazar; that Delwar Hossain Sayedee showed the houses and shops of Hindus and Awami League supporters by pointing fingers to captain Ejaj, who had directed to loot those shops; that thereafter, he came to know that Sayedee distributed the booty among themselves and that captain Ejaj took 22 seers of gold and silver, which were looted from the chest of Makhan Saha. P.W.2 corroborated him in material particulars only with the deviation that the Pak army took 22 seers of gold and silver. P.W.3 made omnibus statement regarding the looting. P.W.4 made statements in corroboration with P.W.1. P.W.5 also made omnibus statement in support of the charge. P.W.6 did not corroborate them. P.W.7 while corroborating P.Ws.1, 2, 4 regarding the raising of Shanti Committee and the manner of arrival of Pak army, made omnibus statement on the question of looting and the participation of the

Abdul Latif Howlader, Md. Ayub Ali Howlader and Ajit Kumar Shil made superficial statements in support of the charge. We noticed from their statements that some of the witnesses simply stated that the members of the Peace Committee with the help of Pak army were involved in the looting of shops and houses of Hindu community and Amami League supporters. Except Makhan Saha’s shop, they did not mention specifically whose shops and houses were looted by the accused and other persons. On consideration of the nature of evidence adduced by the prosecution, it is difficult to come to the conclusion that the act of looting attracts an offence of ‘other inhumane acts’ used in clause (a) of sub-section (2) of section 3. Or in the alternative, it is too remote to come to the conclusion that the act of looting in the manner narrated by P.Ws.1, 2, 4 and other witnesses attracts an offence of Crimes against Humanity.

The expression ‘inhumane act’ has nexus with cruelty, that is to say, there must be presence of mental violence or undermining the dignity of a person or an act which is inhumane in nature. Word ‘inhumane’, according to Concise Oxford English Dictionary, is without compassion for misery or suffering. According to ‘The Chambers Dictionary’ New Edition, ‘inhumane’ means lacking humane feelings, cruel. In Prosecutor V. Galic (ICTY, IT-98-29), it was observed that the Crime of inhuman acts is a residual clause for serious acts, such as ‘the act or omission caused serious mental or physical suffering or constituted a serious attack on human dignity’.

The elements of ‘inhumane acts’ mentioned in Article 7(1)(K) of the Rome Statute are as under:

“1. The perpetrator inflicted great suffering,

or serious injury to body or to mental or physical health, by means of an inhumane act.

2. Such act was of a character similar to any other act referred to in article 7, paragraph 1, of the Statute.
3. The perpetrator was aware of the factual circumstances that established the character of the act.

4.       The conduct was committed as part of a widespread of systematic attack direted against a civilian population.
5.       The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.”

The ‘other inhuman acts’ defined in the Rome Statute are not applicable to our Act of 1973 but in the absence of any definition or explanation as to the constituents of ‘other inhuman acts’ in our Act, there is no legal bar to take in aid of other Statute on the subject and the opinions of legal luminaries on the field for guidance. Prof. Darryl Robinson at the Rome Conference (AJIL Vol 93, No.1 (Jan 1999) said about ‘other inhuman acts’ as under:

“As the final heading, ‘other inhumane acts’ appeared in the major precedents (including the Nuremberg Charter, the Tokyo Charter, Control Council Law No.10 and the ICTY and ICTR Statutes), many delegations raised grave concerns about its imprecise and open-ended nature ... The solution was to agree to include this final heading but to provide a clarifying threshold, specifying that the acts must be of a character similar to that of the other enumerated acts and must intentionally cause great suffering or serious injury to mental or physical health. Unlawful human experimentation and particularly violent assaults were two possibilities considered likely to fall within this heading.”

Taking consideration of the evidence, and looking at the constituents of ‘other inhumane acts’ of the Rome Statute, and the opinions of the legal luminaries of international standard, it is my considered view that the act of the offender must be directed against a civilian population, that and secondly, the act may be intended to imply the presence of violence with cruelty; or persecution of civilian population or human dignity, a crime of a collective nature excluding single or isolated act, that is to say, the critical feature of the requirement is that ‘other inhumane acts’ should be, by their nature and the gravity of their consequences of comparable character to the other enumerated crimes.

To assess the seriousness of an act, consideration must be given to all the factual circumstances of the case. It may include the nature of the act, the context in which it has occurred, the personal circumstances of the victim including the age, sex, health and the physical, mental, and moral affects of the act upon the victim. The violence may lead to serious consequences other than bodily injury such as, ‘great suffering’ or injury to health, mental, dignity or physical. In this case in support of the charge, the witnesses made general statements as regards the manner in which such incidents were perpetrated as if it were perpetrated in normal condition of the country. The evidence on record does not show that the act of looting has affected great suffering or caused injury to health, mental or physical to the victims. Thus I hold that the prosecution has failed to prove the charge by adducing legal evidence against the accused and therefore, the accused is entitled to get the benefit of doubt in respect of the charge. The Tribunal has not at all applied its judicial mind in finding the accused guilty of the charge.  

Charge No.7 is as under:

‘That on 8th May, 1971 at about 1.30 p.m. accused Delwar Hossain Sayedee led a team of armed accomplices accompanied with Pakistani Army raided the house of Shahidul Islam Salim, son of Nurul Islam Khan of village Baduria under Pirojpur Sadar Police Station and he identified Nurul Islam Khan as an Awami League leader and

his son Shahidul Islam Salim, a freedom fighter, then the accused detained Nurul Islam Khan and handed over him to Pakistani Army who tortured him and after looting away goods from his house, the accused destroyed that house by setting fire. The act of destruction of the house by fire

is considered as crime of persecution as Crimes against Humanity on political ground and the accused also abetted

in the torture of Nurul Islam Khan by the Pakistani Army’.     

In support of the charge the prosecution has examined P.Ws.1, 4, 8, 9 and 12 and relied upon the statements of Abdul Latif Howlader, exhibit 258, Shahidul Islam Khan Salim, exhibit 261 and Ayub Ali Howlader, exhibit 262. The Tribunal upon analyzing the evidence particularly the evidence of P.Ws.1, 8 and 12 held that on 8th May, 1971,

the Pak Army alongwith 30/35 Razakars headed by Delwar Hossain Sayedee went to village Baduria where the latter identified the house of Shahidul Islam Selim, a freedom fighter, set ablaze of his house which was witnessed by P.W.8, which according to it is a crime of persecution; that this attack was directed against civilian population with an intent to destroy a political group; that D.Ws.3, 7 and 15 corroborated the prosecution case to the extent that on the fateful day the Pak Army along with some Razakars went to the village Baduria and destroyed the house of Nurul Islam Khan by setting fire; that the evidence of both the parties if considered conjointly indicated that the Pak Army with intent to make systematic attack on large scale destroyed the houses of two villages of Baduria and Chitholia with the assistance of local Razakars and that accused Delwar Hossain Sayedee substantially contributed and facilitated the commission of Crimes against Humanity with full knowledge as he was present at the time of commission of those crime sites.

It is contended on behalf of the appellant that the Tribunal erred in finding the appellant guilty of the charge relying upon the evidence of P.Ws.1, 8 and 12 in failing to consider that these witnesses made inconsistent statements in material particulars. It is further contended that these witnesses did not state material facts to the investigation officer; that D.Ws.3, 7 and 15 who are neutral witnesses proved that the appellant was not involved in the said incident. In this connection the learned counsel has drawn our attention to the relevant portion of the evidence of P.Ws.1, 8 and 12 and D.Ws.3, 7 and 15 and submits that their evidence sufficiently prove that the prosecution has miserably failed to prove the participation of the appellant in the said crime and therefore, the appellant is entitled to get the benefit of doubt. On the other hand, learned Attorney General has drawn our attention to the incriminating portion of the evidence of P.Ws.1, 4, 8, 9 and 12 and the statements of Abdul Latif Howlader, Shahidul Islam Khan Selim and Ayub Howlader and submits that the prosecution has proved the charge beyond shadow of doubt and that the Tribunal is justified in convicting the accused of the charge.

P.W.1 Md. Mahbub Alam Howlader stated that after the crack down by the Pak occupation army on the night following 25th March, 1971, as per direction of Sheikh Muzibur Rahman the people organized Mukti Bahini for fighting against the tyrant regime and started guerrilla

fighting and sometimes thereafter, the anti-liberation forces like Sekandar Ali Sikder, Danesh Ali Molla, Moslem Uddin Moulana, Azahar Ali Talukder, Delwar Hossain Sayedee, Mohsin, A. Karim, Habibur Rahman Munshi, Sobhan Moulana, Hakim Kari and others formed Shanti Committee at Parerhat. Besides them, Madrasha students, the anti- liberation activists formed Razakars force and they started working as collaborators of Pak army. In the first part of May, 1971, Pak army came to Pirojpur and as Delwar Hossain Sayedee could speak Urdu fluently worked as interpreter of captain Ejaz and entered to Parerhat with the Pak occupation army. He stated that after looting the shops of Makhon Lal Saha, Modan Saha, they came to Baduria and Chitolia villages and looted the houses of Manik Posari and others and destroyed their houses by fire and that though Sekandar Ali and Danesh Ali Molla took leading part, Delwar Hossain Sayedee having proficiency in Urdu speaking developed closeness with captain Ezaj and actively participated in those atrocities. In course of cross-examination, he reaffirmed his claim made in chief and stated that Delwar Hossain Sayedee was present at Parerhat and denied the defence suggestion that Sayedee

was not involved in the looting and arson of the houses of Manik Posari. The defence could not bring anything by cross-examining him to discredit his testimony.

