(From the judgment and order dated 17.07.2013 passed by the International Crimes Tribunal-2 ( ICT-2) in ICT-BD Case No.04 of 2012.)
Ali Ahsan Muhammad Mujahid:
The Chief Prosecutor, International Crimes Tribunal, Dhaka, Bangladesh:
For the Appellant:
Mr. Khondker Mahbub Hossain, Senior Advocate with Mr. S.M. Shahjahan, Advocate, instructed by Mr. Zainul Abedin, Advocate-on-Record.
For the Respondent:
Mr. Mahbubey Alam, Attorney General(with Mr. Murad Reza, Additional Attorney General, Mr. Momtazuddin Fakir, Additional Attorney General, Mr. Biswajit Debnath, D.A.G., Mr. Ekramul Hoque, D.A.G., Mr. Masud Hasan Chowdhury, D.A.G., Mr. Khondaker Diliruzzaman, D.A.G., and Mr. Bashir Ahmed, A.A.G., instructed by Syed Mahbubar Rahman, Advocate-on-Record.
Date of hearing: 29.04.2015, 04.05.2015, 05.05.2015,
06.05.2015, 17.05.2015, 24.05.2015, 23.05.2015 and 26.05.2015.
Judgment on: 16-06-2015
Hasan Foez Siddique, J:This statutory appeal, by convict Ali Ahsan Muhammad Mujahid (the appellant), has been filed under section 21 of the International Crimes (Tribunal) Act, 1973 (in short, ICT Act) against the judgment and order dated the 17th day of July, 2013 by the International Crimes Tribunal-2 (ICT-2) in ICT-BD Case No.04 of 2012 (The Chief Prosecutor v. Ali Ahsan Muhammad Mujahid) finding him guilty for the “Crimes against Humanity” enumerated in section 3(2) of the ICT Act listed in charge Nos.1,3,5,6 and 7 and convicting and sentencing him under section 20 of the ICT Act to a “single sentence of death” for the crimes as listed in charge Nos.6 and 7 and also sentencing him to suffer 5(five) years imprisonment for the crimes as listed in charge No.3, and imprisonment for life for the Crimes as listed in charge no.5. However, the Tribunal did not award any separate sentence for the crimes as listed in charge No.1 since charges No.1 and 6 are, in fact, are identical, i.e. charges for intellectual killings for the same period. The ICT-2 acquitted the appellant of the other charges framed against him.
Before considering the accusation made against the appellant chargewise with reference to the evidence and provisions of the ICT Act we would like to narrate the background of the case. It is relevant here to mention that ICT Act provides that the Tribunal should not require proof of facts of common knowledge but shall take judicial notice thereof. The term “common knowledge” denotes facts those are commonly accepted or universally known, such as, general facts of history. In International Criminal Tribunal for Rwanda, Prosecutor v. Semanza, ICTR-97-20-A Appeal Judgment 20 May,2005 it has been held that taking judicial notice of the facts of common knowledge is a matter of an obligation and not discretionary. In determining what constitutes common knowledge the ICTR held that these are facts that are so notorious or clearly established or susceptible to determination by reference to readily obtainable and authoritative sources that evidence of their existence is unnecessary. It further elaborated that common knowledge concerns facts that are generally known in the tribunal’s jurisdiction and are reasonably undisputable.
Furthermore, this case heard by this Division necessarily carries the greatest burden of establishing the historical context of the crimes concerned. The furthest going reliance is enabled when the law allows taking judicial notice of adjudicated facts.
People of Pakistan exercised their franchise to elect their representatives to run the Government of the country, the then Pakistan. Their opinion in that regard was reflected in the election of Pakistan National Assembly held in the last part of 1970. The result of the election was as follows:
Awami League - bagged....167 seats.
Pakistan People’s party - " ....88 seats.
All Pakistan Muslim
League (Quayyum) " ....09 seats.
(Council) " ....07 seats.
Jamat-ul-Ulema-i- Islam " ....07 seats.
Markazi Jamat-ul-Ulema " ....07 seats.
National Awami Party " ....07 seats.
Jamat-e-Islami " ....04 seats.
