«

»

Nov 22

Dissecting Mir Quasem Ali verdict: Charge number 2

 [Abduction, confinement and torture of Lutfar Rahman Faruk and Seraj on 19 November, 1971]

Summary Charge: This charge involves the event of forcible picking up of Lutfar Rahman Faruk and Seraj on 19 November, 1971 at about 2.00 p.m. by the Pakistani invading force and Al-Badar members under leadership of accused Mir Quasem Ali from the house of one Syed at 35 Bokshirhut ward under Chaktai area of Bakalia police station, Chittagong and they were taken to the Al Badar torture cell at Dalim Hotel, Chittagong and during their captivity at Dalim Hotel they were subjected to torture in presence of the accused Mir Quasem Ali and on his instigation. Two to three days later, detainee Lutfar Rahman Faruk under torture was handed over to Circuit House under control of Pakistani occupation army where he was again subjected to torture and then sent to Chittagong jail. Another detainee at the AB camp at Dalim Hotel became freed after 16th December, 1971. Therefore, the accused was charged for abetting and facilitating the commission of offences of abduction, confinement and torture as crimes against humanity as specified in section3(2)(a)(g)(h) of the International Crimes Tribunal Act of 1973, for which the accused incurred liability under Section 4(1) and 4(2) of the Act.

Tribunal Verdict:

GUILTY of the offence of ‘abetting’ and facilitating the commission of the offences of ‘abduction’ ‘confinement’ and ‘torture’ as ‘crimes against humanity’ as specified in section 3(2)(a)(g)(h) of the Act of 1973 and he be convicted and sentenced under section 20(2) of the said Act.

Sentence: Imprisonment for 20 years

General opinion on verdict as per Critical analysis:

Twenty years, given on uncorroborated evidence of a witness who was proven to resort to perjury in the midst of the trials is a gross violation of judicial norms. It showcases the mindset of a tribunal bent upon proving the accused guilty, no matter what, considering the wider political context at play, and the freedom accorded to the tribunal in absence of otherwise basic procedures and laws present in the Penal Code, included but not limited to the absence of a rigorous accused identification procedure, the practice of limiting defence witnesses and preventing accused from defending himself during the trials among others.

Prosecution pressed 14 charges of Crime Against Humanity against MIR QUASEM ALI, all allegedly committed between 8th November 1971 and 16th December 1971 in Chittagong. But the Prosecution Documents (news reports of the daily newspapers of November and December 1971) show that he was in Dhaka, i.e.  away from Chittagong, during this entire period when the communications between these two cities were very bad due to the ongoing war. He was not allowed minimum opportunity to defend these allegations.

The Tribunal never put any restriction on the number of the prosecution witnesses and despite that the prosecution could only produced 24 witnesses. All these witnesses were tutored and admitted that they did not bring any allegation against MIR QUASEM ALI in the last 40 years. His counsels were not allowed to cross examine the prosecution witnesses on their previous inconsistent statements made to the Investigation Officer during investigation stage. The prosecution case was allowed to continue for five (5) months from 18.11.2013 to 17.04.2014. On the other hand defence was only allowed 3 witnesses despite their willingness to produce at least 20 defence witnesses. The defence case commenced on 22.04.2014 and the Tribunal forcibly closed the defence case on the very next day i.e. on 23.04.2014. Among the 3 defence witnesses two were veteran Freedom Fighters of Chittagong who testified about MIR QUASEM ALI’s innocence. Despite MIR QUASEM ALI’s willingness to testify, the Tribunal did not allow him to say anything in his defence. The Tribunal also rejected his application to produce relevant documents to support his defence.

The range of matters complained of in the ICT proceedings, as outlined by a recent statement by Bar Human Rights Committee of England and Wales, have included:

  1. Failure to provide the presumption of innocence;
  2. Failure to provide clarity and specificity of charges;
  3. Failure to provide the right to appoint counsel of one’s own choosing;
  4. Failure to provide sufficient time to prepare a defence;
  5. Failure to provide the right to call witnesses,
  6. Failure to provide the right to be tried by an independent, impartial tribunal illustrated by alleged collusion between ICT judges, the prosecution and the government supported by the publication of emails and audio conversations and the right to challenge interlocutory decisions.

The number and nature of these flaws means the whole process should be suspended and a thorough impartial and independent investigation should be conducted into the allegations. Credible evidence of a flawed judicial process should result in convictions being set aside- if international norms of fairness are respected- and any retrials should take place within such international fair trial norms.

