IN THE SUPREME COURT OF BANGLADESH APPELLATE DIVISION

PRESENT:

Mr. Justice Surendra Kumar Sinha,                  Chief Justice Mrs. Justice Nazmun Ara Sultana Mr. Justice Syed Mahmud Hossain Mr. Justice Hasan Foez Siddique

CRIMINAL APPEAL NO.143 OF 2014.

(From the judgment and order dated 29.10.2014 passed by the International Crimes Tribunal No.1, Dhaka in ICT-BD Case No.03 of 2011.)

Motiur Rahman Nizami ………………………………Appellant.

=Versus=

The Government of Bangladesh, represented by the Chief Prosecutor, International Crimes Tribunal, Dhaka, Bangladesh

……………………………Respondent.

For the Petitioner :  Mr. Khondker Mahbub Hossain,

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

For the Respondent :  Mr. Mahbubey Alam, Attorney

General, with Mr. Murad Reza, Additional Attorney General, Mr. Momtazuddin Fakir, Additional Attorney General, Mr. Biswajit Debnath, D.A.G., Mr. Ekramul Hoque, D.A.G., Mr. Khondaker Diliruzzaman, D.A.G.,

Mr. Masud Hasan Chowdhury, D.A.G.,and Mr. Bashir Ahmed, A.A.G., instructed by Mrs. Mahmuda Parveen, Advocate-on- Record.

Date of Hearing : 09.09.2015, 17.11.2015,18.11.2015, 23.11.2015, 24.11.2015, 25.11.2015, 30.11.2015, 01.12.2015, 02.12.2015,07.12.2015 and 08.12.2015.

Judgment on: 06.01.2016.

J U D G M E N T

Nazmun Ara Sultana, J:  This Criminal Appeal under section 21(1) of the International Crimes (Tribunals)

Act, 1973 has been preferred by the convict appellant Motiur Rahman Nizami against the judgment and order dated 29.10.2004 passed by the International Crimes Tribunal-1 in ICT-BD Case No. 03 of 2011 convicting the accused-appellant on the Charge Nos. 1,2,3,4,6,7,8 and 16 for the offences of Crimes Against Humanity under section 3(2)(a)(g) and (h) read with section 4(1) and 4(2) of the International Crimes (Tribunals) Act, 1973 and sentencing him to imprisonment for life in respect of Charge Nos. 1,3,7 and 8 and to ‘death’ in respect of Charge No. 2, 4,6 and 16 under section 20(2) of the said Act of 1973.

During the War of Liberation of Bangladesh in 1971, the Pakistani armed forces, with the cooperation and aid of its auxiliary forces namely Rajakars, Al-Badr, Al-shams, committed atrocities, including murder, rape and other crimes against humanity and genocide throughout the whole of Bangladesh. During nine-month long Liberation War of Bangladesh about three million people were killed, nearly a quarter million women were raped and over ten million people were deported to India causing brutal persecution upon them. Following the launching of “Operation Search Light” by the Pakistani military on the night following 25th March, 1971 the Liberation War of Bangladesh started and ended on 16th of December, 1971 with surrender of Pakistani military personnel present in Bangladesh. The people of the then East Pakistan wholeheartedly supported

and participated in the war of liberation of Bangladesh but a small number of Bangalees, Biharis and members of some religion-based political parties collaborated with the Pakistani military to oppose the creation of independent Bangladesh. They co- operated and aided the Pakistani armed forces to commit murder, rape, and other crimes against humanity and genocide. Towards the end of nine-months War, sensing Pakistan’s imminent defeat, the Pakistani military with the aid and co-operation of its auxiliary forces namely Razakars, Al-Badr, Al- Shams, systematically rounded up, tortured and killed hundreds of intellectuals of different professions- the nation’s brightest luminaries-to intellectually cripple Bangladesh.

After liberation of Bangladesh, in order to bring to justice the perpetrators of the crimes committed during Liberation war of 1971 the International Crimes (Tribunals) Act, 1973 was promulgated. But no tribunal was set up under this Act until 24th March of 2010. On 25th March, 2010 the Government of Bangladesh established International Crimes Tribunal under International Crimes(Tribunals) Act, 1973. (hereinafter referred to as ICT Act).

During the War of Liberation of Bangladesh in 1971 the accused-appellant Motiur Rahman Nizami was the president of All Pakistan Islami Chhatra Sangha, the student wing of the political party Jamaat-e- Islami. Both Jamaat-e-Islami and Islami Chhatra Shanghha actively opposed the Liberation of Bangladesh and co-operated with the Pakistani army. 

On the basis of a complaint register being serial No. 1 dated 21.07.2010 the investigation agency established under the ICT Act held investigation against appellant Motiur Rahman Nizami and after completion of investigation submitted investigation report along with documents to the prosecutors appointed under the ICT Act and on receipt of that investigation report along with the documents the prosecutors prepared formal charges against appellant Motiur Rahman Nizami  on the allegations that during the whole period of Liberation War of Bangladesh in 1971 accused Motiur Rahman Nizami aided the Pakistani occupation force and its other auxiliary forces to commit various crimes against humanity and genocide in different places of his home district Pabna and also in Dhaka and other places and as president of Islami Chhatra Shanghha he became ex-officio leader/commander of Al- Badr Bahini which was formed with the members of Islami Chhatra Shanghha and incited, encouraged and provoked the members of Al-Badr Bahini to co-operate with Pakistani Army in committing various crimes against humanity and genocide. On 11.12.2011 the prosecutors submitted the said formal charges to the International Crimes Tribunal (hereinafter referred to as tribunal). The tribunal, after hearing the learned Lawyers of both the parties on charge framing

matter and on perusal of formal charges and the documents, framed 16 charges against the appellant Motiur Rahman Nizami on 28.05.2012 under sections 3(2)(a)(c)(i)(g) (h) read with section 4(1)(2) of the ICT Act punishable under section 20(2) of the said Act. The charges so framed were read over and explained to the accused appellant on dock to which he pleaded not guilty and claimed to have fair justice.

The prosecution examined as many as 26 witnesses and also produced bundle of documentary evidence in order to prove the charges against the accused. From the side of the accused also 3 witnesses were examined and one was produced only on dock and several documents also were produced.

The defence case, as it appears from the trend of cross-examination of the prosecution witnesses as well as from the evidence of defence witnesses was that the accused was never a high command, leader or member of Al-Badr Bahini and he never took part in any atrocities as alleged in the charges framed against him. He never played the role of anti- liberation of Bangladesh, he made no inciting speech in any meeting and never collaborated with Pakistani occupation force to commit atrocities in Pabna district or in any part of Bangladesh. That all the charges brought against him are false, fabricated and motivated. He is innocent.

However, we have heard Mr. Khandker Mahbub Hossain and the Mr. S. M. Shahjahan-the learned senior Advocates for the appellant and Mr. Mahbubey Alam-the learned Attorney General for the respondent at length. The learned Advocates for the appellant have made lengthy submissions contending that in this case the prosecution could not produce any reliable evidence, either oral or documentary, to prove the charges against the appellant, that the witnesses examined by the prosecution are not trustworthy at all, and the documents filed by the prosecution are not dependable at all; that the tribunal has committed wrong and great injustice to find the appellant guilty of the charges and to convict and sentence him relying on those unreliable evidence.

The learned Attorney General, on the other hand, has made lengthy submissions to refute the arguments advanced by the learned counsel for the appellant and has argued that in this case there are overwhelming evidence-both oral and documentary-to prove the charges against the appellant and that all these evidence are most reliable and dependable and that the tribunal has committed no wrong or injustice in relying on these evidence adduced by the prosecution, that the tribunal rightly found the appellant guilty of the charges and rightly convicted and sentenced him.

We have considered the lengthy arguments advanced by the learned counsel of both the sides attentively and examined the evidence on record minutely-which will be reflected in our discussions made below.

Before we examine the propriety of the conviction and sentences awarded against the accused- appellant Motiur Rahman Nizami by the tribunal we need to assess the  status and role of accused- appellant Motiur Rahman Nizami during the period of Liberation War in 1971.

Accused-appellant Motiur Rahman Nizami was born at Village Manmothpur under Sathia Police Station of District Pabna. He studied in Boalmari Madrasha at Sathia. He passed Fazil examination in 1961 and got Kamil degree from Madrasha-e-Alim, Dhaka in 1963 and also obtained graduation degree in 1967 from the University of Dhaka as a private student. He was elected member of Parliament twice in 1991 and 2001 and became Minister for Agriculture and then for Industries for the period from 2001-2006 under Bangladesh Nationalist Party (BNP) led government.

It is an admitted fact that accused Motiur Rahman Nizami was the President of Islami Chharta Shanghha- the student wing of Jammat-e-Islami during the War of Liberation in 1971. The D.W. 4 Najibur Rahman @ Najib Momen, the son of the appellant Motiur Rahman Nizami himself has admitted that Motiur Rahman Nazami was the President of East Pakistan Islami Chharta Shanghha during the period from 1966-1967, 1967-68, 1968-69 and thereafter he was President of All Pakistan Islami Chharta Shanghha during the period form 1969 till September, 1971. It is also an admitted fact that the appellant Motiur Rahman Nizami later joined the political party Jammat-e-Islami and became Ameer of its Dhaka city unit and was the member of central executive committee of this political party from 1978-1982. He also held the post of Assistant Secretary General of Jammat-e-Islami from 1983 to 1988. He became the Secretary General of Jammat-e-Islami in December, 1988 and held the said post up to 2000. He became Ameer of Jammat-e-Islami in 2000 and since then he has been holding the post of Ameer of Jammat-e-Islami till today.

The specific allegation of the prosecution is that as the President of All Pakistan Islami Chharta Shanghha-the student wing of Jamat-E-Islami, the accused Motiur Rahman Nizami not only co-operated with the Pakistani invading force in committing various crimes against humanity but also masterminded the formation of Al-Badr Bahini and was a leader of this Al-Badr Bahini and having control, authority and supervision over the members of this Al-Badr Bahini he provoked, instigated and encouraged them to cooperate with Pak army to commit various crimes against humanity including killing of intellectuals of the country during Liberation War of Bangladesh. To prove these allegations the prosecution filed several documentary evidence as well as adduced oral evidence before the Tribunal.

The Exhibit-28/3 is a book titled “Sunset at Midday” written by Mohiuddin Chowdhury, who was a leader of peace committee of Noakhali district in 1971. This book was published in 1998 form Karachi. At page 97 of this book it has been narrated thus;

“To face the situation Rajakar Force, consisting of Pro-Pakistani elements was formed. This was the first experiment in East Pakistan, which was a successful experiment. Following this strategy Rajakar Force was being organized throughout East Pakistan. This force was, later on named Al-Badr and Al-Shams and Al-Mujahid. The Workers belonging to purely Islami Chhatra Sangha were called Al-Badr; the general

patriotic public belonging to Jamaat-e- Islami, Muslim League, Nizam-e-Islami etc. were called Al-Shams and the Urdu-speaking

generally known as Bihari were called Al- Mujahid.” (underlined for giving emphasis)

 The writer of this book “sunset at Midday’’ is a Bangladeshi. From the note of publisher of this book it appears that the writer of this book left Bangladesh for Pakistan in May, 1972. In this book the writer claimed himself to be a district level leader of political party and peace committee of Noakhali. He also stated that he sided with Pakistan Army and played important role to save Pakistan. So his narration that Al-Badr Bahini was formed with the

members of Islami Chharta Shanghha can be accepted as most trustworthy.

The Exhibit-28/1 is another book titled “Pakistan between Mosque and Military” written by Husain Haqqani, published by Carnegie Endowment For International Peace Washington D.C, U.S.A in 2005. At page 79 of this book it has been written thus;

“The Jamaat-e-Islami and especially its student wing, the Islami Jamiat-e-Talaba (IJT), joined the military’s effort in May 1971 to launch two paramilitary counterinsurgency units. The IJT provided a large number of recruits. The two special brigades of Islamist cadres were named Al- Shams (the sun, in Arabic) and Al-Badr (the moon)..... A separate Rajakars Directorate was established.... Two separate wings called Al-Badr and Al-Shams were organized. Well educated and properly motivated students from the schools and madrasas were put in Al-Badr wing, where they were trained to undertake ‘Specialized Operations,’ while the remainder were grouped together under Al-Shams, which was responsible for the protection of bridges, vital points and other areas..... Bangladeshi scholars accused the Al-Badr and Al-Shams militias of being fanatical. They allegedly acted as the Pakistan army’s

death squads and ‘exterminated leading left wing professors, journalists, litterateurs, even doctors.’

The writer of this book Husain Haqqani is a Pakistani. He started his carrier as journalist, he served as adviser to three Pakistani Prime Ministers. The above citation of this books testifies that Jamaat-e-Islami and its student wing Islami Chharta Shanghha played a special role in organizing and establishing the notorious Al-Badr Bahini.

The Exahibit-31 is another book named “Sectarianism and Politico- Religious Terrorism in Pakistan” (revised edition in 1993) written by Musa Khan Jalazai. In this book, at page 258, the author wrote thus;

“The campaign confirmed Jamiat’s place in national politics, especially in 1971, when Jamiat began to interact directly with the military government of East Pakistan in an effort to crush Bengali nationalism. As a result of these contacts, Jamiat Joined the Pakistani military’s effort in May, 1971 to launch two paramilitary counterinsurgency units in East Pakistan, Al-Badr and Al- Shams, to combat Mukti Bahini, the Bengali guerrilla organization. Jamiat provided a large number of recruits for the two units, especially Al-Badr, the decision to join Al-Badr and Al-Shams was taken by Motiur

Rahman Nizami, Jamiat’s nazimia’la at the time who stationed at Dacca University.” (underlined for giving emphasis.)

Musa Khan Jalazai of Afgan origin is a renowned journalist and researcher in the field of terrorism issues. The contents of this book as quoted above also tells about the role of the appellant during the Liberation War of 1971.

