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Summary of ICT verdict in Sayeedi Case
International Crimes
Tribunal-1 (ICT-1)
Old High Court Building, Dhaka, Bangladesh. ICT-BDCaseNo.Ol OF2011
(Charges:- Crimes against Humanity and genocide as specified in section 3(2)(a) and 3 (2) (c) (i) (g) (h) of the Act of XIX of 1973)
The Chief Prosecutor
Versus
Delowar Hossain Sayeedi
Present:
Mr. Justice A.T.M. Fazle Kabir, Chairman Mr. Justice Jahangir Hossain, Member Mr. Justice Anwarul Haque, Member Date of deli very of Judgment 28 February, 2013.
Prosecutors:-
Mr. Golam Arif Tipu, Chief Prosecutor
Mr. Syed Haider Ali,
Mr. Abdur Rahman Howlader,
Mr. Al tab Uddin Ahmed,
Mrs. Nuijahan Begum Mukta,
Mr. A.K.M. Saiful Islam,
Mr. Shahidur Rahman
Mr. Sultan Mahmud
Mr. Hrishikesh Saha
Mr. Mir Iqbal Hossain
Defence Counsels: -
Mr. Md. Abdur Razzak Senior Counsel with
Mr. Mizanul Islam,
Mr. MonjurAhmed Ansari,
Mr. Kafil Uddin Chowdhury,
Mr. Tajul Islam,
Mr. TanvirAhmed Al-Amin,
Mr. Imran Siddique,
Mr. Abu Bakar Siddique
SUMMARYJUDGMENT
(Undersection20(l)oftheActXIXof1973)
I.Introduction:-
l.It is a remarkable occasion that after creation of this Tribunal-1, today it is going to deliver the first judgment of the first case after completion of its trial. This Tribunal was established under the International Crimes (Tribunals) Act, enacted in 1973 (hereinafter referred to as the Act) by Bangladesh parliament to provide for the detention, prosecution and punishment of persons for genocide, crimes against Humanity, war Crimes and other Crimes under International law committed in the territory of Bangladesh during the War of Liberation particularly between 25 th March tol6thDecemberl971.
II .Commencement of proceedings.
2.1t is evident on record that the learned Chief prosecutor having received investigation report along with documents therewith by the Investigation Agency, Submitted the formal charge along with documents to this Tribunal on 11.7.2011 under section 9(1) of the Act of 1973. Sole accused Delowar Hossain Sayeedi was in the custody in connection with other cases. He was produced before the Tribunal on 14.07.2011 following a production warrant issued by this Tribunal on that date, on perusal of the documents submitted by the prosecution, this Tribunal took cognizance of offence against the accused as mentioned under section 3(2) of the Act as required under Rule 30 of the Rules of procedure (ROR) on hearing of the learned lawyers of both the sides, this Tribunal framed charges against accused Delowar Hossain Sayeedi on 03.10.2011 under sections 3(2) (a) and 3(2) (c i), (g) (h) of the Act which are punishable under section 20(2) read with section 3(1) of the Act. The charges framed were read over and explained to the accused on dock to which he pleaded not guilty and claimed to have fair justice and thus the trial started.
III .Historical Background: -
3 .1n 1971, during the War of Liberation of Bangladesh, atrocities in a large scale, crimes against Humanity, War Crimes and genocide were committed by Pakistani forces, auxiliary forces and their associates which resulted the birth of Bangladesh as an independent country. It was estimated that during nine month long War, about three million people were killed, nearly quarter million women were raped, and over 10 million people were deported to India causing brutal persecution upon them.
4 .1n the general election of 1970, the Awami League under the leadership of Bangabandhu Sheikh Mujibur Rahman won 167 seats out of300 seats of the National Assembly of Pakistan and thus became the majority party of Pakistan. Of the 300 seats 169 were allocated to East Pakistan of which Awami League won 167 demonstrating an absolute majority in the Parliament. Despite this overwhelming majority, Pakistan government did not hand over power to the leader of the majority party as democratic norms required. As a result, movement started in this part of Pakistan and Bangabandhu Sheikh Mujibur Rahman in his historic speech of 7th March, 1971 called on the people of Bangladesh to strive for independence if people's verdict is not respected and power is not handed over to the leader of the majority party. On 26th March, following the onslaught of “Operation Search Light" by the Pakistani military on 25th March, Bangabandhu declared Bangladesh independent immediately before he was arrested by the Pakistani authorities.
5 .With this declaration of independence, the war to liberate Bangladesh from the occupation of Pakistan military began thatendedonl6thof December 1971 with the surrender of all Pakistani military personnel present in Bangladesh before the Joint Indian and Bangladeshi forces in Dhaka. In the War of Liberation that ensued, all people of East Pakistan wholeheartedly supported and participated in the call to free Bangladesh but a small number of Bangalees, Biharis, other pro-Pakistanis, as well as members of a number of different religion-based political parties joined and/or collaborated with the Pakistan military to actively oppose the creation of independent Bangladesh. Except those who opposed, Hindu communities like others in Bangladesh, supported the Liberation War which in fact drew particular wrath of the Pakistani military and their local collaborators, who perceived them as pro-Indian and made them targets of attack, persecution, extermination and deportation as members belonging to a religious group.
6 . As a result, 3 million (thirty lacs) people were killed, more then 2(two) lakh women raped, about 10 million (one crore) people deported to India as refugees and million others were internally displaced. It also saw unprecedented destruction of properties all over Bangladesh.
7 . In order to bring to justice the perpetrator of the crimes committed in 1971, the International Crimes (Tribunals) Act, 1973 was promulgated. However, no Tribunal was set up and no trial took place under the Act until the government established this International Crimes Tribunal on 25th of March 2010.
IV. Briefaccount of the accused:-
8 Accused Delowar Hossain Sayeedi alias Delu son of late Yousuf Ali Sayeedi of village South Khali, Police Station Indurkani (Zianagar) Dist.-Pirojpur was born on 01.02.1940 in his village. He passed Dhakil Examination from Darns Sunnat Madrasha Sarsina in 1957 and he also passed the Alim Examination in 1960 from Barroipara Madrasha. He has got one wife and foursons. He was elected Member of the parliament in the election held in 1996 and 2001. He joined Jamaat-e-Islam and now the Nayb-e-Amir of Jamaat-e-lslami Central Committee. He is a writer by profession.
V.Jurisdiction ofthe Tribunal: -
9.The International Crimes (Tribunals) Act, 1973 has empowered the Tribunal to prosecute and punish not only armed forces but also the perpetrators was belonged to auxiliary forces or who committed the offence as an 'individual' or a group of individuals and no where in the Act it has been said that without prosecuting the armed forces (Pakistani) the person or the group of persons having any other capacity specified in section 3(1) of the Act cannot be prosecuted. Rather, it is manifested in section 3(1) that even any person if he is prima-facie found criminally responsible for the offences specified in section -3(2) of the Act can be brought to justice. Thus, the Tribunals set up under the Act of 1973 are absolutely domestic Tribunal but empowered to try internationally recognized crimes committed in violation of customary international law.
VIII.Procedural History:
10.At pre-trial stage, a complaint petition was filed by one Md. Mahbubul Alam Houlader on 20.07.2010 with the investigation agency constituted undersection3(l)oftheActofl973. Accused Delowar Hossain Sayeedi was in the jail custody in connection with other criminal cases pending in different courts of Bangladesh. This Tribunal issued production warrant against the accused and he was produced before this Tribunal on 2.11.2010 by the prison authority. Several bail applications filed by the accused were disposed of in accordance with law in presence of the accused and the learned lawyers of both the parties upon hearing an application filed by the accused, this Tribunal directed the prison authority to arrange proper treatment of the accused in Bangabandhu Sheikh Mujib Medical University Hospital (BSMMU) and accordingly he was provided proper treatment thereof. The accused informed the court that he being a diabetic patient needs treatment in BIRDEM Hospital. Then this Tribunal allowed the accused to have treatment in BIRDEM Hospital. The jail authority was directed to provide green vegetable as specialized food to the accused considering him to be a diabetic patient and also directed to provide health friendly vehicle to the ailing accused for his transport.
1 l.On the basis of investigation report, the chief prosecutor submitted formal charge on 11.07.2011 against the accused before this Tribunal. It is alleged that the accused as a member of group of individuals as well as a member of Rajakar Bahini Committed crimes against Humanity, genocide and other Crimes in different places of the then Pirojpur Sub-division. This Tribunal upon consideration of the formal charge and documents attached therewith took cognizance of offence on 14.07.2011. An application on behalf of the accused was submitted for discharge of him. Hearing on charge matter was continued for four days by the learned lawyers of both the parties. After completion of hearing on charge matter, the application for discharge of the accused was rejected and as many as 20 charges under section 3(2) a and 3(2) (c)(i) (g) (h) of the ICT Act of 1973 were framed on 03.10.2011 against accused Delowar Hossain Sayeedi.
