সাঈদীর বিরুদ্ধে রায়ের সারসংক্ষেপ পড়তে ক্লিক করুন

1International 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 insection 3(2)(a) and 3(2)(c)(i)(g)(h) of the Act of XIX of 1973)The Chief ProsecutorVersusDelowar Hossain SayeediPresent:Mr. Justice A.T.M. Fazle Kabir, ChairmanMr. Justice Jahangir Hossain, MemberMr. Justice Anwarul Haque, MemberDate of delivery of Judgment 28 February, 2013.Prosecutors:-Mr. Golam Arif Tipu, Chief ProsecutorMr. Syed Haider Ali,Mr. Abdur Rahman Howlader,Mr. Altab Uddin Ahmed,Mrs. Nurjahan Begum Mukta,Mr. A.K.M. Saiful Islam,Mr. Shahidur RahmanMr. Sultan MahmudMr. Hrishikesh SahaMr. Mir Iqbal HossainDefence Counsels:-Mr. Md. Abdur Razzak Senior Counsel withMr. Mizanul Islam,Mr. Monjur Ahmed Ansari,Mr. Kafil Uddin Chowdhury,Mr. Tajul Islam,Mr. Tanvir Ahmed Al-Amin,Mr. Imran Siddique,Mr. Abu Bakar Siddique2Summary 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 itis going to deliver the first judgment of the first case after completion of itstrial. This Tribunal was established under the International Crimes (Tribunals)Act, enacted in 1973 (hereinafter referred to as the Act) by Bangladeshparliament to provide for the detention, prosecution and punishment ofpersons for genocide, crimes against Humanity, war Crimes and other Crimesunder International law committed in the territory of Bangladesh during theWar 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 receivedinvestigation report along with documents therewith by the InvestigationAgency, Submitted the formal charge along with documents to this Tribunal on11.7.2011 under section 9(1) of the Act of 1973. Sole accused DelowarHossain Sayeedi was in the custody in connection with other cases. He wasproduced before the Tribunal on 14.07.2011 following a production warrantissued by this Tribunal on that date, on perusal of the documents submitted bythe prosecution, this Tribunal took cognizance of offence against the accusedas mentioned under section 3(2)of the Act as required under Rule 30 of theRules of procedure (ROR) on hearing of the learned lawyers of both the sides,this Tribunal framed charges against accused Delowar Hossain Sayeedi on303.10.2011 under sections 3(2) (a) and 3(2)(c i), (g)(h) of the Act which arepunishable under section 20(2) read with section 3(1) of the Act. The chargesframed were read over and explained to the accused on dock to which hepleaded 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 largescale, crimes against Humanity, War Crimes and genocide were committed byPakistani forces, auxiliary forces and their associates which resulted the birth ofBangladesh as an independent country. It was estimated that during ninemonth long War, about three million people were killed, nearly quarter millionwomen were raped, and over 10 million people were deported to India causingbrutal persecution upon them.4. In the general election of 1970, the Awami League under the leadershipof Bangabandhu Sheikh Mujibur Rahman won 167 seats out of 300 seats of theNational Assembly of Pakistan and thus became the majority party of Pakistan.Of the 300 seats 169 were allocated to East Pakistan of which Awami Leaguewon 167 demonstrating an absolute majority in the Parliament. Despite thisoverwhelming majority, Pakistan government did not hand over power to theleader of the majority party as democratic norms required. As a result,movement started in this part of Pakistan and Bangabandhu Sheikh MujiburRahman in his historic speech of 7th March, 1971 called on the people ofBangladesh to strive for independence if people’s verdict is not respected andpower is not handed over to the leader of the majority party. On 26th March,4following the onslaught of “Operation Search Light” by the Pakistani militaryon 25th March, Bangabandhu declared Bangladesh independent immediatelybefore he was arrested by the Pakistani authorities.5. With this declaration of independence, the war to liberate Bangladeshfrom the occupation of Pakistan military began that ended on 16th ofDecember 1971 with the surrender of all Pakistani military personnel present inBangladesh before the Joint Indian and Bangladeshi forces in Dhaka. In theWar of Liberation that ensued, all people of East Pakistan wholeheartedlysupported and participated in the call to free Bangladesh but a small number ofBangalees, Biharis, other pro-Pakistanis, as well as members of a number ofdifferent religion-based political parties joined and/or collaborated with thePakistan 