The exhibit-28 is another book titled as “Vanguard of Islame Revolution” published in 1994 in the United States of America. Seyyed Vali Reza Nasar wrote this book. At page 66 of this book it is narrated thus;

“The campaign confirmed the IJTs (Islami Jamaat-e-Talabah) in national politics specially in May 1971, when the IJT joined the army’s counter insurgency campaign in East Pakistan. With the help of the army IJT organized two paramilitary units, called Al-Badr and Al-Shams to fight the Bangalee guerrillas. Most of the Al-Badr consisted of IJT members who also galvanized support for the operation among the Muhajir community settled in East Pakistan, Motiur Rahman Nizami, the IJT’s Nazim-e-Ala (supreme head or organizer) at the time, organized Al-Badr and Al-Shams from Dhaka University.”

(underlined for giving emphasis.)

The Exhibit-35 is a book titled "GKvI‡ii NvZK `vjv‡iiv †K †Kv_vq" published in 1987 by  "gyw³hy× †PZbv weKvk†K›`ª". In this book, at page No. 190 there is a list of members of the ICS central committee. In this list the name of the appellant Motiur Rahman Nizami has been mentioned at serial No. 1. The names of other leaders including Ali Ahsan Muhammad Mujahid, Mir Kashem Ali also have been included in this list. In this list these leaders of Islami Chhatra Shanghha have been mentioned as Al-Badr High Command also. This list of Exhibit-35 also indicates that Al-Badr Bahini was formed with the members of Islami Chhatra Shanghha and the appellant Motiur Rahman Nizami and other leaders of ICS were the High Command of Al-Badr Bahini.

The Exhibit-42 is a book titled "71 Gi `k gvm" written by Robindranath Tribedi on liberation war published in 1997. In this book also the accused appellant Motiur Rahman Nizami has been depicted as the chief of both Islami Chhatra Shanghha and Al-Badr Bahini.

The Exhibit-33 is another book titled "cvebv †Rjvi gyw³ hy‡×i  K_v" written by Md. Johurul Islam Bishu, published in 2009. At page 58 of this book it has been stated that Al-Badr Bahini was created for the purpose of killing of freedom-fighters and intellectuals and accused Motiur Rahman Nizami was the commander of Al- Badr Bahini.

Exhibt-4/11a is another important piece of documentary evidence which strongly supports the prosecution case that Al-Badr Bahini was formed with the members of Islami Chhatra Shanghha and the leaders of Islami Chhatra Shanghha became ex-officio leaders of Al-Badr Bahini. This Exhibit-4/11a is a news report published in “Dainik Sangram” on 14.11.1971 about a procession of anti-liberation group in Gaibandah District. In this report the president of Islami Chhatra Shanghha of Gaibandah Unit has been mentioned as Al-Badr Commander also. This Exhibit-4/11a-an old document supports also the correctness of other documentary evidence narrated above.

The above mentioned documentary evidence tell sufficiently that Al-Badr Bahini was formed mainly with the members of Islami Chhatra Shanghha. It should be mentioned here that in the cases of Ali Ahsan Muhammad Mujahid and Kader Mollah this Division held earlier that Al-Badr Bahini was formed mainly with the members of Islami Chhatra Shanghha. However, the above mentioned documentary evidence tell also that appellant Motiur Rahman Nizami, as the president of All Pakistan Islami Chhatra Shanghha, had an active role in the formation of Al-Badr Bahini and he himself became the leader/commander of Al-Badr Bahini.

Mr. Khandaker Mahbub Hossain, the learned Advocate for the accused appellant has made argument to the effect that all the above mentioned documentary evidence produced from the side of the prosecution to prove the status and role of the accused Motiur Rahman Nizami are recent, all being published after 1986 cannot be relied on. The learned Advocate has argued that the prosecution could not adduce a single documentary evidence to show that before 1986 the appellant was ever blamed anywhere by any one to be leader of Al-Badr Bahini. The contention of the learned Advocate is that only when the appellant took active part in politics by participating in the general election of members of parliament in 1986 his opponent and rival party started blaming him as a leader of Al-Badr with oblique motive. The learned Advocate has argued also that the above mentioned documentary evidence specially Exhibit-28, 28/1 and 31 being written by some foreigners cannot be accepted as authentic since none of these foreign authors ever visited Bangladesh even.

But we are unable to accept these arguments of the learned Advocate for the appellant. We cannot ignore the fact that the incidents of this case took place about long 42 years back and the investigation of this case also started about 40 years after those incidents. With the passage of this long period many of the important documentary evidence might have been destroyed. In the circumstances the failure of the prosecution to bring old documents before the court showing involvement of the accused with Al-Badr Bahini should not be considered as fatal if the other

evidence adduced by the prosecution are convincing. The objection as to the authenticity of the Exhibit- 28, 28/1 and 31-the books written by some foreign authors also are not acceptable. The authors of all those three books are renowned scholars and they did extensive research works on the liberation war of Bangladesh before writing these books. However save and except these three books the prosecution has adduced some other documentary evidence also as narrated above. One of which is Exhibit-28/3 written by one political leader of Bangladesh who sided with the Pakistani army during the liberation war in 1971 and after liberation of Bangladesh he went away to Pakistan in May, 1972. In this Exhbiit-28/3 this author clearly stated to the effect that Al-Badr Bahini was formed with the members of Islami Chhatra Shanghha. The Exhibit-35 and Exhibit-33 written/edited by Bangladeshi authors also have supported the prosecution case that the Al-Badr Bahini was formed with the members of Islami Chhatra Shanghha and accused appellant Motiur Rahman Nizami was the commander/leader of Al-Badr Bahini.

The Exhibit-4/11a referred to above is an old document of the year 1971 and this document also supports strongly that Al-Badr Bahini was formed with the members of Islami Chhatra Shanghha and leaders of Islami Chhatra Shanghha became the ex-officio leaders of Al-Badr Bahini.

Besides the above mentioned documentary evidence the prosecution has adduced some oral evidence also which have supported the prosecution case that Al- Badr Bahini was formed with the members of Islami Chhatra Shanghha and accused appellant Motiur Rahman Nizami became the leader/ commander of Al-Badr Bahini.

P.W.1 Misbahur Rahman Chowdhury, aged 57 years, is the chairman of the political party “Islami Oikko Jote.” This witness has deposed to the effect that he was a member of Islami Chhatra Shanghha in 1971 and that the Al-Badr Bahini was formed with the members of Islami Chhatra Shanghha under the leadership of appellant Motiur Rahman Nizami. This P.W.1 has produced also a photocopy of a letter-the Exhibit-1 and has deposed to the effect that Sirajul Islam Motlubi-the president of Islami Chhatra Shanghha of Moulavibazar Unit came to his house several times in 1971 and finding him not home he left this letter (exhibit-1) for him; that in that letter it was a written to the effect that a decision was taken that the members of Islami Chhatra Shanghha would join Al-Badr Bahini within 10th August, 1971; that in that letter there was a instruction for him (P.W.1) also to join Al-Badr Bahini mentioning that the president of Islami Chhatra Shanghha  Motiur Rahman Nizami would be happy if he joined Al-Badr Bahini.

P. W. 12 Dr. Rathindranath Kunda has deposed to the effect that accused Motiur Rahman Nizami was the president of Islami Chhatra Shanghha and founder of Al-Badr Bahini. In course of cross examination this P. W. 12 stated also that he knew Motiur Rahman Nizami from his student life and that in 1971, from “Daily Sangram” and “Daily Ittefaq” he knew that Motiur Rahman Nizami was the founder of Al-Badr Bahini.

P.W. 13 Shamoly Nasrin Chowdhury aged 71 years is the wife of martyr doctor Abdul Alim Chowdhury who was killed by the members of Al-Badr Bahini immediate before Liberation of Bangladesh. This P.W. 13 Shamoly Nasrin Chowdhury was the head mistress of Udayan High School, Dhaka for 36 years and at present she is the head mistress of “Uddipon Bidyaloy” established by herself. This witness has deposed to the effect that during the war of 1971 she came to know from newspapers and other media that Al-Badr Bahini was formed with the members of Islami Chhatra Shanghha and Golam Azam, Motiur Rahman Nizami and Ali Ashan Muhammad Mujahid were the central leaders of this Al- Badr Bahini and that this Al-Badr Bahini, in collaboration with Pakistani occupation army, committed murder, rape, genocide, arson, plundering etc.; that they also came to know from “Shadhin Bangla Betar Kendro”, newspaper, leaflet etc. that the members of Al-Badr Bahini, at the instruction of their high command, were killing the pro-liberation people, specially professors, engineers, doctors and other intellectuals taking them blind-folded to Mohammadpur Physical Training Institute.

P.W. 23 Syeda Salma Mahmmud @ Salma Haque aged 64 years, is the wife of another martyr doctor Azaharul Haque, who also was killed by the Al-Badrs during the last part of liberation war. This witness also has deposed to the effect that in 1971 they read news in “Dainik Ittefaq” and “Dainik Pakistan” mentioning Motiur Rahman Nizami as the commander of Al-Badr.

The above narrated evidence of P.W. 1, P. W. 12, P.W. 13 and P.W. 23 also strongly support the prosecution case that Al-Badr Bahini was formed with the members of Islami Chhatra Shanghha and this accused appellant Motiur Rahman Nizami was the leader/commander of Al-Badr Bahini. Mr. S. M. Shahjahan, the learned Advocate for the appellant has argued before us that the P.W.1 is not at all a reliable witness as he made some incorrect statements before the Tribunal. From the cross-examination of this P.W.1 it reveals that some of his statements which he made in his examination-in-chief were not correct. But those alleged incorrect statements are as regards some other facts and circumstances and not as regards his above mentioned evidence regarding this appellant’s status and role. For making some incorrect statements as regards any particular fact or matter the whole evidence of a witness cannot be rendered as incorrect or false. For the reason of making some incorrect statements only a witness cannot be blamed as a liar and his whole evidence cannot be disbelieved as false. The P.W. 1 is the chairman of a political party and he was also a member of Islami Chhatra Shanghha during the war of 1971. He was actively involved in politics in 1971. We do not find any cogent reason to disbelieve this P.W. 1.

P. W. 12 is a doctor and a responsible man. We find no cogent reason to disbelieve his above mentioned evidence.

The P.W. 13, is a most respectable person of the society. We find no reason to disbelieve her. We accept her evidence that during the Liberation War in 1971 news were published in different newspapers mentioning the accused appellant Motiur Rahman Nizami as leader/commander of Al-Badr Bahini.

We find no reason to disbelieve the above mentioned evidence of P.W. 23 also, the widow of a martyr doctor who was killed by the Al-Badrs during the liberation war.

The evidence of above stated 4 witnesses not only support the prosecution case that Motiur Rahnam Nizami was the leader/commander of Al-Badr Bahini but also fill up the deficit of old documentary evidence as to appellant’s being leader/commander of Al-Badr Bahini.

The prosecution has produced some newspaper reports which also show that accused appellant Motiur Rahman Nizami delivered speeches at different places throughout the country at different time during the whole period of liberation war praising the Pakistani Army and asking the members of Al-Badr Bahini and Islami Chhatra Shanghha to co-operate with the Pakistani Army in exterminating the pro-liberation people.

The Exhibit-2/22 is an article written by the appellant Motiur Rahman Nizami published in Dainik Sangram on 14.11.1971 under the caption "e`i w`em: cvwK¯ v— b I Avje`i z"

The relevant portion of this article is quoted

below:

"¢q¾c¤ h¡¢qe£l pwMÉ¡n¢š² Bj¡−cl a¥me¡u f¡yQN¤e ®hn£z a R¡l¡ Bd¤¢eL pjl¡−ØHJ

a¡l¡ f¡¢LÙ¹¡−el ®Q−u A¢dL p¤p¢‹az c§iÑ¡NÉhnax f¡¢LÙ¹¡−el ¢LR¤ j¤e¡¢gL a¡−cl

fr Ahmðe L−l ®ial ®b−L Bj¡−cl−L c§hÑm Ll−a osk−¿» ¢mç B−Rz a¡−cl j¤L¡−hm¡ L−lC a¡−cl pLm osk¿» h¡eQ¡m L−lC f¡¢LÙ¹¡−el BcnÑ J A¢Ù¹aÄ lr¡

Ll−a  q−hz  ..........................Bj¡−cl  flj  ®p±i¡NÉ  h¢m−a  q−h  f¡L  ®pe¡ h¡¢qe£l pq−k¡N£a¡u H−c−nl Cpm¡j ¢fËu al¦e pj¡S hcl k¤−Ül pȪ¢a−L p¡j−e ®l−M Bm hcl h¡¢qe£ NWe L−l−Rz hcl k¤−Ü j¤p¢mj ®k¡Ü¡−cl pwMÉ¡ ¢Rm 313 Sez

H pȪ¢a−L Ahmðe L−l a¡l¡J 313 Se k¤h−Ll pjeÄ−u HL HL¢V CE¢eV NW−el ¢pÜ¡¿¹ ¢e−u−Rz hcl ®k¡Ü¡−cl ®k ph N¤e¡hm£l Lb¡ Bjl¡ B−m¡Qe¡ L−l¢R Bm hc−ll al¦e j¤S¡¢qc−cl j−dÉ Cen¡Bõ¡q ®pC …e¡hm£ Bjl¡ ®cM−a f¡hz f¡¢LÙ¹¡−el BcnÑ J A¢üaÄ lr¡l cªt pwLÒf ¢e−u Bm hc−ll k¤h−L ¡ ea¥e L−l

nfb ¢e−u¢R k¡−cl ®aSc£ç avfla¡l g−m hcl ¢ch−pl LjÑp§Q£ ®cnh¡p£ c¤¢eu¡l j¤pmj¡e−cl q¡l¡−e¡ pȪ¢a a¥−m dl−a prj q−u−Rz Cen¡Bõ¡q hcl k¤−Ül h¡Ù¹h pȪ¢aJ a¥−m dl−a prj q−hz Bj¡−cl ¢hnÄ¡p −p¢ce Bl Mh ¤ ®hn£ c§−l eu ®k¢ce hc−ll al¦e k¤h−Ll¡ Bj¡−cl pnÙ» h¡¢qe£l f¡−n c¡¢s−u ¢q¾c¤ h¡¢qe£−L fkÑc¤Ù¹ L−l ¢q¾c¤Øq¡−el A¢üaÄ ¢hfæ L−l p¡l¡ ¢h−nÄl Cpm¡−jl ¢hSu fa¡L E—£e Ll−hz Bl ®p¢ceC f§lZ q−h j¤pmj¡e−cl Bn¡ BL¡´M¡z"