X. Witnesses adduced by the parties: -
12.The prosecution submitted a list of 138 witnesses including formal witnesses while the defence submitted a list of 48 witnesses in support of defence case. At the time of trial, the prosecution examined 28 witnesses of whom 20 were witnesses of occurrence, 07 were seizure list witnesses and one was the investigation officer. On the other hand, this Tribunal allowed the defence to examine maximum 20 witnesses but it examined 17 witnesses of whom 14 were listed witnesses and the rest three were examined by the defence with the permission of the Tribunal. It may be mentioned that out of said three witnesses one was the listed prosecution witness but he deposed as a defence witness.
XIII. Summing up the prosecution case by the prosecutor:-
13.Mr. Syed Haider Ali, the learned prosecutor contents that as many as 20 charges relating to crimes against Humanity, genocide and other crimes described under section -3(2) of the Act, were framed against accused Delowar Hossain Sayeedi who committed the said crimes within Pirozpur Sub-Division during the War of Liberation of Bangladesh. The accused as a member of group of individuals as well as a member of local peace committee and sometimes as a member of Razakar Bahini took part in killing, torture, rape, looting, setting fire on the houses of civilians, forceful conversion of Hindus to Muslims and systemic attack on the Hindu community with intent to destroy it. It is further contended that the prosecution has successfully proved 19 charges by oral testimony and documentary evidence and 5 charges namely charges 1-4 and 13 have been proved by statements for want of live witnesses those charges have been proved by the statements of witnesses, recorded by the investigation officer as per provision of section 19(2)ofthe Act.
XIV. The Summing up the defence case by the counsel:-
14 .Mr. Abdur Razzak, the learned senior counsel for the defence submits that in committing international crimes, attack must be widespread or systematic with a clear knowledge about commission of offence but the Act does not contemplate this and crimes are not adequately defined as such alleged charges suffer from vagueness and element of crimes are hopelessly absent. It is contended that the accused used to live in Jessore upto June 1971, thereafter he went to Pirojpur in the Month of July and he never joined the local peace committee or Rajakar Bahini or took part in any attrocities committed by Pakistan Army. It is contended that the Government of Bangladesh made press release on 17.4.1973 and accordingly enacted the International Crimes (Tribunals) Act 1973 in order to try only 195 war criminals and the then Government passed the collaborators order 1972 aiming at to try the civilians responsible for the offence and as such the accused as a civilian could be tried under collaborators order but the present Government with a malafide intention has brought the case against him though such proceeding is barred by the tripatriate agreement dated 02.07.1972 where clemency was granted to the War Criminals. It is further argued that the prosecution has committed delay of about 40 years in bringing criminal charge against the accused without explanation and as such unexplained inordinate delay is sufficient to disbelieve the prosecution case. It is submitted that the Tribunal received statement of 16 witnesses in evidence recorded by the investigation officer under section 19(2) of the Act, though those witnesses were available in their locality. It is lastly contended that recently skype conversations between the former Chairman of this Tribunal with one Ahmed Ziauddin which go to show that the order of framing charge and other 4 orders were transmitted from Belgium and as such the defence has been materially prejudiced by such unfair process of the Trial.
XVI.Discussion and decision: -
15 .Before discussing the charges brought against the accused, we consider it expedient to address some of the legal issues upon which the learned counsel for the defence drew our attention.
Tripatrite Agreement and immunity to 195 Pakistani war criminals:-
It is not acceptable to say that no individual or member of auxiliary force as stated in section 3 of the Act of 1973 can be brought to justice under the Act for the offence (s) enumerated therein for the reason that 195 Pakistani war criminals belonging to Pakistan Armed Force were allowed to evade justice on the strength of 'tripartite agreement' of 1974. Such agreement was an 'executive act' and it cannot create any clog to prosecute member of 'auxiliary force' or an ' individual' or member of 'group of individuals' as the agreement showing forgiveness or immunity to the persons committing offences in breach of customary international law was derogatory to the existing law i.e the Act of 1973 enacted to prosecute those offences.
16 . Delay in bringing prosecution
From the point of morality and sound legal dogma, time bar should not apply to the prosecution of human rights crimes. Neither the Genocide Convention of 1948, nor the Geneva Conventions of 1949 contain any provisions on statutory limitations to war crimes and crimes against humanity. Article 1 of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humaniry adopted and opened for signature, ratification and accession by General Assembly resolution 2391 (XXIII) of 26 November 1968 provides protection against even any statutory limitation in prosecuting crimes against humanity, genocide etc. Thus, criminal prosecutions are always open and not barred by time limitation.
17.lt may be cited here that the second world war was concluded in 1945 but still the Nazi War Criminals are being prosecuted. Similarly, the trial of internationally recognised crimes committed during Chilean revolution in 1973 is still going on. Internationally recognised crimes were also committed during Pol Pot regime of Cambodia in the year 1973 to 1978 but due to internal conflicts and lack of political will of the then government could not start prosecution against the perpetrators in time. The Royal Government of cambodia waited 25 years for attaining a strong political will, thereafter in association with the United Nations, they established a Hybred Tribunal and thus trial against the perpetrators was started in 2003 which is still going on. In fact, the criminal prosecution as regards international crimes is always open and not barred by any time limit. The sovereign immunity of Slobodan Milosevic of Serbia, Charles Taylor of Liberia and Augusta Pinochet of Chile, as the head of the state could not protect them from being detained and prosecuted for committing genocides, crimes against Humanity and war crimes.
18 .1n view of above setded position and in the absence of any statutory limitation, as a procedural bar, only the delay itself does not preclude prosecutorial action to adjudicate the culpability of the perpetrator of core international crimes. Indubitably, a prompt and indisputable justice process cannot be motorized solely by the painful memories and aspirations of the victims. It requires strong public and political will together with favourable and stable political situation. Mere state inaction, for whatever reasons, does not render the delayed prosecution readily frustrated and barred by any law.
^.Considerations of material justice for the victims should prevail when prosecuting crimes of the extreme magnitude is on the process. Therefore, justice delayed is no longer justice denied, particularly when the perpetrators of core international crimes are brought to the process of justice. However, there can be no recognized theory to insist that such a 'system crime' can only be perused within a given number of years. However, delay may create a doubt but the matter is addressed after taking all the factual circumstances into consideration.
XVILWhether accused Delowar Hossain Sayeedi was a member of local Razakar Bahini /Peace Committee?
20.lt is a fact of common knowledge that during the War of Liberation in 1971, Pakistani Occupation forces organized auxiliary forces namely , Razakar , Al-Bador, Al-Shams and Peace Committee for the purpose of their operational support in implementing its atrocious activities in furtherance of making policy to execute their missions. The Razakar Bahini was composed of mostly pro-pakistani Bangalee Razakars who actively associated with many of the atrocities committed by Pakistani Army duringnine-month of the War of Liberation.
21 .Now let us discuss the oral and documentary evidence produced by the prosecution as to proving the accused as a member of local Razakar Bahini.
22 .P.W. 1 Md. Mahbubul Alam Howlader deposed that during Liberation War, 1971, Parerhat Peace Committee was formed with accused Delwar Hossain Sayeedi and some others who were against the independence of Bangladesh. He also deposed that Razakar bahini was formed there with some members of the said Peace Committee including accused Delwar Hossain Sayeedi and some students of different Madrasas and members of different organizations who were against the independence of Bangladesh.
23 .P.W. 2 Ruhul Amin Nobin deposed that during Liberation War, 1971, a Peace Committee was formed at Parerhat with accused Delwar Hossain Sayeedi and others. He also deposed that a Razakar bahini was also formed there under the leadership of accused Delwar Hossain Sayeedi, Sekander Ali Sikder, Danesh Ali Molla, Mowlana Moslehuddin and some other antiliberation people with intent to kill the supporters of Liberation War and freedom-fighters.
24 .P.W. 3 Md. Mizanur Rahman Talukder deposed that during Liberation War, 1971, accused Delwar Hossain Sayeedi along with his accomplices (Razakars) tortured his brother Abdul Mannan.
25 .P.W. 4 Sultan Ahmed Howlader deposed that on 1st May, 1971, he having gone to his village home he came to know that leaders of Jamat-E-Islami namely Sekander Ali Sikder, Danesh Ali Molla, accused Delwar Hossain Sayeedi and Moslem Mowlana, formed a Peace Committee at Parerhat. Under the leadership of accused Delwar Hossain Sayeedi, a Razakar bahini was also formed at Parerhat with the students of different Madrasas, workers of Jamaat-E-Islam and the persons of different anti-liberation organizations.
26 .P.W. 5 Md. Mahtabuddin Howlader deposed that during Liberation War, 1971, Md. Moslemuddin, accused Delwar Hossain Sayeedi, Danesh Molla and Sekander Sikder formed Peace Committee. He also deposed that 2/3 days after the Peace Committee having been formed the said persons themselves formed Razakar bahini.
27 .P.W. 6 Manik Posari deposed that during Liberation War, 1971, Razakar bahini and Peace Committee were formed and, accused Delwar Hossain Sayeedi formed the Peace Committee at Parerhat with the persons who were against the Liberation War, and thereafter the members of said Peace Committee formed Razakar bahini.