Sultan Ahmed Howlader (P.W.4) corroborated P.W.1 as regards the raising of Peace Committee at Parerhat area with Delwar Hossain Sayedee. This witness claimed that he saw the atrocious acts perpetrated to the houses of Manik Posari and Nurul Islam Khan and stated that the appellant Delwar Hossain Sayedee along with Sekandar Ali Shikder, Danesh Molla, Moslem Moulana and other Razakars were involved in the said incidents. The defence thoroughly cross-examined him but failed to discredit his testimony in any manner.

Md. Mostafa Howlader (P.W.8) corroborated P.Ws.1 and 4 as regards the formation of Peace Committee with the appellant in Parerhat area. He also stated regarding the incident of destruction caused to the houses of Nuru Khan by the local Razakars with the help of Ayub. By pointing fingers at Delwar Hossain Sayedee he stated that Sayedee identified the house of Nuru Khan. In course of cross- examination, he reaffirmed his statement in chief stating that before 8th May, 1971, none damaged Saiz Uddin Posari’s houses. This suggestion indicated that the defence has also admitted the destroy of the houses of Saiz Uddin Posari by fire but according to the defence, the houses were damaged before 8th May, 1971. The defence failed to bring anything to show that the houses were destroyed before 8th May, 1971. It did not adduce any evidence that the incident took place prior to 8th May. He reaffirmed his statement in a reply to another query that he saw the incidents of setting fire from a distance of about 200/300 yards. He specifically mentioned the distance between the place where he was standing and the incident houses, which according to him was the bank of the canal. He denied the defence suggestion that Delwar Hossain Sayedee was not present at Parerhat on 4th or 5th May. He was thoroughly cross-examined by the defence but failed to shake his testimony in any manner. The inconsistencies which defence tried to establish were trifling in nature.

Md. Altaf Hosain (P.W.9) also corroborated the statements of the aforesaid witnesses in respect of the raising of the Peace Committee and Razakars force under the leadership of Sekandar Sikder and that the accused Delwar Hossain Sayedee was one of them. He also stated in respect of the atrocities committed by the Razakars force and Shanti Committee members at Parerhat and stated that all the incidents of Parerhat were perpetrated by the active participation of Delwar Hossain Sayedee. He denied the defence suggestion that Delwar Hossain Sayedee was not present at Parerhat from the beginning of the liberation war till mid July. He was thoroughly cross-examined by the defence but it failed to shake his testimony in any manner.

Shahidul Islam Khan in his statement (ext-261) stated that on getting the information that Pak occupation army would enter into his village on 8th May, 1971, all the members took shelter at the nearby jungle and observed the movements of Pak Army. At noon Sekandar Shikder, Danesh Molla, Delwar Hossain with 8/10 Razakars entered into his house with Pak Army. They detained his father and tortured him. They looted away valuable goods from the house and set ablaze of the house. Ayub Ali Howlader (ext-262) in his statement made similar statement in corroboration with Abdul Latif Howlader. Similar is the statement of Abdul Latif Howlader (ext-258). In order to avoid repetition, I have refrained from reiterating his statement.

Their statements were recorded by the investigation officer Md. Helal Uddin (P.W.28). This witness stated that after the examination of some witnesses, the production of the remaining witnesses before the Tribunal was not possible due to time restraint and threat given to them. In this connection he stated that he submitted a detailed report to the Chief Prosecutor stating that in course of investigation he recorded the statement of Asish Kumar Mondal, exhibit 254; Sumati Rani Mondal, exhibit 255; Soman Mistri, exhibit 256; Suresh Chandra Mondal, exhibit 257; Abdul Latif Howlader, exhibit 258; Anil Chandra Mondal, exhibit 259; Sukh Ranjan Bali, exhibit 260; Shahidul Islam Khan Selim, exhibit 261; Md. Ayub Ali Howlader, exhibit 262; Usha Rani Malaker, exhibit 263; Ajit Kumar Shil, exhibit 264; Rani Begum, exhibit 265; Sitara Begum, exhibit 266; Md. Mustafa, exhibit 267 and Gonesh Chandra Saha, exhibit 268. He proved their signatures and contents of their statements.

The defence cross-examined him days together. He stated that he was informed by Manik Posari that the

accused persons threatened him, which he knew firstly on 18th May, 2001, and accordingly, he instructed him to move cautiously. Subsequently, the Officer-in-Charge, Pirojpur recorded G.D. Entry Nos.673 dated 15.5.2010 and 1367 dated 29.5.2010 over the threats. Subsequently Abdul Hannan Khan, his superior officer wanted a report regarding those two G.D. entries along with five other G.D. Entries in respect of the threats given to Ayub Ali Howlader, Shahidul Islam Khan, Abdul Latif Howlader and others earlier. He further stated that the last G.D. Entry No.337 dated 14.1.2011 was made with Indur Kani police station by Mostafa Khalifa. The defence thoroughly cross-examined him but nothing could be elicitated which made his explanation unreliable. He stated that when he went to the house Shahidul Islam Khan with the process, he could not find any body else; that he found one neighbour namely Dhalim; that he met his daughter later on and noticed that Selim’s wife was inside the house; that after she came to know about his identity, Selim’s daughter became furious and queried him as to why he came to take her father for giving evidence in the case; that she stated that her father was manhandled by the supporters of the accused for

making statement; that her father instituted a case and her educational career was about to be closed due to such threat and that her father would not depose unless the dacoits were apprehended. On further query as to when and who had threatened to Shahidul Islam, his daughter told him that two persons came to their house and threatened her father. Pursuant to that threat, he stated that he inquired into the matter and submitted a report. He further stated that he sent other officers on three occasions to bring the witness but they failed to trace his whereabouts.

In respect of Abdul Latif Howlader, P.W.28 stated that when he went to the house, Mahbubul Alam Howlader was with him; that he found his wife in the house and talked with her from outside; that he stayed there for half an hour and asked his neighbours to inform him about his whereabouts, but none could furnish any information; that they intimated him that occasionally the witness comes to his house; that he directed the local police to trace out his location but they could not furnish any tantative information and that he went twice for bringing Abdul Latif Howlader. In respect of Ayub Ali Howlader, this witness stated that he went to his house with the process but he could not find him at home; that it was told that the witness was also threatened and his daughter requested him not to produce her father to depose in the case. So prosecution has explained sufficiently why it did not examine those three witnesses.

The Tribunal enjoins the discretionary power under sub-section (2) of section 19 of the Act of 1973 to receive in evidence any statement recorded by an investigation officer if it is satisfied that the attendance of such witness cannot be procured without any amount of delay. The Tribunal, in the premises, has rightly exercised its discretionary powers in the facts of the given case and legally admitted their statements as evidence as per Rules. As observed above, Abdus Salam Howlader (D.W.15) also admitted the incident of looting and setting ablaze of the houses of Shahidul Islam Khan Selim only because he was involved in Awami League politics. He stated that he saw the incident from the northern side of the bridge when the Pak army with Peace Committee members were approaching towards Parerhat Bazar. He narrated the incident of entering of the Pak army with the help of Peace Committee members to Parerhat Bazar in the similar language of P.W.8 with the exception that according to him, Dewlar Hossain Sayedee was not with them.

P.Ws.2, 4, 8 and 9 corroborated each other regarding Delwar Hossain Sayedee’s participation in the incident and witnesses Shahidul Islam Khan, Ayub Ali Howlader and Abdul Latif Howlader also corroborated them in material particulars. The defence has also admitted the incident. So, there is no denial of the fact that there was no dispute about the incident and that the said incident was witnessed by the local people. D.W.15 also admitted that the members of the Peace Committee showed the houses to the Pak Army and that they set fire of the houses. On an evaluation of the evidence, it is found that Delwar Hossain Sayedee was a member of Peace Committee as well as a Razakar of Parerhat area. The plea of alibi taken by the appellant Delwar Hossain Sayedee has not been proved by adducing reliable evidence, rather the defence has admitted his presence at the crime site. It is evident from the evidence on record that Delwar Hossain Sayedee was present at Parerhat during the whole period of liberation struggle and that he was acting as bridge between the Pak army and the Peace Committee members in respect of all incidents of crimes committed at Parerhat as he was the one who has proficiency in Urdu speaking. It was also proved by the prosecution that Delwar Hossain Sayedee was a member of Peace Committee as well as Razakar, who took active role in organizing and perpetrating all Crimes against Humanity at Parerhat. The appellant was not only involved in the act of looting, it was perpetrated against civilian population for political and racial grounds, and the perpetration was committed with cruelty is evident from the nature of the acts. In view of the above, the Tribunal was perfectly justified in finding the appellant guilty of the charge but acted illegally in not awarding him a separate sentence of the said charge. Considering the nature of the offence and the role of the appellant in perpetrating the crime and also considering the said charge being an independent one, it ought to have awarded a separate sentence.