Exhibit 2/5 is a report narrating a speech of appellant Motiur Rahman Nizami which was published in Dainik Sangram on 05.08.1971. A portion of the said report is quoted below;

"Rbve wbRvgx e‡jb, †`k‡cÖwgK RbMb hw` cqjv gvP© †_‡K Rxe‡bi SuywK wb‡q `y¯‹…wZKvix‡`i cÖwZ‡iva Ki‡Z GwM‡q Avm‡Zv Zvn‡j †`‡k Ggb cwiw¯’wZi m„wó n‡Z cvi‡Zv bv| G cÖms‡M wZwb e‡jb, Avj−vn Zvi wcÖqf~wg cvwK¯ v— b‡K i¶v Kivi Rb¨ Bgvb`vi gymjgvb‡`i Dci `vwqZ¡ w`‡qwQ‡jb| wKš‘ gymjgvbiv hLb ivR‰bwZK mgm¨vi †gvKv‡ejv ivR‰bwZK cš’vq Ki‡Z e¨_© n‡jv ZLb Avj−vn

†mbvevwnbxi gva¨‡g Zvi wcÖq f~wgi †ndvRZ K‡i‡Qb| Avš—Rv©wZK L¨vwZ m¤úbœ QvÎ †bZv Rbve wbRvgx cvK †mbvevwnbxi cÖksmv K‡ib Ges fwel¨‡Z mKj

Avf¨š i— xb I we‡`kx nvgjv †gvKv‡ejv Kivi Rb¨ Zv‡`i mvnm I Z¨v‡Mi Rb¨

Avj−vi Kv‡Q †gvbvRvZ K‡ib|

cwi‡k‡l Rbve wbRvgx e‡jb cvwK¯ v— b Avj−vni Ni, Avj−vn G‡K evi evi i¶v

K‡i‡Qb fwel¨‡ZI i¶v Ki‡eb|"

Exhibit 2/6 is another report about the activity

of appellant Motiur Rahman Nizami published in said “Dainik Sangram” on 11.08.1971. The relevant portion

of the said report is quoted below:

"cvwK¯ v— b Bmjvgx QvÎ ms‡Ni †gv‡gbkvnx kvLvi D‡`¨v‡M Av‡q wRZ GK Rb mfvq Bmjvgx QvÎ msN cÖavb gwZDi ingvb wbRvgx mfvcwZZ¡ K‡ib|... †`‡ki kΓ‡`i

Ly‡R †ei Kiv Ges Zv‡`i ZvwjKve× Kivi Kv‡R ¯’vbxq KZ…©c‡¶i mv‡_ ‡hŠ_fv‡e KvR Kivi Rb¨ mfvi e³viv †`k‡cÖwgK Rbmvavi‡bi cÖwZ AvnŸvb Rvbvb| "

Exhibit 2/8 is another report published in the “Dainik Sangram” on 16.08.1971 which is quoted below.

"Rbve gwZDi ingvb wbRvgx e‡jb cvwK¯ v— b †Kvb f~L‡Ûi bvg bq| GKwU Av`‡k©i bvg| GB Bmjvgx Av`‡k©i cÖ‡kœB cvwK¯ v— b m„wó n‡q‡Q Ges GB Av`k©B cvwK¯ v— b ‡K wUwK‡q ivL‡Z m¶g|"

Exhibit 2/10 is a report about another speech of

the appellant published in the ‘Dainik Sangram’ on 23.08.1971. The relevant portion of that report is quoted below;

"QvÎ †bZv wbRvgx wØavnxb K‡É †Nvlbv K‡ib †h, knx` Avjgv`vbxi i‡³i cÖwZ‡kva wb‡Z cvi‡jB Zvi cÖwZ Avvgv‡`i kª×v‡eva cÖgvwbZ n‡Z cv‡i| Avi G cÖwZ‡kva Bmjv‡gi kΓ‡`i mg~‡j DrcvU‡bi gva¨‡gB m¤¢e n‡Z cv‡i|

wZwb e‡jb Bmjv‡gi kΓiv AvR nv‡Z A¯¿ wb‡q‡Q| A‡bK‡K knx` K‡i‡Q| wZwb mZK© evYx D”Pvib K‡i e‡jb Bmjv‡gi BwZnvm ïay kvnv`v‡Zi BwZnvm bq| Bmjv‡gi BwZnvm kΓ wba‡biI BwZnvm| MvRx n‡q Avj−vi Øxb‡K Mv‡je KiviI BwZnvm|

wZwb mevB‡K gv`vbxi c_ AbymiY K‡i †Rnv‡`i gq`v‡b Svwc‡q covi Rb¨ AvnŸvb Rvbvb|"

Exhibit 2/14 is about a Telegram sent by the appellant which was reported in the “Dainik Sangram”

on 04.09.1971. The relevant portion of this report is quoted below;

"ZvievZ©vq Rbve wbRvgx e‡jb †h, cvwK¯ v— bx QvÎ mgvR Zvi cy‡Îi gnvb AvZ¥Z¨v‡M Mwe©Z| fviZxq nvbv`vi I G‡R›U‡`i †gvK‡ejvq gnvb knx` wgbnv‡Ri †MŠiv‡ev¾j f~wgKv A¶zbœ ivL‡Z Zviv e× cwiKi|"

Exhibits 18/5, 18/8, 18/12, 18/9 are fortnightly reports on political situation of different periods during the liberation war prepared by Special Branch, East Pakistan, Dhaka. From these exhibits also it appears that appellant Motiur Rahman Nizami, as president of All Pakistan Islami Chhatra Shanghha, delivered speeches in different meetings of Islami Chhatra Shanghha in different places praising Pakistani army for its timely action and also calling the members of Islami Chhatra Shanghha to co-operate with the Pakistani Army.

From the above mentioned old documentary evidence it is evident that during the Liberation War of Bangladesh the appellant Motiur Rahman Nizami not only sided with the Pak army but also incited the members of Al-Badr Bahini and Islami Chhatra Shanghha to co-operate with the Pak army. The exhibit-2/22- the article written by the accused appellant proves also that accused Motiur Rahman Nizami was highly satisfied with the formation of the Al-Badr Bahini and he praised highly this Al-Badr Bahini and also prayed for success of Al-Badr Bahini in protecting the existence of Pakistan. The above referred old documentary evidence prove sufficiently the role of accused appellant Motiur Rahman Nizami during the Liberation War of Bangladesh. He not only opposed the Liberation of Bangladesh and co-operated with the Pak army but also encouraged and provoked the members of Al-Badr Bahini and Islami Chhatra Shanghha to co- operate with the Pakistani invading force. These documentary evidence coupled with the admitted fact that the appellant Motiur Rahman Nizami was the president of East Pakistan Islami Chhatra Shanghha for three years and thereafter he became the

president of All Pakistan Islami Chhatra Shanghha in the year 1969 and remained as such till September, 1971, and the proven fact that Al-Badr Bahini was formed with the members of Islami Chhatra Shanghha, in our opinion, prove sufficiently that appellant Motiur Rahman Nizami was the leader/commander of Al- Badr Bahini and he collaborated with the Pak army and played an active role against the liberation movement of this Country and also instigated, encouraged and provoked the members of Al-Badr Bahini and Islami Chhatra Shanghha to collaborate with the Pakistani Army.

Mr. Khondker Mahbub Hossain, the learned Senior Advocate appearing for the appellant has argued to the effect also that this Division has already found Mr. Ali Ahsan Muhammad Mujahid leader of Al-Badr Bahini and held him responsible for the atrocities committed by Al-Badr Bahini and in this circumstances there is no scope now to hold this present appellant also leader of Al-Badr Bahini. Referring to relevant portion of the judgment passed by this Division in the case of Ali Ahsan Muhammad Mujahid, the learned Advocate has contended that since Ali Ahsan Muhammad Mujahid has been convicted and sentenced to death and has already been executed as the Al-Badr leader there is no scope now for convicting the appellant as Al- Badr leader or commander.

We have considered the above submission of the learned Advocate for the appellant. Admittedly Ali Ahsan Muhammad Mujahid was the president of East Pakistan Islami Chhatra Shanghha during the period of 1971 and the present appellant was the president of All Pakistan Islami Chhatra Shanghha during that period. Obliviously, the status and position of the present appellant was higher than that of Ali Ahsan Muhammad Mujahid. However, in the judgment of Ali Ahsan Muhammad Mujahid this Division did not say that Ali Ahsan Muhammad Mujahid was the sole leader of Al- Badr Bahini. The evidence adduced in this case including the exhibit-4/11a mentioned above, prove that all the presidents of Islami Chhatra Shanghha of different units became ex-officio leaders of Al-Badr Bahini formed with the members of Islami Chhatra Shanghha. So, there is no improbability in the fact that the present appellant also, being the president of All Pakistan Islami Chhatra Shanghha, became one of the leaders of Al-Badr Bahini. This appellant, however, might have enjoyed higher or superior authority as leader of Al-Badr Bahini by dint of his higher position in Islami Chhatra Shanghha.

Mr. Khondker Mahbub Hossain, the learned Advocate has argued also to the effect that it has been well-proved that this appellant was president of All Pakistan Islami Chhatra Shanghha till 30th September, 1971 and thereafter Mr. Tasneem Alam Manzar was elected the president of All Pakistan Islami Chhatra Shanghha. The contention of the learned Advocate is that since this appellant was no more president of All Pakistan Islami Chhatra Shanghha since after September, 1971 he had no control and command over the members of Al-Badr Bahini after that period. But we cannot accept this argument also of the learned Advocate. This appellant was the president of Islami Chhatra Shanghha for a long period. Firstly he was the president of East Pakistan Islami Chhatra Shanghha for a period of three years and thereafter he was the president of All Pakistan Islami Chhatra Shanghha for another period of two years and thus he had control and authority over the members of Islami Chhatra Shanghha of East Pakistan wing for a long period of five years. The Al-Badr Bahini was formed with the members of East Pakistan Islami Chhatra Shanghha. It cannot be accepted that this appellant lost his leadership/authority/ control over the members of Al- Badr Bahini as soon as he made over his charge as president of All Pakistan Islami Chhatra Shanghha. It is not acceptable that this appellant did not retain any control and authority over the members of Al-Badr Bahini-who were under his leadership for a long period of 5 years as soon as he handed over charge as the president of All Pakistan Islami Chhatra Shanghha. The exhibit 2/22 quoted before, rather, prove that this appellant was very much involved with the Al-Badr Bahini and had authority, control and supervision over the members of this Bahini long after 30th September, 1971 also.

It should be mentioned here that it is not necessary that the leader/commander must be de-jure in nature always, it may be de-facto too and no formal documentary evidence is necessary to prove the de-facto leadership.  De-facto nature of superior position can be lawfully inferred even from the facts and circumstances revealed from the evidence adduced. In the case of the Prosecutor V. Blagojevic and Jokic the International Criminal Tribunal for the former Yugoslavia (ICTY) held;

“A de-facto commander who lacks formal letters of appointment, superior rank or commission but does, in reality, have effective control over the perpetrators of offences could incur criminal responsibility under the doctrine of command responsibility.”

In another case of Prosecutor –vs- Delalic the Trial Camber of ICTY held that a superior may be liable for the acts of his subordinates whether his authority over the subordinates is de-facto or de- jure, as long as he exercise effective control.”

This Division also has held in the cases of Kamaruzzamn and Ali Ahsan Muhammad Mujahid that superior or commander may not be de-jure in nature, it may be de-facto too and it is not needed to be proved by any formal documentary evidence.

The guiding principle of superior or command responsibility is that the superior/leader must have effective control over the subordinates. However, we find that accused Motiur Rahman Nizami was the leader of Al-Badr Bahini and he had effective control over the members of this Al-Badr Bahini throughout the whole period of liberation war and he himself collaborated with the Pakistani Army and also encouraged and instigated the members of Al-Badr Bahini to collaborate with Pakistani army who were then committing atrocities in this country in a large scale. 

Now we shall examine the propriety of the conviction and sentences awarded against the appellant by the Tribunal on different charges. It has already been mentioned above that the Tribunal framed as many as 16 charges on different allegations against the appellant, but found eight of those charges not proved by sifficient evidence and as such acquitted the appellant of those eight charges. The Tribunal found the charge Nos. 1,2,3,4,6,7,8 and 16 proved against the appellant and convicted and sentenced him on those charges as already mentioned above.

Summary of charge No. 1.  (causing arrest, detention, torture and killing of three victims including Kasim Uddin.)

On 04.06.1971 Kasim Uddin, the Head Moulana of Pabna Zilla School and a social worker, was apprehended by Pakistani invading force at the instigation of the accused and he was severely tortured in presence of the accused in the army camp at Nurpur Wapda Power House in Pabna town as he was perceived to be a supporter of the campaign to free Bangladesh from Pakistani invading force. On 10.06.1971 he was taken to the bank of Isamoti River along with two other persons where they were shot dead at the instance of the accused. Upon these allegations, charge under section 3(2)(a) read with section 4(1) and 4(2) of the ICT Act was framed against this accused-appellant.

The tribunal found this charge No. 1 proved and convicted the appellant under section 3 (2)(a)(g) read with section 4(1) of the ICT Act and sentenced him to imprisonment for life on this charge No. 1.

To prove the charge No. 1 the prosecution has examined 3 witnesses namely the P.W. 4, Mohammad Habibur Rahman, P.W.12 Dr. Rothindranath Kundu, and P.W. 21 Yusuf Ali Biswas and produced some documentary evidence also.