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 thePakistani military and their local collaborators, who perceived them as pro-Indian and made them targets of attack, persecution, extermination anddeportation as members belonging to a religious group.6. As a result, 3 million (thirty lacs) people were killed, more then 2(two) lakhwomen raped, about 10 million (one crore) people deported to India asrefugees and million others were internally displaced. It also saw unprecedenteddestruction of properties all over Bangladesh.7. In order to bring to justice the perpetrator of the crimes committed in1971, the International Crimes (Tribunals) Act, 1973 was promulgated.5However, no Tribunal was set up and no trial took place under the Act untilthe government established this International Crimes Tribunal on 25th ofMarch 2010.IV. Brief account of the accused:-8. Accused Delowar Hossain Sayeedi alias Delu son of late Yousuf AliSayeedi of village –South Khali, Police Station Indurkani (Zianagar) Dist.-Pirojpur was born on 01.02.1940 in his village. He passed Dhakil Examinationfrom Darns Sunnat Madrasha Sarsina in 1957 and he also passed the AlimExamination in 1960 from Barroipara Madrasha. He has got one wife and foursons. He was elected Member of the parliament in the election held in 1996and 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 theTribunal to prosecute and punish not only armed forces but also theperpetrators was belonged to auxiliary forces or who committed the offence asan ‘individual’ or a group of individuals and no where in the Act it has beensaid that without prosecuting the armed forces (Pakistani) the person or thegroup of persons having any other capacity specified in section 3(1) of the Actcannot be prosecuted. Rather, it is manifested in section 3(1) that even anyperson if he is prima-facie found criminally responsible for the offencesspecified in section -3(2) of the Act can be brought to justice. Thus, the6Tribunals set up under the Act of 1973 are absolutely domestic Tribunal butempowered to try internationally recognized crimes committed in violation ofcustomary international law.VIII. Procedural History:10. At pre-trial stage, a complaint petition was filed by one Md. MahbubulAlam Houlader on 20.07.2010 with the investigation agency constituted undersection 3(1) of the Act of 1973. Accused Delowar Hossain Sayeedi was in thejail custody in connection with other criminal cases pending in different courtsof Bangladesh. This Tribunal issued production warrant against the accusedand 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 accordancewith law in presence of the accused and the learned lawyers of both the partiesupon hearing an application filed by the accused, this Tribunal directed theprison authority to arrange proper treatment of the accused in BangabandhuSheikh Mujib Medical University Hospital (BSMMU) and accordingly he wasprovided proper treatment thereof. The accused informed the court that hebeing a diabetic patient needs treatment in BIRDEM Hospital. Then thisTribunal allowed the accused to have treatment in BIRDEM Hospital. The jailauthority was directed to provide green vegetable as specialized food to theaccused considering him to be a diabetic patient and also directed to providehealth friendly vehicle to the ailing accused for his transport.11. On the basis of investigation report, the chief prosecutor submittedformal charge on 11.07.2011 against the accused before this Tribunal. It is7alleged that the accused as a member of group of individuals as well as amember of Rajakar Bahini Committed crimes against Humanity, genocide andother Crimes in different places of the then Pirojpur Sub-division. ThisTribunal upon consideration of the formal charge and documents attachedtherewith took cognizance of offence on 14.07.2011. An application on behalfof the accused was submitted for discharge of him. Hearing on charge matterwas continued for four days by the learned lawyers of both the parties. Aftercompletion of hearing on charge matter, the application for discharge of theaccused 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 accusedDelowar Hossain Sayeedi.X. Witnesses adduced by the parties:-12. The prosecution submitted a list of 138 witnesses including formalwitnesses while the defence submitted a list of 48 witnesses in support ofdefence case. At the time of trial, the prosecution examined 28 witnesses ofwhom 20 were witnesses of occurrence, 07 were seizure list