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 REVIEW PETITION NO.62 OF 2015.

(From  the  judgment  and  order  dated  16.05.2015  in  Criminal  Appeal No.103 of 2013 arising out of the Judgment and order dated 17.07.2013 passed by the International Crimes Tribunal-2 ( ICT-2) in ICT-BD Case No.04 of 2012.)

Ali Ahsan Muhammad Mujahid:         Appellant.

=Versus=

The  Government  of  Bangladesh        Respondent. represented by the Chief Prosecutor,

International  Crimes  Tribunal,

Dhaka, Bangladesh:

For the Petitioner :  Mr. Khondker  Mahbub Hossain,

Senior  Advocate  with  Mr. Mohammad  Nazrul  Islam,  Senior Advocate,  Mr.  S.M.  Shahjahan, 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. Masud Hasan Chowdhury, D.A.G., Mr. Khondaker Diliruzzaman,  D.A.G.,  and  Mr. Bashir Ahmed, A.A.G., instructed by  Syed  Mahbubar  Rahman, Advocate-on-Record.

Date of hearing : 17.11.2015. Judgment on:   18.11.2015.

J U D G M E N T

Hasan Foez Siddique, J: This review petition is directed against the judgment and order dated 16.06.2015 passed by this Division in Criminal Appeal  No.103  of  2013  affirming  those  dated

17.07.2013 passed by the International Crimes Tribunal-2 (ICT-2) in ICT-BD Case No.04 of 2012.

Review Petitioner Ali Ahsan Muhammad Mujahid (the petitioner) was found guilty for the “Crimes against Humanity enumerated in Section 3(2) of the ICT Act listed in charge Nos.1,2,5,6 and 7 and sentenced to “single sentence of Death” for the crimes as listed in charge Nos.6 and 7, 5(five) years imprisonment for the Crimes listed in charge No.3 and imprisonment for life for the crimes as listed in charge No.5. No sentence was awarded for the crimes listed in charge No.1.

This Division, by the judgment and order under review, allowed the appeal in part thereby acquitted the petitioner of the charge No.1 and maintained the order of conviction of the charges No.3,5,6 and 7 and also maintained the sentences of the charges No.3,5 and 6. However, this Division commuted the sentence of the petitioner from Death to imprisonment for life in respect of charge No.7.

1. Charge No.3 against the petitioner was for abetting and facilitating the commission of offence of confinement of one Ranjit Nath @ Babu Nath.
2. Charge No.5 against him was for participating, abetting and facilitating

the commission of killing of freedom fighters Altaf Mahmud, Bodi, Rumi, Juel and Azad.

3. Charge No.6 against him was for planning, abetting, conspiring and facilitating the killings of intellectuals started from December 10, 1971.
4. Charge No.7 was for launching attack against the “Hindu Community” of village Bakchar, Faridpur and killing Birendra Saha, Nripen Sikder, Sanu Saha, Jogobandhu Mitra, Jaladhar Mitra, Satya Ranjan Das, Nirod Bhandu Mitra, Profulla Mitra and Upen Saha.

In review petition, the Review Petitioner took as many as XXXII grounds but Mr. Khondker Mahbub Hossain, learned Senior Counsel, appearing on behalf of the petitioner, did not press grounds in respect of charges Nos.3,5 and 7, that is, the petitioner left his grievance of awarding conviction and sentences in respect of those charges, thereby, accepted the verdict of this Division.

Mr. Hossain kept his submission confined in respect of the allegation mentioned in charge No.6 only.

He submits that contents of charge No.6 as framed against the petitioner are vague and unspecific; that the elements of conspiracy had not been proved; that the testimonies of P.Ws.2 and 5 are not reliable, that the members of “Badr bahini” were in fact, “dvjZz (Extras) and they were mere sources of Pak Army; that the evidence adduced by the prosecution for this charge were not sufficient to convict the appellant; that Professor and Historian Mr. Muntassir Mamoon took interviews of A.A.K. Neazi, the then Army Commander of Eastern Zone of Pakistan and, Rao Forman Ali, where they admitted that “Al-Badr Bahini” was creation of Pakistan Army and they were under their command and that after liberation as many as 45 cases were filed on the allegations of intellectual killings and in those cases the petitioner was not impleaded as accused. Mr. Hossain lastly sought for commutation of sentence of the petitioner from death to imprisonment for life if his conviction is upheld.

