24thFebruary 2016 – Wednesday -MQA Case in Appellate Division
Before the judges:
Justice Surendra Kumar Sinha – HCJ
Justice S M Hossain – HJ(2)
Justice Md. Hasan Foez Siddique- HJ(5)
Justice Mirza Hossain Haider – HJ (6)
Justice Md. Bazlur Rahman – HJ (8)
Sub: Appeal hearing against the Tribunal Judgment (24th Day of February 2016) – last day of hearing
||Cr Appeal No 144 of 2014
||Mir Quasem Ali (MQA)
09:02am- court proceeding started and all the judges took their seats..
9.03am- AG (Attorney General) started reading written arguments on charge 11.
Chief Justice (CJ) – India contested a case before the ICJ over the dispute over guwan. The Indian counsel was Mr. Jitendar. He was basically a Supreme Court lawyer; he has no idea of International Law. India engaged three internationally reputed lawyers one from England one from Switzerland and one from Netherland. Then the question arose who would argue the case on behalf of India? Jitendar said he had no problem of working under other international lawyers. But the AG of India, I forgot his name, who said you would lead the team. He had no knowledge of international law. But when he started argument, you know he didn’t have any foreign degree just he completed a degree in India. He was master of facts. At that time Dr Zafarullah Khan was a colleague; he invited Mr. Jitendar for the dinner to praise him. But he wrote to a letter saying, ‘sorry I would not attend, since the case is still pending for hearing’. India initially thought he would give verdict against India but later it turned out to be it is he who raised the voice for India and India won the case.
AG: The other reason for Dr Zafarullah Khan to give verdict for India was that he was a member of the Ahmedia Community, they were persecuted in Pakistan but was safe to practice their faith in India.
CJ: when we read these legal philosophies when we read about these heroes, then it seems I am nothing.
AG continued reading arguments on Charge-11.
CJ: When you are command in superior, the responsibility of superior automatically come to you.
AG was explaining why Dr Rajib Humayun, the brother of murdered victim jashim, could not testify as a Prosecution Witness.
AG – your lordships can take notice of the fact that Dr Rajib Humayun supports white panel is Dhaka University which is supporter of Bangladesh Nationalist Party (BNP) and Bangladesh Jamaat-e-Islami. This is why he did not testify (to support the prosecution case).
CJ: Many things change by passage of time (he seems to have had accepted this explanation given by AG).
HJ(3): Charge 11 is for abduction torture and murder of jashim. But is there any evidence that appellant abducted jashim, tortured or killed Jashim? Can we justify death sentence here?
AG: (with very angrily and loudly) of course. There are evidences of many people who saw Jashim in Dalim Hotel. This is a trial under special law. You don’t need to look for direct evidence to award death sentence.
HJ(3) Is there any direct evidence to say that appellant killed jashim ?
CJ hurriedly came forward to stop HJ(3) from asking more question.
CJ: – AG your argument would be that we should look into gravity of the offence. If the offence is proved then we may award death sentence. In Qader Mollah’s case we have observed this. The appellant’s participation need not be material. We should see whether he was Al-Badar. You may proceed with your written argument. You may reply when you make your oral submissions.
AG started reading written argument on charge-12 (Killing of Tuntu Sen and Ranjit Das- where the appellant was awarded Death sentence by a split judgment)
AG started reading written argument charge no 14 (Abduction, confinement and torture of Nasirudding Chowdhury-PW-3).
AG started reading written argument on Alibi.
AG started reading written argument on whether defence should be allowed to get benefit of previous inconsistent statement of a Prosecution witness (PW) – he showed that in Quader Molla and Kamruzzaman cases Appellate Division has already decided that the Appellant would not get that benefit.
CJ – Who passed these judgments? Your Investigation officer? They are incompetent? They don’t know how to record statement of witness. In Saydee’s case you had to rush to Pirojpur and Barishal to collect documents. But your investigation agency could not do that for this trial of Mir Quasem Ali. Defence could produce a series of documentary evidences in support of their alibi (which were all infact prosecution exhibits). But the prosecution and the investigation agency were very incompetent. The appellant, prosecution, investigation agency should be put together in the same dock.
