Today the Tribunal heard matters in the following cases:

1. Chief Prosecutor vs. Motiur Rahman Nizami
2. Chief Prosecutor vs. Mobarak Hossain

In the case of Motiur Rahman Nizami, the Defense cross-examined the investigation officer Shyamol Chowdhury, PW-12.

In the case of Mobarak Hossain, the Tribunal heard an application filed by Defense under Rule 26(3) of the Rules of Procedure 2010 for review of the Order dated 13 November 2013 closing the proceedings of the instant case to allow the Defense to complete their concluding arguments. The Tribunal disposed off the application with observation and allowed Defense to complete their closing arguments in 2 days. Thereafter, the Defense made submissions on charge numbers 16, 3, 8, 1, 10, 7 and 9.    

Cross-Examination of PW-12

The Defense asked the witness when he joined the police and in which post. The Defense asked the witness about his age during the Liberation War. The witness replied that he was 6 years old. The Defense claimed that the witness started investigation on the basis of a complaint lodged by Khodeza, and the witness admitted this. The Defense then claimed that the investigation report shows the name of 22 witnesses. The witness admitted this as well. The Defense asked the witness when he began the investigation against Mobarak and when he completed the investigation. The witness replied that he started the investigation on 16 July 2012, and on 23 January 2013, he submitted the investigation report. The Defense asked the witness when he began further investigation, and the witness replied that he did so on 15 September 2013. The Defense claimed that the witness started the further investigation and produced additional evidence after the completion of recording testimony of Prosecution Witness 9, Janu Bibi, by the Tribunal. The witness admitted this. The Defense asked the witness whether he asked permission from the Tribunal before starting further investigation under section 9(4) of the ICT Act 1973. The witness replied that there is no need to take such permission from the Tribunal under section 9(4) of the ICT Act 1973. The Defense claimed that the witness did not bring any allegation against Mobarak Hossain under section 3(2)(f) of the ICT Act 1973, and the witness admitted this. The Defense asked the witness whether he knew which documents should be exhibited. The witness stated that he does know. The Defense claimed that Khadiza lodged the first complaint against Mobarak Hossain, and the investigation started on the basis of this complaint; however, the complaint was not exhibited as a document. The witness admitted this as well. Referring to a document, the Defense claimed that a letter was sent to the office of DC of Brahmanbaria to intimidate the Defense witnesses. To this, the witness replied that he knew nothing.

Review Application

The Defense put forward that on 6 November 2013, the Prosecution concluded its closing arguments and on 7 November 2013, the Defense commenced its closing arguments. The Defense was due to make further closing submissions from 10 November 2013, but it was prevented from doing so because on 9 November 2013, the opposition political parties called a country-wide hartal (strike) for 84 hours from 10 November to 13 November 2013. As a result of the hartals from 10 November to 13 November, the Defense claimed that Defense Counsel Mizanul Islam could not appear before the Tribunal to make closing submissions and on 13 November 2013, the Tribunal by an order closed the proceedings of the case and directed the Defense to submit written arguments before 18 November 2013. The Defense submitted that it has been the consistent practice of the superior courts of the country not to sit during hartals, and most of the High Court Division did not sit during these hartals. The Defense also put forward that the Benches of the High Court Division, which did sit on the days of hartals, did not dispose of any cases to the detriment of any party who could not be represented by any lawyer due to hartals. The Defense submitted that the case of Delwar Hossain Sayedee was listed in the Cause List of the Appellate Division of the Supreme Court of Bangladesh on 10, 11, 12 and 13 November 2013, but the matter was not taken up by the Supreme Court on said dates because the engaged advocates for the appellant were not present in court due to hartals. The Defense prayed to review and set aside its order dated 13 November 2013 and allow the Defense Counsels to complete their closing arguments. The Defense submitted that the Accused would be seriously prejudiced if the Defense Counsel are not allowed to make closing arguments.