While assailing the submissions of Mr. Hossain, Mr. Mahbubey Alam, learned Attorney General appearing for the respondent, read out the relevant portions of the judgment under review and submits that this Division has considered each of the points raised by Mr. Hossain in the light of the evidence and that there is no error of law apparent on the face of the record in the judgment impugned. Mr. Alam while submitting about the limited scope of review relied on two passages of the judgment of Abdul Kader Molla Vs. Chief Prosecutor, International Crimes Tribunal reported in 66 DLR (AD)289. Those are:

“Further , it has now been settled that an error is necessary to be a ground for review but it must be one which is so obvious that keeping it on the record will be legally wrong. The moot point is, a party to a litigation is not entitled to seek a review of judgment merely for the purpose of rehearing or a fresh decision of the case. The power can be extended in a case where something obvious has been overlooked-some important aspects of the matter has not been considered, the court can reconsider the matter. There are exceptional cases where the court can remedy its judgment. In the alternative, it may be said that the error must also have a material real ground on the face

of the case. A petition   over ineffectually covered ground or minor mistakes of inconsequential import does not call for review.

This Division has repeatedly held that the court should not be oblivious of the theme that when the finality is attached to the judgment delivered by a court, particularly the judgments at the apex level of the judicial hierarchy, upon a full-fledged hearing of the parties, a review petition being neither in the nature of a rehearing of whole case nor being an appeal against judgment, review is not permissible only to embark upon a reiteration of the same contention which were advanced at the time of hearing of the appeal, but were  considered and repelled in the judgment under review.  It was also expressed that while dispensing Justice, it is the duty of the court to resolve the issue of law properly brought before it and once it is done, the finality is reached and then a review cannot be made on any grounds whatsoever. It is because of the fact that an opinion pronounced by this Division which stands at the apex of the judicial hierarchy should be given finality and any departure from that opinion will be justified only when circumstances of a substantial and compelling character make it necessary to do so. A finality of the judgment will not be reopened except where a glaring omission or patent mistake or grave error apparent on the face of the record has crept in by judicial fallibility.”

   Mr. Hossain relied upon the paragraph 28 of the said decision which run as follows:

“It must be borne in mind that, by assumption every judgment passed by a court is a considered and solemn decision on all points arising out of the case, and further that every reason compels towards the grant of finality in respect of such judgments delivered by a court which sits at the apex of the judicial system. A review cannot be equated with an appeal. It does not confer a point of law that a review of an earlier order is not permissible unless the court is satisfied that material error manifest on the face of the order under mines its soundness or results in miscarriage of justice. A

review of judgment in a case is a serious step and the court is reluctant to invoke its power it is only where a glaring omission or patent mistake or grave error has crept in by judicial fallibility. Despite there being no provision in the Act of 1973 for review from the judgment of this Division on appeal, securing ends of justice a review is maintainable in exercise of the inherent powers from the judgment of this Division subject to the condition that where the error is so apparent and patent that review is necessary to avoid mis-carriage of justice and not otherwise......”

Regarding first submission of Mr. Hossain that the contents of charge No.6 were vague and not specific, we have already discussed vividly in the judgment impugned relying upon the materials on record and different authorities. He failed to show any error of law apparent on the face of the record in the decision of this point.

Next submission of Mr. Hossain was that the ingredients of conspiracy had not been proved against the petitioner; that the testimonies of the P.Ws.2 and 5 are not reliable and that the members of “Badr Bahini” were “dvjZz (Extras) and sources of Pak Army and that the evidence adduced by the prosecution were not sufficient to prove the charge.