Charge No.8 is as under:

‘That on 8th May, 1971 at about 3.00 p.m. under the leadership of accused Delwar Hossain Saeydee and his

accomplices accompanied with Pakistani Army raided the house of Manik Posari of village Chitholia under Pirojpur Sadar police station and caught his brother Mofizuddin and one Ibrahim @ Kutti therefrom. At his instance other accomplices after pouring kerosene oil of five houses, those were burnt to ashes causing a great havoc. On the way to Army Camp, the accused instigated Pakistani Army who killed Ibrahim @ Kutti by gun-shot and the dead body was dumped near a bridge, then Mofiz was taken to Army Camp and was tortured. Thereafter, the accused and others set fire on the houses of Hindu Community at Parerhat Bandar causing huge devastations. The acts of looting goods and setting fire on dwelling houses are considered as persecution as Crimes against Humanity on religious ground. The accused directly participated in the occurrences of abduction, murder and persecution which are identified as Crimes against Humanity’.

This charge contains two parts, the first part is that the appellant and his accomplices with the assistance of Pak Army raided the houses of Maink Posari, caught Mofizuddin and Ibrahim Kutti and subsequently Ibrahim Kutti was done to death and the second part of the charge is that the appellant and others set fire of the houses of Hindu Community of Parerhat Bandar which is a persecution on religious community and thereby the accused has committed Crimes against Humanity. In support of this charge, the prosecution has examined Mahabubul Alam Howlader (P.W.1), Ruhul Amin Nabin (P.W.2), Manik Posari (P.W.6), Mofiz Udddin Posari (P.W.7), Mostafa Howlader (P.W.8), Basu Dev Mistri (P.W.10), Abdul Jalil Sheikh (P.W.11), Abdul Awal (P.W.12) and also relied upon the statements of Abdul Latif Howlader (ext-258), Shahidul Islam Selim (ext-261), Ayub Ali Howlader (ext-262), Rani Begum (ext-265), Sitara Begum (ext-266) and Mohammad Mostafa (ext-267). The defence has also admitted the incident of destroying the houses of Manik Posari by fire and killing of Ibrahim Kutti by its witnesses Abdur Razzak Akond (D.W.2), Jamal Hossain Fakir (D.W.7) and Golam Mustafa (D.W.11), but according to them, the accused was not involved in those incidents, and secondly, Ibrahim Kutti was killed elsewhere and not in the manner as alleged by the prosecution.

The Tribunal after evaluating the evidence held that on the day of occurrence the Pak Army with a good number of Razakars including Delwar Hossain Sayedee came to the house of Manik Posari, detained Ibrahim @ Kutti and Mofiz Uddin Posari, looted away valuables by the local Razakars, set fire on the houses of Rais Uddin, Helal Uddin, Sayed Uddin, Manik Posari, Nurul Islam Khan; that when those two victims were trying to flee away the Razakars caught them hold, fastened their hands by rope, drag them towards Parerhat Razakar Camp and killed Ibrahim Kutti near the bridge by Pak Army; that they took Mofizuddin to the camp and tortured him there, who somehow managed to escape therefrom. It was further observed that Mofizuddin Posari is an eye witness of the killing of Ibrahim Kutti and that the prosecution has been able to prove the charge beyond shadow of doubt.

On behalf of the appellant it was argued that the Tribunal erred in law in believing P.W.2 despite that he made inconsistent statements; that P.W.4 is not a reliable witness; that the claim of P.W.6 that he witnessed the incident was improbable, inasmuch as, he contradicted with P.W.10 in material particulars; that P.W.7 is an unreliable witness as he made totally different version and also made contradictory statements; that P.W.9 made omnibus statements; that the other witnesses also made inconsistent statements and that their presence at the scene of crime was also doubtful. Learned counsel has also submitted that the complicity of the appellant in the killing of Ibrahim Kutti is not borne out by the FIR lodged by Momtaz Begum, exhibit-A and that the other documentary evidence sufficiently suggested that the appellant was not in any way involved in the incident of killing.

P.W.1 is a freedom fighter and he made positive statements that accused Delwar Hossain Sayedee was present during the during the period of war of liberation at Parerhat; that with the help of Madrasha students and anti-liberation forces, Delwar Hossain Sayedee raised Razakars Bahini as auxiliary force of Pak occupation army and that in the first part of May, 1971, the Pak army came to Pirojpur. He then narrated the atrocities committed by the Pak army in collaboration with Razakars and Shanti Committee members. In course of cross-examination, the defence failed to shake his testimony on the question of accused Delwar Hossain Sayedee’s role during the liberation struggle period at Pirojpur. P.W.2 corroborated

the evidence of P.W.1 in material particulars. He also deposed about the role of Delwar Hossain Sayedee at Pirojpur by raising the Peace Committee and Razakars Bahini at Parerhat including the incident of 8th May, 1971. He stated that on the day, the members of Peace Committee and Razakars looted the houses of Roisuddin Posari, Helal Uddin Posari, Soijuddin Posari, Manik Posari with the help of Pak army and after looting they set ablaze of their houses. He was also thoroughly cross- examined by the defence but it failed to bring anything to make his statement unworthy of credit.

P.W.6 also corroborated P.Ws.1 and 2 as regards Delwar Hossain Sayedee’s role of raising the Razakars force and Shanti Committee and also stated in support of charge No.8. He is an eye witness. According to him, on 8th May, 1971, the Pak army being accompanied by the appellant and other Razakars entered into his house from Parerhat Bandar; that on seeing their movement he along with his brothers ambushed in the jungle situated towards the eastern side of their houses and observed their acts of looting and damaging the houses; that on seeing them Mofizuddin (P.W.7) wanted to flee away but they caught him hold with Ibrahim Kutti and fastened both of them with the same rope; that thereafter they looted away valuables from their houses; that after looting as per direction of Delwar Hossain Sayedee, the Razakars poured kerosine oil and then set fire on the houses by Delwar Hossain Sayedee; that he produced the burnt bamboo pillars of the houses to the investigation officer; that thereafter they took them towards Parerhat camp; that he followed them and saw that Delwar Hossain Sayedee and Danesh had consultation with Pak army; that they untied Ibrahim Kutti and kept him standing on the middle of Parerhat bridge and that thereafter, he was taken towards the western part of the bridge and after discussions with Delwar Sayedee and Sekandar Sikder, the Pak army shot Kutti to death, and then they threw the dead body into the river. P.W.8 made similar statements.

P.W.7 is also an eye witness who narrated the incident of taking Ibrahim Kutti and Mofizuddin Posari, and lateron, he stated, Ibrahim Kutti was done to death near the Parerhat bazar bridge. He corroborated P.W.6 in material particulars. The defence failed to shake his testimony in any manner and we find no cogent ground to

discard his evidence. P.Ws.10, 11 and 12 narrated the incident in corroboration with the above witnesses, of them, P.W.12 vividly narrated the role of Delwar Hossain Sayedee during the relevant time. P.Ws.10-12 were also cross-examined extensively by the defence but their statements remained unshaken. I will discuss P.W.12’s evidence while considering other charges. He not only corroborated P.Ws.6-8 but also corroborated P.Ws.1 and 2 as regards raising of the Peace Committee and Razakars Bahini at Parerhat by Delwar Hossain Sayedee. Besides them, Ayub Ali Howlader in his statement (ext 262) made similar statement in corroboration with P.W.7. Rani Begum (ext.266), Md. Mostafa (ext 267), Sahidul Islam Khan Selim (ext 261) made similar statements.

P.W.28 stated that on behalf of the accused person these witnesses were threatened and over the said threats G.D. Entries were made; that he made repeated attempts to produce them before the Tribunal for recording their evidence and went to their houses with the processes but he could not trace them out; that most of their family members made furious remarks on seeing him and requested him not to examine them before the Tribunal for safety reasons. P.W.28 explained the reasons for non-production of Abdul Latif Howlader, Shahidul Islam Selim, Ayub Ali Howlader, Rani Begum, Sitara Begum, Md. Mostafa and exhibited their statements. The reasons explained by P.W.28 were satisfactory and in view of such explanation, the Tribunal legally admitted their statements in evidence. As observed above, the defence has also admitted the killing of Ibrahim Kutti by Pak Army in collaboration with the members of Shanti Committee.

Now the question is whether the defence version of killing Ibrahim Kutti in the manner as stated by D.Ws.2, 7 and 11 is believable or not. D.W.2 in this connection stated that in mid Aswin, he heard a sound at late hours of the night and on coming out of his house he noticed that the Fazar time was nearing, that is to say, it was about dawn; that he said his Fazar prayer and thereafter went towards north to see about what happened elsewhere and saw that one boat was plying through the canal from the northern side in which Ibrahim Kutti’s deadbody was lying; that he saw Kalam Chowkidar, Ayub Ali Chowkidar, Hakim Munshi, Danesh Molla, Sekandar Shikder, Moslem Moulana, Ruhul Amin and Momen Razaker in the boat; that they were also taking Aju Howlader’s wife and his son Saheb Ali in the boat and thereafter, the Pak Army killed Saheb Ali. He did not explain wherefrom Pak army came because he did not state that Pak army accompanied them in the boat. It is totally absurd story to believe that the Razakars after killing Ibrahim Kutti would carry the deadbody to disclose their identity. During the relevant time the Pak Army perpetrated mass killing. In some cases they killed people on broad day light and threw the deadbodies, and in some cases the victims were abducted with the help of auxiliary forces and after killing them secretly, threw their deadbodies at deserted places. More so, Delwar Hossain Sayedee was in the company of Danesh Molla, Sekandar Shikder, Moslem Moulana etc. as evident from the prosecution evidence. He was a member of local Peace Committee and a Razakar, and also involved in all atrocities perpetrated at the Parerhat area. If his accomplices were involved in the killing of Ibrahim Kutti, he could not avoid his complicity as he was all along with them and participated in a group in the commission of Crimes against Humanity in the locality.