28 .P.W. 7 Md. Mofizuddin Posari deposed that during Liberation War, 1971, there were people of Razakar bahini and Peace Committee in their area and he knew them. He further deposed that the goods of the house of Saijuddin Posari were burnt by kerosene oil at the direction of Razakars, namely, Sekander Sikder, Danesh Molla, Mobin, Razzaque, Delu Sikder (accused Delwar Hossain Sayeedi) and some other Rajakars. He
identified the accused in the dock.
29 .P.W. 8 Mostafa Howlader deposed that during Liberation War, 1971, accused Delwar Hossain Sayeedi was a member of Peace Committee and Rajakar bahini and he along with the members of Peace Committee and Razakar bahini looted the goods of the houses and shops of Hindus ofParerhat.
30 .P.W. 9 Altaf Hossain Howlader deposed that on 7th May, 1971, Pakistani Army came to Parerhat and, 6/7 days prior to their arrival, a Peace Committee was formed at Parerhat and thereafter accused Delwar Hossain Sayeedi himself formed Razakar bahini there with the members of the Peace Committee.
31 .P.W. 10 Basudev Mistri deposed that during Liberation War, 1971, accused Delwar Hossain Sayeedi, Sekander Sikder, Danesh Molla, Moslem Mowlana, Hakim Kari, Ruhul Amin, Momin along with others formed a Razakar bahini at Parerhat. He identified the accused in the dock.
32 .P.W. 11 Abdul Jalil Sheikh deposed that on 8th May, 1971 he saw that some Razakars including Rajakar Delwar Hossain Sayeedi (accused) along with 10/15 Pakistani Army having come to their village Chitholia, proceeded to the house of Manik Posari and then the accused along with two other Rajakars caught hold of Kutti and Mofizuddin therefrom and tied them with rope and then they looted the goods of that house and, thereafter they having poured kerosene oil burnt that house.
33 .P.W. 26 Abed Khan is a journalist. He deposed that he was the editor of Dainik Samokal in 2007; that on 10.02.2007 a news report was published on the first page of that daily newspaper under the headline “«rl>il«lc*3 ’154141331 W CWM 3fe3 ” about four persons and of them accused Delwar Hossain Sayeedi was number one. He further deposed that it was reported in the newspaper amongst others accused Delwar Hossain Sayeedi had formed Razakar bahini at Parerhat Bondar.
34 .Ext. 35 is a list of Razakars, prepared by Dr. M. A. Hasan, Convener, War Crimes Facts Finding Committee, Truth Commission For Genocide in Bangladesh, the name of accused Delwar Hossain Sayeedi appears to have been in the said list under district Pirojpur.
35 .Dr. M.A. Hasan, as one of the researchers on war crimes wrote a book named “ gst’HlSk *lft*l « fels a^vf” published in February 2009 in which the name of Delowar Hossain Sayeedi has been published at page No. 148 as one of the Razakars of District Priojpur. The defence side has filed a book named “Santi Committee 1971” (Exhibit NO. FV) in the case of Professor Ghulam Azam which also speaks that the name of Delowar Hossain Sayeedi has been listed as one of the Razakars of District Pirozpur.
36 .Ext. 8 is an issue dated 05.03.2001 of the Bengali Daily Janakantha wherein a staff report under the caption "5*l««3 ’3i®T4i3 fWif 544 wW” was published which reads as follows:
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38 .Upon scrutiny of the oral evidence adduced by RW. 5 coupled with documentary evidence, it is well-proved that the accused was a prominent member of Razakar Bahini of parerhat area during the War of Liberation and he actively participated in different atrocious activities committed by local Razakar Bahini in association with Pakistani occupation forces. The above mentioned oral and documentary evidence are sufficient to hold that prosecution has successfully proved the status the accused as a member of auxiliary force as defined in section 2 (a) of the Act at the time of commission of offences for which the accused has been charged. Moreover, even in the capacity of an individual or member of a group of individuals the accused is liable to be prosecuted under section 3(1) of the Act if he is found to have committed the offences specified under section 3 (2) oftheActof1973.
39.The above relevant facts have proved that at the time of commission of alleged horrific crimes in parerhat area, the status of the accused was potential member of local Razakar Bahini and a close accomplice of Pakistani occupation Army posted at the then Pirojpur Subdivision in 1971.
XVIII.Adjudication of charges Nos. 1-4 and 13 brought against the accused.
(Crimes against Humanity and genocide)
4O.At the very outset Mr. Sayed Haider Ali submitted that as many as 20 charges have been framed against the accused but the prosecution could not produce any live witnesses before the Tribunal to prove charge Nos. 1,2.3.4 and 13 but the prosecution has proved those five charges by the statement of witnesses as recorded by the investigation officer under section 19(2) of the Act on the ground that the attendance of those witnesses could not be procured at the time of trial. However, the gist of those five charges are given below for the convenience of discussion:
41.ChargeNo. 1:-That on 4 May, 1971 the accused as a member of local Shanti Committee gave information to Pakistan Army about gathering of 20 unarmed civilian people behind Madhya Masimpur bus stand and in a planned way those 20 people were killed and he was charged for the offence specified in section 3(2) (a) of the Act.
42.Charge No. 2:- That on 4 May, 1971 accused along with Pakistani Army went to Masumpur Hindupara under Pirojpur police Station, looted houses and destroyed the same by setting fire then in a planned way accused gunned down 13 Hindu unarmed civilians with intent to destroy it whole or in part of the Hindu religious group and thereby committed offence specified in section 3(2) (a) and3(2)(c)(i) oftheAct.
43 .Charge No. 3:- That on 4 May, 1971 accused along with Pakistani Army went to Masimpur Hindu para and looted goods from the house of Monindra Nath Mistri and Suresh Chandra and committed large scale destruction by setting fire on the houses of following villages namely Kalibari, Masimpur, Palpara, Sikarpur, Razarhat Kukarpara, Dumoritala, Kadomtola, Nawabpur, Alamkuthi, Dhukigathi Parerhat and Chinrakhati and thereby committed offence specified in section 3 (2) (a) of the Act.
44 .Charge No. 4:- That on 4 May, 1971 the accused along with Pakistani forces in a planned way surrounded Hindu Para located in front of Dhopa Bari under Pirojpur Police Station with intent to destroy Hindu Civilians and thereby killed Debendra Nath Mondal, Jogendra Nath Mondal, Pulin Bihari, and Mukando Bala by gun-shot. Accused has committed crimes of genocide specified in section 3(2) (c) (I) of the Act.
45 .Charge No. 13:- That about 2/3 months after the start of the Liberation War in one night the accused along with members of Peace Committee and Pakistani Army raided the house of Azhar Ali of Village Nalbunia and caught him with his son Shaheb Ali then accused tortured them and abducted Shaheb Ali and he was taken to Pirojpur and ultimately he was killed and his dead body was thrown in the river. The accused committed the crimes against Humanity specified in section 3(2) (a) of the Act.
46 .We have perused the statements of the following witnesses namely Asishkumar Mondal (Exbt. No. 254) Sumati Rani Mondal (Exbt. No. 265) Sitara Begum (Exbt. No. 266) and Md. Mostafa (Exbt. No. 267). It transpires from the statements of seven witnesses that they narrated the occurrences of relating to charge Nos. 1 to 4 and 13 before the investigation officer but they did not turn up before the Tribunal to prove said charges brought against the accused.
47 .Mr. Syed Haider, the learned prosecutor stressed much on the acceptance of the statement of witnesses as reliable evidence on the plea that the provision of law provided under section 19(2) of the Act has empowered the Tribunal to receive statement of witnesses as evidence subject to un-availability of those witnesses.
48 .Mr. Abdur Razzak the learned defence counsel drew our attention to the documents submitted by the defence and submitted that the alleged witnesses are neither dead nor unavailable persons and as such the Tribunal cannot rely upon so-called statements of witnesses as evidence under section 19(2) of the Act. In support of his contention, Mr. Abdur Razzak cited 3 decisions in the cases of windisch Vs. Australia ECTHR, Al-Khaawaja andTahery Vs. the United Kingdom ECTHR-20091996 -UNo. 6.
49 .Facts remain that the prosecution could not produce any oral or documentary evidence to prove the occurrences mentioned in charge Nos. 1,2,3,4 and 13 except statement of seven witnesses recorded by the investigation officer under section 19(2) of the Act. It is undisputed that not a single maker of those statements has been examined to prove the occurrances and as such it is undeniable that the defence did not get an opportunity to cross-examine those makers of statements to find out the truth. The statements of witnesses recorded by the investigation officer are always considered as unsafe documents and if the maker of such statement is not confronted during trial, such unsafe statement looses its credibility.
5O .Having considered the legal aspects of those statement of witnesses, we are of the openion that the statements of witnesses recorded under section 19 (2) of the Act alone do not form the basis of conviction and such statement of witnesses may be used as corroborative evidence to prove a particular occurrence. It is further observed that the TYibunal may gather information about the conduct of the accused by using statement of witnesses but no one can be held criminally responsible solely on thebasisofsuch statement of witnesses recorded under section 19(2) oftheAct.
XIX. Adjudication of charge No. 5
(Killing ofSDO, Magistate and S.D.P.O.)