Muslim League " ....02 seats.
Pakistan Democratic Party " ....01 seat.
Independent " ....14 seats.
(source: “The Dawn”
The verdict of the people of East Pakistan to represent them in the National Assembly as reflected in the result of Pakistan National Assembly held in East Pakistan was as follows:
Total seats 169
Awami League ....167(indirectly elected
women’s seats 07)
Pakistan Democratic Party....01
(source: “The Dawn”)
That is, the People of East Pakistan did not give any authority to any one from Jamat-e-Islami or its student organization Islamic Chattra Sangha (ICS) to speak on their behalf, in other words, represent them in the Pakistan National Assembly.
To run the Provincial Government in East Pakistan, the People’s opinion to represent them was reflected in the result of East Pakistan Provincial Assembly Election which was as follows:
Awami League ...298 seats(including 10 indirectly elected women’s seats)
In Provincial Assembly election Jamat-e-Islami secured only one seat out of 310 seats. The elected M.P. from Jamat-e-Islami was Md. Abdur Rohman Fakir who got 13,693 votes and his nearest rival was Awami League candidate A.K. Mojibor Rohman who bagged 12,300 votes. (The activities of only elected member Mr. Md. Abdur Rohman Fakir during the war of Liberation was not highlighted in the newspapers or in any other way)
Democracy is a form of government in which the sovereign power resides in and is exercised by the whole body of free citizens directly or indirectly through a system of representation as distinguished from a monarchy, aristocracy, or oligarchy. It means “People’s power”. It stands for the actual, active and effective exercise of power by the people in this regard. Schumpeter gives a simple definition of democracy as “the ability of people to choose and dismiss a Government”. Giovanni Sartori said that democracy is a multi-party system in which the majority governs and respects the right of minority. It is the Government of the People, for the people and by the people. The politicians and political scientists failed to discover any other better way to change the Government peacefully other than the process of adult franchise. Such process had been adopted and recognized as way of democracy.
In view of the result of election held in 1970 Yahya Khan, the then President of Pakistan, had no other option but to hand over power to the majority party who bagged highest seats. It was his democratic obligation to request majority party leader to form government subsequent after publication of result of the election in the official gazette. If any one claimed to be a democrate or to have slightest respect in democracy he could not deny to allow the majority party to form government respecting the people’s will.
Now, let us see what happened in case of the then Pakistan, after holding election in last part of 1970 and in view of the result of the election. Siddiq Salik, military’s public relations officer in East Pakistan, in his book, “Witness to Surrender” narrated, “-------a General in Yahya’s confidence who came to Dacca in late December. After a sumptuous dinner at Government House, he declared during an informal chat. Don’t worry---- we will not allow these black bastards to rule over us.” Subsequent facts reveal that this sentiment was not only one general.
“Mr. Zulfiqer Ali Bhutto, Chairman of the Pakistan People’s Party (PPP) declared in Lahore on December 20, 1970 that the PPP is not prepared to occupy the opposition Benches in the National Assembly. He added, “Majority alone doesn’t count in national politics.” (‘The Dawn’)
“About the convening of the Constituent Assembly on February 15 as suggested by Sheikh Mujib, the PPP Chief remained non-committal, but said there was nothing wrong “if we take time up to the end of February at least.”
(“The Pakistan Times”)
“Summoned the National Assembly to meet in Dhaka on 3rd March 1971.” ( “The Dawn”).
“Mr. Z.A. Bhutto declared that his party will not attend the National Assembly Session starting on March 3 at Dacca unless it was made clear to him and his partymen that there would be some amount of reciprocity from the majority party, either publicly or privately.”
“Mr. Bhutto said, the Assembly would have been a “slaughter house” (“The Dawn,”)
“Yahya puts off National Assembly Sessions”. (“The Morning News”)
“The Sheikh said: “Only for the sake of a minority parties disagreement the democratic process of constitution has been obstructed and the National Assembly Session has been postponed sine die. This is most unfortunate so far we are concerned. We are the representatives of the majority people and we cannot allow it to go unchallenged.” (“The People”)
“In an emotion choaked voice the Sheikh in his 30 minute speech called upon the people to continue their struggle in a peaceful and organised manner”.(“The Dawn”)
“Report of the Press Conference at Karachi Press Club on March 03, 1971 by Air Marshal (Rtd.) Asghar Khan.