witnesses and onewas the investigation officer. On the other hand, this Tribunal allowed thedefence to examine maximum 20 witnesses but it examined 17 witnesses ofwhom 14 were listed witnesses and the rest three were examined by the defencewith the permission of the Tribunal. It may be mentioned that out of said threewitnesses one was the listed prosecution witness but he deposed as a defencewitness.8XIII. Summing up the prosecution case by theprosecutor:-13. Mr. Syed Haider Ali, the learned prosecutor contents that as many as 20charges relating to crimes against Humanity, genocide and other crimesdescribed under section -3(2) of the Act, were framed against accused DelowarHossain Sayeedi who committed the said crimes within Pirozpur Sub-Divisionduring the War of Liberation of Bangladesh. The accused as a member ofgroup of individuals as well as a member of local peace committee andsometimes as a member of Razakar Bahini took part in killing, torture, rape,looting, setting fire on the houses of civilians, forceful conversion of Hindus toMuslims and systemic attack on the Hindu community with intent to destroy it. It is further contended that the prosecution has successfully proved 19charges by oral testimony and documentary evidence and 5 charges namelycharges 1-4 and 13 have been proved by statements for want of live witnessesthose charges have been proved by the statements of witnesses, recorded bythe investigation officer as per provision of section 19(2) of the Act.XIV. The Summing up the defence case by thecounsel:-14. Mr. Abdur Razzak, the learned senior counsel for the defencesubmits that in committing international crimes, attack must bewidespread or systematic with a clear knowledge about commission ofoffence but the Act does not contemplate this and crimes are not9adequately defined as such alleged charges suffer from vagueness andelement of crimes are hopelessly absent. It is contended that the accusedused to live in Jessore upto June 1971, thereafter he went to Pirojpur inthe Month of July and he never joined the local peace committee orRajakar Bahini or took part in any attrocities committed by PakistanArmy. It is contended that the Government of Bangladesh made pressrelease on 17.4.1973 and accordingly enacted the International Crimes(Tribunals) Act 1973 in order to try only 195 war criminals and the thenGovernment passed the collaborators order 1972 aiming at to try thecivilians responsible for the offence and as such the accused as a civiliancould be tried under collaborators order but the present Government witha malafide intention has brought the case against him though suchproceeding is barred by the tripatriate agreement dated 02.07.1972 whereclemency was granted to the War Criminals. It is further argued that theprosecution has committed delay of about 40 years in bringing criminalcharge against the accused without explanation and as such unexplainedinordinate delay is sufficient to disbelieve the prosecution case. It issubmitted that the Tribunal received statement of 16 witnesses inevidence recorded by the investigation officer under section 19(2) of theAct, though those witnesses were available in their locality. It is lastlycontended that recently skype conversations between the formerChairman of this Tribunal with one Ahmed Ziauddin which go to show10that the order of framing charge and other 4 orders were transmittedfrom Belgium and as such the defence has been materially prejudiced bysuch unfair process of the Trial.XVI. Discussion and decision:-15. Before discussing the charges brought against the accused, weconsider it expedient to address some of the legal issues upon which thelearned 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 auxiliaryforce as stated in section 3 of the Act of 1973 can be brought to justiceunder the Act for the offence (s) enumerated therein for the reason that195 Pakistani war criminals belonging to Pakistan Armed Force wereallowed to evade justice on the strength of ‘tripartite agreement’ of 1974.Such agreement was an ‘executive act’ and it cannot create any clog toprosecute member of ‘auxiliary force’ or an ‘ individual’ or member of‘group of individuals’ as the agreement showing forgiveness or immunityto the persons committing offences in breach of customary internationallaw was derogatory to the existing law i.e the Act of 1973 enacted toprosecute those offences.16. Delay in bringing prosecution11From the point of morality and sound legal dogma, time