1 International Crimes Tribunal-1 (ICT-1) Old High Court Building, Dhaka, Bangladesh. ICT-BD Case No. 01 OF 2011 ( Charges:- CrimesChief Prosecutor Versus Delowar Hossain Sayeedi

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International Crimes Tribunal-1 (ICT-1)
Old High Court Building, Dhaka, Bangladesh.
ICT-BD Case No. 01 OF 2011
( Charges:- Crimes against Humanity and genocide as specified in
section 3(2)(a) and 3(2)(c)(i)(g)(h) of the Act of XIX of 1973)
The Chief Prosecutor

Versus
Delowar Hossain Sayeedi
Present:
Mr. Justice A.T.M. Fazle Kabir, Chairman
Mr. Justice Jahangir Hossain, Member
Mr. Justice Anwarul Haque, Member
Date of delivery of Judgment 28 February, 2013.
Prosecutors:-
Mr. Golam Arif Tipu, Chief Prosecutor
Mr. Syed Haider Ali,
Mr. Abdur Rahman Howlader,
Mr. Altab Uddin Ahmed,
Mrs. Nurjahan Begum Mukta,
Mr. A.K.M. Saiful Islam,
Mr. Shahidur Rahman
Mr. Sultan Mahmud
Mr. Hrishikesh Saha
Mr. Mir Iqbal Hossain
Defence Counsels:-
Mr. Md. Abdur Razzak Senior Counsel with
Mr. Mizanul Islam,
Mr. Monjur Ahmed Ansari,
Mr. Kafil Uddin Chowdhury,
Mr. Tajul Islam,
Mr. Tanvir Ahmed Al-Amin,
Mr. Imran Siddique,
Mr. Abu Bakar Siddique
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Summary Judgment
(Under section 20(1) of the Act XIX of 1973)
I. Introduction:-
1. It is a remarkable occasion that after creation of this Tribunal-1, today it
is going to deliver the first judgment of the first case after completion of its
trial. This Tribunal was established under the International Crimes (Tribunals)
Act, enacted in 1973 (hereinafter referred to as the Act) by Bangladesh
parliament to provide for the detention, prosecution and punishment of
persons for genocide, crimes against Humanity, war Crimes and other Crimes
under International law committed in the territory of Bangladesh during the
War of Liberation particularly between 25th March to 16 th December 1971.
II. Commencement of proceedings.
2. It is evident on record that the learned Chief prosecutor having received
investigation report along with documents therewith by the Investigation
Agency, Submitted the formal charge along with documents to this Tribunal on
11.7.2011 under section 9(1) of the Act of 1973. Sole accused Delowar
Hossain Sayeedi was in the custody in connection with other cases. He was
produced before the Tribunal on 14.07.2011 following a production warrant
issued by this Tribunal on that date, on perusal of the documents submitted by
the prosecution, this Tribunal took cognizance of offence against the accused
as mentioned under section 3(2)of the Act as required under Rule 30 of the
Rules of procedure (ROR) on hearing of the learned lawyers of both the sides,
this Tribunal framed charges against accused Delowar Hossain Sayeedi on
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03.10.2011 under sections 3(2) (a) and 3(2)(c i), (g)(h) of the Act which are
punishable under section 20(2) read with section 3(1) of the Act. The charges
framed were read over and explained to the accused on dock to which he
pleaded not guilty and claimed to have fair justice and thus the trial started.
III. Historical Background:-
3. In 1971, during the War of Liberation of Bangladesh, atrocities in a large
scale, crimes against Humanity, War Crimes and genocide were committed by
Pakistani forces, auxiliary forces and their associates which resulted the birth of
Bangladesh as an independent country. It was estimated that during nine
month long War, about three million people were killed, nearly quarter million
women were raped, and over 10 million people were deported to India causing
brutal persecution upon them.
4. In the general election of 1970, the Awami League under the leadership
of Bangabandhu Sheikh Mujibur Rahman won 167 seats out of 300 seats of the
National Assembly of Pakistan and thus became the majority party of Pakistan.
Of the 300 seats 169 were allocated to East Pakistan of which Awami League
won 167 demonstrating an absolute majority in the Parliament. Despite this
overwhelming majority, Pakistan government did not hand over power to the
leader of the majority party as democratic norms required. As a result,
movement started in this part of Pakistan and Bangabandhu Sheikh Mujibur
Rahman in his historic speech of 7th March, 1971 called on the people of
Bangladesh to strive for independence if people’s verdict is not respected and
power is not handed over to the leader of the majority party. On 26th March,
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following the onslaught of “Operation Search Light” by the Pakistani military
on 25th March, Bangabandhu declared Bangladesh independent immediately
before he was arrested by the Pakistani authorities.
5. With this declaration of independence, the war to liberate Bangladesh
from the occupation of Pakistan military began that ended on 16th of
December 1971 with the surrender of all Pakistani military personnel present in
Bangladesh before the Joint Indian and Bangladeshi forces in Dhaka. In the
War of Liberation that ensued, all people of East Pakistan wholeheartedly
supported and participated in the call to free Bangladesh but a small number of
Bangalees, Biharis, other pro-Pakistanis, as well as members of a number of
different religion-based political parties joined and/or collaborated with the
Pakistan military to actively oppose the creation of independent Bangladesh.
Except those who opposed, Hindu communities like others in Bangladesh,
supported the Liberation War which in fact drew particular wrath of the
Pakistani military and their local collaborators, who perceived them as pro-
Indian and made them targets of attack, persecution, extermination and
deportation as members belonging to a religious group.
6. As a result, 3 million (thirty lacs) people were killed, more then 2(two) lakh
women raped, about 10 million (one crore) people deported to India as
refugees and million others were internally displaced. It also saw unprecedented
destruction of properties all over Bangladesh.
7. In order to bring to justice the perpetrator of the crimes committed in
1971, the International Crimes (Tribunals) Act, 1973 was promulgated.
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However, no Tribunal was set up and no trial took place under the Act until
the government established this International Crimes Tribunal on 25th of
March 2010.
IV. Brief account of the accused:-
8. Accused Delowar Hossain Sayeedi alias Delu son of late Yousuf Ali
Sayeedi of village –South Khali, Police Station Indurkani (Zianagar) Dist.-
Pirojpur was born on 01.02.1940 in his village. He passed Dhakil Examination
from Darns Sunnat Madrasha Sarsina in 1957 and he also passed the Alim
Examination in 1960 from Barroipara Madrasha. He has got one wife and four
sons. He was elected Member of the parliament in the election held in 1996
and 2001. He joined Jamaat-e-Islam and now the Nayb-e-Amir of Jamaat-e-
Islami Central Committee. He is a writer by profession.
V. Jurisdiction of the Tribunal:-
9. The International Crimes (Tribunals) Act, 1973 has empowered the
Tribunal to prosecute and punish not only armed forces but also the
perpetrators was belonged to auxiliary forces or who committed the offence as
an ‘individual’ or a group of individuals and no where in the Act it has been
said that without prosecuting the armed forces (Pakistani) the person or the
group of persons having any other capacity specified in section 3(1) of the Act
cannot be prosecuted. Rather, it is manifested in section 3(1) that even any
person if he is prima-facie found criminally responsible for the offences
specified in section -3(2) of the Act can be brought to justice. Thus, the
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Tribunals set up under the Act of 1973 are absolutely domestic Tribunal but
empowered to try internationally recognized crimes committed in violation of
customary international law.
VIII. Procedural History:
10. At pre-trial stage, a complaint petition was filed by one Md. Mahbubul
Alam Houlader on 20.07.2010 with the investigation agency constituted under
section 3(1) of the Act of 1973. Accused Delowar Hossain Sayeedi was in the
jail custody in connection with other criminal cases pending in different courts
of Bangladesh. This Tribunal issued production warrant against the accused
and he was produced before this Tribunal on 2.11.2010 by the prison authority.
Several bail applications filed by the accused were disposed of in accordance
with law in presence of the accused and the learned lawyers of both the parties
upon hearing an application filed by the accused, this Tribunal directed the
prison authority to arrange proper treatment of the accused in Bangabandhu
Sheikh Mujib Medical University Hospital (BSMMU) and accordingly he was
provided proper treatment thereof. The accused informed the court that he
being a diabetic patient needs treatment in BIRDEM Hospital. Then this
Tribunal allowed the accused to have treatment in BIRDEM Hospital. The jail
authority was directed to provide green vegetable as specialized food to the
accused considering him to be a diabetic patient and also directed to provide
health friendly vehicle to the ailing accused for his transport.
11. On the basis of investigation report, the chief prosecutor submitted
formal charge on 11.07.2011 against the accused before this Tribunal. It is
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alleged that the accused as a member of group of individuals as well as a
member of Rajakar Bahini Committed crimes against Humanity, genocide and
other Crimes in different places of the then Pirojpur Sub-division. This
Tribunal upon consideration of the formal charge and documents attached
therewith took cognizance of offence on 14.07.2011. An application on behalf
of the accused was submitted for discharge of him. Hearing on charge matter
was continued for four days by the learned lawyers of both the parties. After
completion of hearing on charge matter, the application for discharge of the
accused was rejected and as many as 20 charges under section 3(2) a and 3(2)
(c)(i) (g) (h) of the ICT Act of 1973 were framed on 03.10.2011 against accused
Delowar Hossain Sayeedi.
X. Witnesses adduced by the parties:-
12. The prosecution submitted a list of 138 witnesses including formal
witnesses while the defence submitted a list of 48 witnesses in support of
defence case. At the time of trial, the prosecution examined 28 witnesses of
whom 20 were witnesses of occurrence, 07 were seizure list witnesses and one
was the investigation officer. On the other hand, this Tribunal allowed the
defence to examine maximum 20 witnesses but it examined 17 witnesses of
whom 14 were listed witnesses and the rest three were examined by the defence
with the permission of the Tribunal. It may be mentioned that out of said three
witnesses one was the listed prosecution witness but he deposed as a defence
witness.