Air Marshal (Rtd.) Asghar Khan yesterday advocated immediate transfer of power to the majority party in the country in order to retrieve the present “close to disaster” situation.
Addressing a hurriedly called Press Conference at the Karachi Press Club he said President Yahya should invite Sheikh Mujibur Rohman and hand over power- “real power” to him in line with the democratic processes and in the interest of preserving national integrity and solidarity.
He told a correspondent that the constitution making job could wait. What now took precedence was the transfer of power to where it belonged, namely, the single largest party in the National Assembly.” (“The Dawn” )
“Army withdrawn to barracks-East Wing Protest continues-Firing in Tongi, Rajshahi Announcement by Martial Law Authorities on March 5, 1971.
The announcement further said, “Following Sheikh Mujibur Rohman’s appeal for peace, there has been considerable improvement in the general law and order situation during the past 24 hours.”
“Tikka Khan, Governor of East Pakistan.
Announcement on March 6, 1971- Chief Martial Law Administrator.” (“The Dawn”)
Bangabandhu Sheikh Mujibur Rahman leader of the majority party on 7 March, 1971 declared:
“Mujib’s carefully calibrated speech fill short of a declaration of secession from Pakistan, as large number of people especially the extremist’ student wing of his own party. But the conclusion of his speech, which implied that his ultimate goal was independence, pacified them.” (S.A. Karim Sheikh Mujib-Thiumph and Tragedy)“
“Report of the meeting held on March, 13,1971 at Lahore by Minority Groups in the National Assembly.
The minority groups in the National Assembly at a meeting held here today accepted in principle, the four point demand of Awami League Chief Sheikh Mujibur Rohman, and demanded that interim governments should be set up at the Centre and in the Provinces before the commencement of the Assembly on March 25.”
“Rule of majority does not apply to Pakistan. PPP cannot be ignored in country’s governance.”
“Minority parties leaders criticize Bhutto’s speech .....Mian Tufail Mahammad acting “Amir” of the Jamat-i=Islami said in Lahore on Sunday that the setting up of two separate governments in the two wings of the country would be a negation of the Legal Framework Order.
..... He said Mr. Z.A. Bhutto, by making this suggestion had clearly stated his purpose of becoming the sole ruler in West Pakistan. He said it was strange that Mr. Bhutto had now started talking about West Pakistan as a single unit. He said that the conditions prevalent in East Pakistan today were a result of the attitude adopted by Mr. Bhutto.” (underlined by us)
Those are the short and relevant news items published in the different newspapers from the date of publication of the result of election held in Pakistan in 1970 to 25th March, 1971, which reflected the attitude of Yahya Khan and Z.A. Bhutto towards democracy. The policy adopted by them was apparently against the democracy and United Pakistan as well. Yahya Khan hatched a conspiracy with Bhutto in Larkana, which had been admitted by the Pakistan Generals and Policy makers subsequently, in which, they decided not to hand over power to the majority Party and thereby adjourned the Session of National Assembly. Husain Haqqani in his book “Pakistan between Mosque and Military” narrated situation with the following words: “The military’s apologists as well as Bhutto’s opponents blame Bhutto for adopting an undemocratic attitude when he refused to acknowledge the rights of the Bengali majority party. Bhutto’s associates and some impartial observers, however, blame the military leadership. The overwhelming sentiment among the West Pakistani elite against letting the Bengalies dominate Pakistan made it more likely that Bhutto and the military acted in concert, in the interest of West Pakistan as they perceived it.”
Regarding conspiracy hatched in Larkana, Mr. S.A. Karim, a member of the then Pakistan Foreign Service in his book “Sheikh Mujib-Triumph and Tragedy” narrated:
“Indeed the lands around Larkana, the home town of Bhutto, are a hunter’s paradise abounding in dueks, partridges and wild boar. Providentially, or more likely by pre-arrangement, Bhutto was there to offer Yahya his lavish hospitality in his country estate. Yahya was accompanied by two fellow-hunters, General Hamid and Peerzada. They were not merely to give Yahya company but to make sure that he did not compromise the vital interest of the Army or that of West Pakistan. Next to Yahya they were the most powerful members of the ruling junta.