51 .That Mr. Saief Mizanur Rahman, the then Deputy Magistrate of Pirojpur Sub-Division (now District) organized Sarbo Dalio Sangram Parishad to inspire the people for participating in the War of Liberation. Knowing this fact, accused Delwar Hossain Sayeedi declared publicly to arrest him for his pro-liberation activities. On 5th May, 1971 the accused along with his associate Monnaf (now deceased), the member of Peace (Shanti) Committee accompanied with some members of Pakistani Army riding on a Military Jeep went to Pirojpur Hospital at noon where Mr. Saief Mizanur Rahman was into hiding.
Evaluation of evidence and finding: -
52 .The prosecution has examined only one witness Saief Hafizur Rahman Khokon (P.W-27) to prove charge No. 5. Upon scrutiny of the evidence adduced by RW. 27, it is found that during War of Liberation, three administrative officers of Pirojpur SubDivision namely Abdur Razzak S.D.O, Foyezur Rahman S.D.P.O. and Saief Mizanur Rahman, Magistrate (brother of P.W. 27) were brutally killed by Pakistani Army. On getting the death news of his brother he went to pirojpur from Narail, he met Khan Bahadur Afzal who told him that one Monnaf identified his brother to Pak-Army and thereby three top officers were gunned down by Pakistani Army. He heard from Khan Bahadur Afzal and local people that one Monnaf and Delowar Hossain Sayeedi were in the vehicle of the Pak- Army, Evidence of P.W. 27 is itself hearsay evidence but such evidence has not been corroborated by any local witness or by any documentary evidence. Prosecution has submitted some paper cuttings of daily news paper namely Dainik Janakanta dated 5.3.2001 as Exhibit-8 and Dainik Vorer Kagoge dated 4.11.2007 as Exhibit-11 which have narrated general attrocities allegedly committed by the accused, there is no allegation against him as to killing of aforesaid three officers in Pirojpur. Considering the evidence on record we are inclined to hold that the uncorroborated hearsay evidence adduced by RW. 27 has got no provative value and as such charge No. 5 has not been proved beyond reasonable shadow of doubt.
XX. Adjudication of charge No. 6
(Looting of gold and goods from parerhat area)
53 .That on 7th May, 1971 accused Delwar Hossain Sayeedi led a team of Peace (Shanti) Committee to receive Pakistani Army at Parerhat Bazar under Pirojpur Sadar Police Station, then the accused identified the houses and shops of the people belonging to Awami Legue, Hindu Community and supporters of the Liberation War. The accused as one of the perpetrators raided those shops and housesand looted away valuable including 22 seers of gold and silver from the shop of Makhanlal Saha. These acts are considered as crime of persecution on political and religious grounds as crimes against humanity.
Evaluation of evidence and finding:
54 . The prosecution has examined as many as 8 witnesses to prove the atrocities committed by the Pakistani Army with the assistance of local perpetrators at Parerhat area during the War of Libaration in 1971. Upon critical analysis of the evidence adduced by RW. Nos. 1,2,3,4,8,9,12 and 13 it is found that accused Delowar Hossain Sayeedi along with local members of Peace Committee and Razakars wel-corned about 52 Pakistani Army personnel headed by captain Ejaz at Parerhat on 7th May, 1971. Accused Delowar Hossain Sayeedi could speak in Urdu well which brought him to a close association of captain Ejaz. It is evident that all the attacks including looting of valuables made by Pakistani Army coupled with local members of Peace Committee and Razakar Bahini were directed against unarmed civilian population specially targeting Hindu Community and liberation loving people. All the aforesaid 8 prosecution witnesses have categorically testified that on 7 May, 1971 accused Delowar Hossain Sayeedi was very much present at Parerhat and he took active part in all occurrences of looting of goods from 25/30 shops and houses of Hindus and Awami Leagues situated at Parerhat area under Pirojpur Sub-division. Aforesaid RWs have succinctly stated that accused Delowar Hossain Sayeedi, could speak in Urdu, so he used to accompany the Pakistani forces to the place of occurances and identified shops and houses of pro-liberation people and Hundu Community for committing crimes such as looting of goods, setting fire on the houses of civilians, etc. The evidence discussed above, appears to be unshaken. It sufficiently indicates that the accused substantially contributed and facilitated to the crimes against Humanity with full knowledge. All the RWs. belong to same locality of the accused and they identified him in the dock. No doubt remains there as to identification of the accused. DW Nos. 1,3,13,14 and 16 have corroborated the barbarous atrocities such as genocide, rape , looting, arson, etc. committed by Pakistani Army and local members of Peace Committee and Razakar Bahini, but they intentionally did not utter the name of the accused as a perpetrator.
XXI. Adjudication of charge No. 7
(Torture on Shahidul Islam Selim and looting goods and setting fire on his house)
55 .That on 8th May, 1971 at about 1.30 p.m. accused Delwar Hossain Sayeedi led a team of armed accomplices accompanied with Pakistani Army raided the house of Shahidul Islam Selim, son of Nurul Islam Khan of village Baduria under Pirojpur Sadar Police Station and he identified Nurul Islam Khan as an Awami Legue leader and his son Shahidul Islam Selim, a freedom-fighter, then the accused detained Nurul Islam Khan and handed over him to Pakistani Army who tortured him and after looting away goods from his house, the accused destroyed that house by setting fire. The act of destruction of the house by fire is considered as crime of persecution as crimes against Humanity on political ground and the accused also abetted in the torture of Nurul Islam Khan by the Pakistani Army.
Evaluation of evidence and findings
56 .The prosecution has examined three witnesses to prove specially the occurrence of burning house of Shahidul Islam Selim son of Nurul Islam Khan of village Baduria by Pakistani Army with the assistance of accused Delowar Hossain Sayeedi. Upon critical analysis of the evidence adduced by RW. Nos. 1,8 and 12, it is found that on 8 May, 1971, Pakistany Army along with 30/35 Razakars including accused Delowar Hossain Sayeedi went to village Baduria where the accused identified the house of Shahidul Islam Selim (Freedom Fighter) then the said house was destroyed by setting fire which was witnessed by P.W.8 Md. Mostafa Hawlader from other side of the Khal adjacent to that house. It is evident that Pakistani Army accompanied by Razakars went to village Baduria and destroyed a house of a freedom fighter by setting fire which is considered as a crime of persecution. It is further proved that the attack (setting fire) was directed against civilian population with intent to destroy a political group (freedom fighters).
57.lt is further revealed from the evidence of D.Ws. 3,7 and 15 that they have categorically corroborated the prosecution case to that extent that on the date of occurrence the Pakistani Army along with some other people went to villege Baduria and they destroyed the houseofNurul Islam Khan by setting fire and they also destroyed some other houses of another village Chitholia on the same date.
58 .The evidence adduced by RWs. and D.Ws are collectively scrutinized which indicates that Pak Army with intent to make a systematic attack in a large scale they destroyed the houses of two villages namely, Baduria and Chitholia on the same date with the assistance of local Razakars. From the evidence of aforesaid RWs it is found that the accused substantially contributed and facilitated the crime against Humanity with full knowledge as he was present at the crime sites.
XXII. Adjudication of charge no. 8
(Killing of Kutti and setting fire on the houses of Hindu Community of Parerhat area)
59 .That on 8th May, 1971 at about 3.00 p.m. under the leadership of accused Delowar Hossain Sayeedi and his accomplices accompanied with Pakistani Army raided the house of Manik Posari of village-Chitholia under Pirojpur Sadar Police Station and caught his brother Mofizuddin and one Ibrahim @ Kutti therefrom. At his instance other accomplices after pouring kerosene oil on five houses, those were burnt to ashes causing a great havoc. On the way to Army Camp, the accused instigated Pakistani Army who killed Ibrahim @ Kutti by gun-shot and the dead body was dumped near a bridge, then Mofiz was taken to Army Camp and was tortured. Thereafter, the accused and others set fire on the houses of Hindu Community at Parerhat Bandar causing huge devastations. The acts of looting goods and setting fire on dwelling houses are considered as persecution as crimes against Humanity on religious ground. The accused directly participated in the occurrences of abduction, murder and persecution which are identified as crimes against Humanity.
Evaluation of Evidence and findings:
6O .The prosecution has examined as many as 9 witnesses to prove the charge No. 8 relating to killing of Kutti and setting fire on the houses of Hindu Community of Parerhart areas under Pirojpur police station made by Pakistani Army and local Razakers headed by accused Delowar Hossain Sayeedi. Upon critical analysis of the evidence adduced by P.W Nos.2,4,6,7,8,9,10,11 and 12 it is found that on 8 May,1971, the Pakistani Army along with a good number of Razakars including accused Delowar Hossain Sayeedi came to the house of Manik Posari from where they caught victim Ibrahim alias Kutti, and Mofizuddin Posari. It is evident that on that day Pak-Army and local Razakars looted goods from different houses and set fire on the houses of Raisuddin Posari, Helaluddin Posari, Saizuddin Posari and Manik Posari, Nurul Islam Khan and others of village Baduria and Chitholia adjacent to Parerhat Bandar. It is evident from the evidence educed by aforesaid 9 witnesses that on seeding Pakistani Army and Razakers while Ibrahim alias Kutti and Mofizuddin Posari (P.W-7) tried to flee away then the Razakars caught hold of them and fastened their hands by a rope and dragged them towards Parerhat Razakars Camp, on the way, near a bridge, Pakistani Army killed Ibrahim Kutti by gun shot and taking Mofizuddin to the Camp tortured upon him but in the night he managed to escape from the clutches of Razakars. P.W-7 Mofizuddin Posari is the eye witness of the killing of Ibrahim Kutti and he luckily saved his life by escaping from Razakar Camp. He categorically testified that accused Delowar Hossain Sayeedi as a member of Razakar Bahini caught them at crime site and ultimately Ibrahim was killed by Pak-Army, under the above circumstances, we find no reason to disbelieve evidence of P.W-7 as to murder of Kutti, destruction of houses of civilians in a large scale by setting fire which constitute crimes against Humanity.