bar shouldnot apply to the prosecution of human rights crimes. Neither theGenocide Convention of 1948, nor the Geneva Conventions of 1949contain any provisions on statutory limitations to war crimes and crimesagainst humanity. Article 1 of the Convention on the Non-Applicability ofStatutory Limitations to War Crimes and Crimes Against Humaniryadopted and opened for signature, retification and accession by GeneralAssembly resolution 2391 (XXIII) of 26 November 1968 providesprotection against even any statutory limitation in prosecuting crimesagainst humanity, genocide etc. Thus, criminal prosecutions are alwaysopen and not barred by time limitation.17. It may be cited here that the second world war was concluded in1945 but still the Nazi War Criminals are being prosecuted. Similarly, thetrial of internationally recognised crimes committed during Chileanrevolution in 1973 is still going on. Internationally recognised crimes werealso committed during Pol Pot regime of Cambodia in the year 1973 to1978 but due to internal conflicts and lack of political will of the thengovernment could not start prosecution against the perpetrators in time.The Royal Government of cambodia waited 25 years for attaining a strongpolitical will, thereafter in association with the United Nations, theyestablished a Hybred Tribunal and thus trial against the perpetrators wasstarted in 2003 which is still going on. In fact, the criminal prosecution as12regards international crimes is always open and not barred by any timelimit. The sovereign immunity of Slobodan Milosevic of Serbia, CharlesTaylor of Liberia and Augusta Pinochet of Chile, as the head of the statecould not protect them from being detained and prosecuted forcommitting genocides, crimes against Humanity and war crimes.18. In view of above settled position and in the absence of anystatutory limitation, as a procedural bar, only the delay itself does notpreclude prosecutorial action to adjudicate the culpability of theperpetrator of core international crimes. Indubitably, a prompt andindisputable justice process cannot be motorized solely by the painfulmemories and aspirations of the victims. It requires strong public andpolitical will together with favourable and stable political situation. Merestate inaction, for whatever reasons, does not render the delayedprosecution readily frustrated and barred by any law.19. Considerations of material justice for the victims should prevailwhen prosecuting crimes of the extreme magnitude is on the process.Therefore, justice delayed is no longer justice denied, particularly whenthe perpetrators of core international crimes are brought to the process ofjustice. 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 aftertaking all the factual circumstances into consideration.13XVII. Whether accused Delowar Hossain Sayeediwas a member of local Razakar Bahini /PeaceCommittee?20. It is a fact of common knowledge that during the War of Liberationin 1971, Pakistani Occupation forces organized auxiliary forces namely ,Razakar , Al-Bador, Al-Shams and Peace Committee for the purpose oftheir operational support in implementing its atrocious activities infurtherance of making policy to execute their missions. The RazakarBahini was composed of mostly pro-pakistani Bangalee Razakars whoactively associated with many of the atrocities committed by PakistaniArmy during nine-month of the War of Liberation.21. Now let us discuss the oral and documentary evidence produced bythe prosecution as to proving the accused as a member of local RazakarBahini.22. P.W. 1 Md. Mahbubul Alam Howlader deposed that during LiberationWar, 1971, Parerhat Peace Committee was formed with accused DelwarHossain Sayeedi and some others who were against the independence ofBangladesh. He also deposed that Razakar bahini was formed there with somemembers of the said Peace Committee including accused Delwar HossainSayeedi and some students of different Madrasas and members of differentorganizations who were against the independence of Bangladesh.23. P.W. 2 Ruhul Amin Nobin deposed that during Liberation War, 1971, aPeace Committee was formed at Parerhat with accused Delwar Hossain Sayeedi14and others. He also deposed that a Razakar bahini was also formed there underthe leadership of accused Delwar Hossain Sayeedi, Sekander Ali Sikder, DaneshAli Molla, Mowlana Moslehuddin and some other anti-liberation people withintent to kill the supporters of Liberation War and freedom-fighters.24. P.W. 