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XIII. Summing up the prosecution case by the
prosecutor:-
13. Mr. Syed Haider Ali, the learned prosecutor contents that as many as 20
charges relating to crimes against Humanity, genocide and other crimes
described under section -3(2) of the Act, were framed against accused Delowar
Hossain Sayeedi who committed the said crimes within Pirozpur Sub-Division
during the War of Liberation of Bangladesh. The accused as a member of
group of individuals as well as a member of local peace committee and
sometimes as a member of Razakar Bahini took part in killing, torture, rape,
looting, setting fire on the houses of civilians, forceful conversion of Hindus to
Muslims and systemic attack on the Hindu community with intent to destroy it
. It is further contended that the prosecution has successfully proved 19
charges by oral testimony and documentary evidence and 5 charges namely
charges 1-4 and 13 have been proved by statements for want of live witnesses
those charges have been proved by the statements of witnesses, recorded by
the investigation officer as per provision of section 19(2) of the Act.
XIV. The Summing up the defence case by the
counsel:-
14. Mr. Abdur Razzak, the learned senior counsel for the defence
submits that in committing international crimes, attack must be
widespread or systematic with a clear knowledge about commission of
offence but the Act does not contemplate this and crimes are not
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adequately defined as such alleged charges suffer from vagueness and
element of crimes are hopelessly absent. It is contended that the accused
used to live in Jessore upto June 1971, thereafter he went to Pirojpur in
the Month of July and he never joined the local peace committee or
Rajakar Bahini or took part in any attrocities committed by Pakistan
Army. It is contended that the Government of Bangladesh made press
release on 17.4.1973 and accordingly enacted the International Crimes
(Tribunals) Act 1973 in order to try only 195 war criminals and the then
Government passed the collaborators order 1972 aiming at to try the
civilians responsible for the offence and as such the accused as a civilian
could be tried under collaborators order but the present Government with
a malafide intention has brought the case against him though such
proceeding is barred by the tripatriate agreement dated 02.07.1972 where
clemency was granted to the War Criminals. It is further argued that the
prosecution has committed delay of about 40 years in bringing criminal
charge against the accused without explanation and as such unexplained
inordinate delay is sufficient to disbelieve the prosecution case. It is
submitted that the Tribunal received statement of 16 witnesses in
evidence recorded by the investigation officer under section 19(2) of the
Act, though those witnesses were available in their locality. It is lastly
contended that recently skype conversations between the former
Chairman of this Tribunal with one Ahmed Ziauddin which go to show
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that the order of framing charge and other 4 orders were transmitted
from Belgium and as such the defence has been materially prejudiced by
such unfair process of the Trial.
XVI. Discussion and decision:-
15. Before discussing the charges brought against the accused, we
consider it expedient to address some of the legal issues upon which the
learned counsel for the defence drew our attention.
Tripatrite Agreement and immunity to 195 Pakistani war criminals:-
It is not acceptable to say that no individual or member of auxiliary
force as stated in section 3 of the Act of 1973 can be brought to justice
under the Act for the offence (s) enumerated therein for the reason that
195 Pakistani war criminals belonging to Pakistan Armed Force were
allowed to evade justice on the strength of ‘tripartite agreement’ of 1974.
Such agreement was an ‘executive act’ and it cannot create any clog to
prosecute member of ‘auxiliary force’ or an ‘ individual’ or member of
‘group of individuals’ as the agreement showing forgiveness or immunity
to the persons committing offences in breach of customary international
law was derogatory to the existing law i.e the Act of 1973 enacted to
prosecute those offences.
16. Delay in bringing prosecution
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From the point of morality and sound legal dogma, time bar should
not apply to the prosecution of human rights crimes. Neither the
Genocide Convention of 1948, nor the Geneva Conventions of 1949
contain any provisions on statutory limitations to war crimes and crimes
against humanity. Article 1 of the Convention on the Non-Applicability of
Statutory Limitations to War Crimes and Crimes Against Humaniry
adopted and opened for signature, retification and accession by General
Assembly resolution 2391 (XXIII) of 26 November 1968 provides
protection against even any statutory limitation in prosecuting crimes
against humanity, genocide etc. Thus, criminal prosecutions are always
open and not barred by time limitation.
17. It may be cited here that the second world war was concluded in
1945 but still the Nazi War Criminals are being prosecuted. Similarly, the
trial of internationally recognised crimes committed during Chilean
revolution in 1973 is still going on. Internationally recognised crimes were
also committed during Pol Pot regime of Cambodia in the year 1973 to
1978 but due to internal conflicts and lack of political will of the then
government could not start prosecution against the perpetrators in time.
The Royal Government of cambodia waited 25 years for attaining a strong
political will, thereafter in association with the United Nations, they
established a Hybred Tribunal and thus trial against the perpetrators was
started in 2003 which is still going on. In fact, the criminal prosecution as
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regards international crimes is always open and not barred by any time
limit. The sovereign immunity of Slobodan Milosevic of Serbia, Charles
Taylor of Liberia and Augusta Pinochet of Chile, as the head of the state
could not protect them from being detained and prosecuted for
committing genocides, crimes against Humanity and war crimes.
18. In view of above settled position and in the absence of any
statutory limitation, as a procedural bar, only the delay itself does not
preclude prosecutorial action to adjudicate the culpability of the
perpetrator of core international crimes. Indubitably, a prompt and
indisputable justice process cannot be motorized solely by the painful
memories and aspirations of the victims. It requires strong public and
political will together with favourable and stable political situation. Mere
state inaction, for whatever reasons, does not render the delayed
prosecution readily frustrated and barred by any law.
19. Considerations of material justice for the victims should prevail
when prosecuting crimes of the extreme magnitude is on the process.
Therefore, justice delayed is no longer justice denied, particularly when
the perpetrators of core international crimes are brought to the process of
justice. However, there can be no recognized theory to insist that such a
‘system crime’ can only be perused within a given number of years.
However, delay may create a doubt but the matter is addressed after
taking all the factual circumstances into consideration.
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XVII. Whether accused Delowar Hossain Sayeedi
was a member of local Razakar Bahini /Peace
Committee?
20. It is a fact of common knowledge that during the War of Liberation
in 1971, Pakistani Occupation forces organized auxiliary forces namely ,
Razakar , Al-Bador, Al-Shams and Peace Committee for the purpose of
their operational support in implementing its atrocious activities in
furtherance of making policy to execute their missions. The Razakar
Bahini was composed of mostly pro-pakistani Bangalee Razakars who
actively associated with many of the atrocities committed by Pakistani
Army during nine-month of the War of Liberation.
21. Now let us discuss the oral and documentary evidence produced by
the prosecution as to proving the accused as a member of local Razakar
Bahini.
22. P.W. 1 Md. Mahbubul Alam Howlader deposed that during Liberation
War, 1971, Parerhat Peace Committee was formed with accused Delwar
Hossain Sayeedi and some others who were against the independence of
Bangladesh. He also deposed that Razakar bahini was formed there with some
members of the said Peace Committee including accused Delwar Hossain
Sayeedi and some students of different Madrasas and members of different
organizations who were against the independence of Bangladesh.
23. P.W. 2 Ruhul Amin Nobin deposed that during Liberation War, 1971, a
Peace Committee was formed at Parerhat with accused Delwar Hossain Sayeedi
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and others. He also deposed that a Razakar bahini was also formed there under
the leadership of accused Delwar Hossain Sayeedi, Sekander Ali Sikder, Danesh
Ali Molla, Mowlana Moslehuddin and some other anti-liberation people with
intent to kill the supporters of Liberation War and freedom-fighters.
24. P.W. 3 Md. Mizanur Rahman Talukder deposed that during Liberation
War, 1971, accused Delwar Hossain Sayeedi along with his accomplices
(Razakars) tortured his brother Abdul Mannan.
25. P.W. 4 Sultan Ahmed Howlader deposed that on 1st May, 1971, he
having gone to his village home he came to know that leaders of Jamat-EIslami
namely Sekander Ali Sikder, Danesh Ali Molla, accused Delwar Hossain
Sayeedi and Moslem Mowlana, formed a Peace Committee at Parerhat. Under
the leadership of accused Delwar Hossain Sayeedi, a Razakar bahini was also
formed at Parerhat with the students of different Madrasas, workers of Jamaat-
E-Islam and the persons of different anti-liberation organizations.
26. P.W. 5 Md. Mahtabuddin Howlader deposed that during Liberation War,
1971, Md. Moslemuddin, accused Delwar Hossain Sayeedi, Danesh Molla and
Sekander Sikder formed Peace Committee. He also deposed that 2/3 days after
the Peace Committee having been formed the said persons themselves formed
Razakar bahini.
27. P.W. 6 Manik Posari deposed that during Liberation War, 1971, Razakar
bahini and Peace Committee were formed and, accused Delwar Hossain
Sayeedi formed the Peace Committee at Parerhat with the persons who were
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against the Liberation War, and thereafter the members of said Peace
Committee formed Razakar bahini.
28. P.W. 7 Md. Mofizuddin Posari deposed that during Liberation War,
1971, there were people of Razakar bahini and Peace Committee in their area
and he knew them. He further deposed that the goods of the house of
Saijuddin Posari were burnt by kerosene oil at the direction of Razakars,
namely, Sekander Sikder, Danesh Molla, Mobin, Razzaque, Delu Sikder
(accused Delwar Hossain Sayeedi) and some other Rajakars. He identified the
accused in the dock.
29. P.W. 8 Mostafa Howlader deposed that during Liberation War, 1971,
accused Delwar Hossain Sayeedi was a member of Peace Committee and
Rajakar bahini and he along with the members of Peace Committee and
Razakar bahini looted the goods of the houses and shops of Hindus of
Parerhat.
30. P.W. 9 Altaf Hossain Howlader deposed that on 7th May, 1971, Pakistani
Army came to Parerhat and, 6/7 days prior to their arrival, a Peace Committee
was formed at Parerhat and thereafter accused Delwar Hossain Sayeedi himself
formed Razakar bahini there with the members of the Peace Committee.
31. P.W. 10 Basudev Mistri deposed that during Liberation War, 1971,
accused Delwar Hossain Sayeedi, Sekander Sikder, Danesh Molla, Moslem
Mowlana, Hakim Kari, Ruhul Amin, Momin along with others formed a
Razakar bahini at Parerhat. He identified the accused in the dock.
