Law Letter
Review of the verdict of neo-Eichmann 'Quader Molla'
The justice of the present is impossible to be actualised unless injustice of the past is redressed. The axiom of the history is that blood begets blood, impunity breeds impunity. The commission of macabre war crimes, abominable genocide and horrific crimes against humanity during liberation war of Bangladesh is an established truth. The scenes of blood and bestiality ensuing from military crackdown were such that the same of which no eye has seen and no tongue can adequately tell. These war criminals are hostis humanis generis(enemy of mankind). The supreme court of Israel in the Adolf Eichmann case has observed that the genocide and crimes against humanity committed by the accused is condemned by human conscience and he is an enemy to human kind.
The government of Bangladesh under the leadership of Sheikh Mujib started the trial of local collaborators. In the backdrop of this initiative 37,000 person were kept behind the bars. In the meantime the government declared general amnesty. But this general amnesty did not extend to the persons charged with murder, culpable homicide, rape etc. After the brutal assassination of Sheikh Mujib the power hostile to independence and prone to Pakistani lobby assumed the stake of the state and all the collaborators who were not freed by general amnesty were freed unscathed.
After delay of approximately 42 years the tribunal set up to try the alleged war criminals delivered its first verdict on the accused Quader Molla. After the verdict the mass people in general and young people in particular started spontaneous protest against sentence of life imprisonment demanding death penalty upon the convict. The accused being arraigned with 6 charges was found guilty in all charges except charge no-4, upon which (if proved) he could have been given death sentence. Evidence procured from witness relating to charge no-4 was rejected for being in the eye of the court 'unnatural'.
The charge no 4 relates to the offence of abetting in the murder of 2 freedom fighters in Ghatar Char. The prosecution witness is alleged to have seen this horrendous perpetration of crime by hiding himself in a nearby bush. The tribunal has observed in para-297 of the text of verdict that in the situation then prevailing when gunfire broke up a civilian was supposed to flee but this witness has allegedly marched forwarded and took shelter in a bush from which he claims to have seen the crime . This is quite quixotic. To our humble opinion there is neither rule of law nor rule of prudence that such factor when proved cannot be taken in evidence merely because it sounds romantic. A lot of incidents can be shown where some people apparently intrepid and brave taking the life risk being either in bush or in some places witnessed the barbaric commission of the crime during the liberation war and this is very natural to be so.
The second ground of rejection is that testimony of the witness contains innate contradictions and the tribunal opines that benefit of doubt should go to the accused. The tribunal says in para-296 that once the witness claims to have witnessed the accused at the crime site but at the same time claims to have learnt that a person named Quader Mullah accompanied the gang. It is well known that appreciation of evidence is very difficult and delicate task. A testimony without fringe or embroidery of untruth is rare. The task of the court is to separate chaff from the grain and to act upon the latter. In the present case it should be kept in mind that testimony of witness is taken after the long lapse of time when his memory of scenes is likely to have faded. The tribunal should therefore appreciate the evidence with some latitude. The rule of law is that the court can reject the evidence only where falsehood and truth are inextricably intertwined. Gone is the day when there was a dictum that no innocent persons be convicted let hundreds guilty be acquitted.
The tribunal has awarded sentence of life imprisonment for the charge no 5.6. The tribunal observed in the para-428 that the sentences must reflect the predominant standard of proportionality. Generally Death penalty is preferable in the case of murder diabolical in conception and cruel in execution [Major Bazlul Huda v. State 62 DLR (AD) 1]. The crimes committed by the accused are beyond doubt diabolic in nature therefore he could surely have been given death penalty. But the day yet not gone, charge no -4 and death sentence issue need to be reconsidered from legal perspective not of emotional.
Shekh Md. Muhibbullah & Kishor Dutta
Students of Law, University of Dhaka.
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