Now let us get back to the charge number 2.

Witnesses

Lutfar Rahman Faruk one of victims as described in the charge framed. He was the only witness who came on dock and narrated, as P.W.20, the events of his forcible capture and torture inflicted to him during his captivity at the AB camp set up at Mahamaya Dalim Hotel and at the army camp at circuit house and how, later on, he was sent to Chittagong jail. In 1971 he was 22 years old.

The other victim, Seraj, is now believed to be dead. However, Lutfar Rahman was unable to give any details regarding Seraj, his detention or his torture.

Evidence

P.W.20 Lutfar Rahman Faruk [65] deposed that on 27th March 1971 they under the leadership of one Sayed Bhai took refuge at different villages around Chittagong as they could not continue to exist in Chittagong town and had organised the people in favour of war of liberation. Sayed Bhai afterwards had gone to India and returned back three months later and then they [including the P.W.20] met him when he [Sayed Bhai] asked them for arranging their shelter in Chittagong. Accordingly His [P.W.20] house in Chittagong, Aisa Manjil of Haji Nur Ali Sawdagar and the house of Mia Sawdagar were arranged as the shelters of freedom fighters.

P.W.20 further stated that on 19 November 1971, Al-Badar, Al-Shams and Pakistani army, being aware of staying of freedom fighters besieged those shelters and at that time he [P.W.20] was with Sayed Bhai, freedom fighter Seraj, Mansurul Haque Chowdhury and Abul Kalam. He and Seraj had attempted to escape but the armed attackers caught them and brought to Dalim Hotel.

[Judges thoughts: The above relevant facts relating to his abduction do not appear to have been dislodged in cross-examination, even in later stages. Even the defence did not deny it. Rather, on cross-examination it has been re-affirmed that Sayed Bhai had gone to India and afterwards returned back and he was associated with Awami League politics.]

Next, P.W.20 described how he was treated with brutality during his captivity at the AB camp. He stated that he found one bearded Moulavi and the president of Islami Chatra Sangha [ICS], i.e. Mir Quasem Ali sitting at Dalim Hotel. He also found there many detainees blindfolded with their hands tied up. On order of Mir Quasem Ali [accused] he was then also blindfolded and his hands were tied up. At night, he was taken to another room where he was beaten by AB members on instruction of Mir Quasem Ali for obtaining information about whereabouts of freedom fighters. At a stage of torture he became senseless. P.W.20 also stated that when he was brought to Dalim Hotel he asked Mir Quasem Ali for a glass of water as he was fasting. But Mir Quasem Ali replied ‘what fasting for you, give him urine to drink’.

P.W.20 further stated that he was kept under confinement at the AB camp at Dalim Hotel for 7/8 days and on failure to extract information from him he was then handed over to the army who took him to the army camp at circuit house where he kept detained. At the army camp he saw causing brutal torture to the detainees and he was also subjected to severe and barbaric torture and two days later one major Fateh Ali sent him to Chittagong jail wherefrom the freedom fighters got him released on 16 December 1971.

[Judges thoughts: The fact of being detained at the army camp at circuit house and then in Chittagong jail wherefrom P.W.20 got release, as stated by him remained unshaken. It was one of series of criminal events.]

Deliberation and Finding

Testimony to the convincing stance by the witness and taking into consideration the fact that all of it was uncorroborated, the prosecution iterated that the defence had failed to shatter what has been testified by P.W.20 on material particular. The prosecution further reiterated that mere non-examination of the other detainee Seraj did not affect the events constituting the offence narrated in the charge framed.

Furthermore, the prosecution said that in order to prove accused’s ‘participation’ it was not required to show that he physically participated to the commission of the crimes(!). Even his ‘participation’ may be inferred by his act and conduct forming part of attack. Accused affiliation and presence at the AB camp by itself proves that he was ‘consciously concerned’ in carrying out atrocious activities, in furtherance of common purpose.

The defence counsel Mr. Mizanul Islam strongly argued that in narrating the accused’s identity in the charge framed involving the event of abduction that allegedly took place on 19 November 1971 it was stated that Mir Quasem Ali was the president of ICS, Chittagong town unit. But since the prosecution documents themselves proved, Mir Quasem Ali was already elected General Secretary of East Pakistan ICS on 08 November 1971, and as such at that time the accused was not in Chittagong.