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32. P.W. 11 Abdul Jalil Sheikh deposed that on 8th May, 1971 he saw that
some Razakars including Rajakar Delwar Hossain Sayeedi (accused) along with
10/15 Pakistani Army having come to their village Chitholia, proceeded to the
house of Manik Posari and then the accused along with two other Rajakars
caught hold of Kutti and Mofizuddin therefrom and tied them with rope and
then they looted the goods of that house and, thereafter they having poured
kerosene oil burnt that house.
33. P.W. 26 Abed Khan is a journalist. He deposed that he was the editor of
Dainik Samokal in 2007; that on 10.02.2007 a news report was published on
the first page of that daily newspaper under the headline “Rvgvqv‡Zi MWdv`viiv
aiv †Qvqvi evB‡i ” about four persons and of them accused Delwar Hossain
Sayeedi was number one. He further deposed that it was reported in the
newspaper amongst others accused Delwar Hossain Sayeedi had formed
Razakar bahini at Parerhat Bondar.
34. Ext. 35 is a list of Razakars, prepared by Dr. M. A. Hasan, Convener,
War Crimes Facts Finding Committee, Truth Commission For Genocide in
Bangladesh, the name of accused Delwar Hossain Sayeedi appears to have been
in the said list under district Pirojpur.
35. Dr. M.A. Hasan, as one of the researchers on war crimes wrote a book
named “ hy×vcivaxi ZvwjKv I wePvi cªmsM” published in February 2009 in which the
name of Delowar Hossain Sayeedi has been published at page No. 148 as one
of the Razakars of District Priojpur. The defence side has filed a book named
“Santi Committee 1971” (Exhibit NO. FV) in the case of Professor Ghulam
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Azam which also speaks that the name of Delowar Hossain Sayeedi has been
listed as one of the Razakars of District Pirozpur.
36. Ext. 8 is an issue dated 05.03.2001 of the Bengali Daily Janakantha
wherein a staff report under the caption “GKvˇii ÔivRvKvi w`Bj−vÕ GLb gvIjvbv
mvC`x” was published which reads as follows:
“‡bK‡o †hgb Q`oe‡ek wb‡jI †bK‡oB †_‡K hvq, †Zgwb GKvˇii
bicï ivRvKvi-Avje`iiv ¯^vaxbZvi ci †fvj cvëv‡bvI bicï
ivRvKvi-Avje`iB †_‡K ‡M‡Q| wc‡ivRcy‡ii GKvˇii ÔivRvKvi
w`Bj−vÕ ¯^vaxbZvi ci RbMY‡K ag©K‡g©i K_v ïwb‡q ÔgIjvbv mvC`xÕ
n‡jI Zvi Aa‡g©i AcK‡g©i KjsK wÎk eQi ciI gy‡Q hvqwb| GLb
mvC`xiv GKvˇii ¯^vaxbZvwe‡ivax `vjvj-NvZK-al©‡Ki wbg©gZv
b„ksmZvi fqsKi cÖZxK| MYnZ¨v, jyÉb, AwMoems‡hvM, wbcxob BZ¨v`xi
gva¨‡g Giv RvZxq gyw³ msMÖv‡gi we‡ivwaZv K‡i‡Q| G mZ¨ †_‡K Giv
cjvqb Ki‡Z cv‡i, wKš‘ mZ¨ wbôzifv‡e Avg„Zy¨ Zv‡`i avIqv K‡i hv‡e|
¯^vaxb evsjv‡`‡ki BwZnv‡m GB mvC`x‡`i bvg D”PvwiZ n‡e mxgvnxb
N„bvq|
……………………………………………………………………………
………………………………………………………………………………………
………………………..”
37. Ext. 11 is an issue dated 04.11.2007 of the Bengali Daily Bhorer Kagaj
wherein a staff report under the caption “ivRvKv‡ii GKvËibvgv 7-nZ¨v al©Y jyUcv‡U
Awfhy³ †`‡jvqvi †nv‡mb mvC`xÓ was published which runs as follows:
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“………………………………………………………………………………………………
……………..………………………….………1971 mv‡j gnvb gyw³hy×Kv‡j wZwb
a‡g©i †`vnvB w`‡q wbR †Rjv wc‡ivRcy‡i wn›`y m¤úª`v‡qi Nievwo, m¤ú` jyU
K‡i‡Qb| cvwK¯’vwb nvbv`vi evwnbx‡K MYnZ¨v I wbh©vZ‡b c«Z¨fv‡e mnvqZv
K‡i‡Qb mvC`x| wc‡ivRcy‡i gw³hy‡×i mgq MYnZ¨v, wbh©vZb, jyUZivRmn bvbv
hy×vciv‡ai Ab¨Zg †nvZv †`‡jvqvi †nv‡mb mvC`x| Zvi Gme AcK‡g©i eû
bwRi I mvÿx Av‡Rv cvIqv hv‡e Zvi nv‡Z wbh©vwZZ I wZMÖ¯’ n‡q †eu‡P _vKv
wc‡ivRcy‡ii ¯^Rbnviv gvby‡li N‡i N‡i|
GKvˇi gyw³hy‡×i mgq ¯^vaxbZv we‡ivax I NvZK mvC`xi `y®‹‡g©i wKQz
weeiY cÖKvwkZ n‡q‡Q ÔGKvˇii NvZK `vjvj I hy×vcivax‡`i m¤ú‡K© MwVZ
RvZxq MYZ`š— Kwgk‡bi wi‡cvU© Õ-G| IB wi‡cv‡U© ejv nq:
1971 mv‡j gyw³hy‡×i mgq GB RvgvZ †bZv cvwK¯’vb nvbv`vi evwnbx‡K
mn‡hvMxZv Kivi Rb¨ Zvi wbR GjvKvq Avje`i, Avj kvgm Ges ivRvKvi
evwnbx MVb K‡ib Ges Zv‡`i mivmwi mn‡hvMxZv K‡ib| 1971 mv‡j wZwb
mivmwi †Kvb ivR‰bwZK `‡ji †bZv wQ‡jb bv, Z‡e Z_vKw_Z gIjvbv wnmv‡e
wZwb Zvi ¯^vaxbZv we‡ivax ZrciZv cwiPvjbv K‡i‡Qb| Zvi GjvKvq
nvbv`vi‡`i mn‡hvMx evwnbx MVb K‡i c«Z¨ Ges c‡iv fv‡e jyUZivR,
wbh©vZb, AwMoems‡hvM, nZ¨v BZ¨v`x ZrciZv cwiPvjbv K‡i‡Qb e‡j Zvi weiƒ‡×
Awf‡hvM i‡q‡Q| gyw³hy‡×i mgq wZwb Zvi GjvKvq Aci PviRb mn‡hvMx wb‡q
ÔcuvP ZnwejÕ bv‡g GKwU msMVb M‡o †Zv‡jb, hv‡`i cÖavb KvR wQj gyw³‡hv×v,
gyw³hy‡× wek¦vmx ev½vjx wn›`y‡`i evwoNi †Rvic~e©K `Lj Kiv Ges Zv‡`i m¤úwË
jyôb Kiv| jyôbK…Z G mg¯— m¤ú`‡K †`‡jvqvi †nv‡mb mvC`x ÔMwYg‡Zi gvjÕ
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AvL¨vwqZ K‡i wb‡R †fvM Ki‡Zb Ges cv‡oinvU e›`‡i Gme wewμ K‡i e¨emv
cwiPvjbv Ki‡Zb|
…………………………………………………………………………………..……………
……………..………………………………….”
38. Upon scrutiny of the oral evidence adduced by P.W. 5 coupled with
documentary evidence, it is well-proved that the accused was a prominent
member of Razakar Bahini of parerhat area during the War of LIberation and
he actively participated in different atrocious activities committed by local
Razakar Bahini in association with Pakistani occupation forces. The above
mentioned oral and documentary evidence are sufficient to hold that
prosecution has successfully proved the status the accused as a member of
auxiliary force as defined in section 2(a) of the Act at the time of commission
of offences for which the accused has been charged. Moreover, even in the
capacity of an individual or member of a group of individuals the accused is
liable to be prosecuted under section 3(1) of the Act if he is found to have
committed the offences specified under section 3(2) of the Act of 1973.
39. The above relevant facts have proved that at the time of commission of
alleged horrific crimes in parerhat area, the status of the accused was potential
member of local Razakar Bahini and a close accomplice of Pakistani occupation
Army posted at the then Pirojpur Subdivision in 1971.
XVIII. Adjudication of charges Nos. 1-4 and 13
brought against the accused.
(Crimes against Humanity and genocide)
20
40. At the very outset Mr. Sayed Haider Ali submitted that as many as 20
charges have been framed against the accused but the prosecution could not
produce any live witnesses before the Tribunal to prove charge Nos. 1, 2. 3. 4
and 13 but the prosecution has proved those five charges by the statement of
witnesses as recorded by the investigation officer under section 19(2) of the Act
on the ground that the attendance of those witnesses could not be procured at
the time of trial. However, the gist of those five charges are given below for the
convenience of discussion:
41. Charge No. 1:- That on 4 May, 1971 the accused as a member of local
Shanti Committee gave information to Pakistan Army about gathering of 20
unarmed civilian people behind Madhya Masimpur bus stand and in a planned
way those 20 people were killed and he was charged for the offence specified in
section 3(2)(a) of the Act.
42. Charge No. 2:- That on 4 May, 1971 accused along with Pakistani Army
went to Masumpur Hindupara under Pirojpur police Station, looted houses and
destroyed the same by setting fire then in a planned way accused gunned down
13 HIndu unarmed civilians with intent to destroy it whole or in part of the
HIndu religious group and thereby committed offence specified in section
3(2)(a) and 3(2)(c)(i) of the Act.
43. Charge No. 3:- That on 4 May, 1971 accused along with Pakistani Army
went to Masimpur Hindu para and looted goods from the house of Monindra
Nath Mistri and Suresh Chandra and committed large scale destruction by
setting fire on the houses of following villages namely Kalibari, Masimpur,
21
Palpara, Sikarpur, Razarhat Kukarpara, Dumoritala, Kadomtola, Nawabpur,
Alamkuthi, Dhukigathi Parerhat and Chinrakhati and thereby committed
offence specified in section 3(2)(a) of the Act.