The P.W.4 Mohammad Habibur Rahman aged 56 years is a freedom fighter and the commander of Paban District command of freedom fighters. The relevant portion of the evidence of this P.W. 4 is that while undergoing training in India he came to know that Moulana Kasim Uddin, the head Moulana of Pabna Zila School, was killed. That Shibli, son of Moulana Kasim Uddin was his close friend. After returning from India he went to the house of Moulana Kasim Uddin to meet Shibli on the midnight of 19th August and Shibli

at that time told him that on 4th June, 1971 his father told him that Motiur Rahman Nizami listed his (Moulana Kasim Uddin’s) name for killing as pro- liberation supporters and asked him (Shibly) to escape from the house; Moulana Kasim Uddin also went out of the house to escape by riding on a bus, but he was apprehended by Pakistani invading force at the instance of some Jammat-e-Islami supporters and was taken to Nurpur Army camp; that Shibli and his family members went to that Army camp to release Moulana Kasim Uddin where they saw Motiur Rahman Nizami entering that Army camp. They cried out and requested Motiur Rahman Nizami to release Kasim Uddin but Motiur Rahman Nizami told Shibli’s mother sarcastically to ask her husband to give training to the freedom fighters; that on 10th June, 1971 Moulana Kasim Uddin was taken to a bamboo bush on the bank of Isamati River along with two other persons from Nurpur Army camp and were shot dead there by Pakistani invading force. That Shibli told him also that getting that news he (Shibly) along with others of their family went there and saw grave of Moulana Kasim Uddin and at that time they heard from the local people that Motiur Rahman Nizami was present at the time of killing of Moulana Kasim Uddin. This P. W. 4 has deposed further that during Liberation War of 1971, from the month of April till 16th December, the Al-Badrs, Rajakar and Pakistani armed forces committed atrocities in Pabna District killing about

15000 people, committing rape of about 1000 women, burning thousands of homestead and causing deportation of about 8-10 lacs of people from Pabna to India; that at that time accused Motiur Rahman Nizami was the president of All Pakistan Islami Chhatra Shanghha and on his order the Al-Badrs and Pakistani invading force committed those atrocities; that they caught some members of Al-Badr and Rajakar and recovered some I.D. Cards with the signature of Motiur Rahamn Nizami. This P. W. 4 has stated further that during the period of Liberation War he saw some articles written by Motiur Rahman Nizami and Mowlana Abdus Sobhan along with their photographs in the newspaper namely “Daily Sangram”. This witness stated also that his friend Shibli along with his family members went away to America about 15 years ago and they are now residing there. In cross examination this witness has stated that accused Motiur Rahman Nizami usually used to reside in Dhaka and go to Pabna twice or thrice a month.

Evidently this P. W. 4 is a hearsay witness as regards the incident of killing of Mowlana Kasim Uddin as stated in Charge No. 1. From the side of the defence the credibility of this P. W. 4 has been questioned seriously. Mr. S. M. Shajahan, the learned Advocate for the appellant has argued before us to the effect that the evidence of P. W. 4 regarding his hearing about the incident of killing of Mowlana Kasimu Uddin from his son Shibli is totally false, that Shibli knowing about this evidence of P. W. 4 before the Tribunal, has denied the alleged fact of his telling about his father’s killing to P. W. 4 and about the alleged invovment of the appellant in that killing. In support of this argument the defence appears to have filed a document which has been marked as exhibit-BG. This exhibit is an issue of the “Weekly Bangla Patrika” published from USA wherein an interview of Mr. Shibli, son of Mowlana Kasim Uddin was published. It appears that in that interview Mr. Shibli has denied the evidence of P. W. 4 Habibur Rahman and stated that he never told Habibur Rahman about killing of his father and that they were not told by anybody anytime that accused Motiur Rahman Nizami was involved in the murder of his father. However, it appears that the tribunal did not rely on this exhibit-BG on the reasoning that it was published after 5 months of the deposition made by the P. W. 4 before the tribunal. From the side of the appellant it has been argued before us that it is an admitted fact Mr. Shibli is now residing in USA and the exhibit-BG, a reputed registered Newspaper was published from the USA and that if at all this news report was false a rejoinder would have been issued by Mr. Shibli.

P. W. 12 Dr. Rothindranath Kundo, a doctor who was posted in Dhaka central jail at the time of giving deposition, is another hearsay witness. He has deposed to the effect that his boyhood friend Shawpon

told him in last week of August, 1971 that on 10th June, 1971 Moulana Kasim Uddin, a teacher of their school along with two others, being blind-folded, were taken to eastern side from western side in an army jeep and at that time Shawpon could see Motiur Rahman Nizami sitting in that jeep with Pakistani army. During cross-examination this witness has stated also that he knew Motiur Rahman Nizami since his student life and that Motiur Rahman Nizami was the founder of Al-Badr Bahini which he knew from “Daily Songram” and “Daily Ittefaq” in 1971. However, it appears that the above statement of P. W. 12 which he deposed before the Tribunal was not stated before the I. O. of this case-the P. W. 26. This P. W. 26, during cross-examination, has admitted that he examined P. W. 12 but he did not state before him that Shawpon told him that on 10th June, 1971 Moulana Kasim Uddin along with two other persons, being blind-folded, was taken to eastern side from western side in a Army jeep and at that time Shawpon could see Motiur Rahman Nizami sitting in front seat along with Pakistani army.

The P. W. 21 Md. Yousuf Ali Biswas has deposed to the effect that on 30.12.1970 he joined Pakistan army but he escaped from that service when Pakistani invading force made an attack on them and he came back to his locality. That on 9th June, 1971 he was staying in the house of his friend Arshad Ali at village Madhpur where he and his other friends decided to go to India to have heavy arms after getting training in India for combating the Pakistani occupation force. That on 10the June, 1971 they had gone to Madhpur Bazar to have breakfast at about 7.00 /8.00 A.M. At that time they could see two Pakistani army pickup vans coming from Pabna and stopped at the intersection of Madhpur; they saw Motiur Rahman Nizami sitting in the front seat of a Pickup van with one Pakistani major. He further saw three persons also sitting in the back seat of that van being blind-folded accompanied by Pakistani invading force. After a while Motiur Rahman Nizamin showed a sign fingering at the street of Sathia. Then the pickup van started going towards Sathia. About 15-20 minutes after they heard numerous sounds of firing from the bank of Isamoti River. Feeling insecured they had gone into hiding in a hut. 10-15 minutes later they saw those pickup vans moving towards Pabna and at that time also they saw Motiur Rahman Nizami beside a Pakistani Major sitting in one of those pickup vans which were then going towards Pabna. After departure of those pickup vans they went to Madhpur Bazar and heard local people telling that three persons were killed on the bank of Isamoti River. They then went to the spot and saw dead-bodies of three Bangalees lying in a hole. He then got down in that hole, took off black cloths from the faces of those dead-bodies and then identified Moulana Kasim Uddin, the Head Moulana of Pabna Zilla School. The dead bodies of two

From the side of the appellant it has been argued that this P. W. 21 Yousuf Ali Biswas is not at all a reliable witness inasmuch as he was produced before the Tribunal at a very belated stage by the prosecution to fill up the lacuna. It has been pointed out before us from the side of the appellant that this P. W. 21 was not cited in the original list of the witnesses; that about 22 months after submission of investigation report and after examination of 17 prosecution witnesses, on 26.07.2013 only, the prosecution filed a list of additional witnesses including this P. W. 21. Mr. S. M. Shahjahan, the learned Advocate for the appellant has argued that this P. W. 21 is not at all a reliable witness, rather is a tutored witness, examined to fill up the lacuna. It has also been argued that the evidence of this P. W. 21 is not believable at all inasmuch as it was not possible for this P. W. 21 sitting in a tea stall to identify the appellant sitting in the front seat of a running jeep. It has been further argued from the side of the appellant that the evidence of this P. W. 21 that he found three dead bodies in a hole and after untying the black cloths from their eyes he could recognize Moulana Kasim Uddin-is false in view of the evidence of P. W. 26-the investigation officer who, during cross-examination, has stated that during his investigation he got information that one Shahed Ali went to the place of occurrence at first and going there he found that all the three dead bodies (including that of Moulana Kasim Uddin) were buried. It has been contended that in that circumstances it was not possible for P. W. 21 to identify the dead body of Moulana Kasim Uddin and as such his evidence cannot be given any reliance at all.

However, from the narration of the evidence of P. W. 4, 12 and 21, whom the prosecution examined to prove the charge No. 1 against the accused appellant, it appears that out of these three witnesses two are hearsay witnesses. P. W. 4 and P. W. 12 admittedly, did not see the alleged incident of killing of Moulana Kasim Uddin, rather they have claimed to have heard about that incident from others. P. W. 4 claimed that he heard about this incident from Shibli, son of Moulana Kasim Uddin. But From the side of the defence a News Paper published from USA containing an alleged interview of Shibli, son of Moulana Kasim Uddin, the exhibit BG, has been produced which show that Shibli has denied this P. W. 4’s evidence that he heard about the killing of Moulana Kasim Uddin from him. In that interview-the exhibit-BG Mr. Shibli stated also that they were never told by anybody that accused Motiur Rahman Nizami was involved in the murder of their father

Moulana Kasim Uddin. Of course, the authenticity of this defence exhibit-BG is not beyond question. It has come before the tribunal that Moulana Kasim Uddin had another son named G.S.M.A Chisti who has been residing in Pabna, but the prosecution did not/could not produce this gentleman G.S.M.A Chisti before the Tribunal to depose in support of this prosecution case. From the side of the prosecution though it has been argued that this G.S.M.A Chisti is not an eye witness of the killing of Moulana Kasim Uddin and that is why he was not produced before the Tribunal, this plea of the prosecution is not acceptable at all in view of the fact that the prosecution has relied on the evidence of hearsay witnesses namely P. W. 4 and P. W. 12 to prove the charge No. 1 against the accused appellant. The non-examination of G.S.M.A Chisti-the son of Moulana Kasim Uddin before the Tribunal cannot be ignored, rather it is fatal for the prosecution. Being the son of Moulana Kasim Uddin this G.S.M.A Chisti could have been most natural and believable witness. It might be that G.S.M.A Chisti did not see the alleged incident of killing of his father Moulana Kasim Uddin with his own eyes, but must have heard about the same immediately after that occurrence from other eye witness including the P. W. 21. The non-coming of this G.S.M.A Chisti-the son of Moulana Kasim Uddin coupled with the other facts and circumstances pointed out above-very reasonably raises suspicion about the truth of the allegations made in the charge No. 1.

The prosecution has adduced some documentary evidence also as regards the killing of Moulana Kasim Uddin which have been marked exhibit in this case. But in none of these exhibits there is anything stating or indicating that accused Motiur Rahman Nizami was involved in the murder of Moulana Kasim Uddin.

In view of the above evidence and the facts and circumstances our considered opinion is that the prosecution could not prove the charge No. 1 against the accused appellant beyond all reasonable doubt. We therefore, find that the tribunal was not justified in finding the accused appellant guilty of the offence of killing of Moulana Kasim Uddin as stated in charge No. 1. We hold that the charge No. 1 being not proved beyond all reasonable doubt the accused appellant is entitled to get acquittal from this charge.

The summary of charge No. 2 (Conspiracy, mass- killing, rape and other crimes against humanity in villages Bousgari, Ruposhi and Demra of Sathia Police Station of District-Pabna)

On 10.05.1971, accused Motiur Rahman Nizami invited the inhabitants of village Baousgari under Sathia police station, district Pabna, to gather at Baousgari Ruposhi Primary School at around 11.00 A.M. for a meeting, where the accused made a speech

telling the villagers that soon Pakistani Army would arrive there to secure “peace” in that area. Thereafter, on 14.05.1971 at about 6.00/6.30 A.M. Pakistani Army arrived there along with Rajakars and Asad, an accomplice of the accused. They surrounded the villages Baousgari, Ruposhi and Demra and then picked up about 450 civilians who were all shot dead. The entire operation was carried out pursuant to pre- arranged plan to indiscriminately eliminate unarmed civilians. After killing them, the Pakistani Army and Rajakars then raped about 30-40 women, as a result of which, many of the raped victims were forced to leave the country and, as such, effectively deported to India as refugees. The said Rajakars, comprised of the followers of the accused, were organized under the direction of the accused. Thus, the accused has been charged for commission of offences of conspiracy, murder, rape and deportation as specified under section 3(2)(a) and (g) read with section 4(1) and 4(2) of the ICT Act.

The Tribunal has found this charge No. 2 proved and convicted the appellant under section 3(2) (a) (g) read with section 4(1) of the ICT Act and sentenced him to death.

To prove this Charge No. 2 the prosecution has relied on the evidence of P.W. 9 Md. Aynul Haque, P.W. 11 Md. Shamsul Haque, P.W. 17 Zamal Uddin and P.W. 18 Md. Zahirul Haque.

P.W. 9 Md. Aynul Haque is an aged man of 72 years and a retired School teacher. This witness has deposed to the effect that on 10th May, 1971 he went to his school (Ruposhi Government Primary School) and saw 10/12 persons along with the Head Master of the school sitting there. That he came to know from the Head Master that those persons came there for forming peace committee. At that time the Head Master showed him Motiur Rahman Nizami who was among those 10/12 persons. This witness has stated also that among those persons he knew “Dalal” Asad since before who was an agent of Pakistani army. That thereafter, on 13th May, 1971, Thursday he went to Demra Hat and from there he came to know that the Pakistani Military would come there on the next date. Thereafter, on the next day, on 14.05.1971 at about 6/6.30 a.m. his maternal uncle told them that the Pakistani army arrived there and surrounded the villages Demra, Rupashi and Boushgari. He along with others then went out of their house to save their lives. At about 11/11.30 a.m he saw a helicopter flying away and thereafter the firing started and flames and smoke were being seen. At about 12/1 p.m a man came out from the surroundings and told them that many people were killed there. That on the next date, on 15th May, in the morning he came back to his village Boushgari and saw there 300/350 dead bodies including the dead bodies of this maternal uncle Asgar Ali Pramanik, uncle A.K.M Fakir, cousin Ahes Fakir, Afil Fakir, Jamal uddin Pramanik, Azahar Ali Pramanik, his student Moksed Ali, Ram Jogonnath Roy, Boloram Roy, Monindranath Nandi, Dilip Kumar Roy, Nirmelondunath Roy, Ghora Babu and Abdul Jabbar. That the name of the place of that occurrence was Puger of Boushgari village. Subsequently that place was named as “Boushgari Bodhya Bhumi”; that he, with the help of local people, buried the dead bodies of his relatives in the graveyard. He also buried the dead bodies of the Hindus. The dead bodies of other Muslims were taken away by their relatives. On the same date, in the afternoon, he came to know that Pakistani army raped women most of whom were ultimately deported to India. That the said “Dalal” Asad and his accomplices showed the Pakistani army the directions of their village.