AG started reading written argument on the issue that in war crimes cases the court can rely upon weak type of evidences.
AG – Now I will show you a document collected yesterday. This documents show that the Appellant spent US $ 25 million in a US lobby Firm called Cassidy & Associate to void this war crime trial process.
(AG gave copies of the alleged contract to the judges. Appellant’s counsel SM Shahjahan (SM) wanted a copy – but AG replied that it is a classified document and you will not get a copy. Then Senior counsel Khandker Mahbub Hossain (KM) requested for a copy and AG supplied copies of the documents. These are an alleged contract with Cassedy & Associate appointing them a lobbyist in USA)
CJ – have you filed any money laundering case against him?
AG – I don’t know.
KM – these are fabricated allegations which were reported in news papers supporting government. Then the Anti Corruption Commission investigated the matter and found no truth in the allegation.
AG – The appellant is a very wealthy man. He can manage everything. He engaged lobbyist firm in USA to foil the trial process of the war criminals.
KM – these are false allegations and found to be untrue.
CJ: recently two newspaper published by quoting two former chief justice of America that American judiciary has become very commercialized. 53% litigants lost their cases because of lawyer’s inefficiencies. American bar is very commercialized and politicized. It has no credibility at all. You can do anything you want by spending money there. When a Supreme Court judge died there, president Obama was threatened by the congress. American judiciary is now highly commercialized and entirely politicized. They have no credibility left. I recently said this when addressing a program. Justice system in USA will fail in next century.
AG – In Sayedee judgment at page 134-135 you made some observation that you can take judicial notice of fact of common knowledge that the Appellant was a Powerful person and the witnesses were in fear to give evidence against him. This applies in the present case also.
CJ – (with proud) – who passed these judgments? Your prosecutors? (he said in a sarcastic tone)
A.G- by giving suggestion to PWs defense accepted that the Appellant was in Chittagong. Only two prosecution documents to show that he was in Dhaka to give statements. Statements can be made from anywhere. If you are in Chittagong it can be made from Dhaka.
HCJ(3): but he was not that influential leader who could give any statement from a different place. So when it is reported that he is giving a statement from Dhaka – we cannot decide otherwise in absence of evidence.
AG- but defence by giving suggestion to PW admitted that the Appellant was in Chittagong.
CJ- I find it out during their argument. Now you are using it.
AG – we are greatful to your lordships.
CJ – but from news reports of 24.11.1971 it shows that he was in Dhaka.
AG – it was not impossible to move from Chittagong to Dhaka during that time.
CJ: You have to show how he went to Chittagong after that day. By a military Helicopter? (in a sarcastic tone)
AG: In 1971 there was regular train service from Dhaka to Chittagong.
HCJ(3) – but during November and December 1971 the entire communication was disrupted due to the activities of the freedom fighters.
CJ – What prevented you investigation officer to bring a witness to say that after 24.11.1971 the Appellant travelled back to Chittagong. They are incompetent. Prosecution dealt with this case half-heartedly.
AG – I agree with you. I was looking into the order-sheet of this case. There was no chain of command in the prosecutors. Different prosecutors examined witness on different day. The closing argument was made by a prosecutor who was not present during trial.
CJ – we are shocked seeing these. They have spent public fund – and this is the type of case they have prepared which is full of contradictions. This case was handled with no responsibility.
AG concluded his argument.
KM – (Appellant’s counsel) – SM will place an argument on command responsibility. Then I will conclude the appeal for the Appellant.
CJ – No. We want to hear you.
SM – I told you earlier that at the end I would place my written argument on Command Responsibility.
CJ – We will hear KM.
SM – in that case you can keep the copy of my written argument on command responsibility. (He handed over the written argument to the Judges and CJ took it very reluctantly).
CJ: We have already decided these issues. (He seems to have made up his mind and he was not willing to hear a single word from SM)
KM started his concluding arguments.