In Appellate judgment this Division considered the oral evidence, particularly, the oral testimonies of P.W.1 Shahriar Kabir, P.W.2 Jahiruddin Jalal, P.W.3 Mahbub Kamal, P.W.4 Shahin Reja Nur, P.W.5 Md. Rustom Ali Mollah and documentary evidence Exts.2(1), 2(2), 2(3), 2(4), 2(5), 2(6), 2(7), 2(9), 2(10), 2(11), 2(13), 2(14), 2(16), 16 series, 18 series, 20(2), 12 (2) and Material exhibit-5  and came to the conclusion that the petitioner conspired, planned, instigated and aided the activities of killing of the intellectuals. Regarding the submissions of Mr. Hossain that the members of “Badr bahini” were the Extras (“dvjZy) and sources of Pak-army and they did not participate in the killing of intellectuals committed from 10th December to 16th December 1971, it would not be irrelevant here to narrate the experience of a victim published in the Dainik Bangla in its 21st December 1971 issue. The same has been narrated in materials Ext.1  “GKvˇii NvZK I `vjv‡jiv †K †Kv_vq”.  Though we have already narrated the experience of Md. Delowar Hossain, Chief Accountant of Mercantile Company Limited in the  Appellate Judgment in order to answer the submissions of

Mr. Hossain, it is required to repeat the same

here which are:

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nj| Avwg Kv`vi g‡a¨ c‡o †Mjvg| cªvq 3 dzU Mfxi cvwb| mg¯— kw³ wb‡qvM K‡i Avwg cvwb †V‡j mvg‡b GwM‡q †h‡Z jvMjvg| LvwbK¶Y †Póvi ci ïK‡bv R qMv †cjvg| D‡V

Avevi †`Šov‡Z ïi“ Kijvg| `~i †_‡K Avgvi w`‡K U‡P©i GK SjK Av‡jv †f‡m G‡jv|

Avevi `ywU ¸wji kã mv‡_ mv‡_ Avwg KvZ n‡q c‡o †Mjvg| Mov‡Z Mov‡Z c‡o †Mjvg

Avevi cvwbi g‡a¨ | cªvYc‡Y mvuZvi †K‡U GwM‡q Pjjvg| Gici ïK‡bv wej Avi b`x

†cwo‡q GwM‡q Pjjvg| Mv‡q kw³ †bB, wKš‘y Avwg ZLb w`Kåg| wbivcËvi Rb¨ b`xi cvo

w`‡q DRv‡b GwM‡q Pjjvg| iv‡Zi ZLb Avi †ekx †`ix †bB| LvwbK c‡i D‡V cijvg

b`x †_‡K| evKx ivZ KvwU‡q w`jvg b`xi Zx‡i GK Szcwoi g‡a¨ | mKv‡j †iv` IVvi ci

Pviw`‡K ZvwK‡q †`Ljvg| eyS‡Z cvijvg bv †Kv_vq G‡mwQ| Mªv‡gi Avfvm †hw`‡K †cjvg ‡mw`K cv‡b Pjjvg GwM‡q| LvwbK Pjvi ci ïb‡Z †cjvg- Kviv †hb Avgvq WvK‡Q| cª_‡g fq †c‡q †Mjvg| c‡i eyS‡Z cvijvg- Giv Mªvgevmx| Zv‡`i KvQ me K_v ejjvg| eUMv‡Qi weeiY w`‡Z Zviv ejj IUv n‡jv iv‡qi evRv‡ii Nv‡Ui eUMvQ| †mLvb †_‡K c‡i Avwg AvwUevRv‡i gyw³‡dŠ‡Ri KgvÛv‡ii mv‡_ †`Lv Kwi| wZwb Avgvi _vKv LvIqvi e¨e¯’v Ki‡jb| `yw`b ci wd‡i Gjvg ¯^vaxb evsjvi ivRavbx‡Z | ZLbI eywSwb,

GLbI eyS‡Z Kó n‡”Q †h, wbwðZ g„Zz¨i nvZ †_‡K mwZ¨ wK †eu‡P †MwQ, Avj−vn †kl ch©š— evuwP‡q‡Qb| Õ”

From the statement quoted above it appears

that the members of Al-Badr Bahini had killed the

victims who are the best sons of the soil.

“The Bangladesh Observer”, January 5, 1972 published a news describing the brutality with

the following words:

“Al-Badr victims Bodies of 4 D U teachers identified.