D.W.7 stated that he saw while Ibrahim Kutti’s deadbody was carrying through the canal by Ayub Ali Chowkidar, Kalam Chowkidar, Hakim Munshi, Mannan, Ashraf, in a boat, and in another boat, Danesh Molla, Sekandar Shikder, Moslem Moulana, Ruhul Amin and Saheb Ali were also taking Saheb Ali and his mother by folding their hands back side towards Parerhat; that after approaching a bit he saw the deadbody of Ibrahim Kutti whose deadbody was also taken towards Parerhat; that on asking to Ibrahim Kutti’s wife Momtaz Begum about the blood in her hands, the latter replied that she had sustained the bullet injury while her husband was shot and that Rani Begum was bandaging Momtaz’s hands.

The story introduced by this witness as to the manner of taking the dead body of Ibrahim Kutti after killing is apparently a concocted one, inasmuch as, after killing a person the killers would not carry the deadbody to disclose their identity, which is against human conduct. He was also disclosing a different story. It is not his statement that he saw those persons when they were throwing Ibrahim Kutti’s deadbody into the canal. One may arrive at the conclusion on reading of his (D.W.7) testimony that he was making a tutored statement. D.W.11 made a bit different story. He stated that from the northern side Danesh Ali Molla, Molsem Moulana, Sikandar Shikder, Ruhul Amin and Momen were taking Saheb Ali Howlader towards Parerhat and 5/7 minutes thereafter, Ayub Ali Chowkidar, Kalam Chowkidar, Abdul Hakim Munshi, Abdul Mannan and Ashraff Ali were carrying the deadbody of Ibrahim Kutti towards Parerhat by two boats. So this witness saw two boats, in one boat some persons were taking Saheb Ali Howlader and in another some others were taking Ibrahim Kutti’s deadbody and the gap of time of passing these two boats is 5/7 minutes. So, these two witnesses of the defence made conflicting versions. As observed above, it was against human conduct to carry a deadbody by the killers with a view to disclose their identity.

On behalf of the defence, Masud Sayedee (D.W.13) filed all documents except ext-A, such as, exhibits B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, R, S, T, U, V, W series and X, Y, AA, AB, AC, AD, AE, AF, AH & AI, which shrounded in mystery. Exhibit-A, is an FIR allegedly made by Momtaz Begum wife of Ibrahim Kutti which was exhibited by D.W.11. D.W.13 could not give any plausible explanation why he did not produce ext A. It appears from ext-A that Momtaz Begum allegedly lodged the FIR on 16th July, 1972, over the killing of her husband against 13 persons excluding the name of the appellant Delwar Hossain Sayedee. It is alleged that the accused persons by forming an unlawful assembly attacked Kutti’s house at dawn and gunned down her husband. Normally this type of incident of murder by forming unlawful assembly is being perpetrated during normal situation of the country out of dispute over village rivalry or landed property. During the abnormal condition of the country in 1971 millions of innocent people were killed by Pak army and their collaborators but not in the manner narrated in the FIR. It is for the first time, we have noticed that the army personnel with some Razakars by forming an unlawful assembly attacked the house of the Ibrahim Kutti and gunned down him. It is to be noted that Ibrahim Kutti was not an intellectual or a leader of the Awami League who might be targeted by the Army or the Razakars in the manner other intellectuals were targetted and killed. He was the domestic help of Manik Posari and it was not a believable story that he

On behalf of the defence a photostat copy of the certified copy of the said FIR was produced at the hearing stage. On perusal of the same we noticed that the copy was obtained in 1972 and it was produced in court on 9th October, 2011. We also noticed interpolation on the dates and on some pages. In course of cross-examination, D.W.11 expressed his ignorance as to whether the certified copy filed by him and the photo copy filed at the hearing were identical or not. He could not say the source wherefrom it was collected. He admitted that in the first page of the certified copy two words are found cut and there was no counter signature against those cut marks. He also expressed his ignorance as to who obtained the said certified and when it was obtained by whom. He also admitted that before he filed the certified copy, it was

in the custody of Masud Sayedee (D.W.13) and that it was Masud Sayedee who could give proper explanation about it. This explanation speaks volume about the genuineness of the certified copy and the purpose for filing it through P.W.11 despite that it was handed over by P.W.13 who, produced all documents for the defence except ext-A without giving any explanation.

Section 19(1) empowers the Tribunal to admit any evidence including reports and photographs published in the news papers, periodicals and magazines, films and tape record and other materials as may be tendered before it, which have probative value and in admitting the same, it is not bound by any technical rules. Though in sub-section (1), documents specified therein may be admitted in evidence, in view of use of the words ‘other materials’, a certified copy of an FIR may be included in the category if it has probative value. The Tribunal shall keep in mind that a certified copy of any proceedings can only be tendered by the defence for evidence if it files the same at the commencement of the proceedings i.e. before the framing of the charge in view of section 9(5) read with sub-rule (2) of rule 51. Sub-rule (2) of rule 51 of the Rules empowers the defence to prove documents and materials in support of the defence case.

The scheme of the law is that the trial of offences under Act of 1973 shall be held expeditiously. The object of providing this provision is obvious-if any document is filed by the defence at the preliminary stage of the trial, the prosecution or the investigating agency will be in a position to ascertain the genuiness of the said document upon inquiry and the trial of the case will not be interrupted in that case, and if the prosecution after collecting materials is satisfied that the document is forged, it may intimate the Tribunal regarding the forgery. Under such circumstances, it will afford the defence an opportunity to prove the genuiness of its document by providing other corroborative evidence. Once a document is exhibited, as per Rules, the contents of the said document is admissible. Therefore, the Tribunal shall guard while admitting a documentary evidence on behalf of the defence as to whether the document is genuine or not, whether it has any probative value, and whether it has been filed at the time of commencement of the proceedings. Sub-section (2) of section 19 provides that the statement of any person which has been recorded by a Magistrate or an Officer in course of investigation which has probative value and whose attendance cannot be procured without delay may be admitted in evidence.

For proving a document on behalf of the prosecution, rule 54 provides that it may prove a document by a person who was the author or knows the handwriting or signature of such author and in case of death of such person, the person from whom it was collected of such document. Rule 44 of the Rules, however, authorizes the Tribunal to admit those documents as mentioned above but by the same time, it is provided that the Tribunal has power to exclude any evidence which does not inspire any confidence in it and admission or non-admission of any evidence is the exclusive discretionary power of the Tribunal. Once a document is marked as exhibit, it is said in rule 55 that the contents of such document shall be admissible. Rule 57, however, caution the Tribunal that while applying the rules of evidence, it shall be alive to the matter in issue and admissibility of an evidence as per Rules whether it is primary or secondary, oral or documentary, hearsay or non-hearsay, and direct or circumstantial, must

be in consonance with the spirit of the Act. A combined reading of these provisions will manifest that it is the Tribunal which shall have the full discretionary power to admit or reject the evidence to be adduced by the parties, and the basic consideration for it is to see whether the evidence proposed to be adduced have any probative value. In course of hearing of the appeal, an application on behalf of the prosecution has been filed for not considering exhibit-A in support of the defence. It was stated in the application that for ascertaining the genuineness of exhibit-A, the learned Attorney General along with his friend Mr. Bashir Ahmed, Assistant Attorney General went to Pirojpur on 22nd September, 2014, and inquired into the Pirojpur police station about the said FIR; that the Officer-in-Charge tried to trace out the record of the case but could not trace it out; that thereafter, learned Attorney-General and his friend went to Barisal presumably, it was stated that as Pirojpur was under Barisal district, the copy might be available in the record room, for collecting a copy of the FIR; that the Record Keeper intimated the learned Attorney General that unless the Special Tribunal case number was given, he

could not find out the record; that thereafter, the learned Attorney General returned back to Dhaka; and again he along with Mr. Biswajit Devnath, learned Deputy Attorney General went to the Barisal Nazarat on 1st April, 2014 and inquired about the existence of the record for two days, but he could not trace out the record of the case out of which Pirojpur P.S. Case No.9 dated 16.7.1972 arose; that the learned Attorney General also inspected the Special Tribunal Case Register and noticed that the registration of Special Case Nos.2 of 1974 to 8 of 1976, but he could not find the corresponding Pirojpur P.S. Case No.9 dated 16.7.1972 in those cases. In the application the list of the cases with the concerned accused persons involved in those cases were reproduced in paragraph 9, 10, 11, 12 and 13.

It is stated that none of the accused persons mentioned in the said FIR were shown as accused in those cases entried in the case register which was consulted by the Attorney General. It is further stated that if any FIR was lodged by Momtaz Begum regarding the killing of her husband, the offence being triable under P.O.8 of 1972, the case would have been sent to Barisal for trial, and in

the corresponding column of the register, the names of accused mentioned in ext ‘A’ would have been entried as accused if any such case was filed and sent to Barisal for trial. Under such circumstances, it is stated that this exhibit-A is a forged document created by the appellant’s son (P.W.13) with a view to create confusion about the complicity of Delwar Hossain Sayedee in the killing of Ibrahim Kutti. On a close scrutiny of the copy of exhibit- A produced for our inspection, we found interpolations and D.W.11 also admitted the same. We fail to understand why the prosecution has not taken any step for expunging this exhibit from the evidence on the ground that it was a forged document.

