27 May 2013: ICT-2 Daily Summary – Contempt, Ashrafuzzaman Khan and Moinuddin Order, Mujahid Closing Arguments

Today the Tribunal heard matters in the following cases:

  1. Contempt Proceedings vs. Prosecution Witness 2, Jalal
  2. Chief Prosecutor vs. Ashrafuzzaman Khan
  3. Chief Prosecutor vs. Chowdhury Moinuddin
  4. Chief Prosecutor vs. Ali Ahsan Mohammed Mujahid

The day’s proceedings began with the Defense notifying the court that Prosecution witness 2 in the Mujahid case had allegedly assaulted Defense counsel member Munshi Ahsan Kabir near his chambers in Paltan, Dhaka. On 26 May 2013, Mr. Kabir was on his way to the chamber to attend a meeting of the Defense team. As he was descending from his rikshaw he encountred the witness, Jalal, who verbally assaulted him, calling him ‘son of Rajakar’ and using other insults and curses. The Defense claimed that Jalal then kicked Mr. Kabir in his lower abdomen by the prosecution witness, causing him to collapse on the ground. Jalal fled the scene. Mr. Kabir was then taken to the hospital by local people. The Defense urged the Tribunal to take action against the attacker of the and expressed the hope that all would agree, including the Prosecution. The Tribunal fixed 28 May 2013 for a hearing of the Defense’s contempt petition regarding the attack.

The Tribunal nex passed an order allowing the trials of Md Ashrafuzaman Khan, alias Nayeb Ali, and Moinuddin Chowdhury to be held in absentia under Section 10A of the ICT Act and Rule 32 of the Rules of Procedure of Tribunal-2. The judges observed that the two accused have not appeared before the court despite publication of notices in two widely circulated national dailies. The Tribunal stated that the two are considered to have absconded in an effort to avoid trial and that therefore their trials will commence in their absence. Mr Abdus Shukur Khan and Salma Hye Tuni, both learned advocates of the Supreme Court of Bangladesh have been selected as State-appointed-counsels to defend the accused, and will receive remuneration as approved by the Tribunal.

Finally, the in the case of Mujahid the Defense resumed Closing Arguments, addressing factual and evidentiary issues pertaining to Charges 2 to 6. The Defense noted that Charge 7 would be addressed on the following day and that Defense counsel Abdur Razzak would subsequently discuss relevant legal issues in the case. 

Chief Prosecutor vs. Ali Ahsan Muhammad Mujahid
Charge 2
Under Charge 2 Mujahid is accused of abetting and substantially contributing to persecution as a Crime Against Humanity (Section 3(2)(a)(g), or in the alternative, abetting and substantially contributing to Genocide (Section 3(2)(c)(g). The mode of liability alleged is under Section 4(1), which provides for equal responsibility where multiple perpetrators are responsible for a crime.

The Prosecution alleges that Mujahid, accompanied by one Hammad Maolana and 8-10 non-Bengalis including one Ishaque and members of the Pakistani Army, launched a raid against the Hindu villages of Baidyadangi, Majhidangi and Baladangi.  Between 50 and 60 Hindus were allegedly killed.

The Defense argued that the testimony of the Prosecution witnesses is inconsistent and not credible. Prosecution witness 6, Abdul Malek Miah, testified that his village is in Kazi Matobbor Gram, in contradiction to what he originally told the Investigation Officer. Further the witness stated that the Pakistani Army was responsible for burning Baladangi, Baidyadangi and other villages. On the other hand , Prosecution witness 9, Narayan Changra Sarkar, stated that he lived in Baladangi during 1971 and that it was not burned. The Defense argued that these inconsistencies create doubt regarding the credibility of these two witnesses, both of whom provided only hearsay evidence regarding the involvement of Mujahid.

 Furthermore, the Defense noted that Prosecution witness 11, who also testified in support of Charge 2, provided self-contradictory and inconsistent courtroom testimony in comparison to his original statements to the Investigation Officer. He made contradictory statements as to whether he knew Mujahid in 1971 or whether he only came to know him in recent years after Mujahid became a Minister.

Prosecution witness 8 testified that he heard that many houses were burned by Mujahid. The Defense argued that such generalized and vague allegations are insufficient to prove the Accused’s involvement in actual crimes. Similarly they dismissed Prosecution witness 10’s testimony that he may have “glimpsed” Mujahid as too uncertain to form the basis of a conviction.

The Defense asserted that Al-Badr forces had not even been formed at the time that the Prosecution witnesses allege they were committing crimes. Additionally they noted that the Investigation Officer did not visit the allegedly affected areas and he totally ignored the families of the victims. The statements of the immediate family members of the victims were neither recorded, nor were they called as witnesses. The Investigation Officer spent a total of 6 to 7 hours in the area of occurrence in his months of investigation, whereas he was supposed to investigate the allegations thoroughly. The Defense argued that the evidence collected is therefore unreliable and insufficient.

Charge 3
Under Charge 3 Mujahid is accused of abetting and facilitating the commission of confinement as a Crime Against Humanity under Section 3(2)(a)(g) and Section 4(1) of the ICT Act. The Prosecution alleges that Mujahid instructed Razakars to take Ranjit Nath, who had been detained by the Razakars, to the house of Abdur Rashid where he was confined and tortured.

The Defense called the Prosecution’s allegations a mere “story” staged by the prosecution. The judges objected, stating that the incident has already been found to be true in the Tribunal’s judgment against Abul Kalam Azad. They instructed the Defense to limit its arguments to the complicity of Mujahid. The Defense expressed its dissatisfaction with this limitation.