By A Staff Correspondent

Four of seven bodies recovered by the police on Tuesday were identified as those of Dacca University teachers Dr. Serajul Huq Khan, Dr. Faizul Mahi, Mr. Shantosh Chandra Bhattacharjee and Dacca University’s Medical Officer Dr. Murtaza.

They were, among many intellectuals, kidnapped and taken to unknown destination by Pakistan Army backed Al-Badar goondas on the eve of surrender of the occupation forces in Bangladesh.

All the seven bodies were exhumed and recovered on Tuesday afternoon from a field near a mazar, on the outskirt of the city.

The bodies all decomposed were taken to Dacca Medical College Hospital for post-mortem. While four of the bodies could be identified by their relations, the three other bodies were yet to be identified.

According to a source body of Dr. Serajul Huq Khan, a Professor of the Institute of Education and Research, Dacca University was identified by his son Enamul Huq. The victim’s trousers, shirt and waist belt helped the identification. Dr. Murtaza’s body was identified by his wife’s brother Mr. Omar Hayat. Dr. Murtaza’s lungi, shirt, a shoe and his daughter’s saree which the kidnappers had used for blindfolding him helped the identification of the body.

Body of Dr. Faizul Mahi of the Institute of Education and Research, Dacca University was identified by his brother Mr. Abdul Awal. The victim’s trousers and gamchha (indigenous towel) used for blindfolding him helped the identification of the body.

Body of Mr. Shantosh Chandra Bhattacharjee of the History Department, Dacca University was identified by his son Mr. Prodip and colleague Mr. Nuruddin. The victim’s lungi and grey hair helped the identification of the body. The three other bodies recovered from the same place are also believed to be those of Dacca University teachers kidnapped by Al-Badar goondas.

It may be recalled that nine eminent teachers of Dacca University and the University’s Medical Officer Dr. Mohammad Murtaza were lifted from their respective places on December 14 when the city was under curfew.

The intellectuals lifted are all believed to have been killed.

Those lifted by Al-Badr goondas included Dacca Medical College professors, students, lawyers and Government officials, besides eminent members of the teaching profession. Tuesday’s police operation which led to the recovery of the seven bodies was conducted under the guidance of Mr. M.M. Khan, the new D.I.G. of Special Branch and Intelligence Branch of Police. The team of police officials working on it included, among others, Mr. A. Samad Talukder, DSP, Intelligence Branch and Mr. Ishaq, Inspector, Intelligence Branch.”

John Stone House, British Labour M.P. to P.T.I. in an interview in New Delhi (published in the Hindus Times on 21.12.1971) said, “---- during his visit to Dacca yesterday ( December 1971) he got the names of these Pakistani army Officers who organised the murders, and members of “Al-Bader”, an extremist Muslim group carried out these heinous crimes just before the surrender of Pakistani forces in Dacca. ”

The above quoted old evidence and oral evidence adduced by the prosecution has proved the activities of the members of petitioner’s Al Badr Bahini when the Pak Army were going to surrender. The learned Counsel has termed those members of brute bahini as “dvjZy” (Extras).

This Division in appellate judgment concurred the findings of the Tribunal as to the persons liable for the killings of intellectuals by the members of Al Badr Bahini. Since such findings

are based on evidence and there are no error of law apparent on the face of the records, those findings can not be disturbed by exercising review jurisdiction.

So far the submissions of Mr. Hossain regarding command responsibly we have considered his submission in the Appellate judgment in the following manner: 

“Recently, this Division in Kamaruzzaman’s Case (Criminal Appeal No.62 of 2013) observed that the authority of a “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. De facto nature of superior position can be lawfully inferred even from circumstances and relevant facts depicted from evidence presented. In Prosecutor v. Blagojevic and Jokic (ICTY) it was held that 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 offence could incur criminal responsibility under the doctrine of command responsibility. It cannot be expected that civilian superiors will have disciplinary over their sub-ordinates

equivalent to that of military superiors in

an analogous command position, even no formal

letter or document is needed to show the

status of ‘superior’. It is not necessary to

demonstrate the existence of a formal

relationship of subordination between accused

and the perpetrator; rather it is sufficient

to prove that the accused was in some

position of authority that would compel

another to commit crime following accused’s

order. The relationship is not limited to a

strict military command style structure. The

present appellant as superior was aware of

the on going commission of the crimes

committed by his Badr Bahini but he did not

take any measure to stop or prevent them.”