XXIII. Adjudication of charge no.9
(Attack on the house of Abdul Halim Babul and looting valuables and setting fire on it)
61. That on 02.06.1971 at about 9.00 a.m. under the leadership of accused Delwar Hossain Sayeedi with his armed associ- ates accompanied with Pakistani Army raided the house of Abdul Halim Babul of village-Nolbunia under Indurkani Police Station and looted away valuables, then set the house on fire to ashes. The acts of burning house to ashes and looting goods therefrom are considered as persecution as crimes against Humanity.
Evaluation of evidence and findings:
62.lt appears from the record that the prosecution has examined a good number of witnesses to prove the charges brought against the accused. It is evident that solitary witness P.W-14 has been examined to prove the charge No.9 in respect of looting and burning of house of P.W-14 who testified that according to S.S.C. certificate his date of birth is 06.06.1960. It can be presumed that during Liberation War he was at best a boy of 12/13 years old, under the above factual circumstances, we hold that on the part of a minor boy like P.W-14, it was not possible to recognize accused Delowar Hossain Sayeedi and his associates from a distant place at the time of alleged commission of offence. Moreover, no co-villager of P.W-14 has come forward to corroborate the occurrence as stated by P.W-14. The evidence of P.W-14 is considered weak type of evidence as well as uncorroborated one and as such the prosecution has failed to prove the charge no.9 beyond shadow of doubt.
XXIV. Adjudication of charge no. 10.
(Killing of Bisabali and burning 24 hosues of Hindu para of village Umedpur)
63 .That on the same day i.e. 02.06.1971 at about 10.00 a.m. under the leadership of accused Delowar Hossain Sayeedi with his armed associates accompanied with Pakistani Army raided the Hindu Para of village-Umedpur under Indurkani Police Station the accused burnt 25 houses including houses of Chitta Ranjan Talukder, Jahar Talukder, Horen Tagore, Anil Mondol, Bisabali, Sukabali, Satish Bala and others. At one stage Bisabali was tied to a coconut tree and at his insistence Bisabali was shot to dead by his accomplice. The act of burning dwelling houses of unarmed civilians is considered as persecution. The accused directly participated in the acts of burning houses and killing of Bisabali which is persecution and murder within thepurviewof crimes against Humanity.
Evaluation of evidence and findings:
64 .The prosecution has examined 3 witnesses to prove charge No. 10 relating to killing of Bisabali and burning of 25 houses of Hindu para ofvillage Umedpur by Pakistani Army wtih the assistance of accused Delowar Hossain Sayeedi and his associates. Upon critical analysis of the evidence adduced by P.W. Nos.1,5 and9 it is found that on 02.06.1971, Pakistani Army accompanied with local Razakars including accused Delowar Hossain Sayeedi attacked Hindu para of village Umedpur and after looting away valuables therefrom, they set fire on about 25 dwelling houses of unarmed civilians. It is evident that one civilian named Bisabali was caught and tortured by Razakars, thereafter victim Basabali was fastened with a co-conut tree and he was shot dead by a Razakar at the insistence of accused Delowar Hossain Sayeedi, P.W-5 Mahtabuddin Howlader and P.W-9 Altab Hossain Howlader have proved the occurrance of burning dwelling houses of unarmed vivilians of Hindu para as well as killing of Bisabali at the insistence of the accused as eye witness of the occurrances. The manner of setting fire on the houses of unarmed civilians gives sufficient indication that the perpetrators in a planned way burnt a Hindu para with intent to cause large scale devestation. It is also evidently revealed that the accused knowingly contributed and facilitated in the commission of killling of Biasbali and the act of burning huge number of dwelling houses by his presence and participation is considered as persecutioin. It is well proved that the accused was involved with the commission of murder and persecution within the purview of crimes against Humanity.
XXV. Adjudicationofchargeno.il
(Attack on the house of freedom-fighter Mahbubul Alam Howlader and looting away valuables therefrom)
65.That on the same day i.e. on 02.06.1971, accused Delwar Hossain Sayeedi led a team of Peace (Shanti) Committee members accompanied with Pakistani occupied forces raided the houses of Mahbubul Alam Howlader (freedom-fighter) of vil-lage-Tengra Khali under Indurkani Police Station and the accused detained his elder brother Abdul Mazid Howlader and tortured him. Thereafter, the accused looted cash money, jewellery and other valuables from their houses and damaged the same. The accused directly participated in the acts of looting valuables and destroying houses which are considered as persecution on political grounds, and also tortured.
Evaluation of evidence and findings:
66. The prosecution has examined two witnesses to prove the occurrence specified in charge No.l 1. Upon scrutiny of the evidence adduced by RW-1 and 5 it is evident that on 2nd June, 1971, Pakistani troops accompanied by members of local Peace Committee and Razakars including accused Delowar Hossain Sayeedi raided Hindu para at about 10 a.m to execute a part of plan, then at about 12 noon they raided the house of Mahabubul Alam Howlader (P.W-1), freedom-fighter, but they failed to catch him, then they tortured Abdul Mazid who is the brother of P.W. 1 and looted away cash money, jewellary and other valuables from the house of Mahbubul Alam. The defence cross-examined P.W. 1 and 5 elaborately but the verson as to presence of accused Delowar Hossain Sayeedi at crime site remains unshakened. Having considered the evidence on record, we find that accused Delowar Hossain Sayeedi knowingly contributed and facilitated in the commission of looting valuables from the house of civilian population which is considered as persecution within the purview of crimes aganist Humanity.
XXVI. Adjudication of charge no. 12
(Genocide of 14 Hindus of Hindupara under Parerhat Bazar)
67 . That during Liberation War on one day a group of 15/20 armed accomplices under the leadership of accused Delwar Hossain Sayeedi entered the Hindu Para of Parerhat Bazar under Pirojpur Sadar Police Station and captured 14 Hindus namely, Horolal Malakar, Aoro Kumer Mirza, Taronikanta Sikder, Nando Kumer Sikder and others, all were civilians and supporters of Bangladesh independence. The accused tied them with a single rope and dragged them to Pirojpur and handed over them to Pakistani Militarty where they were killed and dead bodies were thrown into the river. This act was directed against a civilian population with intent to destroy in whole or part of a religious group, which is genocide.
Evaluation of evidence and findings:-
68 .The prosecution has examined as many as 28 witnesses to prove 20 charges as framed against the accused. It has been specifically mentioned in charge No. 12 that during the War of Liberation one day accused Delowar Hossain Sayeedi along with his 15/20 armed accomplices entered in the Hindu Para of Parerhat Bazar and caught 14 Hindu Civilian supporters of independence and after fastening those civilians with single rope they were dragged to Pirojpur and handed over them to Pakistani Army who killed them and their dead bodies were thrown into the river. On perusal of the evidence adduced by the RWs including (P.W.l and 12) it is revealed that no witness has narrated the story mentioned in charge No. 12 before this THbunal. It is evident that prosecution witnesses have narrated different incidents involving the accused but none has entengled him with the commission of genocide in question. 69 .The prosecution could not connect accused Delowar Hossain Sayeedi with the commission of genocide as described in charge No. 12. In view of the fact, we hold that charge No. 12 hasnotbeen proved against the accused.
XXVII. Adjudication of charge no. 14.
(Attack on Hindu Para of Hoglabunia, rape of Shefali Gharami and setting fire on houses.)
7O.That during the last part of the Liberation War, accused Delowar Hossain Sayeedi led a team of Razakar Bahini consisting of 50 to 60, in the morning of the of occurrance in a planned way they attacked Hindu para of Hoglabunia under Indurkani police station. On seeing them Hindu people managed to flee away, but Shefali Ghaarami, the wife of Modhu Sudhan Gharami could not flee away, then some members of Razakar Bahini entering into her room raped Shefali Gharami. Being the leader of the team the accused did not prevent them in committing rape upon her. Thereafter, the accused and members of his team set-fire on the dwelling houses of the Hindu para of village-Hoglabunia resulting complete destruction of houses of the Hindu civilians. The act of destruction of houses in the Hindu para by burning in large scale is considered crime of persecution on religious ground and the act of raping both as crimes aganist Humanity.
