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    Posted February 12, 2013 by
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    Verdict against Abdul Qader Mollah: a brief overview

     
    International Crimes Tribunal-2 (ICT-2) delivered its judgment on February 5, 2013 and gives Abdul Quader Molla imprisonment for life for committing crimes against humanity perpetrated during our liberation war in 1971. The Tribunal is constituted under section 6(1) of the International Crimes (Tribunals) Act 1973 and it is constituted as a domestic judicial forum for the prosecution of crimes against humanity perpetrated in 1971. Proceeding against Abdul Quder Molla was commenced on December 18, 2011 and the prosecution filed formal charge against the accused under Section 9(1) of the Act and the Tribunal accordingly took cognizance of offences (Rule 29 of Rules & procedure).

    Accordingly the Tribunal framed six charges against Quader Molla namely (1) murder of Bangla College student Pallab, (2) Murder of pro-liberation poet Meherunnesa, her mother and two brothers, (3) murder of Khandoker Abu Taleb, (4) Murder of 100 people in Ghaton Char (Shaheed Nagar), (5) Murder of 344 people in Mirpur, (6) Murder of Hazrat Ali, his family and Rape.

    The counsel for the accused firstly raised question about the jurisdiction of the ICT to prosecute trial of ordinary people rather armed forces of Pakistan. As per section 3(1) of the Act it any person (irrespective of nationality) who commits crimes against humanity [3(1)(a)]; crimes against peace [ 3(1)(c)]; commits attempt, abetment or conspiracy to commit any such offence [3(1)(g)]. Moreover section 4 of the Act provides any crime as justified in Section 3 is committed by several persons, each of such person is liable for that crime in the same manner as if it is done by him alone. The Tribunal noted the argument put forward by the prosecution that there is no such mention that without prosecuting the Pakistan armed forces, any other person cannot be prosecuted.

    The purpose of the Act was also a matter of question to be determined. The counsel for the accused argued that the intention for passing the Act of 1973 who to prosecute and try 195 listed soldiers of Pakistan armed force and not to civilians. The soldiers were set free and allowed to go back to Pakistan and now using this law to prosecute civilians is against the spirit of this legislation. The defense argued the existence of section 3(1) proves the intention of the Parliament was to try any person was there from the beginning. The Tribunal noted the second argument and also considered the protection given in Article 47(3) of the Constitution to the Act of 1973 which was enacted to prosecute try and punish the perpetrators of atrocities committed in 1971 war of liberation. Moreover the defence Counsel argued that the accused would have been prosecuted and tried under the Collaborators Order 1972 and prosecution under the Act of 1973 is malafide and for political purpose. However the Tribunal is of the view that the Collaborators Order 1972 was a different statute and offences under Penal Code were scheduled there. There is no scope to fit the offences of crimes against humanity, genocide and with the crimes underlying the Act within the Penal Code. It can be said that in that the Penal Code or Collaborators Act can be amended and they can be prosecuted therein.

    Now let’s shed some light on the adjudication of individual charges. In charge no. 1 the Tribunal was of the view that defence failed to refute the incident of murder of Pallab on the date and time in the manner as been alleged. Moreover it finds Quader Mollah was culpably associated with principal offenders i.e. some extremists who during the early part of the liberation war committed serious crimes including Pallab killing. In case of charge no. 2 defence counsel argued that PW-2, PW-4 and PW-10 are the hearsay witnesses who have testified in support of the charge, PW-4 Kazi Rosy is a Book title “Shahid Kabi Meherunnessa” published in June 2011 did not incriminate the accused for the alleged killing and she even in her earlier statement to IO has not stated anything incrementing the accused. The prosecution conversely has submitted that PW-4 is quite reliable witness and her hearsay evidences coupled with other proved relevant facts and circumstances carries reasonable probative value. The Tribunal notes that hearsay evidence, under Act of 1973 is admissible and they have jurisdiction to act upon it if it is found to have reasonable probative value. Moreover defence has not able to offer a hint by cross-examination the prosecution witness, that the murder was not part of planned or systematic attack and it was an isolated crime. In respect of charge no. 3 Tribunal was satisfied after considering the evidence that the accused Quader Molla was present within the vicinity of the crime scene and involved with the commission of the alleged brutal killing. In respect of charge no. 4, the Tribunal notes that PW-1 & PW-7 lose weight and PW-8 even did not know the accused and heard from PW-7 that her husband was killed by Quader Molla. Her identification evidence after 41 years was also poor and prosecution failed to prove the same beyond reasonable doubt. Therefore the Tribunal unanimously notes that Quder Molla is not guilty in respect of charge 4. In case of charge no. 5 the prosecution alleged that the accused Qader Molla along the Pakistani armed forces conducted indiscriminate fire which caused mass killing of 344 people in Alubdi. In support they adduced two witnesses PW-6 and PW-9 who claimed that they were the live witnesses of the atrocities. Tribunal noted that through the cross examination defence dislodge the fact alleged and affirmed that the accused Quader Molla with full awareness of the consequence of the attack has participated and accompanied the principals to assist the execution of the operation. In charge no. 6 there was only one witness and she is the daughter of Hazrat Ali (victim). She told before the Tribunal about the horrifying incident of killing of his whole family and rape of her sister.

    The accused has raised the defense of alibi claiming that he had stayed at his native village at Faridpur since middle of March 1971 till November/December 1972. However due to contradictory suggestions put by the prosecution witnesses and from some admissions of defences witnesses the Tribunal finds the accused miserably failed to prove his defense of alibi.
    The offences narrated in charge nos. 1, 2, 3, 5 and 6 took place between 26th March 1971 to 24th April 1971. Only one event narrated in charge 4 allegedly took place on 25.11.1971. The Tribunal also found Quader Molla physically accompanied the principals and acted with knowledge and common intention or had complicity to the commission of those atrocities relating to charge nos. 1, 2, 3 and 6. Quader Molla committed the crimes narrated in charge 5 in the capacity of an ‘armed member’ of group of individuals. The tribunal concludes that it takes notice of the intrinsic magnitude of the offence of murders as crimes against humanity being offences which are predominantly shocking to the conscience of mankind. It further noted the mode of participation of the accused towards the commission of the crimes proved and the gravity of the offence and degree of responsibility of the offender. The Tribunal showed its view that justice be met if for the crimes listed in charge no. 5 and 6, for which the accused found guilty beyond reasonable doubt, imprisonment for life is condemned. Further the Tribunal gives sentence of imprisonment for fifteen years for the crimes listed in charge nos. 1, 2 and 3 under section 20(2) of the Act. The accused though found not guilty for charge No. 4. Since he received imprisonment for life, the sentence of imprisonment for 15 years will naturally get merged into the sentence of imprisonment for life.

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