In cross-examination this P.W. 9 has stated also that throughout the whole period of 9 months of Liberation War in 1971 he was the teacher of Ruposhi Primari School. From the lengthy cross-examination of this P.W. 9 nothing material came out to make his evidence unbelievable. 

The P.W.11 Md. Shamsul Haque @ Nannu aged about 60 years, a resident of Police Station Sathia, District- Pabna is a lawyer by profession who practices in Pabna District Court and also is a member of Supreme Court Bar Association. This witness has deposed to the effect that he was a student of B.A. class in Pabna Edward College when the Liberation War started and he took part in Liberation War. The evidence of this witness relevant for the charge No. 2 are as follows;

In 1971, on 23rd March, they, under the leadership of Edward College Chhatro League formed Bangladesh Liberation force in Pabna District. On 24th March they came to know from shop keeper Sekendar Ali that Motiur Rahman Nizami, the President of Islami Chhatra Shanghha along with others formed an anti Liberation Cell to co-operate and help the Pakistani army. That on 26th March, 1971 the people of Pabna District along with Police, EPR and retired Army Personnel formed a defence cell to counter the Pakistani army and consequently on 27th March, 1971 Pabna was freed from Pakistani occupation army through a armed resistance. Thereafter Motiur Rahman Nizami, Moulana Abdus Sobahan, Moulana Ishaq and Rafiqunnabi @ Bablu and others fled away from Pabna.

The other portion of the evidence of this P.W. 11 relevant for this charge No. 2 is as follows:

On 10th May, 1971 at about 10/11 a.m. accused Motiur Rahman Nizami, Moulana Abdus Sobahan, Moulana Ishaq, Rafiqunnabi @ Bablu, infamous collaborator Asad came to Rupashi Primary School and there accused Motiur Rahman Nizami told the Headmaster of that school and others that Pakistani army would come there soon for securing peace. That he (witness) was then at Demra village and getting that news of coming of Motiur Rahman Nizami and others he went to Ruposhi

Primary School and saw Motiur Rahman Nizami and others coming out from the office of headmaster of that school and going towards Sathia; at that time, on his query, Headmaster of that school told him that Motiur Rahman Nizami told them that the Pakistani Army would come there soon for forming a peace committee. That 4 days thereafter, on 14th may, 1971, after ‘Fazar azan’, Motiur Rahman Nizami and others along with the Pakistani armed forces surrounded village Ruposhi, Boushgari and Demra and murdered many innocent people by firing shots. That in that incident about 450 people including Asgar, Ahez, waz, Appel, Eken, Abdul, Mokshed, Khorshed, Abul, Zamiran, Khudhe Roy, Boloram Roy, Dilip Kumar Roy, Manindhra Nath Nandi, Alam Pramanik, Molom Pramanik were killed. That the said attack of Pakistani army was pre-planned, systematic and widespread; that during that incident the Pakistani Armu and their collaborators Nizami and his Associates burnt 137 homesteads, shops, educational institutions, mosques by setting fire. At that time they also committed rape on 30/40 women including Shikha and Shila-two college girls who were taken away by the Army and could not be traced out later; that at the time of said incident he (witness) was residing in the house of his friend Benu Roy; that at dawn he heard some sound of brushfire and realized that the Pakistani Army had attacked that area; he then came out of that house in order to escape and saw Motiur Rahman Nazami and others with Pakistani army. That Pakistani army were firing at the people as per showing of Motiur Rahman Nizami and others; he then, for his safety, took shelter in a drain within a paddy field and from there also he could see that occurrence. That after departure of Pakistani army he entered the village and saw the atrocities committed by the Pak army. This witness has deposed further to the effect that in the middle part of May, 1971 Motiur Rahman Nizami

along with 100/150 Rajakars opened a “Rajakar Camp” at Sathia Pilot High School and in that occasion Motiur Rahman Nizami gave a speech stating that freedom fighters and the pro-liberation people were to be killed and the young boys would have to be admitted in Rajakar Bahini. This witness has deposed further that in the middle of May, 1971 the president of all Pakistan Islami Chhatra Shangah Motiur Rahman Nizami established an Al-Badr camp at Pabna Alia Madrasha and from that camp the Al-Badr, at the instruction of Motiur Rahman Nizami, committed murder, looting, torture and other crimes against humanity in different places of the district Pabna; that Motiur Rahman Nizami used to go to Rajakar camp at Sathia Pilot High School often and as per his instruction the commander of that camp, namely Samad Fakir, used to commit various crimes against humanity; that as he (witness) was a student of Sathia Pilot School he went near the Sahtia Pilot High School on the date when the Rajakar camp was

opened in that school and after that opening function he heard about that function from the people who attended that function. This witness has deposed further to the effect that Motiur Rahman Nizami, as the president of All Pakistan Islami Chhatra Shanghha, formed the Al-Badr Bahini with the members of Islami Chhatra Shanghha and he was the chief of Al-Badr Bahini, that as per his instruction the Al- Badrs committed various types of crimes against humanity during the period of Liberation War in 1971; that immediate before the Liberation of Bangladesh the Al-Badr Bahini, in order to make this country intellectually cripple, killed the intellectuals-the luminaries of this country in the “Badhya Bhumi” at Rayer Bazar and other places of the country. This P.W. 11 has been cross-examined at length by the defence, but nothing material came out from his cross-examination to make his evidence false or unbelievable.

P.W. 17 Md. Jamal Uddin aged 60 years has deposed to the effect that he is a freedom fighter and was deputy commander of Mukti Joddha Sangshad, Sathia Upazila. In 1971 he was a candidate of S.S.C. examination from Dhulaura High School. He participated in Liberation War. The necessary portion of the evidence of this P.W. 17 relevant for charge No. 2 is as below;

 that he (P. W. 17) heard from the Head Master of Ruposhi primary school that in the first part of May, 1971 Motiur Rahman Nizami, the president of Islami Chhatra Shanghha along with other local members of Jamaat held a meeting at Ruposhi Primary School for forming Al-Badr and Rajakar Bahini; thereafter on 14th March, 1971, at dawn, the Pak army, the local Rajakars and Al-Badrs under the leadership of Motiur Rahman Nizami surrounded villages Ruposhi, Demra and Boushgari and killed unarmed 450 persons by firing and burnt 200/300 houses, bazars etc. looted many houses and also raped women. This witness has deposed further to the effect that he was a commander of freedom fighter, he came to know from the apprehended Rajakars and Al-Badrs that at the advice and direction of accused Motiur Rahman Nizami, the atrocities were committed at different places.

P.W. 17 also has been cross-examined at length by the defence but nothing material came out from his cross-examination to make his evidence unbelievable.

P. W. 18 Md. Jahirul Houqe aged 67/68 years also is a freedom fighter and commander-in-charge of Sathia command of Bangladesh Mukti Jodhaya Shanshad. In 1971 he was the head master of Rajnarayanpur Girls School under Bera Police Station. This witness has deposed to the effect that he came to know from Aynul Hoque, a teacher of Ruposhi Primary School that on 10.05.1971 Motiur Rahaman Nizami along with 10/12 collaborators came to Rupohsi Primary School and held a discussion there with the head master and others and told that the Pakistani army would come there

soon for forming a peace committee and also Rajakar and Al-Badr Bahini; at that time Motiur Rahman Nizami instructed all to cooperate with the Pak army in all respect. This witness has deposed further to the effect that on 13.05.1991 he along with some others were staying at the house of Shahid Abdul Jabbar at village Boushgari for taking preparation for Liberation War. On 14.05.1971, after Fazar prayer, he woke up hearing sounds of firing and he then came out of the house and from behind a bush by the side of a road he saw Motiur Rahman Nizami, Asad, Kader, Sattar and other collaborators along with Pak army proceeding towards the village by firing indiscriminately; seeing that he along with his other companions fled away and 6/7 hours later he came back and saw about 400 dead bodies of Hindu and Muslim men and women; that at that time he came to know from the public present there that the Pak army, at the instruction of Motiur Rahman Nizami and in his presence, murdered those people by firing indiscriminately. That he then identified 50/60 dead bodies including those of Abdul Jabbar, Azgar Ali, Moksed Ali, Idris Ali, Eken Ali, Malom Pramanik and his bother Kalom Pramanik, Wazuddin, Sree Balaram Das, Upendranath, Jitendranath. This witness has deposed to the effect also that on 11 or 12th May Motiur Rahman Nizami, the then president of Islami Chhatra Shanghha and Ishaq Mowlana along with 100/150 Rajakars and Al-Badrs opened a Rajakar camp at Sathia

Pilot High School and in his opening speech Motiur Rahman Nizami told that the freedom fighters and the pro-liberation people would have to be killed and that the local youths would have to be admitted to Rajakar and Al-Badr Bahini; that he heard about this occurrence from Md. Tofazzel Hossain-a teacher of Sathia High School and some others.

This witness also has been cross-examined on all material points by the defence but nothing material could be extracted from him to make his evidence unbelievable.

From the above narration of the evidence adduced by the prosecution it appears that to prove the charge No. 2 the prosecution has examined as many as three eye witness of the occurrence of 14.05.1971 and also one hearsay witness to corroborate the eye witnesses. From the above narration it appears that P. W. 9 Aynul Hoque who also was a teacher of a school at that relevant time, has deposed to the effect that he himself saw the accused Motiur Rahman Nizami holding a meeting with the Head Master of Ruposhi Primary School for the purpose of forming a peace committee by the Pak army. This witness has further narrated the incident of mass killing at the villages Ruposhi, Baoshgari and Demra on 14.05.1971. This witness though did not name this accused Motiur Rahman Nizami while narrating the incident of 14.05.1971, the other two witnesses namely P. W. 11 Md. Shamsul Hoque and P. W. 18 Md. Zahirul Hoque have

specifically mentioned the name of accused Motiur Rahman Nizami while narrating the incident of mass- killing in the villages Boushgari, Ruposhi and Demra on 14.05.1971. Both these witnesses have deposed to the effect that this appellant Motiur Rahman Nizami was not only present but was actively involved in that incident of 14.05.1971 at villages Boushgari, Ruposhai and Demra. Both these witnesses have deposed to the effect that the Pak army committed that incident of mass-killing by firing indiscriminately at the instruction of this accused appellant Motiur Rahman Nizami. From the side of the defence though some alleged contradictions in the evidence of these witnesses have been pointed out but we do not think that these alleged contradictions are fatal at all to make their evidence unbelievable. From the side of the appellant it has been argued before us that the above witnesses, P. W. 9, P. W. 11, P. W. 17 and P. W. 18 have made some contradictory statements as regards the purpose of holding meeting by the appellant in Ruposhi Primary School on 10.05.1971. Mr. S.M.Shahjahan the learned Advocate for the appellant has pointed out that some of these witnesses have deposed to the effect that in that meeting this accused appellant told about forming of peace committee by Pak army and some of the witnesses have deposed to the effect that the appellant held that meeting for forming Rajakar and Al-Badr Bahini and has argued that these contradictory statements of these witnesses have made the prosecution story that accused Motiur Rahman Nizami held a meeting on 10.05.1971 in Ruposhi Primary School and gave a speech there stating that soon the Pakistani army would arrive there to secure peace in that area- false. But this argument of the learned Advocate for the appellant is not acceptable at all. The alleged contradictions pointed out from the side of the appellant is not at all important or serious in nature. It is a fact of common knowledge that the invading Pak army, with the cooperation of local collaborators, formed Rajakar Bahini, Al-Badr Bahini etc. in all most all the areas of this country during liberation war in 1971. In the district Pabna also Rajakar, Al-Badrs and other auxiliary forces were formed by the Pak army with the cooperation of local collaborators. In these facts and circumstances the telling by some of the above witnesses before the Tribunal that in the meeting of 10.05.1971 appellant Motiur Rahman Nizami told about formation of Rajakars and Al-Badr Bahini also-is not fatal at all and this does not make the prosecution case of holding a meeting by the appellant Motiur Rahman Nizami on 10.05.1971 in the Ruposhi Primary School for the purpose of formation of peace committee by the Pak army-false or unbelievable at all.

The learned Advocate for the appellant has made argument to the effect that among the four prosecution witnesses, who deposed about the alleged incident of 14.05.1971 in the villages Boushgari, Ruposhi and Demra, P. W. 9 only is the inhabitant of that area, but this witness did not implicate the appellant in the said incident of 14.05.1971. The contention of the learned Advocate is that in this circumstance the evidence of P. W. 11 and P. W. 18, who, admittedly, were not inhabitants of that area, cannot be relied upon. The learned Advocate for the appellant has pointed out that both the P. W. 11 and P. W. 18 claimed that on 14.05.1971 they were present at the place of occurrence incidentally and has argued that where the local witness namely P. W. 9 has elaborately narrated the incident without implicating the appellant in that incident the evidence of this P. W. 11 and P. W. 18-two outsiders implicating the accused appellant in that incident cannot be and should not be relied upon at all. The learned Advocate for the appellant has argued further that the appellant was a mere student at that time and it was quite absurd that the members of Pakistani military obeyed the order of this appellant and opened fire indiscriminately towards the people of those three villages as per instruction of this appellant. But we are unable to accept these arguments also of the learned Advocate. P. W. 11 Md. Shamsul Hoque is an Advocate and P. W. 18 Md. Zahirul Hoque is a Head Master of a School and both of them are freedom fighters and took active part in the War of Liberation of Bangladesh. They deposed before the

As against the P.W. 18 another objection raised from the side of the appellant is that this witness was cited as a witness long after commencement of the trial of the case. But we find no illegality in it, section 9(4) of the ICT Act has allowed calling in additional witnesses with the permission of the tribunal, at any stage of the trial. The P.W. 18 was examined by the prosecution with the permission of the tribunal. Defence also cross-examined this witness at length. As against the P.W. 11 allegation from the side of the appellant is that after giving evidence before the Tribunal this witness gave a video interview, which was available in “You tube”, an online media, denying the allegations made against this appellant and stating that being pressurized he deposed before the Tribunal against him. Admittedly

the P.W. 11 has denied this so-called video interview by calling a press conference. In the circumstances this alleged “Video interview” of P.W. 11 does not deserve any consideration at all. From the side of the appellant some other alleged discrepancies as to dates of some events etc in the evidence of these P.Ws have been pointed out before us. But we do not find any of this alleged discrepancies fatal at all. These witnesses have deposed before the Tribunal long 40 years after the incident narrated. With the passage of this long period of 40 years the memories of these witness have faded, no doubt. So it is most natural that there may occur some minor discrepancies in their evidence.