Evaluation of evidence and findings
71.The prosecution has examined a good number of witnesses out of them evidence adduced by RWs 1,3,4 and 23 are taken together for consideration. From the evidence adduced by P.W. 1,3 and 4 it is revealed that the accused Delowar Hossain Sayeedi was a member of Santi Committee and Razakar Bahini of Parerhat under Pirojpur, the then Sub-division . He, as a Razakar used to take part in committing rape, looting goods, torture, arson and killing members of Hindu community in Parerhat area during War of Liberation. The evidence adduced by P.W. 23- Madhu Sudan Gharami is very much important for adjudication the offence of rape committed upon his wife Shefali Ghorami. He testified that one day a group of Razakars attacked his house, at that time he was not present in his house. His wife Shefali Ghorami disclosed to him that she was raped by Razakars against her will. On query she told that she could not say the name of the rapist, but that man who converted him to Muslim raped her and, she also requested him to go away for security reasons. He testified that accused Delowar Hossain Sayeedi converted him to Muslim along with others under a threat that they would survive if they became Muslims otherwise not. He further testified that his wife gave birth to a child who was named Shandha but some people used to laugh at her recalling painful memories of her life, then she left for India in order to get rid of such humiliation . The evidence adduced by P.W. 23 as regards rape and forced pregnancy of his wife, is a crime within the purview of crimes against Humanity. Though the victim wife of P.W. 23 could not be examined as she was not available in Bangladesh, the evidence as regards commission of rape upon the wife of P.W. 23 cannot be disbelieved. Rwanda ICT Chamber observed in the case of the prosecutor Vs. Jean-Paul Akayesu under the caption “ sexual violence as a constituent act of genocide" out of which a relevant portion of it is quoted below for understanding crime of rape as explained.
72.Second, the Trial Chamber identified the specific elements of the crime of rape for the first time in international law, and distinguished sexual violence from rape. Although the Rwandan Tribunal had previously included rape among the enumerated acts that could constitute crimes against Humanity, it was in Akayesu that a Trial Chamber first defined rape as “ a physical invasion of a sexual nature committed on a person under circumstances which are coercive." Sexual violence was broadly defined as “ any act of a sexual nature which is committed on a person under circumstances which are coercive." Such an act, the Trial Chamber declared, could involve dignitary harms that did not involve penetration or even physical contact. For example, the instance of a student being forced to publicly undress and do gymnastics in the nude was found to constitute sexual violence.
73.1n the instant case, P.W. 23 has categorically testified that accused Delowar Hossain Sayeedi was one of the Razakars who on the date of occurrence raided his house and some of them committed rape upon his wife. Considering the above circumstances, we are led to hold that the accused as a member of Razakar bahini was present in the crime site having full knowledge about the said crime of rape and he substantially contributed and facilitated in the commission of said crime.
XXVIII. Adjudication of charge no. 15
(Last part of Liberation War, 1971 at Hoglabunia Village ten (10) Civilians were killed and were thrown in the river)
74 .That during the last part of the Liberation War, 1971 accused Delowar Hossain Sayeedi led 15/20 armed Razakars under his leadership and entered into the village-Hoglabunia under Indurkani Police Station, caught 10 (ten) Hindu civilians namely, Toroni Sikder, Nirmol Sikder, Shymkanto Sikder, Banikanto Sikder, Horolal Sikder, Prokash Sikder and others. The accused then tied all of them with a single rope with intent to kill and dragged them to Pirojpur and handed over them to the Pakistani Army where they all were killed and the dead bodies were thrown in the river. This conduct was directed against a population with intent to destroy religious group which is genocide.
Evaluation of evidence and fin dings :-
75 .The prosecution has examined a good number of witnesses but in order to prove charge No. 15, only one witness P.W. 23has been examined. P.W. 12 A.K.M. A Awal M.P. has testfied that accused Delowar Hossain Sayeedi was involved in the atrocious activities committed by local Razakars with the aid of Pakistani Army. Two statements of witnesses recorded by the investigation officer under section 19(2) of the Act, have been perused but those statements could not connect the accused with the commission of genocide alleged committed at village Hoglabunia. P.W. 23 Modhu Ghorami as an inhabitant of village Hoglabunia has testified that in one night 9 people of his village were abducted by unknown person and no trace of those 9 persons was found afterwards. P.W. 23 did not even suspect accused Delowar Hossain Sayeedi in the commission of alleged genocide.
76 .Upon scrutiny of the evidence on record it transpires that prosecution could not produce any evidence before this Tribunal to connect the accused with the commission of crime ofgenocide as stated in charge No. 15.
XXIX. Adjudication of charge no. 16
(Abduction of three women confinement and rape and abetment of offences)
77.That during the time of Liberation War in 1971, accused Delowar Hossain Sayeedi led a group of 10/12 armed Razakars and Peace Committee members and surrounded the houses of Gowranga Saha of Parerhat Bandor under Indurkani police station, subsequently the accused and others abducted (i) Mohamaya (ii) Anno Rani (iii) Komol Rani, the sisters of Gowranga Saha and handed over them to Pakistani Army Camp at Pirojpur where they were confined and raped for three days before release. The accused was directly involved in abetting the offences of abduction, confinement and rape as crimes against Humanity.
Evaluation of evidence and findings
The prosecution has examined some witnesses to prove charge No. 16 relating to abduction of three women and violation upon them.
78.RW. 3 Mizanur Rahman, P.W.4 Sultan Ahmed Hawlader and RW.5 Md. Mahatabuddin have narrated different crime occurrances took place at Parerhat during the War of Liberation. They have testified that accused as a member of Peace Committee and a Razakar took part in the attacks directed against unarmed civilians causing murder, looting, torture, converting Hindus to Muslims handing over women to Pakistani Army for committing rape upon them. RW. 13 Gourango Chandra Saha has testified that in 1971 accused Delowar Hossain Sayeedi along with his associate Razakars went to his house and looted goods and they abducted his three sisters namely Mohamaya, Anno Rani and Komol Rani from his house and handed over those three woman to the Pakistani Army Camp for committing rape upon them. He further testified that his three sisters were forcefully raped and returned them after three days. He further stated that after a few days accused Delowar Hossain Sayeed went to their house and all the members of their house were converted to Muslims. Inordertogetrid of such disgraceful happenings, his father, mother and three victim sisters left for India.
79.1n cross-examination he denied the defence suggession that the accused was not involved in the act of abduction of his sisters and handing them over to Pakistani Army. It appears from the statement of Azit Kumar Sheel (Exbt. No. 264) that the evidence adduced by RW. 13 has been corroborated by the statement as to abduction of three sisters of RW. 13 and handing over them to Pakistani Army with the assistance of accused Delowar Hossain Sayeedi and his associates.
80.Upon scrutiny of the evidence discussed above, we are led to hold that the accused knowingly contributed and facilitated the commission of abduction of three women and paving the way in causing sexual violence upon them. The act of abduction and rape of victims were directed against civilians which manifestly fall within the purview of crimes against Humanity.
XXX. Adjutication ofthe charge no. 17
(Confinement of Bipod Saha's daughter Bani Saha at their house at Parerhat and committed rape upon her.)
81.That during the time of liberation war in 1971, accused Delowar Hossain Sayeedi along with other armed Razakars kept confined Bipod Saha's daughter Vanu Saha at Bipod Saha's house at Parerhat under Indurkani police station and regularly used to go there to rape her. This was committed by force or by threat and directed against a civilian population.
Evaluation of evidence and findings:
82.l t is evident from the record that the prosecution has examined only one witness namely RW. 4 Md. Sultan Ahmed Hawlader who has stated that accused Delowar Hossain Sayeedi and one Moslem Maulana used to rape Bani Saha, daughter of Bipod Saha of Parerhat regularly. He further stated that the accused compelled the father and brother of Bani Saha to be converted to Muslims and saying prayer in the Mosque. In cross-examination RW. 4 denied the defence sugession that he falsely implicated the accused with the alleged commission of rape.
83.lt is evident on record that neither Bani Saha nor her near relation has come forward before the Tribunal with the allegation of rape against the accused. It appears that P.W.4 did not disclose his source of knowledge about the allegation of rape against the accused. The uncorroborated testimony of a solitary witness (P.W.4), as to proving charge on rape is not sufficient to relyupon. In view of the fact, we hold that prosecution could not prove charge No. 16 beyond shadew of doubt.
XXXI. Adjudicationofchargeno.18
(Torture and killing of Vagirothi and throwing her dead body into the river.)
84 .That during the Liberation War, Vagirothi used to work in the camp of Pakistani Army. On one day, after a fight with the freedom-fighters, and at the instance of the accused said Bhagiorithi was arrested on charge of passing information to the freedom fighters and was tortured and then after taking her to the bank of river Boleshwar she was killed and the dead body was thrown into the river.