KM – SM has already made detail submissions on charges. I will make concluding remarks on Charge-11 and 12 where death sentences were awarded. I will also make arguments on Alibi defence. (he handed over a written note of his concluding arguments). The charges were defective. In the charge framing order it is alleged that from 19.11.1971 the Appellant committed the alleged offences while being president of Chittagong ICS town unit. But it is evident from the prosecution exhibited document shows that after 07.11.1971 he was no longer president of Chittagong Islami Chattra Shangha (ICS) town unit as he was promoted as General Secretary (GS) of central ICS and moved to Dhaka. The Tribunal was under misconception that during the alleged occurrences he was in charge of Chittagong ICS. But the prosecution exhibited document it is evident that after 07.11.1971 Mr. Abu Taher was president of Chittagong ICS.
CJ: we have already decided in other cases that if there is a little error in the charge framing it doesn’t matter. Please give reply to our queries. Why you did not give suggestion of denial to PW-17 (witness of Charge-11).
KM – it is not correct. We suggested denial to PW-17 denying the allegations.
CJ – this general denial was not sufficient.
KM – but this is how the Tribunal advised us to give denial to PWs. They did not allow us to give detail suggestion of each assertions of denial to PWs.
Court went for 30 minutes recess.
11.30am- court resumed.
CJ: The tribunal recorded demeanor of PW-17 that she was crying at the time of here examination in chief.
KM – she was complaining about killing of her cousin (Jasim) – but she admitted that she was an editor of a daily news paper called ‘Sikrity’ during 1972-1975 and she also admitted that she did not write anything about the incident of Charge-11 or Dalim Hotel in that news paper. How can you rely such witnesses. Moreover she is a hearsay witness allegedly heard about the alleged incident after three months.
CJ: Ok, come to PW-8 (interrupting without allowing KM to finish). You also did not give ‘proper’ denial to him.
KM: We certainly rely on Prosecution Witness-8 – it is evident for this witness that the Appellant was not the ‘Khan Shaheb’ as alleged. He also said that during November-December 1971 the communication between Dhaka and Chittagong was seriously disrupted. The prosecution did not call him hostile.
CJ – ok, come to next point (without allowing KM to finish) – you did not deny that you were not leader of ICS.
KM – yes. This is fact. The Appellant cannot be prosecuted for his political belief.
CJ: if you admit to be ICS that means you were Al Badar. We have held this in other cases. Al Badar was a killing squad so he has to take all these responsibility.
KM – But we showed you from the prosecution document that the Appellant was not in charge of Chittagong ICS during that time. Investigating Officer admitted that the police report of 1972 to 1975 does not show that the Appellant was Al badar.
CJ was bombarding KM with questions without allowing him time for full reply of the previous question.
(While these serious injustices were talking place, the appeal hearing was interrupted by a thunderstorm outside- the doors and windows were shuttering – as if someone is knocking at the door of the court room. KM was still presenting although nothing could be heard due to the haulage of this gruesome storm.)
KM: you have said that there are serious weaknesses in the prosecution case. You have now two options. Either to send this case on remand for a retrial, or you have to acquit the Appellant giving him benefit of doubt as the charges are not proved.
CJ – if we send this case on remand for retrial then the evidences those were presented before us may not even come back. The Investigation Officer (IO) may give statement in your support that the Appellant was never seen in Chittagong altogether. Its your good luck that IO did not say anything against the Appellant. We are very impartial. We make our decision behind closed doors.
KM: there is no direct evidence against the Appellant. He was not involved in the alleged offences.
CJ: Don’t say that he is not involved. You may say that this is not a case for death penalty. (CJ was arguing against each and every submissions of KM).
KM: if there is any doubt it goes to the defense.
CJ: hearing concluded, judgment on 02.03.2016.
The Appellant’s counsel left the court room.
1.10 pm – one Deputy Attorney General visited KM’s chamber and informed him that CJ was calling him as he wanted to change the date of judgment. KM rushed to court.
CJ – I am busy on 02.03.2016 and I have to visit foreign country after that. The date of judgment is changed to 08.03.2016.
KM – as you wish.
(Senior Advocate Khandakar Mahbub assisted by Barrister Tanvir Ahmed Al Amin and Barrister Mir Ahmad BinQuasem)