Mr. S. M. Shahjahan, the learned Advocate for the appellant has made argument to the effect also that some old documentary evidence were produced before the tribunal from both the sides and those were marked exhibits, but none of those documentary evidence supports the prosecution case that this appellant was involved in the incident of villages Boushgari, Ruposhi and Demra. Referring to exhibit-C the learned Advocate has argued that this Exhibit-C is a report sent by police superintendent, Pabna to the Deputy secretary of Ministry of Home wherein the list of Rajakars, Al-Badrs and Al-Shams of Pabna District was included but in that list of exhibit-C the name of the appellant does not appear. The contention of the learned Advocate is that this exhibit-C proves that the appellant was not at all a Rajakar or Al-Badr as climed by the prosecution. But we do not accept this argument of the learned Advocate. Admittedly this list of Rajakar, Al-Badr and Al-Shams contained in exhibit-C is not a complete list, so the absence of the name of the appellant in this list does not make the evidence of the prosecution witnesses false or unbelievable at all. The other documentary evidence, referred to by the learned Advocate for the appellant are some books marked exhibit-33 and exhibit-D. In these books the incidents of the village Boushgari, Ruposhi and Demra have been narrated but the involvement of the appellant in those incidents has not been mentioned in these books. But we do not think that the absence of name of the appellant in these books makes the evidence adduced by the prosecution before the tribunal false. There might be so many reasons for not mentioning the name of the appellant in those books.

However, we find that the Tribunal did not commit any wrong or illegality in relying on the P.Ws. 9,11,17 and 18 and in finding the charge No. 2 proved on the basis of the evidence of these 4 prosecution witnesses. In our opinion the tribunal rightly found the charge No. 2 proved beyond all reasonable doubt and rightly convicted and sentenced the appellant on this charge No. 2.

Summary of charge No. 3: (Committing different crimes against humanity at Physical Training Institute, Mohammadpur, Dhaka

As a leader of Islami Chhatra Shanghha [ICS] accused Motiur Rahman Nizami along with other leaders of Jamaat-e-Islami started to pay visit to Physical Training Institute, Mohammadpur, Dhaka since early May 1971 and the said institute was turned into a

training centre for various auxiliary forces including Rajakar and Al-Badr. Subsequently, it was also used as a Detention Camp and a Torture Cell. In the said Torture Cell many victims were always liquidated after inhuman torture. As a Chief of Al- Badr accused Motiur Rahman Nizami conspired with Pakistani army officers to commit different crimes against Bangalees during his visit to this Physical Training Institute, as a result of which the auxiliary forces along with Pakistani invading force committed different crimes against Humanity all over the country. Thus, the accused has been charged for physical participation and also for substantially contributing to the commission of offences of torture, murder, rape as crimes against Humanity under section 3(2)(a), 3(2)(g) and 3(2)(h) read with section 4(1) and section 4(2) of the Act.

The Tribunal has found this charge No. 3 against the appellant proved and convicted him under section 3(2)(a)(g)(h) read with section 4(1) 4(2) of the ICT Act and sentenced him thereunder to imprisonment for life.

The Tribunal has relied upon the evidence of P.W. 2 Johir Uddin Jalal @ Bichchhu Jalal, P.W. 3 Md. Rustum Ali and P. W. 13 Shaymoli Nasreen Chowdhury for finding the appellant guilty of this charge No.

3.

P.W. 2 Johir Uddin Jalal @ Bichchhu Jalal, aged 57 years has deposed to the effect that in 1971 he used to reside at Circuit House at new Easkaton Garden, Dhaka with his father who was then serving as an superintendent of police in the detective branch of police department; he was then a student of class- IX. That at present he is a member of executive committee of the Central Command Council of freedom fighters.

The evidence of this P.W. 2 relevant for the charge No. 3, are stated below.

That on 11 April, 1971, 8/10 persons from a nearby army camp went to their Circuit House and entered into the flat of Azizul Haq Bachchu at 3rd floor; at that time his father showed him Motiur Rahman Nizami, the president of Islami Chhatra Shanghha who came to that circuit house with those

8/10 persons; at that time his father showed him Ali Ahsan Mohammad Mujahid also, another leader of Islami Chhatra Shanghha and told him that those two leaders of Islami Chhatra Shangah were collaborating with the Pakistani army in committing various crimes; his father cautioned him also telling that if those persons could know about their activities against the Pakistani army, they would apprehend them. That in order to escape from being caught by those persons he (P.W.2) fled away from house on 12 April and joined Liberation War. That he took training under leaders Major Khaled Mosharraf and Major Haider in Tripura, India and then came back to Dhaka and started guerrilla attacks on Pak army, Al-Badrs and Rajakars in different places. That he was given the responsibility to keep watch on Physical Training Institute at Mohammadpur where the Head Quarter of Al-Badrs was established; that Golam Azam, Motiur Rahman Nizami, Ali Ahsan Mohammad Mujahid and others along with Pakistani army would hold meeting in that Al-Badr head quarter. That Al-Badrs, after receiving training from Pakistani army, at the instruction of Motiur Rahman Nizami and Ali Ahsan Mohammad Mujahid, used to round up and take the pro-liberation people and other professionals including doctors, writers, journalists, Freedom Fighters and other professionals blind-folded to that Al-Badr head quarter at Mohammadpur Physical Training Institute and used to torture them there brutally. That Rustum Ali (P.W.3)

used to give those informations to them at their camp at Keraniganj. That they were then getting news that Al-Badr commander Motiur Rahman Nizami, Ali Ashan Mohammad Mujahid and their accomplices, holding musk of black cloth, used to bring the pro- liberation people to the said physical training institute; that after liberation of Bangladesh, on 17th December they went to that Al-Badr head quarter at Mohammadpur and found slaughtered dead bodies and 9 severed heads of human. From there they went to “Rayer Bazar Itakhola” and saw there many dead bodies with bullet injuries.

The P. W. 3 Md. Rustom Ali Mollah aged 58 years has deposed to the effect that in 1971, during liberation war, he used to reside at Mohammadpur Physical Training College with his father who was then Peon/security Guard of that college. That on 26th March, 1971 the Pakistani army established a camp in that Mohammadpur Physical Training Institute and they kept many persons including 150 EPR personnel confined there. That some intellectuals, artists, doctors also were kept confined in that camp. Subsequently those persons were killed after inhuman torture. That the Pakistani army used to bring many women also in that camp and raped them, the women who resisted, were tortured and killed. That 4/5 months after establishment of that camp a training center for Rajakars and Al-Badrs was started there. That one day, after starting of that training center, while he was going out of that camp for shopping he saw Motiur

Rahaman Nizami, Golam Azam and Ali Ahsan Mohammad Mujahid coming there by an army pickup. That the Rejakars and Al-Badrs, who were then on duty in that training center, told him at that time that those three persons were their leaders and he (P.W.3) then recognized those three persons on that day for the first time; he heard from others that those three persons came to that training center thereafter also, but he himself did not see them to come there after that day. This witness has stated also that entering the training center those 3 persons went to the

1

office of the colonel and stayed there for 1 hours;

2

that he heard that those three persons came to that training  center  more  than  once  and  talked  with Rajakars and Al-Badrs there and also went to the

1

office room and talked there for 1 hours.

2

This P.W. 3 has deposed to the effect also that six months after starting of Liberation War he, with an intention to join liberation war, left the house and started for Bakutta freedom fighter’s camp; on the way he met freedom fighter Bichchhu Jalal who told him that he did not require to join Liberation War, rather he should stay there and give them informations about the camp in physical training centre  and  accordingly  he  came  back  and  kept supplying  news  about  that  camp  to  them.  That thereafter within 2-10 days Bichchhu Jalal informed him that they would attack that camp, but ultimately they could not attack that camp as the number of Rajakers and Al-Badrs staying in that camp was huge. This P.W. 3 has deposed further that 10 days before the Liberation of Bangladesh the Pak Army along with Rajakars and Al-Badrs brought intellectuals, artists. Bengali Girls, Bengali army men and freedom fighters to that camp and tortured them inhumanly and later they murdered them and left their dead bodies at Rayar Bazar “Badhhya Bhumi”. That on the date of liberation, at evening, the Rajakars and Al-Badrs left that camp, but before leaving that camp also they slaughtered a bengali doctor there; that the Rajakars and Al-Badrs shaved there beard before fleeing away from that camp; that on the next day of liberation he recovered nine severed heads of human from that camp and also 100/150 gouged human eyes from the brick filed of Rahim Bepari and handed over those to P.W. 2 Johir Uddin Jalal.

The P.W. 13 Shyamoli Nasrin Chowdhury has deposed that she came to know from various articles published in various newspapers that intellectuals including doctors, engineers, journalists and literators, were taken blind-folded to Mohammadpur Physical Training Institute where they were killed after torture.

Besides the above oral evidence the prosecution has also relied on a documentary evidence the exhibit no. 35, a book titled HL¡š−l O¡aL J c¡m¡ml¡ ®L ®L¡b¡u edited by doctor Ahmed Sharif, Mr. Nuruzzaman and Shariar Kabir published in 1987.

From the side of the appellant it has been argued to the effect that the above evidence adduced by the prosecution could not prove the charge No. 3 beyond all reasonable doubt. Mr. S. M. Shahjahan, the learned Advocate for the appellant has made argument to the effect also that the charge No. 3 is vague which does not tell sufficiently what offence actually has been alleged against this appellant in that charge. It has also been argued that the P.W. 2 and P.W. 3 did not state the material statements- which they made before the Tribunal-to the investigation officer and for this reason also their evidence cannot be relied on. The learned Advocate for the appellant has argued also that to prove the charge No. 3 the prosecution did not examine some vital witnesses, namely the then principle of that physical training institute who is still alive and also Raham Ali-the father of this P.W.3 who was then an employee of the physical training institute and who also is still alive. The learned Advocate for the appellant has argued that the P.W. 3, admittedly, was a little by of 14 years only at that relevant time and the examination of the P.W. 3 leaving his father and also the then principle of that physical training institute, who could have been the most competent witnesses in this case, very reasonably raises suspicion about the truth of the prosecution case. It

has also been argued from the side of the appellant that the prosecution could not produce a single documentary evidence to show that this appellant ever went to physical training institute during the liberation war in 1971, that the exhibit-35 does not disclose anything to the effect that this appellant Motiur Rahman Nizami ever went to physical training institute, Mohammadpur in 1971.

We have considered the above arguments of the learned Advocate for the appellant and examined the above narrated evidence of P.W. 2, P.W.3 and P.W. 13. The allegation which has been made in this charge No. 3 against the appellant is that the appllant along with other leaders of Jaamat-E-Islami visited physical training institute at Mohammadpur many times and there appellant Motiur Rahman Nizami conspired with the Pakistani army officers to commit different crimes against Bangalees and as a result of that conspiracy the Pakistani invading force along with their auxiliary forces committed different types of crimes against humanity in all over the country. Evidently this charge No. 3 does not state the alleged crimes specifically.The allegation which appears to be specific in this charge No. 3 is that this appellant Motiur Rahman Nizami used to go to that Mohammadpur physical training institute and there he met Pakistani army officers and made conspiracy with them to commit various crimes. But from the above narrated evidence of P.W. 2, P.W. 3 and P.W. 13 it appears that the P.W. 3 only has deposed to the effect that during the Liberation War in 1971 he saw this appellant Motiur Rahman Nizami along with Golam Azam and Ali Ahsan Mohammad Mujahid to come to the physical training Institute at Mohammadpur only one day. This P. W. 3 though has deposed also to the effect that he heard from others that subsequently also this appellant Motiur Rahman Nizami came to that physical training centre more than once and talked with the Rajakars and Al-Badrs and also met the army officers in the office room of Colonel and stayed there for one and half hours but there is no corroboration of these evidence of p.w.3. The P.W. 2 also though has deposed to the effect that this appellant Motiur Rahman Nizami along with Golam Azam and Ali Ahsan Mohammad Mujahid and others would hold meeting with the Pakistani army at that physical training institute at Mohammadpur and that at the instructions of the appellant Motiur Rahman Nizami and Ali Ahsan Mohammad Mujahid the Al-Badrs used to round up pro-liberation people and other professionals and bring them blind-folded to that physical training institute and torture them brutally but this P.W. 2 did not claim that he himself saw this appellant to commit those crimes. Rather, the P.W. 2 has stated that they were getting news that Al-Badr commander Motiur Rahman Nizami and Ali Ahsan Mohammad Mujahid and their accomplices, holding musk of black cloth, used to bring the pro- liberation

However, we find that the evidence adduced by the prosecution before the Tribunal to prove the charge No.3 is are very meagre which do not prove this charge beyond all reasonable doubt. It should be mentioned here that the prosecution has filed some documentary evidence also including the exhibit No. 35 as mentioned above, but in none of these documentary evidence also there is anything to the effect that this appellant Motiur Rahman Nizami used to visit Physical Training Institute at Mohammadpur and there he made conspiracy with the Pakistani army to commit crimes against humanity. So our considered opinion is that the charge No. 3 has not been proved beyond all reasonable doubt by sufficient evidence. The Tribunal was not right to convict and sentence the appellant on charge No. 3.

The appellant Motiur Rahman Nizami is found not guilty of the charge No. 3 and be acquitted of that charge.