That is, this point has also been considered.

Lastly, Mr. Hossain in his submissions repeatedly sought for commutation of the sentence of the petitioner from the death to imprisonment for life.

So, far awarding the sentence of death, we have expressed our views, in Criminal Appeal No.62 of 2013, Md. Kamaruzzaman Vs. Chief Prosecutor International Crime Tribunal, Dhaka which are as follows:

“Islam demands “Death for Death” with the provision of payment of “blood money”. Some modern Humanists used to press for “death in no case” or “God Alone Can Take Life Because He Alone Gives it” . Many humane movements and sublime souls have cultured the higher consciousness of mankind,  chased death penalty out of half the globe and changed world view on its morality . “Every saint has a past and every sinner of future” strikes a note of reformatory potential even in the most ghastly crime. This axiom is a vote against death and hope in “life”. The two antithetical views, held by the Abolitionists and Retentionists, cannot be accepted as correct. If, notwithstanding the view of Abolitionist to the contrary, a very large segment of people, the world over, including the sociologists, legislatures, jurists, Judges and administrators still firmly beleive in the worth and necessity of capital punishment for the protection of the society. The Supreme Court of India, in Ediga Annamma (AIR 1974 SC 799) while noticing the social and personal circumstances, possessing an extenuating impact, has highlighted that death penalty may not be a time barred

punishment in some frightful areas of barbarous murder. Illustratively, the Court has mentioned that the brutal features of the crime and the hapless and helpless state of the victims. Justice  Stanely Mosk of California uttered in a death sentence case, “as Judge I am bound to the law as I find it to be and not as I fervently wish it to be” . (The Yale Law Journal No.6 page 1138).

Lord Justice Denning, Master of the Rolls of the Court of Appeal in England, appearing before the British Royal Commission on Capital Punishment, stated his views on this point as under:

“Punishment is the way in which society expresses its denunciation of wrong- doing; and in order to maintain respect for law; it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the objects of punishment as being deterrent or reformative or preventive and nothing else--------. The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong doer deserves it, irrespective of whether it is a deterrent or not”.  

The Bachan Singh (AIR 1980 SC 898) made out the formula of “the rarest of rare cases” for imposing death sentence. Such formulla came up for consideration in the Machhi Singh and others reported in AIR 1983 S.C. 957. It was an extraordinary brutality. Machhi  along with accomplices killed  17 people in a village. In that case the court put itself in the position of the “community” and observed that though the “community”  revered and protected life because “ the very humanistic edifice is constructed on the foundation of reverence for life principle” it may withdraw the protection and demand death penalty: “-------- It may do so “in rarest of rare cases” when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective  of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment where the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the

crime; -------- for instance: When the murder is committed in an extremely brutal, grotesque, diabolical, revolving or dastardly manner so as to arouse intense and extreme indignation of the community.”

Krishna Iyer, J in Shive Mohan Singh (AIR 1977 SC 949) quoted following passage: “------- Judges must enforce the laws, Whatever they be, and decide according to the best of their lights”. In Rajendra Prasad (AIR 1979 S.C.916) Krishna Iyer observed, “The searching question the judge must put to himself is: What then is an extra-ordinarily reasonable as to validate the wiping out of life itself and with it the great rights which inhere in him in the totality of facts, the circle being drawn with ample relevant” He observed that the “robes” are a repository of many rare qualities but shall add to its repertory latest developments in sentencing wisdom”.

 While reviewing the said judgment of Kamaruzzaman Mr. A.H.M. Shamsuddin Choudhury, J. in 67 DLR(AD) 157 has observed :

“While it is true that many countries have abolished death sentence, the position as it stands today, is that capital punishment prevails in as many as 55(fifty five) countries and 7(seven) countries retain death sentence for exceptional cases. (Source: Amnesty International and Penal Reform International).