This exhibit-A is a forged one is also apparent from the statements of D.W.13, who stated in course of cross- examination that he got exhibit-A from his elder brother; that he had no talk with his brother about it before his death; that his brother might have talked with Sitara Begum. He then said, Momtaz, the informant of that case might have been taken the copy from her mother and handed it over to his brother. He, however, could not say how long it was with Sitara Begum. He could not say who

obtained the certified copy. He further stated that in exhibit-A, the names of Saheb Ali or Sahab Uddin was not mentioned but Seraj Ali’s name was written. He admitted that at the back side of the pages of exhibit-A no initial, no seal or the signature of the Sub-Divisional Magistrate, Pirojpur was given and that only a round seal of the Sub-Divisional Magistrate was engrafted. From the above statements of this witness it is proved beyond doubt that this ext A is a forged one and that this is why P.W.13 did not exhibit ext-A in the Tribunal.

It is the responsibility of the prosecuting team and the investigating agency to ascertain whether or not the FIR filed on behalf of the accused was genuine and also whether there was existence of such FIR with the record. Learned Attorney General doubted about the genuineness of ext ‘A’ and after seeking adjournment of the hearing, took the pains to visiting Pirojpur on 29th March, 2014 and Barisal on 13th March, 2014, 1st April, 2014 and 2nd April, 2014 for tracing out the copy of the FIR, if there be any, in respect of Pirojpur, P.S. Case No.9 dated 16th July, 1972. This shows the devotion and bonafide in conducting a case by a law officer entrusted with the case. If the Chief Law Officer of State could take the trouble of visiting personally to Pirojpur and Barisal for collecting materials, what prevented the prosecuting team to sit over the matter and allow a forged document to remain as evidence with the record is not clear to us. The investigation officer or the prosecutor endeavoured no effort in this regard. If these informations regarding ext ‘A’ could be filed at the trial stage, it would have been easier for the Tribunal to ask the defence to prove the genuineness of ext ‘A’ and if it failed to furnish any authentic copy, it could have taken appropriate action against the person concerned for using a forged document. The prosecution did not take any step by filing any application in accordance with rule 44 of the Rules for expunging and/or excluding from consideration of exhibit-A after collecting necessary materials.

Admittedly Ibrahim Kutti was killed by Pak army with the help of local Razakars. Now it is to be seen whether the incident took place in manner stated by the witnesses or in the manner as suggested by the defence. P.Ws.2, 6, 7, 8, 10, 11, 12 have narrated the incident of killing vividly and they have been corroborated by Abdul Latif Hawlader, Shahidul Islam Salim and Ayub Ali Howlader. They proved that after the apprehension for Ibrahim Kutti, the latter was taken to the bridge of Parerhat Bazar and he was shot to death by Pak army and that local Razakars collaborated in the killing. It is also found that Delwar Hossain Sayedee was a commander of local Razakars and he was all along with Pak army because of his extra quality of exchanging views with Pak army in Urdu. The defence did not at all challenge the positive assertion of the prosecution evidence that Delwar Hossain Sayedee having the proficiency of Urdu speaking was the one who was all along with the Pak army during the relevant time and participated in all the incidents.

At any event, since the prosecution failed to produce relevant record at the trial stage to show that ext ‘A’ was a forged one and since the Tribunal has admitted ext A in evidence, although we find ext-A is apparently a forged FIR, we have no option other than to give the accused the benefit of doubt. It is not because that the accused was not involved in the said crime but because the provisions of the Act and the Rules which provide that it is responsibility of the prosecution to prove the charge against the accused beyond reasonable doubt. If a slightest doubt creates in the mind of the Tribunal the benefit would go in favour of the accused. The evidence on record sufficiently indicated that the accused was very much involved in all the atrocities perpetrated at Parerhat, but because of the established norms, which is being followed in this region over a century, the accused in entitled to get the benefit of doubt in respect of the charge of killing Ibrahim Kutti. However, in view of the consistent evidence of looting and setting fire of the houses of Posari brothers and the defence having not disputed the incidents, and as we found Sayedee who was involved in all inhuman acts at Parerhat, his act attracts ‘other inhumane acts’ committed against civilian population on political grounds and therefore, the Tribunal is justified in finding him guilty of the accused in respect of second part of the charge.

Charge No.10 is as under:

‘That on the same day i.e. 02.06.1971 at about 10 a.m. under the leadership of accused Delwar Hossain Sayedee with his armed associates accompanied with Pakistani Army raided the Hindu Para of village-Umedpur under Indurkani police station, the accused burnt 25 houses including houses of Chitta Ranjan Talukder, Jahar Talukder, Horen Thagore, Anil Mondol, Bisabali, Sukabali, Satish Bala and others. At one stage Bisabali was tied to a coconut tree and at his insistence Bisabali was shot to dead by his accomplice. The act of burning dwelling houses of unarmed civilians is considered as persecution. The accused directly participated in he acts of burning houses and killing of Bisab Ali which is persecution and murder within the purview of Crimes against Humanity’.

In support of the charge, the prosecution has examined P.Ws.1, 4, 5, 9, 12 and 14 and relied upon the statements of Md. Abdul Latif Howlader, (ext 258), Sukha Ranjan Bali, (ext 260) and Mukunda Chakravarty, (ext 269). The Tribunal after sifting the evidence has arrived at the findings that “on 2nd June, 1971, Pakistani troops accompanied by the members of local Peace Committee and Razakars including accused Delwar Hossain Sayedee raided Hindu Para at about 10 a.m. to execute a part of plan, then at about 12 noon they raided the house of Mahbubul Alam Howlader (P.W.1), freedom-fighter, but they failed to hold him, then they tortured Abdul Mazid who is the brother of P.W.1 and looted away cash money, jewellary and other valuables from the house of Mahbubul Alam. The defence cross-examined P.Ws.1 and 5 elaborately but the version as to presence of accused Delwar Hossain Sayedee at crime site remains unshakened. Having considered the evidence on record, we find that accused Delwar Hossain Sayedee knowingly contributed and facilitated in the commission of looting valuables from the house of civilian population which is considered as persecution within the purview of crimes against Humanity’.

On behalf of the defence it is argued that the prosecution has failed to prove the place of killing of Bisabali and this is evident from the evidence of P.Ws.28 and D.W.9. It is further contended that the Tribunal acted illegally in believing P.W.1 who was barely a minor boy during the relevant time. It is further contended that D.W.9 being an eye witness as regards abduction of Bisabali and the killing who having stated that Bisabali was not killed in the manner stated by the prosecution, the Tribunal acted illegally in convicting the appellant without discarding the claim of D.W.9. It is further contended that the Tribunal acted illegally in believing

P.W.5 in failing to consider that this witness is a biased witness and that he was a minor boy during the relevant time. It is further contended that P.W.9 is a chance as well as politically biased witness and the Tribunal was wrong in relying upon him. It is also contended that the Tribunal illegally took exhibits-258, 260 and 269, material exhibits-XI and XII into consideration in support of the charge. It is finally contended that the Tribunal acted illegally in not affording time to the defence to cross-examine P.W.28 in respect of the contents in exhibits-54-59, 62-84, 86-127, 129-150, 158-165 and 167- 258.

P.Ws.1, 5 and 9 are eye witnesses and P.Ws.4, 12 and 14 made omnibus statements in support of the charge. It is to be noted that the defence has admitted the killing of Bisabali but according to it, Bisabali was killed not in the manner and at the place as alleged by the prosecution- it failed to substantiate its claim by corroborative evidence. P.W.1 stated that on 2nd June, 1971, he was at home; that one Khalilur Rahman secretly informed him at dawn that the leaders and workers of Awami League and Mukti Bahini who were then staying at his home under his

shelter had been listed by the Shanti Committee and Razakar Delwar Hossain Sayedee’s people; that on getting the information, he removed the freedom fighters and Awami League leaders and workers at a safe place; that at about 10 a.m., the members of Shanti Committee and Razakars headed by Danesh Ali Molla, Sekandar Shikder, Delwar Hossain Sayedee attacked the houses of Hindus of Umedpur village; that they torched and looted 25/30 houses including the houses of Chitta Ranjan Talukder, Johor Talukder, Bishabali, Sukur Ali, Anil Mondal and others; that as Bishabali was sick, he could not retreat and he was apprehended and fastened with a coconut tree; that as per order of Delwar Hossain Sayedee to kill him, one Razakar shot him to death. In course of cross-examination this witness reaffirmed his statements in chief and denied the defence suggestion that Bishabali was not killed in the manner as stated by him. The defence thoroughly cross- examined him but failed to elicit any inconsistency about the day and the manner of killing Bishabali as per order of Delwar Hossain Sayedee. He is a freedom fighter and used to supply information at the Sundarban Camp, where a freedom fighters’ camp was established. He denied the

defence suggestion that Delwar Hossain Sayedee was not present at Parerhat during the relevant time. There is no reason to discard his testimony unless his testimony is tainted by falsehood.