The Defense argued  that the only witness supporting Charge 3 is the victim himself, Ranjit Nath, aka Babunath, who gave testimony as Prosecution witness 7. The Defense argued that the witness is not credible and gave fabricated evidence. Additionally the Defense argued that even if the incident actually occurred, the witness’ testimony does not reveal how Mujahid’s actions amount to abetting the confinement and torture of Babunath. The victim only testified that Mujahid said “usko hotao”, meaning take him away or remove him. The Defense stated that it cannot be presumed from this statement that Mujahid was ordering the torture or killing of the victim. The Defense asserted that conviction cannot be based on such assumptions.

Charge 4
Under Charge 4 Mujahid is accused of abetting and facilitating confinement as a Crime Against Humanity, or in the alternative, of other inhumane acts as Crimes Against Humanity under Section 3(2)(a)(g) and Section 4(1) of the ICT Act. The Charge also alleges that Mujahid is culpable under Section 4(2) of the Act, which codifies Command Responsibility. The Prosecution alleges that Mujahid visited Faridpur Stadium where Abu Yusuf, aka Pakhi, was held by local Razakars and told something to the Army Major resulting in Yusuf being severely tortured.

The Defense argued that the victim of the alleged crime is living but did not appear to provide evidence in support of the Charge. They claimed that the lack of specific evidence in support of the allegations should result in the acquittal of the Accused on this Charge. The Defense noted that Abul Kalam Azad was also charged for the same incident, but was acquitted due to the lack of credible witnesses. Mujahid should also be acquitted for the same reasons. The Defense stated that Prosecution witness 8, Mir Lutfar Rahman, stated that he only knows Mujahid from the area and does not know anyone else. Similarly Prosecution witness 6 did not provide any specific evidence to support the Charge.

Charge 5
Under Charge 5 Mujahid is accused of participating, abetting and facilitating murder as a Crime Against Humanity under Section 3(2)(a)(g) and Sections 4(1) and 4(2) of the Act. The Prosecution alleges that Mujahid, acting as the Secretary of the East Pakistan Islami Chatra Sangha and head of Al-Badr, accompanied Nizami to the army camp in Nakhalpara, Dhaka where the Accused tortured and killed numerous civilian detainees and disposed of their bodies.

The Defense argued that the charge is supported only by Prosecution witness 2, Jahir Uddin Jalal. They stated that this witness in untrustworthy and did not provide credible testimony. The argued that the books Ekatturer Din Gulo or Maa refer to this incident but do not mention the Mujahid’s name, showing that Mujahid was not affiliated with the incident until recently when Prosecution witness 2 provided his false testimony. The Defense questioned why Prosecution witness 2 would be the only witness in support of this charge when many with relevant testimony, such as Shimul Billa, Hafis and many others who have been mentioned in books, are still alive.

The Defense further argued that according to the aforementioned books victim Rumi was not abducted or taken to the Ramna Police Station. Nonetheless Prosecution witness 2 has testified that he saw Rumi at the police station. The Defense argued that this contradicts documentary evidence and undermines the witness’ credibility. The dates of the alleged incident given by the witness were also wrong and his in-court statement does not match his previous statement to the Investigation Officer. For example he did not tell the Investigation Officer about the alleged torture in the MP Hostel.  Above all, the Defense stressed that the witness never mentioned the name of Mujahid in any of his previous writings and only incriminated him for the first time during testimony before the Tribunal.

As final comments regarding the charge, the counsel submitted a copy of the forward from a book by Ayub Khan in which he stated that the ‘whole truth and nothing but the truth’ of the witnesses is in reality a ‘half truth’ because witnesses giving testimony in the witness box can be unreliable. The counsel stated that the whole charge is based on only one witness. They expressed grave concern that if this witness is lying his testimony should not form the basis of a conviction. The Defense referred to a verse of the Holy Quran in a similar fashion to the Prosecution, to assert that a conviction should not be based on the testimony of a sole witness.

Charge 6
Under Charge 6 Mujahid is charged with abetting and facilitating murder as a Crime Against Humanity (Section 3(2)(a)(g)), or in the alternative, abetting and facilitating Genocide (Section 3(2)(c)(g). The Prosecution alleges that Mujahid frequently visited the Razakar and Al-Badr training camp at Mohammadpur Physical Training Institute and, along with his co-leaders, plan and conspire with the senior army officers of the camp to commit the killing of the Bengali intellectual community beginning on 10 December 1971.

The Defense argued that Prosecution witness 5, Rustom Ali, stated that he did not know anyone who used to visit the physical training institute, he merely heard from others guarding the gate of the institute that Gholam Azam, Nizami and Mujahid came to the camp. They further argued that Mujahid has not been incriminated in any other way by the witness’ testimony and that such a basis is insufficient for conviction.

Finally, the counsel stated that the best person to testify regarding the facts of this case is Raham Ali Molla, the father of Prosecution witness 5. Raham Ali Molla actually worked at the physical institute and is best equipped to give evidence. However, the Defense noted that he as not been called by the Prosecution to provide evidence. They noted that he did however give an interview to Diganta Television in which he described his experience of 1971 but in no way incriminated Mujahid.

The counsel stated that the Defense would discuss Charge-7 in the next court session.

One thought on “27 May 2013: ICT-2 Daily Summary – Contempt, Ashrafuzzaman Khan and Moinuddin Order, Mujahid Closing Arguments

  1. Pingback: 28 May 2013: ICT-2 Daily Summary – Mujahid Closing Arguments, Contempt Proceedings vs. PW 2 | The Bangladesh Trial Observer

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