Closing Argument of the Defense

Regarding Exhibit 30, the Defense submitted that in the book titled Bangladesha Moulabad and Shamprodaikota, the writer Sahriar Kabir gave false information. The Defense also submitted that in the book titled Ekattorer Ghatokera ke Kothai, the writer Sahriar Kabir stated that the newspaper cuttings regarding crimes against humanity in 1971 are not available. The Defense then stated that in the case of Ghulam Azam and Delwar Hossain Sayedee, the Prosecution exhibited 71 or 72 such newspaper cuttings. The Defense raised questions of how the Prosecution retrieved these exhibits if no newspaper cuttings of the important news regarding crimes against humanity are available. The Defense submitted that Exhibit 42, a book titled Ekattorer Dosh Mash written by Rabindra Nath Tribedi, described Nizami as head of Al-Badr and Islami Chhatra Shangho; and in Exhibit 35, a book titled Ekkattorer Ghatokera Ke Kothai, Nizami is also described as Al-Badr command. The Defense submitted that the writers of these books mentioned The Daily Sangram as the source of their claim, but the newspaper did not describe Nizami as Al-Badr chief or command. The Defense submitted that this book, Exhibit 42, described that the students of Madrasa and Biharis formed Al-Badr and Razakar in June, whereas other exhibits and Prosecution Witnesses have stated otherwise. The Defense submitted that in 1972, a list was formed regarding the persons who opposed the Liberation War, but that list did not mention Nizami’s name.

Regarding charge no 16, the Defense submitted that Shamoli Nasrin Chowdhury, Prosecution Witness 13, testified that on 15 December 1971, when Al-Badr asked her husband Alim Chowdhury to go with them, her husband asked the Al-Badr members why they had come; the Al-Badr men replied that it was an order from Al-Badr high command Motiur Rahman Nizami. The Defense stated that according to the the Prosecution documents, Nizami was chief of Al-Badr until the end of September 1971; the Defense then asked how PW-13 could have claimed that Nizami was Al-Badr high command in December 1971. The Defense submitted that a case regarding the killing of Alim Chowdhury was lodged and later disposed of; in that case, Nizami was not an Accused. The Defense further submitted that Exhibit-35 of the Prosecution is a book titled Ekattorer Dosh Mash, of which pages 43 and 44 explained that the planning of the killing of intellectuals was done in Hamidul Huq Chowdhury’s room in the building of the newspaper The Observer. The Defense submitted that Sayeeda Salma Mahmud, Prosecution Witness 23 and wife of Dr. Azharul, had given false testimony. The Defense further put forward that Exhibit-30 of the Prosecution is a book titled Bangladeshe Moulabad and Shamprodaikota written by Sahriar Kabir. Page 69 of this book stated that curfew was imposed by the order of Captain Taher and Major Aslam, and after the arrest of Dr. Azharul and Dr. Humayon Kabir, the curfew was withdrawn, and page 68 stated that Dr. Ehsanul Karim Khan handed Dr. Azharul and Dr. Humayon Kabir over to the Al-Badr force.

Regarding charges no 3 and 8, the Defense submitted that in support of these two charges the Prosecution relied on the testimonies of Zahir Uddin Jalal, Prosecution Witness 2, and Rustom Ali Mollah, Prosecution Witness 3. The Defense submitted that with their testimonies, there is inconsistency regarding the month of Nizami’s visit to the Physical Training Institute, Mohammadpur, Dhaka. The Defense submitted that the charge stated that from the beginning of May 1971, as a leader of Islami Chhatra Sangha, Nizami along with other leaders of Jamaat-e-Islami paid regular visits to the Physical Training Institute, Mohammadpur, Dhaka, where Rustom Ali Mollah, Prosecution Witness 3, stated that the Panjabi Army had set up camp at the Physical Training College on 26 March 1971; Four to five months after the setting up of this camp Razakar, Al-Badr transformed it into a training centre, after which he would see Motiur Rahman Nizami, Ghulam Azam and Mujaheed come.