44. Charge No. 4:- That on 4 May, 1971 the accused along with Pakistani
forces in a planned way surrounded Hindu Para located in front of Dhopa Bari
under Pirojpur Police Station with intent to destroy Hindu Civilians and
thereby killed Debendra Nath Mondal, Jogendra Nath Mondal, Pulin Bihari,
and Mukando Bala by gun-shot. Accused has committed crimes of genocide
specified in section 3(2)(c)(I) of the Act.
45. Charge No. 13:- That about 2/3 months after the start of the Liberation
War in one night the accused along with members of Peace Committee and
Pakistani Army raided the house of Azhar Ali of Village Nalbunia and caught
him with his son Shaheb Ali then accused tortured them and abducted Shaheb
Ali and he was taken to Pirojpur and ultimately he was killed and his dead body
was thrown in the river. The accused committed the crimes against Humanity
specified in section 3(2)(a) of the Act.
46. We have perused the statements of the following witnesses namely
Asishkumar Mondal (Exbt. No. 254) Sumati Rani Mondal (Exbt. No. 265)
Sitara Begum (Exbt. No. 266) and Md. Mostafa (Exbt. No. 267). It transpires
from the statements of seven witnesses that they narrated the occurrences of
relating to charge Nos. 1 to 4 and 13 before the investigation officer but they
did not turn up before the Tribunal to prove said charges brought against the
accused.
22
47. Mr. Syed Haider, the learned prosecutor stressed much on the
acceptance of the statement of witnesses as reliable evidence on the plea that
the provision of law provided under section 19(2) of the Act has empowered
the Tribunal to receive statement of witnesses as evidence subject to unavailability
of those witnesses.
48. Mr. Abdur Razzak the learned defence counsel drew our attention to the
documents submitted by the defence and submitted that the alleged witnesses
are neither dead nor unavailable persons and as such the Tribunal cannot rely
upon so-called statements of witnesses as evidence under section 19(2) of the
Act. In support of his contention, Mr. Abdur Razzak cited 3 decisions in the
cases of windisch Vs. Australia ECTHR, Al-Khaawaja and Tahery Vs. the
United Kingdom ECTHR-2009 1996 -11 No. 6.
49. Facts remain that the prosecution could not produce any oral or
documentary evidence to prove the occurrences mentioned in charge Nos.
1,2,3,4 and 13 except statement of seven witnesses recorded by the
investigation officer under section 19(2) of the Act. It is undisputed that not a
single maker of those statements has been examined to prove the occurrances
and as such it is undeniable that the defence did not get an opportunity to
cross-examine those makers of statements to find out the truth. The statements
of witnesses recorded by the investigation officer are always considered as
unsafe documents and if the maker of such statement is not confronted during
trial, such unsafe statement looses its credibility.
23
50. Having considered the legal aspects of those statement of witnesses, we
are of the openion that the statements of witnesses recorded under section
19(2) of the Act alone do not form the basis of conviction and such statement
of witnesses may be used as corroborative evidence to prove a particular
occurrence. It is further observed that the Tribunal may gather information
about the conduct of the accused by using statement of witnesses but no one
can be held criminally responsible solely on the basis of such statement of
witnesses recorded under section 19(2) of the Act.
XIX. Adjudication of charge No. 5
(Killing of SDO, Magistate and S.D.P.O.)
51. That Mr. Saief Mizanur Rahman, the then Deputy Magistrate of Pirojpur
Sub-Division (now District) organized Sarbo Dalio Sangram Parishad to inspire
the people for participating in the War of Liberation. Knowing this fact,
accused Delwar Hossain Sayeedi declared publicly to arrest him for his proliberation
activities. On 5th May, 1971 the accused along with his associate
Monnaf (now deceased), the member of Peace (Shanti) Committee
accompanied with some members of Pakistani Army riding on a Military Jeep
went to Pirojpur Hospital at noon where Mr. Saief Mizanur Rahman was into
hiding.
Evaluation of evidence and finding:-
52. The prosecution has examined only one witness Saief Hafizur Rahman
Khokon (P.W-27) to prove charge No. 5. Upon scrutiny of the evidence
adduced by P.W. 27, it is found that during War of Liberation, three
24
administrative officers of Pirojpur Sub–Division namely Abdur Razzak S.D.O,
Foyezur Rahman S.D.P.O. and Saief Mizanur Rahman, Magistrate (brother of
P.W. 27 ) were brutally killed by Pakistani Army. On getting the death news of
his brother he went to pirojpur from Narail, he met Khan Bahadur Afzal who
told him that one Monnaf identified his brother to Pak-Army and thereby three
top officers were gunned down by Pakistani Army. He heard from Khan
Bahadur Afzal and local people that one Monnaf and Delowar Hossain Sayeedi
were in the vehicle of the Pak- Army, Evidence of P.W. 27 is itself hearsay
evidence but such evidence has not been corroborated by any local witness or
by any documentary evidence. Prosecution has submitted some paper cuttings
of daily news paper namely Dainik Janakanta dated 5.3.2001 as Exhibit-8
and Dainik Vorer Kagoge dated 4.11.2007 as Exhibit-11 which have narrated
general attrocities allegedly committed by the accused, there is no allegation
against him as to killing of aforesaid three officers in Pirojpur. Considering the
evidence on record we are inclined to hold that the uncorroborated hearsay
evidence adduced by P.W. 27 has got no provative value and as such charge
No. 5 has not been proved beyond reasonable shadow of doubt.
XX. Adjudication of charge No. 6
(Looting of gold and goods from parerhat area)
53. That on 7th May, 1971 accused Delwar Hossain Sayeedi led a team of
Peace (Shanti) Committee to receive Pakistani Army at Parerhat Bazar under
Pirojpur Sadar Police Station, then the accused identified the houses and shops
of the people belonging to Awami Legue, Hindu Community and supporters of
the Liberation War. The accused as one of the perpetrators raided those shops
25
and houses and looted away valuable including 22 seers of gold and silver from
the shop of Makhanlal Saha. These acts are considered as crime of persecution
on political and religious grounds as crimes against humanity.
Evaluation of evidence and finding:
54. The prosecution has examined as many as 8 witnesses to prove the
atrocities committed by the Pakistani Army with the assistance of local
perpetrators at Parerhat area during the War of Libaration in 1971. Upon
critical analysis of the evidence adduced by P.W. Nos. 1,2,3,4,8,9,12 and 13 it is
found that accused Delowar Hossain Sayeedi along with local members of
Peace Committee and Razakars wel-comed about 52 Pakistani Army personnel
headed by captain Ejaz at Parerhat on 7th May, 1971. Accused Delowar
Hossain Sayeedi could speak in Urdu well which brought him to a close
association of captain Ejaz. It is evident that all the attacks including looting of
valuables made by Pakistani Army coupled with local members of Peace
Committee and Razakar Bahini were directed against unarmed civilian
population specially targeting Hindu Community and liberation loving people.
All the aforesaid 8 prosecution witnesses have categorically testified that on 7
May, 1971 accused Delowar Hossain Sayeedi was very much present at
Parerhat and he took active part in all occurrences of looting of goods from
25/30 shops and houses of Hindus and Awami Leagues situated at Parerhat
area under Pirojpur Sub-division. Aforesaid P.Ws have succinctly stated that
accused Delowar Hossain Sayeedi, could speak in Urdu, so he used to
accompany the Pakistani forces to the place of occurances and identified shops
26
and houses of pro-liberation people and Hundu Community for committing
crimes such as looting of goods, setting fire on the houses of civilians, etc. The
evidence discussed above, appears to be unshaken. It sufficiently indicates that
the accused substantially contributed and facilitated to the crimes against
Humanity with full knowledge. All the P.Ws. belong to same locality of the
accused and they identified him in the dock. No doubt remains there as to
identification of the accused. DW Nos. 1,3,13,14 and 16 have corroborated the
barbarous atrocities such as genocide, rape , looting, arson, etc. committed by
Pakistani Army and local members of Peace Committee and Razakar Bahini,
but they intentionally did not utter the name of the accused as a perpetrator.
XXI. Adjudication of charge No. 7
(Torture on Shahidul Islam Selim and looting
goods and setting fire on his house)
55. That on 8th May, 1971 at about 1.30 p.m. accused Delwar Hossain
Sayeedi led a team of armed accomplices accompanied with Pakistani Army
raided the house of Shahidul Islam Selim, son of Nurul Islam Khan of village
Baduria under Pirojpur Sadar Police Station and he identified Nurul Islam
Khan as an Awami Legue leader and his son Shahidul Islam Selim, a freedomfighter,
then the accused detained Nurul Islam Khan and handed over him to
Pakistani Army who tortured him and after looting away goods from his house,
the accused destroyed that house by setting fire. The act of destruction of the
house by fire is considered as crime of persecution as crimes against Humanity
on political ground and the accused also abetted in the torture of Nurul Islam
Khan by the Pakistani Army.
27
Evaluation of evidence and findings
56. The prosecution has examined three witnesses to prove specially the
occurrence of burning house of Shahidul Islam Selim son of Nurul Islam
Khan of village Baduria by Pakistani Army with the assistance of accused
Delowar Hossain Sayeedi. Upon critical analysis of the evidence adduced by
P.W. Nos. 1, 8 and 12, it is found that on 8 May, 1971, Pakistany Army along
with 30/35 Razakars including accused Delowar Hossain Sayeedi went to
village Baduria where the accused identified the house of Shahidul Islam Selim
(Freedom Fighter) then the said house was destroyed by setting fire which was
witnessed by P.W.8 Md. Mostafa Hawlader from other side of the Khal
adjacent to that house. It is evident that Pakistani Army accompanied by
Razakars went to village Baduria and destroyed a house of a freedom fighter by
setting fire which is considered as a crime of persecution. It is further proved
that the attack (setting fire) was directed against civilian population with intent
to destroy a political group (freedom fighters).