Yahya and Bhutto talked for five hours without any aides. Because of the secretive nature of their talks not every detail of what they talked about is known. However, Yahya had to keep his fellow generals in the junta informed and they leaked out some information to others. Bhutto, on his part, gave a sanitized verson of their conversation to his close advisers and wrote a paragraph about the meeting in his slim book “The Great Tragedy” published several months later to justify his role in the military crackdown of March 1971. It is possible to reconstrual, therefore, is broad outline what transpired at their Larkana meeting.
After Larkana there could be little doubt that Bhutto had achieved his purpose. No longer would Yahya refer to Mujib as the future Prime Minister of Pakistan.
He further narrated the continguency plan for a possible confrontation with Mujib was already under preparation. The docks needed to be cleared for a possible military action in East Pakistan. To that end, on 22 February, Yahya called a conference of Governors and Martial Law Administrator General Peerzada and Hamid were also present at the conference. Yahya brought up the matter of political deadlock in the Assembly Session and the desirability of postponing it. Both Governor Ahsan and MLA Yakub were against the idea of postponement and wrote a memorandum bringing out the disastrous implications of rolling back the political situation to what it was in 1969. Yahya seemed somewhat shaken told them: “I am willing to accept your views. But go and convince Mr. Bhutto. He is the one who is insisting on postponement.” Ahsan and Yakub went to Karachi to meet Bhutto. He told them: “You need not be apprehensive about the reaction of East Pakistan. Awami League is a bourgeois party. It is not a party of the masses. It cannot fight a guerrilla war. There will be no violent conflict in East Pakistan.”
“The decision to use force in East Pakistan was made secretly on 11 February, 1971 by the top Generals, including Hamid Khan, S.G.M.M. Pirzada, Gul Hasan Khan, Tikka Khan, Ghulam Umer and Akbor Khan at the army headquaters. The Deputy Chief of Pakistan’s Intelligence Agency, S.A. Saud, who attended the secret meeting, opposed the idea and leaked it to a senior Bengali officer of the Intelligence Department. The Bengali, in turn, informed Mujib of the Army’s decision. Yahya’s plan to suppress the Bengalis was apparently given the final shape in early March. Iqbal F. Quadir, a retired Vice Admiral with the Pakistan Navy, got the hint on 8 March, from Admiral Muzaffar Hasan, the Navy Chief. Quadir, who was about to leave for Paris for a stint as Pakistan’s Naval Attache, had gone to bid farewell to his Chief when the Admiral told him that a Major General, who was visiting Karachi, had mentioned to him in passing that the Army would be ready for action in East Pakistan by 17 March. Quadir later discovered that the Major General was Akbar Khan, the Military Intelligence Chief.
On 3rd March, the State Department sent a cable to the U.S. Embassy in New Delhi, which clearly indicated the United States had anticipated Yahya would use the military to suppress the Bengalis. The telegram said that as the Pakistani political crisis depended with the possibility that the “Martial Law Administrator may be prepared to use force to maintain unity” the attitude of the Indian government took on a growing importance.
On 11 March, the U.S. Consul General in Karachi told the State Department it had further information that Yahya could unleash the military force in East Pakistan” (Myths and Facts-Bangladesh Liberation War-B.Z. Khasru). “The attitude of the Army was summed up by the general officer commanding, Major General Khadim Hussain Raza, who told an Awami League sympathizer within the hearing of fellow officers: “I will muster all I can- tanks, artillery and machine guns- to kill all the traitors and, if necessary, raze Dacca to the ground. There will be no one to Rule; there will be nothing to Rule.” (Pakistan -between Mosque and Military- by Husain Haqqani)”
Now let us see how the Pakistani Rulers, Army, Politicians, and Policy makers dealt with their own majority citizens in East Pakistan after 25.03.1971. How the policy makers, servants of the people and “Patriotic Army” salaried by the people dealt with own countrymen in the name of Islam and defence of Pakistan.