The Defense submitted that Zahir Uddin Jalal, Prosecution Witness 2, testified that he received the title ‘Bishu’ on 3 September 1971 when Rustom Ali Mollah, Prosecution Witness 3, testified that from the beginning of the Liberation War Jalal was known as ‘Bishu’ Jalal. The Defense submitted that Zahir Uddin Jalal, Prosecution Witness 2, testified that Rustom Ali used to come to the Mushrikhola camp where Rustom Ali Mollah, Prosecution Witness 3, testified that he first eet Jalal after crossing the river Basila on his way to Bakutha camp; after that he did not talk with any freedom fighter until the country was liberated. The Defense further submitted that during cross-examination, Rustom Ali Mollah stated that he could not remember when the country was liberated. The Defense also put forward that Zahir Uddin Jalal testified that on 4 December 1971 he saw Mujaheed at the Chokbazar area through the mike inviting people to hand over freedom fighters to them; however, in cross-examination Zahir Uddin Jalal stated that on 4 December 1971 he and others rescued KD Mehra and engaged in a fight with the Pakistan Army. The Defense also put forward that Zahir Uddin Jalal testified that on 30 August 1971 when he went to collect information about the Razakar, Al-Badr and Pakistan Army meeting at 4 pm in 19 New Eskaton Road, he was caught by Razakars; however, during cross-examination, Zahir Uddin Jalal testified that the first time he heard the word ‘Razakar’ was on 3 September 1971 when he was training at Meghaloy, India. The Defense submitted that Zahir Uddin Jalal also testified that he went to the home of Rumi (son of Jahanara Imam) after the Liberation War and met with his father and mother; however, Rumi’s father died on 13 December 1971—before the Liberation War. The Defense submitted that during his examination-in-chief, Zahir Uddin Jalal also testified that he saw Rumi, Bodi, Azad and Jweal (victims under charge no 8) on 30 August when, after his arrest by the Pakistani Army and Razakars, he was taken to Tejgaon MP hostel; however, he admitted that in Tribunal 2 he said that on 29 August 1971 he saw Rumi, Bodi, Azad and Jweal at Ramna Police Station (though Zahir Uddin Jalal further said that he had mistakenly said so at Tribunal 2 due to the lapse of time after the alleged occurrence took place). The Defense further claimed that the mother of Rumi (victims of charge no 8) Jahanara Imam did not even blame any Bengalis in her book Ekkatorer Dinguli, Exhibit 37, for the killing of her son. The Defense submitted that Zahir Uddin Jalal, Prosecution Witness 2, contradicts himself and his testimony did not corroborate with the testimony of Rustom Ali Mollah, Prosecution Witness 3.

Regarding charge no 1, the Defense submitted that the Prosecution did not bring a witness named Sahed Ali to testify before the Tribunal. The Defense submitted that Sahed Ali in his witness statement said that he was the first person who visited the alleged place and found the victim Kasim Uddin buried; however, Yusuf Ali Biswas, Prosecution Witness 21, testified that he found Kasim in a hole and asked the locals to bury Kasim. The Defense submitted that the due to the inconsistencies between Sahed Ali’s statement and that of Yousuf Ali Biswas, the Prosecution did not bring Sahed Ali forward, though he claimed he was an eye-witness. The Defense submitted that during examination-in-chief ,Habibur Rahman Habib, Prosecution Witness 4, testified that his friend Shibli (son of Kasim Uddin) from whom he heard of the killing of Kasim Uddin, and his mother and siblings left for America 15 years back and were residing there; however, during cross-examination Habibur Rahman Habib, Prosecution Witness 4, admitted that Kasim Uddin’s son Chisti livse in Pabna. The Defense claimed that a case was filed earlier regarding the killing of Kasim Uddin in which Kasim Uddin’s son Chisti was the eyewitness. The Defense raised a question about why Chisti had not been brought before the Tribunal to testify. The Defense further submitted that Habibur Rahman Habib, Prosecution Witness 4, testified that Kasim Uddin had been taken to Nurpur camp, where he was mentally and physically tortured, and then he was taken to the bank of the Ishamoti River and killed there. The Defense submitted that a mass grave is found at Nurpur and asked why Kasim Uddin would be taken to the bank of Ishamoti River when Pakistani used to kill people near their camp at Nurpur.