57. It is further revealed from the evidence of D.Ws. 3,7 and 15 that they
have categorically corroborated the prosecution case to that extent that on the
date of occurrence the Pakistani Army along with some other people went to
villege Baduria and they destroyed the house of Nurul Islam Khan by setting
fire and they also destroyed some other houses of another village Chitholia on
the same date.
58. The evidence adduced by P.Ws. and D.Ws are collectively scrutinized
which indicates that Pak Army with intent to make a systematic attack in a large
28
scale they destroyed the houses of two villages namely, Baduria and Chitholia
on the same date with the assistance of local Razakars. From the evidence of
aforesaid P.Ws it is found that the accused substantially contributed and
facilitated the crime against Humanity with full knowledge as he was present at
the crime sites.
XXII. Adjudication of charge no. 8
(Killing of Kutti and setting fire on the houses of
Hindu Community of Parerhat area)
59. That on 8th May, 1971 at about 3.00 p.m. under the leadership of accused
Delowar Hossain Sayeedi and his accomplices accompanied with Pakistani
Army raided the house of Manik Posari of village-Chitholia under Pirojpur
Sadar Police Station and caught his brother Mofizuddin and one Ibrahim @
Kutti therefrom. At his instance other accomplices after pouring kerosene oil
on five houses, those were burnt to ashes causing a great havoc. On the way to
Army Camp, the accused instigated Pakistani Army who killed Ibrahim @
Kutti by gun-shot and the dead body was dumped near a bridge, then Mofiz
was taken to Army Camp and was tortured. Thereafter, the accused and others
set fire on the houses of Hindu Community at Parerhat Bandar causing huge
devastations. The acts of looting goods and setting fire on dwelling houses are
considered as persecution as crimes against Humanity on religious ground. The
accused directly participated in the occurrences of abduction, murder and
persecution which are identified as crimes against Humanity.
Evaluation of Evidence and findings:
29
60. The prosecution has examined as many as 9 witnesses to prove the
charge No. 8 relating to killing of Kutti and setting fire on the houses of Hindu
Community of Parerhart areas under Pirojpur police station made by Pakistani
Army and local Razakers headed by accused Delowar Hossain Sayeedi. Upon
critical analysis of the evidence adduced by P.W Nos.2,4,6,7,8,9,10,11 and 12 it
is found that on 8 May,1971, the Pakistani Army along with a good number of
Razakars including accused Delowar Hossain Sayeedi came to the house of
Manik Posari from where they caught victim Ibrahim alias Kutti, and
Mofizuddin Posari. It is evident that on that day Pak-Army and local Razakars
looted goods from different houses and set fire on the houses of Raisuddin
Posari, Helaluddin Posari, Saizuddin Posari and Manik Posari, Nurul Islam
Khan and others of village Baduria and Chitholia adjacent to Parerhat Bandar.
It is evident from the evidence educed by aforesaid 9 witnesses that on seeding
Pakistani Army and Razakers while Ibrahim alias Kutti and Mofizuddin Posari
(P.W-7) tried to flee away then the Razakars caught hold of them and fastened
their hands by a rope and dragged them towards Parerhat Razakars Camp, on
the way, near a bridge, Pakistani Army killed Ibrahim Kutti by gun shot and
taking Mofizuddin to the Camp tortured upon him but in the night he managed
to escape from the clutches of Razakars. P.W-7 Mofizuddin Posari is the eye
witness of the killing of Ibrahim Kutti and he luckily saved his life by escaping
from Razakar Camp. He categorically testified that accused Delowar Hossain
Sayeedi as a member of Razakar Bahini caught them at crime site and ultimately
Ibrahim was killed by Pak-Army, under the above circumstances, we find no
reason to disbelieve evidence of P.W-7 as to murder of Kutti, destruction of
30
houses of civilians in a large scale by setting fire which constitute crimes against
Humanity.
XXIII. Adjudication of charge no.9
(Attack on the house of Abdul Halim Babul and
looting valuables and setting fire on it)
61. That on 02.06.1971 at about 9.00 a.m. under the leadership of accused
Delwar Hossain Sayeedi with his armed associates accompanied with Pakistani
Army raided the house of Abdul Halim Babul of village-Nolbunia under
Indurkani Police Station and looted away valuables, then set the house on fire
to ashes. The acts of burning house to ashes and looting goods therefrom are
considered as persecution as crimes against Humanity.
Evaluation of evidence and findings:
62. It appears from the record that the prosecution has examined a good
number of witnesses to prove the charges brought against the accused. It is
evident that solitary witness P.W-14 has been examined to prove the charge
No.9 in respect of looting and burning of house of P.W-14 who testified that
according to S.S.C. certificate his date of birth is 06.06.1960. It can be
presumed that during Liberation War he was at best a boy of 12/13 years old,
under the above factual circumstances, we hold that on the part of a minor boy
like P.W-14, it was not possible to recognize accused Delowar Hossain Sayeedi
and his associates from a distant place at the time of alleged commission of
offence. Moreover, no co-villager of P.W-14 has come forward to corroborate
the occurrence as stated by P.W-14. The evidence of P.W-14 is considered
31
weak type of evidence as well as uncorroborated one and as such the
prosecution has failed to prove the charge no.9 beyond shadow of doubt.
XXIV. Adjudication of charge no. 10.
(Killing of Bisabali and burning 24 hosues of Hindu
para of village Umedpur)
63. That on the same day i.e. 02.06.1971 at about 10.00 a.m. under the
leadership of accused Delowar Hossain Sayeedi with his armed associates
accompanied with Pakistani Army raided the Hindu Para of village-Umedpur
under Indurkani Police Station the accused burnt 25 houses including houses
of Chitta Ranjan Talukder, Jahar Talukder, Horen Tagore, Anil Mondol,
Bisabali, Sukabali, Satish Bala and others. At one stage Bisabali was tied to a
coconut tree and at his insistence Bisabali was shot to dead by his accomplice.
The act of burning dwelling houses of unarmed civilians is considered as
persecution. The accused directly participated in the acts of burning houses and
killing of Bisabali which is persecution and murder within the purview of
crimes against Humanity.
Evaluation of evidence and findings:
64. The prosecution has examined 3 witnesses to prove charge No.10
relating to killing of Bisabali and burning of 25 houses of Hindu para of village
Umedpur by Pakistani Army wtih the assistance of accused Delowar Hossain
Sayeedi and his associates. Upon critical analysis of the evidence adduced by
P.W. Nos.1,5 and9 it is found that on 02.06.1971, Pakistani Army accompanied
with local Razakars including accused Delowar Hossain Sayeedi attacked Hindu
32
para of village Umedpur and after looting away valuables therefrom, they set
fire on about 25 dwelling houses of unarmed civilians. It is evident that one
civilian named Bisabali was caught and tortured by Razakars, thereafter victim
Basabali was fastened with a co-conut tree and he was shot dead by a Razakar
at the insistence of accused Delowar Hossain Sayeedi, P.W-5 Mahtabuddin
Howlader and P.W-9 Altab Hossain Howlader have proved the occurrance of
burning dwelling houses of unarmed vivilians of Hindu para as well as killing of
Bisabali at the insistence of the accused as eye witness of the occurrances. The
manner of setting fire on the houses of unarmed civilians gives sufficient
indication that the perpetrators in a planned way burnt a Hindu para with
intent to cause large scale devestation. It is also evidently revealed that the
accused knowingly contributed and facilitated in the commission of killling of
Biasbali and the act of burning huge number of dwelling houses by his
presence and participation is considered as persecutioin. It is well proved that
the accused was involved with the commission of murder and persecution
within the purview of crimes against Humanity.
XXV. Adjudication of charge no.11
(Attack on the house of freedom-fighter Mahbubul
Alam Howlader and looting away valuables
therefrom)
65. That on the same day i.e. on 02.06.1971, accused Delwar Hossain
Sayeedi led a team of Peace (Shanti) Committee members accompanied with
Pakistani occupied forces raided the houses of Mahbubul Alam Howlader
(freedom-fighter) of village-Tengra Khali under Indurkani Police Station and
33
the accused detained his elder brother Abdul Mazid Howlader and tortured
him. Thereafter, the accused looted cash money, jewellery and other valuables
from their houses and damaged the same. The accused directly participated in
the acts of looting valuables and destroying houses which are considered as
persecution on political grounds, and also tortured.
Evaluation of evidence and findings:
66. The prosecution has examined two witnesses to prove the occurrence
specified in charge No.11. Upon scrutiny of the evidence adduced by P.W-1
and 5 it is evident that on 2nd June, 1971, Pakistani troops accompanied by
members of local Peace Committee and Razakars including accused Delowar
Hossain Sayeedi raided Hindu para at about 10 a.m to execute a part of plan,
then at about 12 noon they raided the house of Mahabubul Alam Howlader
(P.W-1), freedom-fighter, but they failed to catch him, then they tortured
Abdul Mazid who is the brother of P.W.1 and looted away cash money,
jewellary and other valuables from the house of Mahbubul Alam. The defence
cross-examined P.W.1 and 5 elaborately but the verson as to presence of
accused Delowar Hossain Sayeedi at crime site remains unshakened. Having
considered the evidence on record, we find that accused Delowar Hossain
Sayeedi knowingly contributed and facilitated in the commission of looting
valuables from the house of civilian population which is considered as
persecution within the purview of crimes aganist Humanity.
XXVI. Adjudication of charge no.12
34
(Genocide of 14 Hindus of Hindupara under Parerhat
Bazar)
67. That during Liberation War on one day a group of 15/20 armed
accomplices under the leadership of accused Delwar Hossain Sayeedi entered
the Hindu Para of Parerhat Bazar under Pirojpur Sadar Police Station and
captured 14 Hindus namely, Horolal Malakar, Aoro Kumer Mirza, Taronikanta
Sikder, Nando Kumer Sikder and others, all were civilians and supporters of
Bangladesh independence. The accused tied them with a single rope and
dragged them to Pirojpur and handed over them to Pakistani Militarty where
they were killed and dead bodies were thrown into the river. This act was
directed against a civilian population with intent to destroy in whole or part of a
religious group, which is genocide.