P.W.4 made simple statements that Delwar Hossain Sayedee and his co-horts looted the houses of Hindus, Muktijuddahs and the Awami League leaders. P.W.5 is an eye witness of the incidents. He was present at Umedpur and saw the incidents by concealing himself in a nearlby jungle when the incidents of looting and arson were perpetrated on 2nd June at Parerhat, Umedpur village. He saw Delwar Hossain Sayedee and his co-horts while committing those atrocities. He stated that at Umedpur the Razakars torched 20/22 houses and Bishabali was tortured after being fastened with a coconut tree; that Delwar Hossain Sayedee uttered some words and then one Razakar shot him to death and thereafter, they left towards west. The defence evasively suggested him that no such incidents took place in the manner stated by him. He denied the defence suggestion that on 2nd June, 1971, Delwar Hossain Sayedee with other members of Shanti Committee and Pak Army did not enter into Umedpur village or loot away the houses of Anil Mondal, Lalita Bali, Surendra Nath Chakraborti, Mukesh Chakraborti, Satish Bala, Chitta Ranjan and others. He was thoroughly cross-examined but the defence failed to discredit his testimony in any manner. So he corroborated P.W.1 in material particulars.

P.W.9 is also an eye witness of the occurrence. Corroborating the statements of the earlier witnesses, this witness stated that on 2nd June, 1971, at about 10.30 a.m. Delwar Hossain Sayedee with his accomplices and Pak Army entered into Umedpur Hindu Para which he witnessed by concealing himself inside the jungle situated by the side of the road; that Delwar Hossain Sayedee and other Razakars including the Pak army looted the houses of Hindus, set ablaze of 18/20 houses, caught Bishabali, fastened him with a coconut tree, and the Razakars assaulted him; that in the mean time Delwar Hossain Sayedee talked with the Pak Army and then he ordered his co-horts to kill Bishabali; that on hearing the order, one Razakar shot Bishabali who died instantaneously. He denied the defence suggestion that no such incident took place in the manner stated by him, rather he reaffirmed his statement. His statements are consistent with his earlier statements and the defence failed to discredit his veracity in any manner.

P.W.14 narrated the incidents in the similar manner. He is also an eye witness of the occurrence. He also identified Delwar Hossain Sayedee as one of the perpetrators of the incidents. He identified Delwar Hossain Sayedee in the dock although he did not narrate the incident of killing Bisabali; but vividly narrated the other incident. Abdul Latif Howlader, Sukha Ranjan Bali and Mukanda Chakraborty, corroborated P.Ws.1, 5 and 9 in toto as regards killing of Bishabali as per order of Delwar Hossain Sayedee, and looting and torching the houses. In order to avoid repetition, I refrain from reiterating their statements.

P.W.28 Md. Helal Uddin proved their statements and explained the reasons why he could not produce those witnesses in the Tribunal. He stated that he could not trace out their whereabouts; that he submitted a report to the Chief Prosecutor for producing these witnesses but they could not be produced within the time specified by the Tribunal; that he recorded their statements in course of investigation of the case. In course of cross- examination, he stated that he tried to locate the whereabouts Latif Howlader but the neighbours failed to give him any information and told him that he was not seen regularly in the locality. He further stated that he directed the local police to trace out his whereabouts and that the local police also intimated him that they could not collect his whereabouts. He further stated that he went to his house twice but could not find him.

In respect of Sukha Ranjan Bali, he stated that he recorded his statement after following the formalities; that he went to his village home with the process with Mizanur Rahman Talukder (P.W.3) but he could not find him there; that he asked Sukha Ranjan’s wife and daughter about Sukha Ranjan’s whereabouts but they did not give him any information; that he stayed there about one and half hours; that thereafter he entrusted the Officer-in-Charge of Indur Kani police station to produce Sukha Ranjan and also instructed Sukha Ranjan’s daughter to make a G.D. Entry with the local police about the threat given to Sukha Ranjan Bali; that thereafter Indur Kani G.D. Entry No.773 dated 25.2.2012 was made. In respect of Mukundra Chakraborti, he stated that in course of investigation he examined Mukunda Chakraborti, who died in the mean time. He denied the defence suggestion that he did not try to produce him as witness before the Tribunal. The defence has practically admitted the death of Mukendra Chakraborti by giving this suggestion to P.W.28. In view of the explanation given by P.W.28, I find that the Tribunal has legally accepted the statements of Abdul Latif Howlader, Sukha Ranjan Bali and Mukunda Chakraborti in evidence.

Hemayet Uddin (D.W.9) stated that towards the mid part, of the liberation struggle i.e. mid Jaistha or later part his auntie was standard in the house of her father at Umedpur village due to sickness and on getting the news he went to see her; that on the following day at about 9.30 a.m. the people were screaming saying that the Pak army was approaching; that he along with Afzal, Latif, Nurul Islam and others stood on the eastern garden and saw that 15/16 Pak army with Moslem Moulana, Danesh Molla, Sekandor Shikder, Asmot Ali Munshi and others entered into Hindu para; that sometimes thereafter they saw flames of fire from those houses; that the army and their collaborators were taking a person towards west; that Afzal told him that Bishabali was taken by them towards northern side of the field at Huglabunia Hindu para; that sometimes thereafter they torched the houses of Hindus; that he heard that Bishabli and 4/5 Hindus were taken from Huglabunia by them and that on the following afternoon he heard that all of them were killed on the bank of Baleswar river.

In course of cross-examination he admitted that he is an activist of BNP. He stated that he heard the news of visitaion of the investigating team at Parerhat but he did not show any interest over the investigation and that he could not say how many persons had fled away or the number of houses were damaged by fire. The above statements of this witness need no further explanation regarding his biasness. There is no doubt that he is a politically motivated witness. It is our common knowledge to which we may take judicial notice that Jamat-e-Islami has political alliance with BNP; that the said alliance formed the government twice, and still the said alliance is in existence and that Delwar Hossain Sayedee became a Member of Parliament from Pirojpur constituency as a candidate of the alliance. Apart from the above, his claim of witnessing while Bishabali was taken away is apparently a concocted story. Admittedly he is not a resident of Umedpur village. He did not mention the name of the father of his auntie at whose house he allegedly stayed one night to witness the incident of taking away Bishabali. Secondly, he has impliedly supported the prosecution version of Bishabali’s sickness for which the latter couldn’t flee away despite knowing that the Pak army with their collaborators were approaching towards Umedpur village. The army and Razakars attacked the Hindu para, looted the houses, damaged them by fire which facts were admitted by D.W.9. There were other Hindu community people in the village but they managed to flee away before the arrival of Hyaenas like Pak army and their accomplices. Bishabali couldn’t flee away with others because he was sick which is apparent from the evidence on record. More so, this witness admitted that the Razakars like Moslem Moulana, Danesh Molla etc. participated in the atrocities and if that being so, Delwar Hossain Sayedee, as found on assessment of the evidence was all along with them. So he was also involved in the incident and there is no doubt about that. More so, the story introduced by this witness has not been corroborated by any other witness of Umedpur

P.Ws.1, 5, 9 and Abdul Latif Howlader, Sukha Ranjan Bali, Mukunda Chakravarty have proved the occurrence of burning the dwelling houses of unarmed civilians of Hindu Para as well as the killing of Bishabali at the instance of the accused beyond reasonable doubt. They are the eye witnesses of the occurrence. They have narrated the manner of setting fire on the houses of unarmed civilians which gives sufficient indication that the perpetrators in a planned manner have burnt the houses of Hindu Para with intent to cause large scale devastation. It is also evident that the accused participated and facilitated in the commission of killing of Bishabali and the act of burning huge number of dwelling houses. It is well proved that the accused was involved in the commission of murder and persecution on religious grounds within the mischief of Crimes against Humanity.    

The Tribunal afforded the defence a marathon cross- examination of P.W.28. He was cross-examined on 25.04.2012, 26.04.2012, 07.05.2012, 08.05.2012, 09.05.2012, 10.05.2012, 13.05.2012, 15.05.2012, 20.5.2012, 21.05.2012, 27.05.2012, 28.05.2012, 29.05.2012, 30.5.2012, 31.05.2012, 03.06.2012, 04.06.2012, 05.06.2012, 12.06.2012, 13.06.2012, 20.06.2012, 24.06.2012, 25.06.2012, 26.6.2012, 27.06.2012, 02.07.2012, 08.07.2012, 12.07.2012, 15.07.2012, 17.07.2012, 18.07.2012, 19.07.2012, 22.07.2012, 23.07.2012, 25.7.2012, 27.07.2012, 29.07.2012, 30.07.2012, 31.07.2012, 01.08.2012, 02.08.2012, 05.08.2012, 06.08.2012, 07.08.2012, 08.08.2012 and 12.08.2012. So the defence cross-examined this witness on 47 working days. It cannot therefore be said that the Tribunal has not afford sufficient opportunity to cross- examine P.W.28. On perusal of the evidence we have noticed that the defence has cross-examined this witness on irrelevant facts and unnecessarily wasted valuable times of the Tribunal. The Tribunal has thoroughly assessed the evidence on record and rightly believed the charge levelled against the accused. The inconsistencies drawn by the learned counsel are not at all material which make the evidence of those witnesses unreliable. As pointed out, Hemayet Uddin (D.W.9) has also admitted the killing of Bishabali. In the premises, the Tribunal is perfectly

Charge No.11 is as under:

‘On the same day i.e. on 02.06.1971, accused Delwar Hossain Sayeedi led a team of Peace (Shanti) Committee members accompanied with Pakistani occupied forces raided the houses of Mahbubul Alam Howlader (freedom-fighter) of village-Tengra Khali under Indurkani Police Station and the accused detained his elder brother Abdul Mazid Howlader and tortured him. Thereafter, the accused looted cash money, jewellery and other valuables from their houses and damaged the same. The accused directly participated in the acts of looting valuables and destroying houses which are considered as persecution on political grounds, and also tortured”. 