Summary of Charge No. 4: (Committing murders, rape and persecution in village Karamja)On or about 24/25 April, 1971, on the direction and planning of accused Motiur Rahman Nizami, he [accused] with the help of local Rajakars including Rajakar Afzal killed Habibur Rahman Sarder of Purbo Karamja at the bus stand allegedly for helping the freedom-fighters. Thereafter, sequence to his same plan, in early morning of 08.05.1971, a member of Al-Badr Bahini namely Rafiqunnabi Bablu along with Rajakars and Pakistani Army reached village Karamja and surrounded the house of Megha Thakur and killed Megha Thakur, Sosthi Halder, Abu Halder, Daru Thakur, Kartik Halder, Suresh Chandra Halder, Deju Halder, Mohammad Fakir Chand, Santi Halder and Murali Das in that house by firing shots. Tara Halder was injured and he somehow managed to escape. Later on, members of Pakistani Army with the help of Rajakars raped Shebani, the daughter of said Megha Thakur, his son’s wife and two other Muslim women. After departure of the Pakistani Army, the Rajakars looted away the belongings of Megha Thakur and destroyed the house of Wahed Pramanik by setting it on fire. Therefore, the accused has been charged for commission of offences of murder, rape and persecution under section 3(2)(a)(g) and (h) read with section 4(1) and 4(2) of the ICT Act.

The tribunal found the appellant guilty of the charge No. 4 also and convicted him under section 3(2)(a)(g)(h) read with section 4(1) of the ICT Act and sentenced him to death.  

To prove the charge No. 4 the prosecution has examined 4 witnesses namely P. W. 5 Mohammad Nazim Uddin Khattab, P.W. 7 Prodip Kumar Day, P.W. 17 Mohammad Jamal Uddin and P.W. 19 Mohammad Shama Fakir.

The P.W. 5 Mohammad Nazim Uddin Khattab aged 63 years, is a resident of Koromja Modhya Para village of District-Pabna. This witness has deposed to the effect that during the Liberation War in 1971 he used to supply food to the Freedom Fighters. The relevant portion of the evidence of this P.W. 5, necessary for adjudication of this charge No. 4 may be summarized as below;

On 25th April 1971 at about 10 a.m. Choukider Pocha Biswas informed this witness (P. W. 5) that accused Motiur Rahman Nizami would hold a meeting at board office and they would have to go there; that this witness along with other 7/8 persons then went

to board office and saw that the accused Motiur Rahman Nizami was holding a closed door meeting there. That half an hour after Motiur Rahman Nizami and others came out of that room; Motiur Rahman Nizami then told them that if they joined freedom fighters their parents and siblings would be killed and their houses would be burnt; that 3 days thereafter, on 28th April, 1971, at about 8 a.m. his maternal uncle Habibur Rahman Sarder along with another freedom fighter Akkas Ali was going towards C & B Bus stand. On the way, at the instruction of accused Motiur Rahman Nizami, the collaborators Afzal and others and the Pak army caught his maternal uncle Habibur Rahman and Akkas Ali and killed them by gun shot at the bus stand. Being informed about that incident he, with the help of local people, brought the dead body of his maternal uncle to his maternal grand father’s house; thereafter he, as per his maternal grand mother’s advice, fled away. This witness has deposed to the effect also that on 8th May, 1971 there committed mass-killing, rape plundering, arson in his village; in that night Pronob and Dulal, son and grand son of Jamindar Shoilendra Bhattacharja slept in his (P.W. 5) house; after “Azan of Fazr” prayer they woke up hearing hue and cry and they then proceeded towards the Jamindar house and he saw the mother of Pronob Bhattacharjo unclothed and shouting in front of the gate of their house; he saw Al-Badr Rafiqunnabi Bablu also standing

beside that lady; Moslem, Asad, Afzal and Pak army were standing beside him; that seeing that occurrence he came back and advised Pronob and Dulal to flee away; he asked his parents and siblings also to flee away and accordingly all then fled away; he himself also them fled away from the house and went to “Catajhola field;” a little while after Pronob and Dulal also came there ; they then heard sound of firings; they proceeded towards Jamindar house and on the way they saw Tara Halder in bleeding condition. That Tara Haldar then told them that in presence of Motiur Rahman Nizami the Pakistani army along with other collaborators caught him (Tara Halder)along with his brother Shasti Haldar, brothers son Adu and Kartik, grand father Shammi Halder, Jamindar Shoilendranath Bhattacharya @ Mega Thakur, Koru Thakur, Abu Jafar, Mohammad Ali, Chandra Das, Suresh Chandra Halder and Fakir Chand and others and made them standing in a line in front of prayer house of Shoilendranath Bhattacharya @ Mega Thakur and killed them by brush fire and causing injuries with bayonet; he (P. W. 5) was injured but somehow managed to escape. That Zafor also was rescued from there by his father-in-law Moslem. That they saw the dead bodies of those persons lying on the ground with bleeding injuries; that entering into Jamindar’s house they saw that Shibani, the daughter of Jamindar and the daughter-in-law of Jamindar and wife of one Asgar Ali were raped. That after that occurrence Pronob and Dulal along with their family members, who were still surviving, went away to India. The P. W. 5 has deposed also that those dead bodies were then buried.

P.W. 7 Prodip Kumar Dev, aged about 62/63 years also is an inhabitant of Karamja village. This witness has deposed to the effect that at dawn of 8th May, 1971 he climbed up a litchi tree of Megha Thakur to pluck litchi and at that time he saw the Pakistani Army surrounding the house of Mega Thakur. That Pakistani army entered into that house and assaulted the inhabitants of that house and thereafter murdered them in front of the mandir by firing shots. That Megha Thakur, Diju Thakur, Koru Thakur, Shasti Halder, Shanti Halder, Adu Halder, Kartik Halder, Suresh Halder, and his paternal uncle Murali Chandra were among the persons who were murdered by the Pak army. That Tara Halder, who also was a target of killing, luckily escaped; that at the time of that killing Sukkur, Afzal, Asad, Moslem and others were present there; that he then fled away from there. The prosecution declared this witness hostile. But by cross examining this witness the prosecution could not extract anything from this witness showing involvement of this accused appellant in the occurrence of 8th May, 1971 in village Karamja

P.W. 17 Mohammad Jamal Uddin, aged 60 years, has deposed to the effect that he is a freedom fighter and Ex-Deputy Commander of “Sathia Upazila Freedom Fighter Council.” That in 1971 he was a candidate of S.S.C examination from Dhulaura High School; that during the liberation war he faught at Faridpur, Bera, Vangura, Shajatpur and in other areas within Sathia Police Station. About the incident of 8th May in the village Karamja this witness deposed only to the effect that in the year 2000, in the month of December, under leadership of the then State Minister Professor Abu Syed, the local Police recovered some sculls and bones of human being from a ditch by the side of the house of Megha Thakur; that at that time the local people told that in the month of May, 1971 after Fazar prayer, the Pakistani army, under the leadership of local Rajakar Motiur Rahman Nizami, surrounded that house of Megha Thakur and murdered 9 unarmed innocent people and in that incident the daughter and daughter-in-law of Megha Thkur were raped. This witness has deposed also that as a commander of a group of freedom fighters he could know from the apprehended Rajakers and Al-Badrs that as per the direction of accused Motiur Rahman Nizami all the atrocities were committed at different places of Pabna District including the area of Sathia Police Station.

P.W. 19 Abu Shama Fakir aged about 70/71 years is a resident of village Talot of Police Station Sathia, District- Pabna. This witness has deposed to the effect that during the Liberation War of 1971 he started procuring people for joining liberation war.

That on 28th April, 1971 at about 9/10 a.m while he was returning home he saw a army van going from east towards Sathia and he then took shelter in a bush by the side of the road and from there he saw accused Motiur Rahman Nizami sitting beside an Army officer in that army van; at that time he saw also that Habibur Rahman and Akkas were going from west to east and having seen the Army vehicle they went into hiding behind a tree by the side of that road, and at that time that army vehicle stopped there and then accused Motiur Rahman Nizami told something to the army officer sitting beside him and then two army men got down from that vehicle and shot Habibur Rahman and Akkas to death and thereafter that army vehicle went back towards east. That he then went to that place of occurrence and saw the dead bodies of Habibur Rahman and Akkas with bullet injuries; he then went to the house of Habibur Rahman and told the brother of Habibur Rahman and other relatives about the said occurrence. This P.W. 19 has further deposed that on 8.05.1971, after Fazr prayer, he heard sound of heavy firing coming from village “Karomja” and being frightened he went into hiding in a bamboo bush and about 1 hour thereafter the firing was stopped; he then went to village Karomja and saw the dead bodies of 9 persons including Megha Thakur, Diju Thakur, Kuru Thakur, Shanti Thakur, Kartik Halder, Shonto Halder, Murali, Lokkhi Halder and Fakir Chand with bullet injuries lying beside the prayer room of

the house of Megha Thakur; that those dead bodies were subsequently buried in a well; the dead body of Fakir Chand was buried in a graveyard and that of Murali Mali was buried in a hole. That at that time he came to know from people present there that the daughter and daughter-in-law of Megha Thakur were raped at that time by Pakistani army men and Rajakars. That he came to know also that those atrocities were committed as per showing of accused Motiur Rahman Nizami and others.

From the above narration of the evidence of P.W. 5, P. W. 7, P. W. 17 & P. W. 19 it appears that among these 4 witnesses the P.W. 19 Abu Shama Fakir only has claimed to have witnessed the occurrence of 28.04.1971 with his own eyes. Among the other 3 witness the P.W. 7 Prodip Kumar did not say anything implicating the appellant Motiur Rahman Nizami in the alleged occurrence of 28th April, 1971 or in the occurrence of 8th May, 1971. This witness has been declared hostile by the prosecution. The other 2 witness-P.W. 5 & P.W. 17 are hearsay witnesses. These 2 witnesses have deposed before the court implicating the appellant in both those occurrence claiming that they heard about those occurrence from others. The hearsay evidence though is admissible in the cases under the ICT Act, but the Tribunal/Court should carefully consider as to whether the hearsay witnesses can be relied on or not; considering the other evidence and the facts and circumstances the Tribunal is to weigh and evaluate the hearsay evidence. In this case, from the narration of the evidence of P. W. 5, P. W. 7, P. W. 17 and P. W. 19 it appears that there is practically no eye witness of the occurrence of 8th May, 1971. The P. W. 9 Md. Abu Shama Fakir only has deposed to have witnessed the occurrence of 28.04.1971 i. e. killing of Habibur Rahman and Akkas. This only eye witness adduced by the prosecution to prove the charge No. 4 did not claim that he witnessed the occurrence of 8th May, 1971 also with is own eyes, rather this witness has stated that he heard about the occurrence of 8.5.1971 from others. It is true that the P. W. 19 and also the P. W. 5 deposed to the effect that immediate after the occurrence of 8th May, 1971 they went to the place of occurrence and saw the dead bodies lying there but these witnesses did not say that they saw this occurrence with their own eyes, rather they stated that they heard about that occurrence from the local people present there who told them that the said occurrence took place in presence of the accused Motiur Rahman Nizami at his instruction. P. W. 17 Md. Jamal Uddin has stated to the effect that in the year 2000 while some skulls and bones of human being were recovered from inside a hole by the side of the house of Megha Thakur under the leadership of the then State Minister Professor Abu Syed the local people present there told them that in the year 1971, in the month of May, after Fazar Prayer the Pak army, under

the leadership of accused Motiur Rahman Nizami surrounded the house of Megha Thakur at Karamja village and killed 9 innocent persons and also raped the daughter and daughter-in-law of Megha Thakur. From the evidence of this P. W. 17 and also other witnesses narrated above it appears that some eye witnesses of these occurrence of 8th May, 1971 are still alive. But the prosecution could not produce a single eye witness of the occurrence of 8th May, 1971 at village Karamja. The P. W. 19 though has claimed that he saw the occurrence of killing of Habibur Rahman and Akkas on 28.04.1971 with his own eyes but the defence has raised some questions as to the truth of the evidence of this P. W. 19 Mohmamad Abu Shama Fakir. It has been alleged from the side of the appellant that in fact Habibur Rahman and Akkas Ali were not at all killed by Pak Army or by their auxiliary forces during the war of 1971. To substantiate this allegation the defence has referred to the evidence of P. W. 26-the investigating officer. During cross examination this P. W. 26 has stated that during his investigation he got a list of martyr of Karamja village from the Deputy Commissioner but Habibur Rahman and Akkas were not named in the said list. The learned Advocate for the appellant has also drawn our notice to the exhibit- 33, a book titled “k¤Ü Afl¡d NeqaÉ¡ J ¢hQ¡−ll A−¾joe” written by M. A. H. Hasan and pointed out that in this book though other occurrences took place in the village Karamja in 1971 have been narrated in details, this alleged incident of killing of Habibur Rahman and Akkas Ali has not been mentioned in this book. The learned Advocate has argued that this fact also very reasonably raises suspicion about the evidence of P. W. 19 as to the killing of Habibur Rahamn and Akkas Ali. The above contention of the appellant, in our opinion, cannot be brushed aside in view of the fact that save and accept only one witness the prosecution could not adduce any other witness to prove the alleged killing of Habibur Rahamn and Akkas as per showing of the accused Motiur Rahman Nizami. In view of the facts and circumstance, our considered opinion is that the alleged killing of Habibur Rahman and Akkas by the Pak army as per showing of appellant Motiur Rahman Nizami on 28th April, 1971 has not been proved beyond all reasonable doubt. It should be mentioned here that in the charge framing order it has been stated that Habibur Rahman and Akkas were killed as per planning and direction of Motiur Rahman Nizami on or about 24/25 April, 1971. The charge was so framed by the Tribunal on perusal and examination of the evidence on record. So it is obvious that the evidence on record says that the occurrence of killing of Habibur Rahman and Akkas took place on 24 or 25th April, 1971, but the P. W. 19 Md. Abu Shama Fakir-the alleged eye witness of the alleged killing of Habibur Rahamn and Akkas has stated before the Tribunal that occurrence of killing

of Habibur Rahman and Akkas took place on 28th April, 1971. This fact of inconsistency also raises suspicion about the truth of the evidence of P. W. 19 as to the alleged killing of Habibur Rahman and Akkas.

The occurrence of 8th May, 1971 in village Karamja, no doubt, has been proved sufficiently by the evidence of P. W. 5, 7, 17 and 19 and by some documentary evidence produced by the prosecution. But from the above narration of the evidence adduced by the prosecution it appears that the prosecution could not adduce a single eye witness to prove the involvement of this accused appellant Motiur Rahman Nizami in the said atrocities committed in village Koromja on 8.05.1971. The prosecution could not produce any documentary evidence also to prove the involvement of this accused appellant in the said occurrence of 08.05.1971 in village Koromja.