Evaluation of evidence and findings:-
68. The prosecution has examined as many as 28 witnesses to prove 20
charges as framed against the accused. It has been specifically mentioned in
charge No. 12 that during the War of Liberation one day accused Delowar
Hossain Sayeedi along with his 15/20 armed accomplices entered in the Hindu
Para of Parerhat Bazar and caught 14 Hindu Civilian supporters of
independence and after fastening those civilians with single rope they were
dragged to Pirojpur and handed over them to Pakistani Army who killed them
and their dead bodies were thrown into the river. On perusal of the evidence
adduced by the P.Ws including (P.W.1 and 12) it is revealed that no witness has
narrated the story mentioned in charge No. 12 before this Tribunal. It is
35
evident that prosecution witnesses have narrated different incidents involving
the accused but none has entengled him with the commission of genocide in
question.
69. The prosecution could not connect accused Delowar Hossain Sayeedi
with the commission of genocide as described in charge No. 12. In view of the
fact, we hold that charge No. 12 has not been proved against the accused.
XXVII. Adjudication of charge no. 14.
(Attack on Hindu Para of Hoglabunia, rape of
Shefali Gharami and setting fire on houses.)
70. That during the last part of the Liberation War, accused Delowar
Hossain Sayeedi led a team of Razakar Bahini consisting of 50 to 60, in the
morning of the of occurrance in a planned way they attacked Hindu para of
Hoglabunia under Indurkani police station. On seeing them Hindu people
managed to flee away, but Shefali Ghaarami, the wife of Modhu Sudhan
Gharami could not flee away, then some members of Razakar Bahini entering
into her room raped Shefali Gharami. Being the leader of the team the accused
did not prevent them in committing rape upon her. Thereafter, the accused and
members of his team set-fire on the dwelling houses of the Hindu para of
village-Hoglabunia resulting complete destruction of houses of the Hindu
civilians. The act of destruction of houses in the Hindu para by burning in
large scale is considered crime of persecution on religious ground and the act of
raping both as crimes aganist Humanity.
Evaluation of evidence and findings
36
71. The prosecution has examined a good number of witnesses out of them
evidence adduced by P.Ws 1,3,4 and 23 are taken together for consideration.
From the evidence adduced by P.W. 1,3 and 4 it is revealed that the accused
Delowar Hossain Sayeedi was a member of Santi Committee and Razakar
Bahini of Parerhat under Pirojpur, the then Sub-division . He, as a Razakar
used to take part in committing rape, looting goods, torture, arson and killing
members of Hindu community in Parerhat area during War of Liberation. The
evidence adduced by P.W. 23- Madhu Sudan Gharami is very much important
for adjudication the offence of rape committed upon his wife Shefali Ghorami.
He testified that one day a group of Razakars attacked his house, at that time
he was not present in his house. His wife Shefali Ghorami disclosed to him that
she was raped by Razakars against her will. On query she told that she could
not say the name of the rapist, but that man who converted him to Muslim
raped her and, she also requested him to go away for security reasons. He
testified that accused Delowar Hossain Sayeedi converted him to Muslim along
with others under a threat that they would survive if they became Muslims
otherwise not. He further testified that his wife gave birth to a child who was
named Shandha but some people used to laugh at her recalling painful
memories of her life, then she left for India in order to get rid of such
humiliation . The evidence adduced by P.W. 23 as regards rape and forced
pregnancy of his wife, is a crime within the purview of crimes against
Humanity. Though the victim wife of P.W. 23 could not be examined as she
was not available in Bangladesh, the evidence as regards commission of rape
upon the wife of P.W. 23 cannot be disbelieved. Rwanda ICT Chamber
37
observed in the case of the prosecutor Vs. Jean-Paul Akayesu under the caption
“ sexual violence as a constituent act of genocide” out of which a relevant
portion of it is quoted below for understanding crime of rape as explained.
72. Second, the Trial Chamber identified the specific elements of the crime
of rape for the first time in international law, and distinguished sexual violence
from rape. Although the Rwandan Tribunal had previously included rape
among the enumerated acts that could constitute crimes against Humanity, it
was in Akayesu that a Trial Chamber first defined rape as “ a physical invasion
of a sexual nature committed on a person under circumstances which are
coercive.” Sexual violence was broadly defined as “ any act of a sexual nature
which is committed on a person under circumstances which are coercive.”
Such an act, the Trial Chamber declared, could involve dignitary harms that did
not involve penetration or even physical contact. For example, the instance of a
student being forced to publicly undress and do gymnastics in the nude was
found to constitute sexual violence.
73. In the instant case, P.W. 23 has categorically testified that accused
Delowar Hossain Sayeedi was one of the Razakars who on the date of
occurrence raided his house and some of them committed rape upon his wife.
Considering the above circumstances, we are led to hold that the accused as a
member of Razakar bahini was present in the crime site having full knowledge
about the said crime of rape and he substantially contributed and facilitated in
the commission of said crime.
XXVIII. Adjudication of charge no.15
38
(Last part of Liberation War, 1971 at Hoglabunia
Village ten (10) Civilians were killed and were
thrown in the river)
74. That during the last part of the Liberation War, 1971 accused Delowar
Hossain Sayeedi led 15/20 armed Razakars under his leadership and entered
into the village-Hoglabunia under Indurkani Police Station, caught 10 (ten)
Hindu civilians namely, Toroni Sikder, Nirmol Sikder, Shymkanto Sikder,
Banikanto Sikder, Horolal Sikder, Prokash Sikder and others. The accused then
tied all of them with a single rope with intent to kill and dragged them to
Pirojpur and handed over them to the Pakistani Army where they all were
killed and the dead bodies were thrown in the river. This conduct was directed
against a population with intent to destroy religious group which is genocide.
Evaluation of evidence and findings:-
75. The prosecution has examined a good number of witnesses but in order
to prove charge No. 15, only one witness P.W. 23has been examined. P.W.12
A.K.M. A Awal M.P. has testfied that accused Delowar Hossain Sayeedi was
involved in the atrocious activities committed by local Razakars with the aid of
Pakistani Army. Two statements of witnesses recorded by the investigation
officer under section 19(2) of the Act, have been perused but those statements
could not connect the accused with the commission of genocide alleged
committed at village Hoglabunia. P.W. 23 Modhu Ghorami as an inhabitant of
village Hoglabunia has testified that in one night 9 people of his village were
abducted by unknown person and no trace of those 9 persons was found
39
afterwards. P.W. 23 did not even suspect accused Delowar Hossain Sayeedi in
the commission of alleged genocide.
76. Upon scrutiny of the evidence on record it transpires that prosecution
could not produce any evidence before this Tribunal to connect the accused
with the commission of crime of genocide as stated in charge No. 15.
XXIX. Adjudication of charge no.16
(Abduction of three women confinement and rape
and abetment of offences)
77. That during the time of Liberation War in 1971, accused Delowar
Hossain Sayeedi led a group of 10/12 armed Razakars and Peace Committee
members and surrounded the houses of Gowranga Saha of Parerhat Bandor
under Indurkani police station, subsequently the accused and others abducted
(i) Mohamaya (ii) Anno Rani (iii) Komol Rani, the sisters of Gowranga Saha
and handed over them to Pakistani Army Camp at Pirojpur where they were
confined and raped for three days before release. The accused was directly
involved in abetting the offences of abduction, confinement and rape as crimes
against Humanity.
Evaluation of evidence and findings
The prosecution has examined some witnesses to prove charge No. 16
relating to abduction of three women and violation upon them.
78. P.W. 3 Mizanur Rahman, P.W.4 Sultan Ahmed Hawlader and P.W.5 Md.
Mahatabuddin have narrated different crime occurrances took place at Parerhat
40
during the War of Liberation. They have testified that accused as a member of
Peace Committee and a Razakar took part in the attacks directed against
unarmed civilians causing murder, looting, torture, converting Hindus to
Muslims handing over women to Pakistani Army for committing rape upon
them. P.W. 13 – Gourango Chandra Saha has testified that in 1971 accused
Delowar Hossain Sayeedi along with his associate Razakars went to his house
and looted goods and they abducted his three sisters namely Mohamaya, Anno
Rani and Komol Rani from his house and handed over those three woman to
the Pakistani Army Camp for committing rape upon them. He further testified
that his three sisters were forcefully raped and returned them after three days.
He further stated that after a few days accused Delowar Hossain Sayeed went
to their house and all the members of their house were converted to Muslims.
In order to get rid of such disgraceful happenings, his father, mother and three
victim sisters left for India.
79. In cross-examination he denied the defence suggession that the accused
was not involved in the act of abduction of his sisters and handing them over
to Pakistani Army. It appears from the statement of Azit Kumar Sheel (Exbt.
No. 264) that the evidence adduced by P.W. 13 has been corroborated by the
statement as to abduction of three sisters of P.W. 13 and handing over them to
Pakistani Army with the assistance of accused Delowar Hossain Sayeedi and his
associates.
80. Upon scrutiny of the evidence discussed above, we are led to hold that
the accused knowingly contributed and facilitated the commission of abduction
41
of three women and paving the way in causing sexual violence upon them. The
act of abduction and rape of victims were directed against civilians which
manifestly fall within the purview of crimes against Humanity.
XXX. Adjutication of the charge no.17
(Confinement of Bipod Saha’s daughter Bani Saha at their
house at Parerhat and committed rape upon her.)
81. That during the time of liberation war in 1971, accused Delowar Hossain
Sayeedi along with other armed Razakars kept confined Bipod Saha’s daughter
Vanu Saha at Bipod Saha’s house at Parerhat under Indurkani police station
and regularly used to go there to rape her. This was committed by force or by
threat and directed against a civilian population.
Evaluation of evidence and findings:
82. It is evident from the record that the prosecution has examined only one
witness namely P.W. 4 Md. Sultan Ahmed Hawlader who has stated that
accused Delowar Hossain Sayeedi and one Moslem Maulana used to rape Bani
Saha, daughter of Bipod Saha of Parerhat regularly. He further stated that the
accused compelled the father and brother of Bani Saha to be converted to
Muslims and saying prayer in the Mosque. In cross-examination P.W. 4 denied
the defence sugession that he falsely implicated the accused with the alleged
commission of rape.