In support of the charge the prosecution has examined P.Ws.1, 5 and 17 and relied upon exhibit-11, the issue of Vhorer Kagaj dated 4th November, 2007 and some other documentary evidence. The Tribunal after assessing the evidence held that the defence failed to dislodge the veracity of P.Ws.1 and 5 on cross-examination about the presence of Delwar Hossain Sayedee at the crime site. It is evident from the evidence that the accused consciously contributed and facilitated in the commission of looting of the houses of civilian population. In this charge the allegation is that the accused along with others raided the house of Mahbubul Alam Howlader, detained his elder brother Abdul Majid Howlader and that they looted away cash and valuables from the house.

P.W.1 did not specifically mention about the raiding of his house by the accused with his accomplices and detaining his brother Abdul Majid. He stated that the accused with his accomplices went to his house and pressurized his brother Abdul Majid to produce him (P.W.1), the freedom fighters and Awami Leaguers; that on his refusal they tortured Abdul Majid and that they looted away valuables from the house. In course of cross- examination, he admitted that he was not present at home at the time of commission of the offence.

P.W.5 stated that he heard that the Razakars looted the house of Mahbubul Alam. He, however, did not corroborate P.W.1 as regards his claim of detaining Abdul Majid and torture for not giving information about his brother and other Muktijoddahs. P.W.17 was the cataloguer of the Press Institute of Bangladesh. He proved the seizure of an issue of Dainik Janakantha, ext 5, in which, an article under the caption “71 Hl l¡S¡L¡l ¢cCõ¡ HMe jJm¡e¡ p¡Dc£”. was published reporting that Sayedee Razakar becomes Moulana Sayedee. There is no dispute about Sayedee’s role in 1971 but this does not prove that he has detained Abdul Mazid and tortured him. On the question of torture only witness examined by the prosecution is P.W.1 and this witness is not also an eyewitness. He has not been corroborated by any other witness. Thus we find that there is solitary statement of P.W.1 in support of the charge and the prosecution has not explained for non-examination of other witnesses. A conviction of the accused person cannot be given relying upon stray statements of a witness. It is true that the Tribunal is not concerned with the quantity of the evidence – it is concerned with the quality but when the Tribunal will act upon a solitary witness, the witness must be wholly reliable. There is no doubt about P.W.1’s reliability but he has narrated a fact which he has not seen. He has not disclosed the name of the person from whom he has heard. In view of the above, it is difficult to convict the accused in respect of the

Charge No.14 is as under:

“That during the last part of the Liberation War, accused Delwar Hossain Sayeedi led a team of Razakar Bahini consisting of 50 to 60, in the morning of the occurrence in a planned way they attacked Hindu Para of Hoglabunia under Indurkani police station. On seeing them Hindu people managed to flee away, but Shefali Ghaarami, the wife of Modhu Sudhan Gharami could not flee away, then some members of Razakar Bahini entering into her room raped Shefali Gharami. Being the leader of the team the accused did not prevent them in committing rape upon her. Thereafter, the accused and members of his team set fire on the dwelling houses of the Hindu Para of village Hoglabunia resulting complete destruction of houses of the Hindu civilians. The act of destruction of houses in the Hindu Para by burning in large scale is considered crime of persecution on religious ground and the act of raping both as crimes against Humanity”.

In support of this charge the prosecution has examined P.Ws.1, 3, 4 and 23. The Tribunal after discussing the evidence held that accused Delwar Hossain Sayedee was a member of Shanti Committee and a Razakar; that he used to take part in perpetrating rape, looting, torture, arson and killing of the members of Hindu Community at Parerhat area, that P.W.23 is a vital witness, who has proved that the accused raped his wife, and in consequence of such rape his wife gave birth to a child ‘Sandha’; that in order to avoid social strictures, his wife left for India and that the accused has substantially contributed and facilitated to the commission of the said crimes.

On an evaluation of the prosecution evidence in support of the charge, I noticed that P.W.1 made general statements without specifically stating anything in support of the charge. P.W.3 also made similar statements. P.Ws.4 and 23 also made general statements about the role of the members of Shanti Committee and Razakars, of course, Delwar Hossain Sayedee was an active member of those auxiliary forces. P.W.23 stated that on the previous occasion the members of the Peace Committee entered into his village-looted away valuables, torched the houses and took 9 persons who did not return; that after 3/4 days of the said incident at about 4/4.30 p.m., the Razakars came to his house and at that time he was not present; that his wife later on told him that the persons who compelled him to convert was coming and advised him to flee away; that his wife told that she was ravished; that she was with severe pains which she could not tolerate; that she advised him not to worry for her; that after 4/5 months of rape his wife gave birth to a child and that as the people were making adverse remarks against her, he sent his wife to India with a view to avoid criticism. This witness did not specifically mention the name of the accused.

However, we may guess from the statement of P.W.23 that he was making statement against accused Sayedee. He made superficial statement about the date and time of rape. There is no other corroborative evidence. The prosecution has led similar nature of evidence in respect of charge No.11 and I have given the accused the benefit of doubt. On consideration of the nature of evidence adduced on behalf of the prosecution, I cannot take any different view in respect of this charge as well. In order to maintain the conviction of a charge, the witnesses must make positive statement in support of the charge but on the basis of such superficial statements, an accused person cannot be convicted. The Tribunal has convicted the accused relying upon the evidence of P.W.23 but as observed above, this witness also made superficial statement. He has not been corroborated by the other witnesses. There is scanty evidence adduced by the prosecution in support of the charge. A conviction cannot be based on the basis of such evidence. Thus, the Tribunal is not justified in finding the accused guilty of the charge. 

Charge No.16 is as under:

“That during the time of Liberation War in 1971, accused Delwar Hossain Sayeedi led a group of 10/12 armed Razakars and Peace Committee members and surrounded the houses of Gauranga Saha of Parerhat Bandor under Indurkani police station, subsequently the accused and other abducted (i) Mohamaya, (ii) Anyo Rani and (iii) Komol Rani, the sisters of Gauranga Saha and handed over them to Pakistani Army Camp at Pirojpur where they were confined and raped for three days before release. The accused was directly involved in abetting the offences of abduction, confinement and rape as Crimes against Humanity’.

In support of the charge the prosecution has examined P.Ws.1, 3, 4, 5 and 13, and the statement of Azit Kumar Shil (exhibit-264). The Tribunal after analyzing the evidence observed that P.Ws.3-5 have proved that accused Delwar Hossain Sayedee was a member of Peace Committee of Parerhat and a Razakar during the relevant time who took active part in the attacks directed against unarmed civilians causing murder, looting, torture, conversion abduction of girls and handing them over to Pak army for rape; that P.W.13 proved the abduction of his three sisters and handing them over to Pakistani Army by Delwar Hossain Sayedee with his co-horts; that the victims have been raped by Pak army; that his evidence has been corroborated by Azit Kumar Shil; that Delwar Hossain Sayedee knowingly contributed and facilitated the commission of abduction of 3 girls paving the way to cause sexual violence upon them, which acts were directed against civilian population and that this acts clearly fall within the purview of Crimes against Humanity.

On behalf of the defence it was argued that the Tribunal was wrong in finding the accused guilty of the charge in failing to consider that it was not at all probable on the part of the Pak Army to commit rape of the victims, inasmuch as, during the relevant time P.W.13 was barely eight years old and since the victims were younger to him, they were 5-7 years old at that time. It was further contended that there is inconsistent version about the date of abduction of the victims and in this connection, learned counsel has referred to exhibit-R. It is further contended that the evidence of P.W.13 sufficiently indicated that he was deposing against Delwar Hossain Sayedee for deriving unfair benefit from the government and that no such incident at all took place and this would be evident from the fact that the whereabouts of the victims, the three sisters of Gouranga Saha could not have been traced out.

P.W.13 Gouranga Chandra Saha stated that he was 27 years old in 1971; that Delwar Hossain Sayedee came to his house with some Razakars and looted away valuable goods and thereafter, abducted his three sisters Mohamaya, Anyo Rani and Komol Rani and handed them over to Pak Army in the Camp; that they were sexually assaulted for three days in the camp and that thereafter they were sent back. In course of cross-examination, he stated that in 1971 his sisters were unmarried and that they along with another sister left for India. The defence fails to discredit his testimony in any manner and there is no cogent ground to disbelieve him. P.W.13, however, said that he could not say the whereabouts of his sisters. This cannot be a ground for disbelieving a witness particularly in respect of a Hindu conservative family, inasmuch as, it is seen in most cases of rape in 1971, the family members disserted the victims for avoiding social wrath or strictures or for fear of isolation. Many of those women and girls were taken to safe houses and some of them were taken by NGOs.