Countries that retain capital sentence, include the largest democracy, i.e. India, and 33 component States of the United States of America.  Some countries, such as Malaysia, Singapore, Saudi Arabia, Trinidad and Tobago retain mandatory death sentence for murder, while some 13  (thirteen) countries prescribe mandatory death sentence for drug trafficking, while 33 (thirty three) countries have death as an alternative sentence for the said offence. ( Penal Reform International).”

Mr. Choudhury, J. further observed:

“Punishment rational of “just desert’, the modern form of retributive philosophy, enclaving proportionality and commensurability as its touchstone is indeed an internationally accepted concept.

It is axiomatic that in affirming death sentence, we followed ICPR guidelines, doctrine of just desert having proportionality and commensurability as its

touch stone and the predicament the victims,

their families and the country as a whole

suffered, and, of course also looked at the

presumed intention of the legislators.”

While affirming the award of sentence of death, a person who used to work as Judge may not support the capital sentence but while performing his duty as Judge he is bound by law and fact. He is to decide the issue of awarding the sentence considering the gravity of the offence. While affirming this sentence as a Judge we must take into consideration the relevant laws, facts, evidence and situation of the relevant time. From the old evidence as quoted above, particularly, the statements of the Md. Delowar Hossain published in Dainik Bangla on 21st December, 1971, the Court must take into consideration those 130-140 persons who were lifted from their respective houses and brutality tortured and, thereafter, killed at Rayer Bazar area. Out of them, there were teachers of the University, Doctors, Journalists, Chief Accountants etc. The Court must take into consideration the unfortunate wives, children and other relatives of intellectuals namely, Nazmul Haque, Shahidullah Kaiser, A.N.M. Golam Mostafa, Nizamuddin Ahmed, Professor Mufazzel Haider Chowdhury, Dr. Munir Chowdhury, Professor Giasuddin, Dr. Aleem Chowdhury, Dr. Fazle Rabbi, Journalist Selina Parveen, Dr. Serajul Haque Khan, Dr. Faizul Mahi, Santosh Chandra Bhatta Charjee, Dr. Murtoza and others. They witnessed the acts of lifting their dear ones and some of them found the dead bodies of victims at Rayer Bazar area. They are entitled to get justice. The State, after about 40 years, had been able to place the organizer and leader of the killers on trial. The children and dear ones of victims sought justice from the Court and the Court, while awarding sentence must take into consideration the tears rolling down the cheeks of those unfortunate children of the victims who always thought about brutality caused by the petitioner’s Badr Bahini to the victims. Another aspect is that the members of Badr Bahini knew very well that the country is going to be liberated and Pak Army has already decided to surrender, at that time, they committed such brutal crimes of killings of intellectuals only to cripple to new born country which is apparent from the facts. It had been stated materials exhibits-5 (“The Books of Al Badr”) that one Ashrafuzzaman, who was a member of Al Badr Bahini, while giving description of the incident

before the surrender on 16.12.1971, has said, ”16 wW‡m¤^‡ii mKvj †ejvi NUbv| 9 Uvi w`‡K n‡e| Avwg wbqg gvwdK `yB wZb RvqMv Acv‡ik‡bi †cªvMªvg evwb‡qwQ| Avwg© K¨v¤ú †_‡K iIbv ne| Ggb mgq c~e© cvwK¯ v— b QvÎ ms‡Ni mfvcwZ (defence admitted that the appellant Ali

Ahsan Muhammad Mujahid was the President of the

then Islami Chatra Shanga) I XvKv kvLvi mfvcwZ Avi kIKZ Bgivb (BbPvR©, Z_¨ wefvM) Ges Avi `y GKRb mv_x Mvwo wb‡q G‡m co‡jb| Zviv ej‡Z jvM‡jb