Evaluation of evidence and finding
85 .The prosecution has examined P.W. 12 A.K.M. Awal M.R to prove charge No. 18 relating to killing and torture of ill-fated Vagirothi, an unofficial spy of the freedom-fighters. P.W.12 has depicted her as a brave lady who used to pass informations to the freedom-fighters about the movements of Pakistani forces. It is stated that local Razakars suspected her as a spy of freedomfighters and consequently she was caught and handed over to Pakistani forces who brutally killed her by gun shot and threw her body into the river. It is evident that RW.12 in his statement did not suspect the accused in anyway responsible for the tragic murder of ill-fated Vagirothi. It transpires from the statement (Exbt. No. 268) of Gonesh Chandra Saha that he has described the valient role of his mother Vagirothi in the War of Liberation but he did not implicate the accused with the killing of his mother. It is undisputed that Pakistani Army fastened Vagirothi with the back of a jeep and dragged her to river side and killed by gun-shot. Admittedly Vagirothi sacrificed her life for the noble cause of Liberation of Bangladesh. Having considered all aspects, we are led to hold that Prosecution could not connect the accused with the commission of killing ofVagirothi.
XXXII. Adjudication of the charge no. 19
(Conversation of Hindus to Muslims by using force)
86.That during the period of Liberation War starting from 26.03.1971 tol6.12.1971 accused Delowar Hossain Sayeedi being a member of Razakar Bahini, by exercising his influence over Hindu community of the then Pirojpur Subdivision (now Pirojpur District) converted the following Hindus to Muslims by force namely, (1) Modhusudan Gharami(2) Kristo Saha(3) Dr. Gonesh Saha(4) Azit Kurmar Sil(5)Bipod Saha(6)Narayan Saha(7)Gowranga Pal(8)Sunil Pal(9)Narayan Pal(10) Amullya Hawlader,(ll)Hari Roy(12) Santi Roy Guran (13) Fakir Das (14) Tona Das(15) Gourangaa Saha(16) his father Hori Das(17) his mother and three sisters (18) Mahamaya (19) Anno Rani and (20) Kamoi Rani and other 100/150 Hindus of village-Parerhat and other villages under Indurkani police station and the accused also compelled them to go the mosque to say prayers. The act of compelling somebody to convert his own religious belief to another religion is considered as an inhuman act which is treated as crimes against Humanity.
Evaulation of evidence and findings:
The prosecution has examined as many as 5 witnesses to prove charge No. 19 relating to conversation of Hindus to Muslims agasinst their will.
87.Upon scrutiny of the evidence adduced by P.W.2, 3,4,13 and 23 it is corroboratively found that during the War of Liberation accused Delowar Hossain Sayeedi was a member of local Peace Committee as well as member of Razakar Bahini of Parerhat. It is evident from the evidence discussed above that he compelled a good number of Hindus to embrace Islam putting them in fear of death. P.W-13 Gourango Chandra Saha and P.W.23 Modhu Sudan Ghorami are the victims of conversion who candidly narrated under what compelling circumstances they agreed to convert their religion. P.W-23 testified that the accused took him along with members of his family to local mosque and converted them to Muslims against their will. P.W. 13 also gave direct evidence asserting that the accused compelled all the members of his family to embrace Islam under threat and they were also compelled to go to mosque regularly to say prayers. It is found on solid evidence that during the War of Liberation the accused under coersion and threat compelled a good number of Hindu Community people to convert religious belief which is considered as inhuman act, torture and mental persecution which fall within the purview ofcrimes against humanity. O u r Holly Quran teaches us not to impose any sort of pressure upon the followers of other religion, because Islam was preached only by rational appeal and not by coersion or threat.
However, havining considered the evidence on records, we are satisfied to hold that prosecution has succesfully proved commission of offence against the accused mentioned in Charge No. 19.
XXXIII. Adjudication of charge no.20
(Confinement of 85 persons at Talukdar Bari looting of valuables and women were raped)
88.That in the last part of November 1971 while civilians were fleeing to India, accused Delowar Hossain Sayeedi with his associate Razakars attacked them at the house of Talukdar Bari of Indurkani village and detained 85 persons therein and looted away their valuables and some female persons were raped by Pakistani Army by his assistance and thereby the accused committed offences of abduction, torture and abetment of rape which fall within the purview of the crimes aganist Humanity.
Discussion on evidence:
We have perused the documents both oral and documentary produced by the prosecution. It is found on evidence that no witness has been exanmined to prove the occurrence of Talukdar Bari and the prosecution has failed to prove the charges mentioined in charge No.20.
XXXIV. Plea of Alibi of the defence
89.0n behalf of the accused Delowar Hossain Sayeedi a plea has been taken to the effect that since before starting the war of Liberation of Bangaldesh he used to reside in Jessore and he came back to his village home at Pirojpur in the middle of July, 1971.
Evaluation of evidence as to proving plea of Alibi
9 0.lt may be mentioned here that failure to prove plea of alibi is not fatal to the accused. Sub-rule (3) of Rule 51 of the Rules of Procedure have provided protection of the defence which reads as follows:
91 .Mere failure to prove the plea of alibi and or documents and materials by the defence shall not render the accused guilty. Moreover, the accused charged with offence presumming him to be innocent until he is found guilty.
92.0n perusal of the evidence adduced by D.W.5 it is found that the evidence of P.W. 4 and 6 that they have categorically stated while accused Delowar Hossain Sayeedi used to reside in Jessore before starting the War of Liberation in 1971, at that time he had two children. The prosecution has proved the copy of Nomination paper (Exbt. 151) for National Assembly election filed by accused Delowar Hossain Sayeedi which shows that the accused gave particulars of his four sons with the date of birth as quated bellow:-
Nameofson Date of birth
1. RafiqBinSayeedi 18.11.1970
2. ShamimSayeedi 01.01.1972
3. MasudSayeedi 01.11.1975
4. Nasim Sayeedi 08.12.1976
238.The Nomination Paper (Exbt. 151) dated 30.11.2008 submitted by the accused goes to prove that he had only one son at the time of War of Liberation in 1971. The learned defence counsel gave suggessions to RWs. 1,2,4,5,6,8,9,10,12 and 13 that the accused used to live in Jessore since before starting the war of Liberation till middle of July, 1971 but all the RWs flatly denied the suggessions as to his alleged residing in Jessore at the time of starting liberation struggle. The aforesaid RWs and the accused belong to same locality and the PWs have categorically stated his presence and participations in the atrocities committed in Parerhat area since May, 1971. P.W. 2 Ruhul Amin Nobin as a commander of freedom-fighter testified that he went to Parerhat Bazar on 18.12.1971 but he could not arrest accused Delowar Hossain Sayeedi and his associates as they reportedly fled away. P.W.12 A.K.M.A Awal M.R also stated that after Liberation the accused left his locality for saving his life. It is evident that while Bangladesh war was over, diberted the accused left his village home and went into hiding. The factual aspect supposes that soon after Liberation the accused might have taken shelter in Jessore for his safety, at that time D.W.4 and 6 might have seen the sons of the accused.
9 3.1n consideration of both oral and documentary evidence, we are inclined to hold that the defence could not prove the plea of alibi. Thus, the plea of alibi does not inspire any amount of credence and appears to be a futile effort with intent to evade the charges brought against him.
XXXVI.Conclusion:
94 . As Judges of this Tribunal, we firmly hold and believe in the doctrine that 'Justice in the future cannot be achieved unless injustice ofthepastisaddressed'.
95 .Horrendous incidents took place in Bangladesh about 40/41 years back in 1971 and as such memory of live witnesses may have been faded and as a result discrepency may have occurred in their versions made before this Tribunal. But, in practice, we found no significant inconsistencies in their testimonies in proving old incidents occurred during the War of Liberation.
96 .We should keep in mind an important aspect of the case that we are not holding the trial of an Ex-M.P. or Nayb-e-Amir of Jamat-e-Islam named Allama Delowar Hossain Sayeedi, a renouned Oazin who is popularly known as an Islamic orator through out the country for his gift of the gab. Now let us go back to 40/41 years while the struggle for Liberation War started in 1971. From the evidence on record we have found that accused Delowar Hossain Sayeedi had a very low profile having no significant social or political status in the society. He was simply a grocery shop keeper who used to sell oil, salt, onion, pepper etc. at Parerhat Bazar. His financial condition was not good. This trial is being held against that Delowar Hossain Sayeedi for the commission of crimes against Huminity alleged to have been committed by him about 41 years back at Parerhat area while he was a Potential Razakar as well as member of local Peace Committee. The defence took a plea to the effect that there was a Razakar named Delowar Hossain Mollik who was killed after Liberation but prosecution with an ulterior motive, shifted the liability of that dead Delowar Mollik upon this present accused Delowar Hossain Sayeedi.
97 .1n the above aspect, we find no substance because a good number of prosecution witnesses and the accused himself hail from the same locality who identified the accused in dock as the sole accused in this case and as such there is no confussion as to identity of the accused.
98 .The experssion 'directed against civilian population' as mentioned in section 3(2) (a) of the Act of 1973 specifies that in the conduct of a crimes against Humanity the civilian population is the primary object of the attack. From our discussion on adjudication of the charges we have found that all the attacks were systimatically made to cause widespread destruction of properties and lives directing against unarmed civilians belong-ingto pro-libeation poeple.