Finally, it was stated by the verdict that P.W.20, the alleged detainee became impotent due to torture caused to him during his detention at the Al Badar camp at Dalim Hotel, which was a lie. The defence proved that this was totally untrue by presenting the copy of nikahnama showing solemnization of his [P.W.20] daughter’s marriage, although at belated stage. Therefore, his claim of becoming impotent was proved beyond reasonable doubt to be a statement amounting to perjury. As such the fact of being in confinement and subsequently being tortured also becomes questionable.

So how did PW-20 identify Mir Quasem Ali?

As per the verdict which clearly is desperate to prove that Mir Quasem Ali is anything but innocent, P.W.20 stated that Mir Quasem Ali was in leadership of Dalim Hotel [Al Badar camp]. On cross-examination he stated that he had occasion to see Mir Quasem Ali as a student leader even since prior to his capture on 19 November 1971. Admittedly, accused Mir Quasem Ali was the president of ICS, Chittagong town unit since 1970 and as such it was probable for the locals including the victim to know and see him even prior to the War of liberation ensued.

But how believable is that when you consider the following:

  1. Mir Quasem Ali is a well known media and political figure. As such, there is no reason to believe that one would not be able to easily, if not instantly recognize him.
  2. The laws of the tribunal do not state any procedure to be followed when identifying the accused by the witnesses. Unlike the identification process under criminal law, wherein the accused is mixed with 8-10 other persons and the witness is asked to identify the accused, the tribunal law states no such procedure for identification.
  3. The accused is the only one in dock, and when any witness is asked whether the person standing on dock is the accused, it would be unintelligent to assume the witness would say otherwise, especially in the present tribunal, which has a history of witness abductions such as that of Shukhoranjan Bali, who was abducted after he turned into a defence witness from being a prosecution witness overnight in the case against Allama Delwar Hossain Sayedee.

Stance of tribunal verdict regarding credible defence arguments:

Desperate in proving Mir Quasem Ali as being guilty, the judges negated the defence argument made on two aspects:

  1. Mere oversight in narrating the accused, in the charge framed, as the president of ICS, Chittagong town unit, instead of general secretary of East Pakistan ICS did not cause any prejudice to the defence. Accused’s alleviation to more leading position in ICS rather heightened his authority in the organisation. The stance of the tribunal was that this in no way adversely affected the merit of the case. Same was said when the fact was established by prosecution documents themselves that Mir Quasem Ali was in Dhaka during and after some period of 8 November 1971 and not in Chittagong. The verdict, in its apparent determination to prove Mir Quasem Ali guilty, surprisingly added that this was no bar to his travelling to Chittagong and that it would be “surprising” if Mir Quasem Ali did not travel to Chittagong then!!!
  2. Regarding another argument advanced by the defence counsel that P.W. 20 resorted to perjury when saying that he was impotent, the Tribunal noted that P.W.20 had not been cross-examined by drawing attention to the said nikahnama showing solemnization of his [P.W.20] daughter’s marriage, to explain the matter. Secondly, it noted rather factually that the alleged nikahnama was not a document submitted by the defence as required under section 9(5) of the Act of 1973. Thirdly, the case was not dealing with the issue whether the P.W.20 was impotent or not and that causing permanent physical injury or harm is not the only element necessary to constitute the offence of ‘torture’.

The tribunal, to validate its immaterial objections to the validity of the argument by the defence, merely stated that in absence of any definite proof mere kabinnama showing one as daughter of P.W.20, as submitted by the defence does not ipso facto (and this is used very widely throughout the verdict) prove that the injuries he endured at the confinement camp did not result in his impotence and the “P.W.20 might have adopted her as his daughter which is not barred by law.”!!!

Personal opinion: When you have a verdict that is so one-sided and bent upon proving a man guilty, it is indeed surprising the accused didn’t get a death sentence in this charge.

External Sources and further reading/study:

  1. Judgement of Mir Quasem Ali (pdf link), www.ict-bd.org
  2. Mir Quasem Ali and Internation War Crime Tribunal: An analytic Overview, www.progressbangladesh.com
  3. Allegations against Mir Quasem Ali & it’s Discrepancies (Part-01), www.youtube.com
  4. মীর কাসেম আলীর পক্ষে ডিফেন্স আইনজীবীদের যুক্তিতর্ক উপস্থাপন শুরু, Daily Sangram, 30 April, 2014
  5. BHRC calls for immediate suspension of death sentences handed down against Muhammad Kamaruzzaman and Motiur Rahman Nizami (pdf link), Bar Human Rights Committee of England and Wales