†h, iv‡Z Avgiv f‡qm Ae Av‡gwiKv I we we wm †_‡K ï‡bwQ †h, cvKevwnbx A¯¿ mgc©b Ki‡Q| Avwg© †nW †KvqvU©vi †_‡K cªK…Z Ae¤nvUv Rvwb| Avwg ejjvg †h, Avgvi nv‡Z mgq

bvB| KviY `yGKwU ¸i“Z¡c~Y© Acv‡ikb Ki‡ZB n‡e| Avgvi †Zv g‡b n‡”Q †h, cvK evwnbx A¯G mgc©b Kivi LeiwU wbQK cªcvMvÛv| Avgvi Abygvb †mUB wQj| wKš‘ Zviv †Rvic~e©K Avgv‡K Avwg© †nW †KvqvU©v‡i wb‡q †Mj| ILv‡b cª_‡g K‡Y©j †nRvRxi ms‡M mv¶vZ nj| wZwb ej‡jb, fvj nq Avcbviv weª‡MwWqvi ikx‡`i ms‡M mv¶vZ K‡ib| we‡MªwWqvi mv‡n‡ei ms‡M mv¶vZ nj|----------ZLb gy¯—dv kIKZ Bgivb wRÁvmv Ki‡jb, hw` Avcbviv wb‡Riv mv‡iÛvi Ki‡Qb Z‡e Avgv‡`i e¨vcv‡i Kx wPš v— Ki‡Qb? wZwb Reve w`‡jb, Avcbviv wmwfj ‡Wªm c‡i mvaviY †jvK‡`i mv‡_ GjvKvq wg‡k hvb| -------Avgiv wKQy‡ZB eyS‡Z cviwQjvg bv †h,          cvwK¯ v— bx †dŠR wKfv‡e wn›`y¯ v— bx Kv‡di‡ i Kv‡Q A¯G mgc©b KiwQj| Kvgivb ej‡jb Avj e`‡ii GKwU cªvYxI GB Acgvb mn¨ Kivi Rb¨ cª¯ Z— bq| Avcbviv

Kg‡P Kg AvR‡K Avgv‡`i†K †mme nvwZqvi w`‡q †`b, †h¸‡jv GLb `ykg‡bi Kv‡Q mgc©b Ki‡eb| Avgv‡`i nv‡Z Zz‡j †`b, Avgiv jovB Kie| wgwjUvix †nW †KvqvU©vi †_‡K Avgiv wbR¯^ K¨v‡¤ú †cuŠQjvg Ges cwiw¯nwZ m¤ú‡K© msMx‡`i‡K AewnZ Kijvg|”

There is no doubt and rather it is admitted

facts that the petitioner was initially the President of ICS, Faridpur District Branch and during the war of liberation, he was elected Secretary General of ICS and, thereafter, President of the then East Pakistan ICS. He organized and led ICS and that ICS was subsequently converted into Badr Bahini and that he became leader of the Badr Bahini. His involvements and activities during the war of liberation have been discussed and considered in the appellate judgment and we have concluded that as a leader of ICS and Badr Bahini he must take responsibility of his bahini and crimes committed by them during the war of liberation.

Accordingly, we held that petitioner’s ruthless Badr Bahini being instigated, suggested, provoked and incited by the petitioner had kidnapped and killed the intellectuals which was cold blooded savagery. Such barbaric  gruesome brutal crimes which are comparable with the Hitler’s Gas Chamber Genocide or Jalilianbag massacre. Does Islam permit killing of those unarmed people? While awarding the sentence, the Court must take into consideration the unbearable pains, tears rolling down the cheeks  and sufferings of the widows and children of the victims who cried for getting justice for about 43 years. The barbaric gruesome and heinous crimes which under the petitioner’s leadership his Badr Bahini committed is a revolt against the humanity. As leader of Badr Bahini the petitioner

can not escape from the liability. It is the duty of the court to impose proper punishment depending upon the criminality and proportionate to the gravity of the offence.

   We do not find any wrong in the ultimate conclusion of the Tribunal which has been affirmed by the Appellate judgment.

We do not find any illegality in our Appellate judgment.

Hence, the  review petition is dismissed. 

C. J.

                                                                                                J.                                                                                                 J.                                                                                                 J.

The 18th November, 2015. Nadira/words- 6131/