Guiding Principle for fixing up liability for the crimes described in section 3(2) of the Act of 1973
99 .According to Section 3(1) of the Act it is manifested that even any person (individual or a member of group of individuals) is liable to be tried and punished if he is found to have com- mitted crimes specified in Section 3(2) of the Act. In consideration of the nature of criminal charges brought against the accused, we are led to hold that the principle for determining liability for crimes as laid down in Section 4(1) of the Act is the guide line in this regard. The provision for fixing up liability for crimes is quoted below: -
Section 4(1) of the Act of 1973 provides “When any crime as specified in Section-3 is committed by several persons, each of such person is liable for that crime in the same manner as if it were done by him alone."
lOO.From the oral and documentary evidence as produced by the prosecution, we are convinced to hold that the accused was a member of Razakar Bahini of Parerhat during the War of Liberation in 1971 which has been decided in chapter XVII of this judgment. It is also proved that the accused could speak Urdu well which brought him to a close associate with Pakistani Army. We are also convinced from the evidence on record that the accused knowingly the context of Liberation War he purposely stood against the War of Liberation and joined the Razakar Bahini to resist it. From the forgoing discussion, it is proved that the accused as one of the Razakars or a person of a group of individuals took active part in the attacks directed against civilian population at Parerhat area, causing murder, deportation, rape, looting of goods, setting fire on the houses and shops of civilians, forceful religious conversion, inhuman acts and torture which fall within the purview of crimes against Humanity. On scrutiny of the evidence on record, we have found that out of 20 charges the prosecution has successfully proved 8 charges against the accused who as a member of local Razakar Bahini contributed and facilitated in committing those offences by his active participation and presence at the crime sites. According to the guiding principle for fixing up liability as provided under section 4(1) of the Act, the accused is found guilty to the offences mentioned in charge Nos. 6,7,8,10,11,14,16 and 19 as if, those were done by him alone as a member of Razakars and/or also in the capacity of a member of atrocious group ofindividuals.
XXXVII. Verdict on conviction
101 .Having considered all evidence, materials on record and arguments advanced by the learned lawyers of both the parties, we hold that the prosecution has successfully proved 8(eight) charges out of 20 against accused Delowar Hossain Sayeedi beyond reasonable doubt.
Charge Nos. 1 to 4 and 13: The accused is found NOT GUILTY to the offences of murder, persecution, genocide, abduction and torture which fall within the purview of crimes against Humanity and genocide as specified in section 3(2)(a) and 3(2)(c)(i) of the I.C.T. Act of 1973 and he be acquitted from the aforesaid charges levelled against him.
Charge No. 5:- The accused is found NOT GUILTY to the offences of murder, abduction and abetment which fall within the purview of crimes against Humanity as specified in section 3(2) (a) of the I.C.T. Act of 1973 and he be acquited from the said charge.
Charge No. 6:- The accused is found GUILTY to the offence of persecution which falls within the purview of crimes against Humanity as specified in section 3(2) (a) of I.C.T. Act of 1973 and he be convicted and sentenced under section 20(2) of the said Act.
Charge No. 7:-The accused is found GUILTY to the offences of persecution and abetment of torture which fall within the purview of crimes against Humanity as specified in section 3 (2) (a) and (g) of the I.C.T. Act of 1973 and he be convicted and sentenced under section 20(2) of the said Act.
Charge No. 8:- The accused is found GUILTY to the offences of murder, abduction, torture and persecution which fall within the purview of crimes against Humanity as specified in section 3(2)(a) of the I.C.T. Act of 1973 and he be convicted and sentenced under section 20(2) of the said Act.
Charge No. 9:- The accused is found NOT GUILTY to the offence of persecution which falls within the purview of the crimes against Humanity as specified in section 3(2) (a) of the I.C.T. Act of 1973 and he be acquitted from the said charge.
Charge No. 10:- The accused is found GUILTY to the offences of murder and persecution which fall within the purview of the crimes against Humanity as specified in section 3(2) (a) of the I.C.T. Act of 1973 and he be convicted and sentenced under section20(2) ofthe said Act.
Charge No. 11:- The accused is found GUILTY to the offences of torture and persecution which fall within the purview of the crimes against Humanity as specified in section -3(2)(a) of the I.C.T Act of 1973 and he be convicted and sentenced under section20(2) ofthe saidAct.
Charge No. 12:- The accused is found NOT GUILTY to the offence of genocide which falls within the purview of genocide as specified in section 3(2)(c)(i) ofthe saidAct and he be acquitted from the said charge.
Charge No. 14:- The accused is found GUILTY to the offences of persecution and rape which fall within the purview of crimes against Humanity as specified in section 3(2) (a) of the I.C.T. Act of 1973 and he be convicted and sentenced under section 20(2) ofthe saidAct.
Charge No. 15:- The accused is found NOT GUILTY to the offence of genocide which falls within the purview of genocide as specified in section 3(2) (c) (i) of the I.C.T. Act of 1973 and he be acquitted from the said charge.
Charge No. 16:- The accused is found GUILTY to the offences of abduction, confinement, rape and abetment which fall within the purview of crimes against Humanity as specified in section 3(2) (a) and (g) of the I.C.T. Act of 1973 and he be convicted and sentenced under section 20(2) of the said Act.
Charge No. 17:- The accused is found NOT GUILTY to the offence of rape which falls within the purview of crimes against Humanity as specified in section 3(2) (a) of the I.C.T. Act of 1973 and he be acquitted from the said charge.
Charge No. 18:- The accused is found NOT GUILTY to the offence of abetment of torture which falls within the purview of crimes against Humanity as specified in section 3 (2) (a) (g) of the I.C.T. Act of 1973 and he be acquitted from the said charge.
Charge No. 19:- The accused is found GUILTY to the offence of inhuman act which falls within the purview of crimes against Humanity as specified in section 3(2) (a) of the I.C.T. Act of 1973 and he be convicted and sentenced under section 20(2) of the Act.
Charge No. 20:- The accused is found NOT GUILTY to the offences of abduction, torture and rape which fall within the purview of the crimes against Humanity as specified in section 3(2) (a) of the I.C.T Act of 1973 and he be acquitted from the said charge.
XXXVIII.Verdict on sentence
250 .From the foregoing discussions we have found the accused guilty to the offences of murder, abduction, torture, rape, persecution, forcible religious conversion and abatement as mentioned in 8(eight) charge Nos.6,7,8,10,11,14,16 and 19 which fall within the purview of crimes against humanity as specified in section 3 (2) (a) (g) of ICT Act of 1973. Now a partinent question is before us as to decide what punishment can be awarded to the accused which shall squarly meet the ends of justice.
251 . We have weighed up gravity of offences proportionately which had been committed by the accused during the War of Liberation of Bangladesh. We are of agreed view that 8(eight) charges brought against the accused have been proved beyond reasonable doubt. It is well proved that accused Delowar Hossain Sayeedi substentially contributed and facilitiated in killing Ibrahim alias Kutti and Bisabali as listed in charge Nos.8 and 10 respectively. It is also proved that the killing of Ibrahim alias Kutti and Bisabali was followed by looting of properties and setting fire on two Hindu Para as a part of systematic attack directed agaisnt unarmed civilians as well as pro-liberation people.
252 . In consideation of the gravity and magnitude of the offences committed particularly in charge Nos. 8 and 10, we unanimously hold that the accused deserves the highest punishment as provided under section 20(2) of ICT Act of1973.
Hence it is, ORDERED
That accused Delowar Hossain Sayeedi alias Delu @ Abu Nayeem Mohammad Delowar Hossain© Allama Delowar Hossain Sayeedi, son of late Yousuf Ali Sikder of villages-South Khali, Police Station Indurkani/Zianagar, District-Pirojpur, at present 914-Shaheed Bag, Police Station Motijheel, District-Dhaka is found guilty to the offfences of crimes agaisnt humanity (listed in charge Nos.8 and 10) and he be convicted and sentenced to death and be hanged by the neck till he is dead under section20(2) ofthe International Crimes (Tribunals) Act, 1973.
253 . In our due consideration, the gravity of the offences as listed in charge Nos. 6,7,11,14,16 and 19 appear to be lesser than that of as listed in charge Nos.8 and 10. Since we have awarded Capital Punishment to the accused for the offences as listed in charge Nos. 8 and 10, we refrain from passing any separate sentence of imprisonmant for the offences as listed in the rest charge Nos.6,7,11,14,16 and 19 though those charges have also been proved beyond reasonable doubt.
254Accused Delower Hssain Sayeedi is, however, found not guilty to the offences of crimes against humanity as listed in charge Nos. 1,2,3,4,5,9,12,13,15,17,18 and 20 and he be acquitted from the said charges.
255 .The convict accused is at liberty to prefer appeal to the Appellate Division of the Supreme Court of Bangladesh against the order of conviction and sentence within 30(thirty) days from the date of passing the order of sentence as per provisions of section 21 ofthe Act.
Let a certified copy ofthe judgment be furnished to the prosecution and the convict free of cost at once. Let another copy of the judgment be sent to the District Magistrate, Dhaka for information and necessary action.
Issue conviction warrant accordintly.
(A.T.M. Fazle Kabir, Chairman)
(Jahangir Hossain, Member)
(Anwarul Haque, Member)
(CONCLUDES)
NOTE: [Delawar Hossain Sayedee is spelt as Delowar Hossain Sayeedi in court documents]