As regards the age of the victims, before 1971 there was no system for maintaining birth and death registers of the citizens. There was no compulsion even. Even now, no standard birth and death registers are being maintained. Whenever occasion arises someone collects a birth certificate from the local Union or Pourashava office by giving a date which is favourable to him or her. Sometimes offices issue certificates giving imaginary dates as desired by the party. P.W.13 asserted that in his national identity card the date of birth was wrongly mentioned as 8th July, 1963. In his testimony, he asserted that his age was 27 years in 1971. The defence did not at all challenge his statement. So, his statement remained uncontroverted. On query to the learned counsel about non-controversion of positive assertion made by him about his age, learned counsel pretended not to follow the query and repeatedly tried to persuade us to consider his date of birth being 8th July, 1963, as mentioned in his national identity card, his sisters were mere babies at that time. When there was no rational basis particularly in 1971 for maintaining the birth and death of citizens, it is difficult to assume that the date mentioned in the

national identity card is correct. What’s more, there is uncontroverted evidence of P.W.13 that he was 27 years old in 1971 and therefore, his younger sisters were above the age of 15 years during the relevant time. Even assuming that they were below 10 years old that itself is not a ground for disbelieving the fact of rape of the victims. For committing sexual assault to a girl, the age is not a factor. Sexual assault can be attributed to a girl of 5 years old and this has been happening in this country all the time.

The word ‘rape’ literally means a forcible seizure and that element is a characteristic feature of offence. The offence is said to a ‘rape’ when a man has carnal intercourse with a girl against her will, or without her consent and these two clauses may not be apparent, but they are intended to cover to separate contingencies. If sexual intercourse was without the consent of the girl or against her will, her age is immaterial for the offence of rape. Although the evidence of rape is usually effected by violence, it is now settled that rape can be committed without the use of violence. However, the essential point being that the girl’s free conscious permission is necessary in the case of adults and in the case of girls below the age of 16 years, consent is no defence and resistance need not be looked for. The definition of rape provides in the Penal Code being entirely on the basis of common law, the law as to the meaning of ‘sexual intercourse’ and “penetration” have no difference from that in England. In some cases it has been held that to constitute penetration it must be proved that some part of the virile member of the accused was within the libia of the pudendum of the woman or girl, no matter how little.

Except the age of the victims, which also itself is not a ground to disbelieve the rape and the same having not been established, the defence practically failed to dislodge the positive claim of P.W.13 who has been corroborated by Ajit Kumar Shil. P.W.28 proved that he has recorded his statement in accordance with law. Ajit Kumar Shil stated that Delwar Hossain Sayedee and his co-hort Razakars abducted three sisters of Gouranga and handed over to Pak Army; that they were raped on three consecutive days by force; that the victims with their parents left for India and that they did not return. P.W.28 stated that Ajit Kumar Shil stated to him that his family members pressurized him not to depose in the case; that his son told him that if Ajit Kumar Shil had deposed, he would be killed by Delwar Hossain’s people and that he would lose his job. He further stated that the prosecutor handed over the summons to him for production of Ajit Kumar Shil and pursuant thereto, he went to Ajit Kumar Shil’s house 2/3 times but he could not trace out him there; that he talked with his wife when the Indurkani police was with him; that on the second occasion he asked his wife and son about Ajit Kumar Shil’s whereabouts but they did not disclose his whereabouts.

It is true that P.Ws.1, 3 and 4 made general statements about the rape of Hindu women by the army in collaboration with the local Razakars. It is, however, a historical fact that during the liberation struggle period the Pak Army being assisted by the Razakars tortured the women particularly Hindu women indiscriminately. Anthony Mascarenhas in the journal ‘The Guardian’ has reported the barbaric acts of violation to girls by the occupation forces as mentioned earlier. This fact has been admitted by D.Ws.3, 14 and 16. D.W.3 in his chief volunteered that Gouranga Saha complained that Sayedee took his sisters at the army camp where they were ravished. He was deposing incident of 1971 as would appear from the statement that in 1971, Gouranga Saha told him that Delwar Hossain Sayedee was involved in abducting his sisters and handing them over to army who were then raped. Sub-section (3) of section 19 empowers the Tribunal to take judicial notice of facts of common knowledge.

Therefore, the Tribunal has legally admitted Ajit Kumar Shil’s statement in evidence. He has corroborated the evidence of P.W.13. Besides their evidence, D.W.3 admitted that Gouranga Saha told him in 1971 that Delwar Hossain Sayedee took his sisters to Army Camp where the army raped them. This statement of D.W.3 itself proved that the accused Delwar Hossain Sayedee abducted the sisters of Gouranga Saha in 1971 and handed over them to Pak Army. So he has corroborated the statements of Gouranga Saha and Ajit Kumar Shil in all material particulars. Accused Delwar Hossain Sayedee abducted three sisters of Gouranga Saha and thereby he aided and helped the Pak Army to cause sexual assault and pursuant thereto, they were ravished by Pak Army for three days. In the premises, the Tribunal was perfectly justified in finding the accused guilty of the charge.

Charge No.19 is as under:

‘That during the period of Liberation War starting from 26.03.1971 to 16.12.1971 accused Delwar Hossain Saeedi being a member of Razakar Bahini, by exercising his influence over Hindu Community of the then Pirojpur Subdivision (now Pirojpur District) converted the following Hindus to Muslims by force namely, (1) Modhusudan Gharami, (2) Kisto Saha, (3) Dr. Gonesh Saha, (4) Azit Kumar Sil, (5) Binod Saha, (6) Narayan Saha, (7) Gowranga Pal, (8) Sunil Pal, (9) Narayan Pal, (10) Amuullya Hawlader, (11) Hari Roy, (12) Santi Roy Guran, (13) Fakir Das, (14) Tona Das, (15) Gourangaa Saha, (16) his father Hori Das, (17) his mother and three sisters, (18) Mahamaya, (19) Anyo Rani and (20) KomalRani and other 100/150 Hindus of village Parerhat and other villages under Indurkani police station and the accused also compelled them to go the mosque to say prayers. The act of compelling somebody to convert his own religious belief to another religion is considered as an inhuman act which is treated as Crimes against Humanity’.

In support of this charge, the prosecution has examined P.Ws.2, 3, 4, 13 and 23 and relied upon the statement of Ajit Kumar Shil, (exhibit-264). The Tribunal after analyzing their evidence held that Delwar Hossain Sayedee compelled a good number of Hindus to embrace Islam putting them to fear of death; that P.W.13 Gouranga Chandra Saha and P.W.23 Modhu Sudan Ghoranmi are the victims of conversion, who vividly narrated under what compelling circumstances they converted their religion; that P.W.23 testified that the accused took him along with members of his family to the local mosque and compelled them to convert as Muslims against their will; that P.W.13 also gave direct evidence asserting that the accused compelled all the members of his family to embrace Islam by threat and that they were also compelled to go to mosque regularly to say prayers.

It is contended that P.Ws.2, 3, 4 and 13 made inconsistent statements with their earlier statements made before the investigation officer. It is further contended that in the absence of examination of Imams, Muazzins and Musallis of the relevant Mosques where the victims were allegedly converted to Islam, the Tribunal acted illegally in finding the accused guilty of the charge. It is further contended that in view of the admission of P.W.11 that Fakir Das and Jana Das left Parerhat before arrival of Pak Army at Parerhat, the story of conversion is apparently a false one.

P.W.2 stated that the Peace Committee members not only confined to the commission of looting and rape, they forcefully compelled the Hindu Community people namely Noni Saha, Makhan Saha, Dr. Gonesh Chandra Roy, Dr. Satish Chandra Roy, Sudhir Chandra Roy, Gouranga and 50/60 others to convert to Islam; that they compelled them to say five times Namaj in the Mosque and taught them 2/4 Arbi Surahs and supplied them Jainamaj, Tasbi and caps; that some of them fled away to India and that in the same manner the local Shanti Committee and Razakar members committed Crimes against Humanity in the locality. He was thoroughly cross-examined for days together but the defence failed to discredit his testimony.

P.W.3 stated that Delwar Hossain Sayedee detained profound devoted Hindus and forcefully converted them to Muslims and directed them to follow Islam by compelling to wear caps and saying five time namaj in the local Mosque; that those victims used to say Namaj in the local Mosque and were renamed with muslim names and that after the liberation, those converted persons reverted back to their own religion. He was thoroughly cross-examined by the defence but it failed to discredit his testimony rather, he reaffirmed his earlier statements.

P.W.4 stated that Delwar Hossain Sayedee not only raped Vhanu Saha, he also compelled to convert her father and brother to Islam by force and compelled them to say Namaj in the local Mosque. This witness reaffirmed his statement in course of cross-examination and the defence failed to elicitate anything adverse to his previous statement by cross-examination. P.W.13 is a victim, who stated that Delwar Hossain Sayedee compelled him, his parents, brothers and sisters by reciting Kalema to Islam and also compelled them to say Namaj in the Mosque; that his parents, brothers and sister left for India; that he alone stays in Bangladesh; that he (Sayedee) compelled other 100/150 Hindus to convert to Islam; that Delwar Hossain Sayedee gave his name as A. Goni and also gave him a cap and tasbi; that after liberation he reverted back to his religion; that out of those 100/150 persons, Narayan Saha, Nikhil Pal, Gauranga Pal, Sunil Pal, Haran Bhowmik were among them and that most of them died thereafter. He was also thoroughly cross-examined on the point of conversion but failed to bring out anything which made him as unreliable witness. The statement is so natural and so accurate that on a plain reading of his testimony, no one can harbor any doubt about the truthfulness of his statement.