83. It is evident on record that neither Bani Saha nor her near relation has
come forward before the Tribunal with the allegation of rape against the
accused. It appears that P.W.4 did not disclose his source of knowledge about
42
the allegation of rape against the accused. The uncorroborated testimony of a
solitary witness (P.W.4), as to proving charge on rape is not sufficient to
relyupon. In view of the fact, we hold that prosecution could not prove charge
No. 16 beyond shadew of doubt.
XXXI. Adjudication of charge no.18
(Torture and killing of Vagirothi and throwing her dead
body into the river.)
84. That during the Liberation War, Vagirothi used to work in the camp of
Pakistani Army. On one day, after a fight with the freedom-fighters, and at the
instance of the accused said Bhagiorithi was arrested on charge of passing
information to the freedom fighters and was tortured and then after taking her
to the bank of river Boleshwar she was killed and the dead body was thrown
into the river.
Evaluation of evidence and finding
85. The prosecution has examined P.W. 12 A.K.M. Awal M.P. to prove
charge No. 18 relating to killing and torture of ill-fated Vagirothi, an unofficial
spy of the freedom-fighters. P.W.12 has depicted her as a brave lady who used
to pass informations to the freedom-fighters about the movements of Pakistani
forces. It is stated that local Razakars suspected her as a spy of freedomfighters
and consequently she was caught and handed over to Pakistani forces
who brutally killed her by gun shot and threw her body into the river. It is
evident that P.W.12 in his statement did not suspect the accused in any way
responsible for the tragic murder of ill-fated Vagirothi. It transpires from the
43
statement (Exbt. No. 268) of Gonesh Chandra Saha that he has described the
valient role of his mother Vagirothi in the War of Liberation but he did not
implicate the accused with the killing of his mother. It is undisputed that
Pakistani Army fastened Vagirothi with the back of a jeep and dragged her to
river side and killed by gun-shot. Admittedly Vagirothi sacrificed her life for the
noble cause of Liberation of Bangladesh. Having considered all aspects, we are
led to hold that Prosecution could not connect the accused with the
commission of killing of Vagirothi.
XXXII. Adjudication of the charge no. 19
(Conversation of Hindus to Muslims by using
force)
86. That during the period of Liberation War starting from 26.03.1971
to16.12.1971 accused Delowar Hossain Sayeedi being a member of Razakar
Bahini, by exercising his influence over Hindu community of the then Pirojpur
Subdivision (now Pirojpur District) converted the following Hindus to
Muslims by force namely, (1) Modhusudan Gharami(2) Kristo Saha(3) Dr.
Gonesh Saha(4) Azit Kurmar Sil(5)Bipod Saha(6)Narayan Saha(7)Gowranga
Pal(8)Sunil Pal(9)Narayan Pal(10) Amullya Hawlader,(11)Hari Roy(12) Santi
Roy Guran (13) Fakir Das (14) Tona Das(15) Gourangaa Saha(16) his father
Hori Das(17) his mother and three sisters (18) Mahamaya (19) Anno Rani and
(20) Kamol Rani and other 100/150 Hindus of village-Parerhat and other
villages under Indurkani police station and the accused also compelled them to
go the mosque to say prayers. The act of compelling somebody to convert his
44
own religious belief to another religion is considered as an inhuman act which
is treated as crimes against Humanity.
Evaulation of evidence and findings:
The prosecution has examined as many as 5 witnesses to prove charge
No.19 relating to conversation of Hindus to Muslims agasinst their will.
87. Upon scrutiny of the evidence adduced by P.W.2, 3,4,13 and 23 it is
corroboratively found that during the War of Liberation accused Delowar
Hossain Sayeedi was a member of local Peace Committee as well as member of
Razakar Bahini of Parerhat. It is evident from the evidence discussed above
that he compelled a good number of Hindus to embrace Islam putting them in
fear of death. P.W-13 Gourango Chandra Saha and P.W.23 Modhu Sudan
Ghorami are the victims of conversion who candidly narrated under what
compelling circumstances they agreed to convert their religion. P.W-23 testified
that the accused took him along with members of his family to local mosque
and converted them to Muslims against their will. P.W.13 also gave direct
evidence asserting that the accused compelled all the members of his family to
embrace Islam under threat and they were also compelled to go to mosque
regularly to say prayers. It is found on solid evidence that during the War of
Liberation the accused under coersion and threat compelled a good number of
Hindu Community people to convert religious belief which is considered as
inhuman act, torture and mental persecution which fall within the purview of
crimes against humanity. Our Holly Quran teaches us not to impose any sort
45
of pressure upon the followers of other religion, because Islam was preached
only by rational appeal and not by coersion or threat.
However, havining considered the evidence on records, we are satisfied
to hold that prosecution has succesfully proved commission of offence against
the accused mentioned in Charge No.19.
XXXIII. Adjudication of charge no.20
(Confinement of 85 persons at Talukdar Bari
looting of valuables and women were raped)
88. That in the last part of November 1971 while civilians were fleeing to
India, accused Delowar Hossain Sayeedi with his associate Razakars attacked
them at the house of Talukdar Bari of Indurkani village and detained 85
persons therein and looted away their valuables and some female persons were
raped by Pakistani Army by his assistance and thereby the accused committed
offences of abduction, torture and abetment of rape which fall within the
purview of the crimes aganist Humanity.
Discussion on evidence:
We have perused the documents both oral and documentary produced
by the prosecution. It is found on evidence that no witness has been
exanmined to prove the occurrance of Talukdar Bari and the prosecution has
failed to prove the charges mentioined in charge No.20.
XXXIV. Plea of Alibi of the defence
46
89. On behalf of the accused Delowar Hossain Sayeedi a plea has been taken
to the effect that since before starting the war of Liberation of Bangaldesh he
used to reside in Jessore and he came back to his village home at Pirojpur in the
middle of July, 1971.
Evaluation of evidence as to proving plea of Alibi
90. It may be mentioned here that failure to prove plea of alibi is not fatal to
the accused. Sub-rule (3) of Rule 51 of the Rules of Procedure have provided
protection of the defence which reads as follows:
91. Mere failure to prove the plea of alibi and or documents and materials by
the defence shall not render the accused guilty. Moreover, the accused charged
with offence presumming him to be innocent until he is found guilty.
92. On perusal of the evidence adduced by D.W.5 it is found that the
evidence of P.W. 4 and 6 that they have categorically stated while accused
Delowar Hossain Sayeedi used to reside in Jessore before starting the War of
Liberation in 1971, at that time he had two children. The prosecution has
proved the copy of Nomination paper (Exbt. 151) for National Assembly
election filed by accused Delowar Hossain Sayeedi which shows that the
accused gave particulars of his four sons with the date of birth as quated
bellow:-
Name of son Date of birth
1. Rafiq Bin Sayeedi 18.11.1970
2. Shamim Sayeedi 01.01.1972
47
3. Masud Sayeedi 01.11.1975
4. Nasim Sayeedi 08.12.1976
238. The Nomination Paper (Exbt. 151) dated 30.11.2008 submitted by the
accused goes to prove that he had only one son at the time of War of
Liberation in 1971. The learned defence counsel gave suggessions to P.Ws. 1,2
,4,5,6,8,9,10,12 and 13 that the accused used to live in Jessore since before
starting the war of Liberation till middle of July, 1971 but all the P.Ws flatly
denied the suggessions as to his alleged residing in Jessore at the time of
starting liberation struggle. The aforesaid P.Ws and the accused belong to same
locality and the PWs have categorically stated his presence and participations in
the atrocities committed in Parerhat area since May, 1971. P.W. 2 Ruhul Amin
Nobin as a commander of freedom-fighter testified that he went to Parerhat
Bazar on 18.12.1971 but he could not arrest accused Delowar Hossain Sayeedi
and his associates as they reportedly fled away. P.W.12 A.K.M.A Awal M.P.
also stated that after Liberation the accused left his locality for saving his life. It
is evident that while Bangladesh war was over, diberted the accused left his
village home and went into hiding. The factual aspect supposes that soon after
Liberation the accused might have taken shelter in Jessore for his safety, at that
time D.W.4 and 6 might have seen the sons of the accused.
93. In consideration of both oral and documentary evidence, we are inclined
to hold that the defence could not prove the plea of alibi. Thus, the plea of alibi
does not inspire any amount of credence and appears to be a futile effort with
intent to evade the charges brought against him.
XXXVI. Conclusion:
48
94. As Judges of this Tribunal, we firmly hold and believe in the doctrine
that ‘Justice in the future cannot be achieved unless injustice of the past is
addressed’.
95. Horrendous incidents took place in Bangladesh about 40/41 years back
in 1971 and as such memory of live witnesses may have been faded and as a
result discrepency may have occurred in their versions made before this
Tribunal. But, in practice, we found no significant inconsistencies in their
testimonies in proving old incidents occurred during the War of Liberation.
96. We should keep in mind an important aspect of the case that we are not
holding the trial of an Ex-M.P. or Nayb-e-Amir of Jamat-e-Islam named
Allama Delowar Hossain Sayeedi, a renouned Oazin who is popularly known as
an Islamic orator through out the country for his gift of the gab. Now let us go
back to 40/41 years while the struggle for Liberation War started in 1971.
From the evidence on record we have found that accused Delowar Hossain
Sayeedi had a very low profile having no significant social or political status in
the society. He was simply a grocery shop keeper who used to sell oil, salt,
onion, pepper etc. at Parerhat Bazar. His financial condition was not good.
This trial is being held against that Delowar Hossain Sayeedi for the
commission of crimes against Huminity alleged to have been committed by
him about 41 years back at Parerhat area while he was a Potential Razakar as
well as member of local Peace Committee. The defence took a plea to the
effect that there was a Razakar named Delowar Hossain Mollik who was killed
49
after Liberation but prosecution with an ulterior motive, shifted the liability of
that dead Delowar Mollik upon this present accused Delowar Hossain Sayeedi.