In the circumstances we find that the tribunal was not correct and justified at all to hold this accused appellant Motiur Rahman Nizami guilty of the charge No. 4 and thereby to sentence him on that charge. In view of the facts, circumstances and the evidence stated above our considered opinion is that the prosecution could not prove the charge No. 4 against the appellant Motiur Rahman Nizami beyond all reasonable doubt by adducing reliable and convincing evidence. In the circumstances we find the accused- appellant Motiur Rahman Nizami not guilty of charge No. 4. and hence he be acquitted of the said charge.

Summary of charge No. 6:(Murder of 30+22 unarmed civilians at village Dhulaura)

 On 27.11.1971 around 3.30 A.M accused Motiur Rahman Nizami along with Rajakars and members of Pakistani invading force raided the house of Dr. Abdul Awal and other adjacent houses in the village- Dhulaura on the pretext to find out freedom fighters. At about 6.30 A.M the accused along with his accomplices caught hold of a number of men, women including children and placed them all together in the field of Dhulaura School where they all (about thirty unarmed villagers) were indiscriminately killed by gun-shots.

After departure of Pakistani invading force, accused along with his accomplice Rajakars caught twenty two persons, who survived from the hands of Pakistani invading force and took them to the bank of Isamoti River where they all were brutally killed. Thus, the accused has been charged for commission of offence as specified in section 3(2)(a) read with section 4(1) and 4(2) of the ICT Act.

The Tribunal found this charge No. 6 against the appellant Motiur Rahman Nizami proved and convicted him under section 3(2)(a)read with section 4(1) of the ICT Act and sentenced him thereunder to death.

To adjudicate this charge No. 4 the Tribunal appears to have relied upon the evidence of 3 witnesses, namely P.W. 6 Mr. Shajahan Ali, P.W. 8 Mohammd Khalilur Rahman and P.W. 17 Jamal Uddin.

P.W. 6 Mr. Shajahan Ali is aged 64 years. This witness has deposed to the effect that he is a cripple freedom fighter. That on 28th November, 1971 he went to Dhulaura village and there he took part in a fight against Pak army. During that fight he along with other 8 freedom fighters was caught by the Pak army in the later part of the night. They were beaten and thereafter, as per instruction of accused Motiur Rahman Nizami and Sattar Rajakar he along with four other freedom fighters was taken to the bank of river. At that time accused Motiur Rahman Nizami was present there. That he was inflicted injuries with bayonet and his throat was cut by a knife; other freedom fighters also, who were taken along with him to that river side, were killed by bayonet charge. That later the public took him to the house of one Ranjit Sarker of village FulBari and from there he was taken to Pabna Hospital. After taking treatment for one month at Pabna Hospital he was sent to Dhaka Medical College Hospital where he was under treatment for 4 years. This witness has deposed also that in that fight 300/400 people of Dhulaura village were killed. In course of cross-examination this witness has stated that he passed S.S.C examination in 1972 from Miapur Hajee Jasim Uddin High School, Pabna and in 1973 he was appointed in Sonali Bank, Dhaka and 2

years later he was transferred to Pabna Sonali Bank,

Bera Branch; that while he was serving at that Branch he and the branch Manager Mokbul Shaheb of that branch were removed from service on the charge of defalcation of money. From the lengthy cross- examination of this P.W. 6 nothing material came out to make this witness unreliable.

P.W. 8 Md. Khalilur Rahman aged 63/64 years has deposed to the effect that during the Liberation War in 1971, in the month of June, he went to India and got training in different places of India for joining Liberation War and thereafter, in the month of October 1971, he along with 9 others came back to Bangladesh and stayed inside Bangladesh for 24 days, but as they were feeling insecured they went back to India and later they again entered Bangladesh and came to Pabna District. That on 27th November, 1971, at about 12/12.30 A. M. at night, he went to the house of Doctor Abdul Awal at Dhulauri village within police station Sathia; that in that night, at about 3.30 a.m., he got sound of boot of Pakistani Army and then opening a window he saw the accused Motiur Rahman Nizami along with Pakistani invading force and some Rajakars coming towards that house; he then went out of that room through the northern door and then heard sound of several firings and also heard people telling “hands-up”; that he then realized that they were surrounded and then he climbed up a banyan tree to the west of the house of Awal shaheb and hid there. That from that banyan tree, at dawn, he saw that the surrounded people, both male and female, were sitting under that banyan tree. He saw also the Rajakars snatching away the ornaments from the women. He saw also that two young ladies were taken by the Pak Army to a room from where the sounds of their crying was coming and he could realize that those young ladies were being raped. That at that time he saw also that accused Motiur Rahman Nizami was telling the Rajakars to apprehend and bring the males and accordingly the Rajakars apprehended the males and took them towards the primary school to the south of that banyan tree. That at about 9/9.30 a.m he (P.W.8) got dawn from that banyan tree and came to know from the local people that the militaries left that place. He then went to the bank of Isamoti River and saw there 25/30 dead bodies lying. He also saw that 4 of his associate freedom fighters were killed and 2 were still alive one of whom was Shajahan and other was Majed. That the throat of Shajahan was cut and Majed was injured by bayonet charge on his belly. This witness further deposed to the effect that he knew accused Motiur Rahman Nizami from before and that his house was within 1 kilometer distance from that of Motiur Rahman Nizami.

This P.W. 8 was cross-examined at length on behalf of the defence, but nothing material came out to make his evidence unbelievable.

P.W. 17 Md. Jamal Uddin, a man of 60 years, is a freedom fighter. The necessary portion of the evidence of this P.W. 17 relevant for the charge No. 6 may be summarized thus;

that in 1971, on 27th November, he along with other freedom fighters, in different groups, was staying at village Dhulaura. That getting that news, at about 2.30/3.00 A.M., at night, the Pakistani invading force along with Rajakars and Al-Badrs, under the leadership of Motiur Rahman Nizami surrounded that village and killed 9 freedom fighters and 14 other unarmed innocent people by firing shot and also set fire to the houses of that area. That among those freedom fighters who were then caught by the Pak army, one Shajahan Ali is still alive and he is known as “MjvKvUv kvnRvnvb Avjx”; that he (P.W. 17) heard from that Shajahan Ali that he was taken to the bank of Isamoti river and was slaughtered by Satter Rajakar in presence of accused Motiur Rahman Nizami and at his instruction, but by the grace of Allah Shajahan Ali survived. This witness has further deposed to the effect that he, as the commander of a group of freedom fighters, could know from the apprehended Rajakars and Al-Badrs that the atrocities in different places of Pabna district including Sathia police station were committed at the advice and instruction of accused Motiur Rahman Nizami.

The defence has cross-examined this P.W. 17 at length, but nothing material came out from his cross- examination to make his evidence unbelievable.

From the above narration of evidence of the P.W. 6 P.W. 8 & P.W. 17 it appears that among these 3 prosecution witnesses the P.W. 6 and P.W. 8 are eye witnesses of the occurrence of 27th November, 1971 at village Dhulaura. P.W. 6 Shajahan Ali is not only the eye witness of that occurrence, but he is also one of the victims of that occurrence. The P.W. 17 Jamal Uddin being a freedom fighter, took position along with other freedom fighters in the village Dhulaura in that night of occurrence and he heard about that occurrence in details from the eye witnesses.

Mr. S. M. Shahjahan, the learned Advocate for the appellant has raised some questions as to the truth of the evidence of these 3 witnesses by pointing out some alleged contradictions in their evidence and also some alleged improbabilities in their evidence. The learned Advocate has alleged that as to the number of victims of the occurrence of Dhulaura village these 3 prosecution witnesses have made contradictory statements, that the P.W. 6 has stated that about 300/400 inhabitants of Dhulaura village were killed in that occurrence, but P.W. 8 and 17 has stated to the effect that 25/30 inhabitants of the Dhulaura village were killed in that occurrence. It is true that the P.W. 6 stated before the tribunal that 300/400 persons were killed in that occurrence of Dhulaura village. But it has come on record that this P.W. 6 was attempted to be killed by the Pak army and their accomplices, but he luckily survived with cut throat injury and was immediately, after the departure of Pak army and their accomplices, taken to hospital. So it is not unnatural at all that he could not know the exact number of the victims of that occurrence. So we do not think that the above statements of this P.W. 6 are fatal at all for the prosecution.

The learned Advocate for the appellant has argued to the effect that the P.W. 6 though stated that on 28th November 1971 a gunfight took place between freedom fighters and Pakistani military in the village Dhulaura, but P.W. 8 and P.W. 17 did not state so. But we find that both these P.W. 8 and P.W. 17 stated clearly that in that night the Pak army and their auxiliary forces including Motiur Rahman Nizami killed 9(nine) freedom fighters and other innocent people by gun fire. In this circumstance we do not think that the non-mentioning of the very wards “there was gunfight in between the freedom-fighters and Pak-army” specifically by the P.W. 8 and P.W. 17 raises any doubt about the alleged incident in village Dhulaura or about the credibility of these prosecution witnesses.

The learned Advocate for the appellant has questioned the veracity of P.W. 8 and the truth of his evidence that in the night of occurrence at village Dhulaura, at about 3.00 a.m. he saw the appellant and others through the window of a room. The learned Advocate has pointed out that this P.W. 8, during cross-examination, stated to the effect that in the night of occurrence of village Dhulaura,

at about 3.00 a.m. there was moon light and he saw the appellant and others with the help of moon-light. The learned Advocate has submitted that this very statement of P. W. 8 is absolutely false as in that very night, at about 3.00 a.m. there was no moon in the sky as in that night moon set long before that time. To substantiate this submission the learned Advocate has referred to exhibit-G (evsjv 1378 mv‡ji cwÄKv Mbbvq DËg  wmsn) and has submitted that this exhibit-G shows that on that night following 27th November, 1971 moon set at about 1.23 a.m. The learned Advocate has contended that this exhibit-G proves sufficiently that the evidence of P. W. 8 that he saw the appellant in that night with the help of moon light

is totally false and proves also that this P. W. 8 is

a liar. But we are unable to accept this argument of the learned Advocate. The P. W. 8 gave evidence before the tribunal long 40 years after that occurrence of village Dhulaura. It is very natural that a witness while giving evidence about any particular occurrence after such a long period he may make some discrepant or incorrect statements. In this particular case the P. W. 8 might have seen the appellant in the night of occurrence by any other means-might be with help of the light carried by other assailants who came with the appellant, but in course of cross-examination before the tribunal he missed to recollecting that. However, it appears that this P.W. 8 stated further to the effect that seeing the accused Motiur Rahman Nizami and others with the Pak Army, at 3.30 a.m. in the night he climbed up a banyan tree and remained there in hiding and from there, at dawn, he saw Motiur Rahman Nizami again with the Pak army committing that atrocities.

The learned Advocate has questioned the credibility of P.W. 6, a cripple freedom fighter, by pointing out some alleged inconsistency in his evidence. This witness deposed to the effect that after being wounded in the occurrence of Dhulaura he took treatment in Dhaka Medical College Hospital for 4 years, and during cross-examination this witness stated also that he passed the S.S.C examination from Miapur High School, Pabna in 1972. The contention of the learned Advocate for the appellant is that these are absolutely contradictory statements and as such are false, that it was not possible for this P.W. 6 to appear in S.S.C. examination in the year 1972 from Pabna if he was actually under treatment in Dhaka Medical College Hospital for 4 years. But we do not accept this contention of the learned Advocate for the appellant. P.W. 6 did not say that he was staying in Dhaka Medical College Hospital for 4 years, rather he stated that he took treatment for 4 years from Dhaka Medical College Hospital. It was not impossible at all that this P.W. 6, who was taking treatment from Dhaka Medical College Hospital, would be able to

appear in S.S.C. examination from Pabna district. The learned Advocate for the appellant has also pointed out that this P.W.6, during cross-examination, admitted that after liberation war while he was serving as cashier in Sonali Bank, Pabna Branch, he along with the manager of that bank was dismissed from service on the allegation of fund embezzlement. But for this reason only we cannot not find this P.W. 6 not trustworthy. This P.W. 6, undisputedly, is a cripple freedom fighter, he was not only tortured by the Pakistani army but his throat was also cut by Pakistani army and luckily he survived. Now he is known as “MjvKvUv kvnRvnvb ”. We do not find any cogent reason to disbelieve this P.W. 6.

From the side of the appellant, with reference to exhibit No. BT-a video clip, it has been argued also that this P.W. 6, during an interview, admitted that this appellant was not involved in the

occurrence of Dhulaura village. But we are unable to put any reliance on this exhibit-BT, specially in consideration of the fact that this P. W. 6, while deposing before the Tribunal, was not questioned by the defence anything as to this exhibit No. BT.

The learned Advocate for the appellant has referred also the defence exhibit No. F, a book titled (GKvËi'i gyw³hy‡×i m¥„wZ K_v) written by freedom fighter Rezaul Karim and has argued that although the incident of village Dhulaura has been vividly described in this book, this appellant has not been

named in that book. The learned Advocate’s contention

is that this exhibit-F proves that this appellant Motiur Rahman Nizami was not involved in the occurrence of village Dhulaura. But this argument

also can not be accepted. In this case three freedom fighters have deposed before the Tribunal narrating

the incident of village Dhulaura implicating the appellant in that incident. The non-mentioning of the

name of the appellant by one person in his book cannot make the evidence of these three witnesses before the Tribunal false. There can be various reasons for which an author of a book does not or can

not mention any particular person in his book. Referring to defence exhibit-C, which is "cvebvi Gmwc KZ„©K ¯^ivó gš¿bvj‡qi †WcywU †m‡µUvwi eive‡i 26/09/1972 Zvwi‡L 6790/B-m¥viK g~‡j †cÖwiZ cÖwZ‡e`b hvnv‡Z cvebv †Rjvi ¯^vaxbZv we‡ivax ivRvKvi, Avje` , Avj mvgm‡`i ZvwjKvi d‡UvKwc"  the learned Advocate for the appellant has argued that this exhibit-C- an admitted document-also testifies against the prosecution case as it does not include the name of this appellant. But we are unable