3 Md. Mizanur Rahman Talukder deposed that during LiberationWar, 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, hehaving gone to his village home he came to know that leaders of Jamat-EIslaminamely Sekander Ali Sikder, Danesh Ali Molla, accused Delwar HossainSayeedi and Moslem Mowlana, formed a Peace Committee at Parerhat. Underthe leadership of accused Delwar Hossain Sayeedi, a Razakar bahini was alsoformed 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 andSekander Sikder formed Peace Committee. He also deposed that 2/3 days afterthe Peace Committee having been formed the said persons themselves formedRazakar bahini.27. P.W. 6 Manik Posari deposed that during Liberation War, 1971, Razakarbahini and Peace Committee were formed and, accused Delwar HossainSayeedi formed the Peace Committee at Parerhat with the persons who were15against the Liberation War, and thereafter the members of said PeaceCommittee 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 areaand he knew them. He further deposed that the goods of the house ofSaijuddin 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 theaccused 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 andRajakar bahini and he along with the members of Peace Committee andRazakar bahini looted the goods of the houses and shops of Hindus ofParerhat.30. P.W. 9 Altaf Hossain Howlader deposed that on 7th May, 1971, PakistaniArmy came to Parerhat and, 6/7 days prior to their arrival, a Peace Committeewas formed at Parerhat and thereafter accused Delwar Hossain Sayeedi himselfformed 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, MoslemMowlana, Hakim Kari, Ruhul Amin, Momin along with others formed aRazakar bahini at Parerhat. He identified the accused in the dock.1632. P.W. 11 Abdul Jalil Sheikh deposed that on 8th May, 1971 he saw thatsome Razakars including Rajakar Delwar Hossain Sayeedi (accused) along with10/15 Pakistani Army having come to their village Chitholia, proceeded to thehouse of Manik Posari and then the accused along with two other Rajakarscaught hold of Kutti and Mofizuddin therefrom and tied them with rope andthen they looted the goods of that house and, thereafter they having pouredkerosene oil burnt that house.33. P.W. 26 Abed Khan is a journalist. He deposed that he was the editor ofDainik Samokal in 2007; that on 10.02.2007 a news report was published onthe first page of that daily newspaper under the headline “Rvgvqv‡Zi MWdv`viivaiv †Qvqvi evB‡i ” about four persons and of them accused Delwar HossainSayeedi was number one. He further deposed that it was reported in thenewspaper amongst others accused Delwar Hossain Sayeedi had formedRazakar 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 inBangladesh, the name of accused Delwar Hossain Sayeedi appears to have beenin the said list under district Pirojpur.35. Dr. M.A. Hasan, as one of the researchers on war crimes wrote a booknamed “ hy×vcivaxi ZvwjKv I wePvi cªmsM” published in February 2009 in which thename of Delowar Hossain Sayeedi has been published at page No. 148 as oneof the Razakars of District Priojpur. The defence side has filed a book named“Santi Committee 1971” (Exhibit NO. FV) in the case of Professor Ghulam17Azam which also speaks that the name of Delowar Hossain Sayeedi has beenlisted as one of the Razakars of District Pirozpur.36. Ext. 8 is an issue dated 05.03.2001 of the Bengali Daily Janakanthawherein a staff report under the caption “GKvˇii ÔivRvKvi w`Bj−vÕ GLb gvIjvbvmvC`x” was published which reads as follows:“‡bK‡o †hgb Q`oe‡ek wb‡jI †bK‡oB †_‡K hvq, †Zgwb GKvˇiibicï ivRvKvi-Avje`iiv ¯^vaxbZvi ci †fvj cvëv‡bvI bicïivRvKvi-Avje`iB †_‡K ‡M‡Q| wc‡ivRcy‡ii GKvˇii ÔivRvKviw`Bj−vÕ ¯^vaxbZvi ci RbMY‡K ag©K‡g©i K_v ïwb‡q ÔgIjvbv mvC`xÕn‡jI Zvi Aa‡g©i AcK‡g©i KjsK wÎk eQi ciI gy‡Q hvqwb| GLbmvC`xiv GKvˇii ¯^vaxbZvwe‡ivax `vjvj-NvZK-al©‡Ki wbg©gZvb„ksmZvi fqsKi cÖZxK| MYnZ¨v, jyÉb, AwMoems‡hvM, wbcxob BZ¨v`xigva¨‡g Giv RvZxq gyw³ msMÖv‡gi we‡ivwaZv K‡i‡Q| G mZ¨ †_‡K Givcjvqb 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 mxgvnxbN„bvq|……………………………………………………………………………………………………………………………………………………………………………………………..”37. Ext. 11 is an issue dated 04.11.2007 of the Bengali Daily Bhorer Kagajwherein a staff report under the caption “ivRvKv‡ii GKvËibvgv 7-nZ¨v al©Y jyUcv‡UAwfhy³ †`‡jvqvi †nv‡mb mvC`xÓ was published which runs as follows:18“……………………………………………………………………………………………………………..………………………….