97. In the above aspect, we find no substance because a good number of
prosecution witnesses and the accused himself hail from the same locality who
identified the accused in dock as the sole accused in this case and as such there
is no confussion as to identity of the accused.
98. The experssion ‘directed against civilian population’ as mentioned in
section 3(2)(a) of the Act of 1973 specifies that in the conduct of a crimes
against Humanity the civilian population is the primary object of the attack.
From our discussion on adjudication of the charges we have found that all the
attacks were systimatically made to cause widespread destruction of properties
and lives directing against unarmed civilians belonging to pro-libeation poeple.
Guiding Principle for fixing up liability for the crimes described in
section 3(2) of the Act of 1973
99. According to Section 3(1) of the Act it is manifested that even any
person (individual or a member of group of individuals) is liable to be tried and
punished if he is found to have committed crimes specified in Section 3(2) of
the Act. In consideration of the nature of criminal charges brought against the
accused, we are led to hold that the principle for determining liability for crimes
as laid down in Section 4(1) of the Act is the guide line in this regard. The
provision for fixing up liability for crimes is quoted below:-
50
Section 4(1) of the Act of 1973 provides “When any crime as specified in
Section-3 is committed by several persons, each of such person is liable for that
crime in the same manner as if it were done by him alone.”
100. From the oral and documentary evidence as produced by the
prosecution, we are convinced to hold that the accused was a member of
Razakar Bahini of Parerhat during the War of Liberation in 1971 which has
been decided in chapter XVII of this judgment. It is also proved that the
accused could speak Urdu well which brought him to a close associate with
Pakistani Army. We are also convinced from the evidence on record that the
accused knowingly the context of Liberation War he purposely stood against
the War of Liberation and joined the Razakar Bahini to resist it. From the
forgoing discussion, it is proved that the accused as one of the Razakars or a
person of a group of individuals took active part in the attacks directed against
civilian population at Parerhat area, causing murder, deportation, rape, looting
of goods, setting fire on the houses and shops of civilians, forceful religious
conversion, inhuman acts and torture which fall within the purview of crimes
against Humanity. On scrutiny of the evidence on record, we have found that
out of 20 charges the prosecution has successfully proved 8 charges against the
accused who as a member of local Razakar Bahini contributed and facilitated in
committing those offences by his active participation and presence at the crime
sites. According to the guiding principle for fixing up liability as provided under
section 4(1) of the Act, the accused is found guilty to the offences mentioned
in charge Nos. 6,7,8,10,11,14,16 and 19 as if, those were done by him alone as a
51
member of Razakars and/or also in the capacity of a member of atrocious
group of individuals.
XXXVII. Verdict on conviction
101. Having considered all evidence, materials on record and arguments
advanced by the learned lawyers of both the parties, we hold that the
prosecution has successfully proved 8(eight) charges out of 20 against accused
Delowar Hossain Sayeedi beyond reasonable doubt.
Charge Nos. 1 to 4 and 13: The accused is found NOT GUILTY to the
offences of murder, persecution, genocide, abduction and torture which fall
within the purview of crimes against Humanity and genocide as specified in
section 3(2)(a) and 3(2)(c)(i) of the I.C.T. Act of 1973 and he be acquitted from
the aforesaid charges levelled against him.
Charge No. 5:- The accused is found NOT GUILTY to the offences of
murder, abduction and abetment which fall within the purview of crimes
against Humanity as specified in section 3(2)(a) of the I.C.T. Act of 1973 and
he be acquited from the said charge.
Charge No. 6:- The accused is found GUILTY to the offence of persecution
which falls within the purview of crimes against Humanity as specified in
section 3(2)(a) of I.C.T. Act of 1973 and he be convicted and sentenced under
section 20(2) of the said Act.
Charge No. 7:- The accused is found GUILTY to the offences of persecution
and abetment of torture which fall within the purview of crimes against
52
Humanity as specified in section 3(2)(a) and (g) of the I.C.T. Act of 1973 and
he be convicted and sentenced under section 20(2) of the said Act.
Charge No. 8:- The accused is found GUILTY to the offences of murder,
abduction, torture and persecution which fall within the purview of crimes
against Humanity as specified in section 3(2)(a) of the I.C.T. Act of 1973 and
he be convicted and sentenced under section 20(2) of the said Act.
Charge No. 9:- The accused is found NOT GUILTY to the offence of
persecution which falls within the purview of the crimes against Humanity as
specified in section 3(2)(a) of the I.C.T. Act of 1973 and he be acquitted from
the said charge.
Charge No. 10:- The accused is found GUILTY to the offences of murder and
persecution which fall within the purview of the crimes against Humanity as
specified in section 3(2)(a) of the I.C.T. Act of 1973 and he be convicted and
sentenced under section 20(2) of the said Act.
Charge No. 11:- The accused is found GUILTY to the offences of torture and
persecution which fall within the purview of the crimes against Humanity as
specified in section -3(2)(a) of the I.C.T Act of 1973 and he be convicted and
sentenced under section 20(2) of the said Act.
Charge No. 12:- The accused is found NOT GUILTY to the offence of
genocide which falls within the purview of genocide as specified in section
3(2)(c)(i) of the said Act and he be acquitted from the said charge.
53
Charge No. 14:- The accused is found GUILTY to the offences of persecution
and rape which fall within the purview of crimes against Humanity as specified
in section 3(2)(a) of the I.C.T. Act of 1973 and he be convicted and sentenced
under section 20(2) of the said Act.
Charge No. 15:- The accused is found NOT GUILTY to the offence of
genocide which falls within the purview of genocide as specified in section
3(2)(c)(i) of the I.C.T. Act of 1973 and he be acquitted from the said charge.
Charge No. 16:- The accused is found GUILTY to the offences of abduction,
confinement, rape and abetment which fall within the purview of crimes
against Humanity as specified in section 3(2)(a) and (g) of the I.C.T. Act of
1973 and he be convicted and sentenced under section 20(2) of the said Act.
Charge No. 17:- The accused is found NOT GUILTY to the offence of rape
which falls within the purview of crimes against Humanity as specified in
section 3(2)(a) of the I.C.T. Act of 1973 and he be acquitted from the said
charge.
Charge No. 18:- The accused is found NOT GUILTY to the offence of
abetment of torture which falls within the purview of crimes against Humanity
as specified in section 3(2)(a)(g) of the I.C.T. Act of 1973 and he be acquitted
from the said charge.
Charge No. 19:- The accused is found GUILTY to the offence of inhuman act
which falls within the purview of crimes against Humanity as specified in
54
section 3(2)(a) of the I.C.T. Act of 1973 and he be convicted and sentenced
under section 20(2) of the Act.
Charge No. 20:- The accused is found NOT GUILTY to the offences of
abduction, torture and rape which fall within the purview of the crimes against
Humanity as specified in section 3(2)(a) of the I.C.T. Act of 1973 and he be
acquitted from the said charge.
XXXVIII. Verdict on sentence
250. From the foregoing discussions we have found the accused guilty to
the offences of murder, abduction, torture, rape, persecution, forcible religious
conversion and abatement as mentioned in 8(eight) charge
Nos.6,7,8,10,11,14,16 and 19 which fall within the purview of crimes against
humanity as specified in section 3(2)(a)(g) of ICT Act of 1973. Now a partinent
question is before us as to decide what punishment can be awarded to the
accused which shall squarly meet the ends of justice.
251. We have weighed up gravity of offences proportionately which had
been committed by the accused during the War of Liberation of Bangladesh.
We are of agreed view that 8(eight) charges brought against the accused have
been proved beyond reasonable doubt. It is well proved that accused Delowar
Hossain Sayeedi substentially contributed and facilitiated in killing Ibrahim alias
Kutti and Bisabali as listed in charge Nos.8 and 10 respectively. It is also
proved that the killing of Ibrahim alias Kutti and Bisabali was followed by
55
looting of properties and setting fire on two Hindu Para as a part of systematic
attack directed agaisnt unarmed civilians as well as pro-liberation people.
252. In consideation of the gravity and magnitude of the offences
committed particularly in charge Nos. 8 and 10, we unanimously hold that the
accused deserves the highest punishment as provided under section 20(2) of
ICT Act of 1973.
Hence it is,
ORDERED
That accused Delowar Hossain Sayeedi alias Delu @ Abu Nayeem
Mohammad Delowar Hossain@ Allama Delowar Hossain Sayeedi, son of late
Yousuf Ali Sikder of villages-South Khali, Police Station Indurkani/Zianagar,
District-Pirojpur, at present 914-Shaheed Bag, Police Station Motijheel,
District-Dhaka is found guilty to the offfences of crimes agaisnt humanity
(listed in charge Nos.8 and 10) and he be convicted and sentenced to death and
be hanged by the neck till he is dead under section 20(2) of the International
Crimes (Tribunals) Act, 1973.
253. In our due consideration, the gravity of the offences as listed in charge
Nos. 6,7,11,14,16 and 19 appear to be lesser than that of as listed in charge
Nos.8 and 10. Since we have awarded Capital Punishment to the accused for
the offences as listed in charge Nos. 8 and 10, we refrain from passing any
separate sentence of imprisonmant for the offences as listed in the rest charge
Nos.6,7,11,14,16 and 19 though those charges have also been proved beyond
reasonable doubt.
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254. Accused Delower Hssain Sayeedi is, however, found not guilty to the
offences of crimes against humanity as listed in charge Nos.
1,2,3,4,5,9,12,13,15,17,18 and 20 and he be acquitted from the said charges.
255. The convict accused is at liberty to prefer appeal to the Appellate
Division of the Supreme Court of Bangladesh against the order of conviction
and sentence within 30(thirty) days from the date of passing the order of
sentence as per provisions of section 21 of the Act.
Let a certified copy of the judgment be furnished to the prosecution and
the convict free of cost at once. Let another copy of the judgment be sent to
the District Magistrate, Dhaka for information and necessary action.
Issue conviction warrant accordintly.
(A.T.M. Fazle Kabir, Chairman)
(Jahangir Hossain, Member)
(Anwarul Haque, Member) - See more at: http://www.prothom-alo.com/detail/date/2013-02-28/news/332802#sthash.7CcBOOVq.Dg8D1y97.dpuf