Siddiq Salik, a Pak Army officer who was in Dhaka throughout the fateful year, 1971 as a uniquely privileged observer and participant in political and human drama. He witnessed the activities of Pakistan Army in Bangladesh and was involved in “Operation Searchlight”. He, in his book “Witness to Surrender” gave descriptions of Pakistan Army’s ‘Operation Searchlight’ on the night of Thursday 25th March, 1971 with the following words:
“Major General Khadim Hussain was brooding over the possible out come of political talks on 25 March when his green telephone rang at about 11 a.m. Lieutenant-General Tikka Khan was on the line. He said, ‘Khadim, it is tonight’.
It created no excitement for Khadim. He was already waiting for the fall of the hammer. The President’s decision coincided with the second anniversary of his assumption of power. General Khadim passed the word to his staff for implementation. The lower the news travelled, the greater the sensation it created. I saw some junior officers hustling about mustering some extra recoilless rifles, getting additional ammunition issued, a defective mortar sight replaced. The tank crew, brought from Rangpur (29 Cavalry) a few days earlier, hurried with their task to oil six rusty M-24s for use at night. They were enough to make a noise on the Dacca streets.
The general staff of Headquarters 14 Division rang up all the outstation garrisons to inform them of H-hour. They devised a private code for passing the message. All garrisons were to act simultaneously. It was calculated that by then the President would have landed safely in Karachi.
The plan for operation SEARCHLIGHT visualized the setting up of two headquaters. Major General Farman, with 57 Brigade under Brigadier Arbab, was responsible for operations in Dacca city and its suburbs while Major General Khadim was to look after the rest of the province. In addition, Lieutenant General Tikka Khan and his staff were to spend the night at the Martial Law Headquarters in the Second Capital to watch the progress of action in and outside Dacca.
A few days earlier, General Yahya had sent Major General Iftikhar Janjua and Major General A.O. Mitha to Dacca as possible replacements for Khadim and Farman in case they refused to crack down. After all, they had formed General Yakub’s team untill very recently and might still share his ideas. General Hamid had even gone to the extent of questioning Khadim’s and Farman’s wives to assess their husbands’ views on the subject. Both the Generals, however, assured Hamid that they would faithfully carry out the orders.
Junior officers like me started collecting at Headquarters, Martial Law Administrator, Zone ‘B’Second Capital) at about 10 p.m. They laid out Sofas and Easy Chairs on the lawn and made arrangements for tea and coffee to last the night. I had no specific job to perform except to be available . A Jeep fitted with a wireless set was parked next to this ‘outdoor operations room’. The city wrapped in starlight, was in deep slumber. The night was as pleasant as a spring night in Dacca could be. The setting was perfect for anything but a bloody holocaust.(underlined by us)
At the given hour, Brigadier Arbab’s brigade was to act as follows:
13 Frontier Force was to stay in Dacca cantonment as reserve and defend the cantonment, if necessary. 43 Light Anti-Aircraft (LAA) Regiment, deployed at the airport in an anti aircraft role since the banning of overflights by India, was to look after the airport area.
22 Baluch, already in East Pakistan rifles Lines at Pilkhana, was to disarm approximately 5,000 E.P.R. personnel and seize their wireless exchange.
32 Punjab was to disarm 1,000 ‘highly motivated’ policemen, a prime possible source of armed manpower for the Awami League, at Rajarbagh Police Lines.
18 Punjab was to fan out in the Nawabpur area and the old city where many Hindu houses were said to have been converted into armouries.
Field Regiment was to control the Second Capital and the adjoining Bihari localities (Mohammadpur, Mirpur).
A composite force consisting of one Company each of 18 Punjab, 22 Baluch and 32 Punjab, was to ‘flush’ the University Campus particularly Iqbal Hall and Jagan Nath Hall which were reported to be the strong points of the Awami League rebels.
A platoon of Special Service Group (Commandos) was to raid Mujib’s house and capture him alive.