16 September 2013: ICT-1 Daily Summary – Motiur Rahman Nizami, Application for Exclusion of Evidence and PW-23 Testimony

Today the Tribunal heard matters in the following case:

  1. Chief Prosecutor vs. Motiur Rahman Nizami

 In the case of Motiur Rahman Nizami, the Defense filed an application to exclude the testimony of Prosecution Witness 13, Shyamoli Nasrin Chowdhury, from the record. After hearing both sides argue, the Court passed an order. Thereafter, the Tribunal recorded the testimony of Prosecution witness 23, Sayeda Salma Mahmud.

Motion to Exclude Testimony

On 11 February 2013 the Prosecution filed an application under section 9(4) of the ICT Act, seeking permission to submit additional Prosecution documents, books, and CDs. On 20 February 2013 the Tribunal heard and allowed the application, pursuant to Order number 78. In closing submissions, the Defense submitted that they had applied for certified copy of that Order, but did not receive it from the Court until after they filed an application for inspection of the Order Sheets. Counsel reported that Defense finally received a copy of Order number on 3 September 2013, at which point they discovered that the Tribunal had allowed the Prosecution to submit some additional documents throough the Order, but it made no provision for calling additional Prosecution witnesses. Shaymoli Nasrin Chowdhury had testified July 10, ostensibly under the order, but the Defense submitted that his testimony was actually not permissible under the Order. Accordingly, the Defense sought exclusion of this testimony.

The Prosecution responded that the testimony was admissible because a list of additional witnesses and their testimonies had been attched attached with the application filed under 9(4) of the ICT Act.  After hearing both sides, the Tribunal adjourned the proceedings for lunch. Upon returning, the Tribunal passed an order rejecting the application for exclusion of testimony. The Court noted that the Prosecution had filed an application on 18 April to issue a summons to additional witnesses, including PW-13. The Tribunal had allowed the application and heard the witness testimony. The Defense asked for a copy of the April 18 Order, saying that they had not been aware of this order.

Cross-Examination of PW-23

Sayeda Salma Mahmud testified about the killing of intellectuals, including her husband, Dr. Azharul Huq. Salma testified that during the liberation war her husband was in private practice at a pharmacy named Saida Pharmacy, where he gave treatment to injured freedom fighters. The witness and her husband suspected that Bihari Ali used to keep an eye on the movements of her husband and provide information about his work to Pakistani Army. In Court, the witness testified about a 25 March 1971 incident at Dhaka Medical College, where her husband also worked.  She described hearing the sounds of firing and bombing outside the college and seeing sparks of fire everywhere outside her window. Early the next morning, she testified, her husband discovered that the Witness’ uncle, Lieutenant Commander Moazzem Hossen, had been killed.  The same day, she came to learn that many teachers and students of Dhaka University including Dr. GC Deb, Professor Mr. Moniruzzaman, Dr. Jotimoy Guh Thakur had been killed.

Salma also testified about the day when a group of Pakistani Army officials and uniformed armed Bengalis came to her home to take her husband away. She initially testified that this occurred on 15 February 1971, but later corrected this date to 15 November. The witness said that she was six months pregnant at the time of the incident.  After receiving word that the nighborhood had been cordoned off by military officers, Dr. Humayon Kabir and the witness’ husband, Dr. Azharul Haq, were waiting outside their home for a hospital ambulance to pick them up and bring them to work. The witness heard from a neighbor that Pakistani Army and uniformed armed Bengalis were taking them away at gunpoint, so she ran out to the gate, and saw that some of them were hitting her husband with the butt of their rifles. She shouted and tried to go towards her husband, but she was sent back inside by the soldiers. Salma testified that the soldier informed her that they were members of Al-Badr, and their High Commander, Motiur Rahman Nizami, had instructed them to take her husband and Dr. Humayon Kabir. They searched her bedroom and left the house.

On 16 November 1971, Dr. Kamruzzaman Bobi reportedly came to the witness’ brother’s house located at Paribag, and informed the witness that the boss of her husband, Dr. Shamsuddin had identified the corpses of her husband and Dr. Humayon Kabir at the morgue of Dhaka Medical College. The corpses had reportedly been found under the culvert located near the Notre Dame College. Their hands and legs had been tied, they were blindfolded, and their bodies bore the marks of having been beaten.

The witness testified that the corpse of her husband was taken to the house of Paribag and buried at Azimpur graveyard. She alleged that Motiur Rahman Nizami, Chowdhury Moinuddin, Ashrafuzzaman, Mujahid and Golam Azam had killed the intellectuals in a planned fashion.  She asked for highest punishment. She acknowledged giving an interview to the IO and identified Nizami in the dock.