Regarding charge no 10, the Prosecution relied on the testimony of Ratindra Nath Kunda, Prosecution Witness 12, and the witness statement of Shomor Chandra Kunda under 19(2) of the ICT Act 1973. The Defense submitted that Ratindra Nath Kunda gave hearsay evidence and no other witness gave testimony in support of this charge. The Defense further submitted that Shomor Chandra Kunda’s statement contradicts charge 8. The Defense submitted that in his witness statement, Shomor Chandra Kunda stated that one night late August, Onil and his gang were guarding Ishamoti River, and at that time they killed Nizami’s nephew Aken. He further stated after a few days, Onil captured Nizami and detained him for couple of days, during which he was beaten. He stated that he heard this information from Onil. The Defense further submitted that charge no 8 alleged that on 30 August 1971, Nizami and Ali Ahsan Mujahid visited the Army camp at the Old MP Hostel in Dhaka and verbally abused and detained Jalal, Bodi, Rumi, Jewel and Azad; NIzami allegedly told the Pakistani Captain to kill them. The Defense submitted that Nizami cannot be in two different places at one time; he could not have been at Sonatola of Sathia and at the Old MP Hostel of Dhaka at the same time.

In support of charge no 7 and 9, the Prosecution relied on the testimonies of Sahjahan Ali, Prosecution Witness 22, and Abdus Salim Latif, Prosecution Witness 14. The Defense submitted that during cross-examination Abdus Selim Latif stated that Sahjahan Ali gave an interview with him; however, the Investigation Officer stated that Sahjahan Ali gave his testimony on 19 May 13. The Defense claimed that when Abdus Selim Latif gave his interview to the Investigation Officer, Sahjahan Ali was not even a witness. Regarding charge no 9, the Defense submitted that Sahjahan Ali testified that on his way to his aunt’s house located at Hinu para, he saw three or four women who were almost naked sitting in front of a house; these women were allegedly saying to persons present at the site that they were raped. The Defense raised the question of whether raped women can spend time sitting in front of their house when they are almost naked. The Defense further question the credibility of this witness testimony.

Regarding charge no 9, the Defense submitted that in examination-in-chief, Aminul Islam Dablu, Prosecution Witness 15, testified that his father was killed on 3 December 1971 and that he is currently 45 to 46 years old; his elder (Abdus Salim Latif, Prosecution Witness 14) during his examination-in-chief testified that he (Abdus Salim Latif, Prosecution Witness 14) is now 59 to 60 years old. However, during examination-in-chief, Abdus Salim Latif testified that his younger brother Aminul Islam Dablu (Prosecution Witness 15) is 20 to 22 years younger than him. The Defense claimed that according to the National ID card of his younger sisters, the date of birth of his sisters, Nazma and Suraiya, are 15 December 1973 and 31 December 1976, respectively. The Defense raised a question about the authenticity of their testimonies. The Defense further submitted that Jane Alam Janu gave a memorized testimony before the Tribunal. The Defense stated that during cross-examination, Jane Alam alias Janu, Prosecution Witness 16, testified that the Investigation Officer went to his village and he was interviewed on 19 May 2013. However, Jane Alam alias Janu was then asked by the Defense about the name of fourth month of English year. The witness replied that he could not say because he is illiterate. The Defense then asked the witness to say the date of the next day in the same way he gave testimony on 19 May2013. Jane Alam Janu replied that he could not say.