………1971 mv‡j gnvb gyw³hy×Kv‡j wZwba‡g©i †`vnvB w`‡q wbR †Rjv wc‡ivRcy‡i wn›`y m¤úª`v‡qi Nievwo, m¤ú` jyUK‡i‡Qb| cvwK¯’vwb nvbv`vi evwnbx‡K MYnZ¨v I wbh©vZ‡b c«Z¨fv‡e mnvqZvK‡i‡Qb mvC`x| wc‡ivRcy‡i gw³hy‡×i mgq MYnZ¨v, wbh©vZb, jyUZivRmn bvbvhy×vciv‡ai Ab¨Zg †nvZv †`‡jvqvi †nv‡mb mvC`x| Zvi Gme AcK‡g©i eûbwRi I mvÿx Av‡Rv cvIqv hv‡e Zvi nv‡Z wbh©vwZZ I wZMÖ¯’ n‡q †eu‡P _vKvwc‡ivRcy‡ii ¯^Rbnviv gvby‡li N‡i N‡i|GKvˇi gyw³hy‡×i mgq ¯^vaxbZv we‡ivax I NvZK mvC`xi `y®‹‡g©i wKQzweeiY cÖKvwkZ n‡q‡Q ÔGKvˇii NvZK `vjvj I hy×vcivax‡`i m¤ú‡K© MwVZRvZxq 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‡Kmn‡hvMxZv Kivi Rb¨ Zvi wbR GjvKvq Avje`i, Avj kvgm Ges ivRvKvievwnbx MVb K‡ib Ges Zv‡`i mivmwi mn‡hvMxZv K‡ib| 1971 mv‡j wZwbmivmwi †Kvb ivR‰bwZK `‡ji †bZv wQ‡jb bv, Z‡e Z_vKw_Z gIjvbv wnmv‡ewZwb Zvi ¯^vaxbZv we‡ivax ZrciZv cwiPvjbv K‡i‡Qb| Zvi GjvKvqnvbv`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‡qÔcuvP 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¤úwËjyôb Kiv| jyôbK…Z G mg¯— m¤ú`‡K †`‡jvqvi †nv‡mb mvC`x ÔMwYg‡Zi gvjÕ19AvL¨vwqZ K‡i wb‡R †fvM Ki‡Zb Ges cv‡oinvU e›`‡i Gme wewμ K‡i e¨emvcwiPvjbv Ki‡Zb|…………………………………………………………………………………..…………………………..………………………………….”38. Upon scrutiny of the oral evidence adduced by P.W. 5 coupled withdocumentary evidence, it is well-proved that the accused was a prominentmember of Razakar Bahini of parerhat area during the War of LIberation andhe actively participated in different atrocious activities committed by localRazakar Bahini in association with Pakistani occupation forces. The abovementioned oral and documentary evidence are sufficient to hold thatprosecution has successfully proved the status the accused as a member ofauxiliary force as defined in section 2(a) of the Act at the time of commissionof offences for which the accused has been charged. Moreover, even in thecapacity of an individual or member of a group of individuals the accused isliable to be prosecuted under section 3(1) of the Act if he is found to havecommitted 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 ofalleged horrific crimes in parerhat area, the status of the accused was potentialmember of local Razakar Bahini and a close accomplice of Pakistani occupationArmy posted at the then Pirojpur Subdivision in 1971.XVIII. Adjudication of charges Nos. 1-4 and 13brought against the accused.(Crimes against Humanity and genocide)2040. At the very outset Mr. Sayed Haider Ali submitted that as many as 20charges have been framed against the accused but the prosecution could notproduce any live witnesses before the Tribunal to prove charge Nos. 1, 2. 3. 4and 13 but the prosecution has proved those five charges by the statement ofwitnesses as recorded by the investigation officer under section 19(2) of the Acton the ground that the attendance of those witnesses could not be procured atthe time of trial. However, the gist of those five charges are given below for theconvenience of discussion:41. Charge No. 1:- That on 4 May, 1971 the accused as a member of localShanti Committee gave information to Pakistan Army about gathering of 20unarmed civilian people behind Madhya Masimpur bus stand and in a plannedway those 20 people were killed and he was charged for the offence specified insection 3(2)(a) of the Act.42. Charge No. 2:- That on 4 May, 1971 accused along with Pakistani Armywent to Masumpur Hindupara under Pirojpur police Station, looted houses anddestroyed the same by setting fire then in a planned way accused gunned down13 HIndu unarmed civilians with intent to destroy it whole or in part of theHIndu religious group and thereby committed offence specified in section3(2)(a) and 3(2)(c)(i) of the Act.43. Charge No. 3:- That on 4 May, 1971 accused along with Pakistani Armywent to Masimpur Hindu para and looted goods from the house of MonindraNath Mistri and Suresh Chandra and committed large scale destruction bysetting fire on the houses of following villages namely Kalibari, Masimpur,21Palpara, Sikarpur, Razarhat Kukarpara, Dumoritala, Kadomtola, Nawabpur,Alamkuthi, Dhukigathi Parerhat and Chinrakhati and thereby committedoffence specified in section 3(2)(a) of the Act.44. Charge No. 4:- That on 4 May, 1971 the accused along with Pakistaniforces in a planned way surrounded Hindu Para located in front of Dhopa Bariunder Pirojpur Police Station with intent to destroy Hindu Civilians andthereby killed Debendra Nath Mondal, Jogendra Nath Mondal, Pulin Bihari,and Mukando Bala by gun-shot. Accused has committed crimes of genocidespecified in section 3(2)(c)(I) of the Act.45. Charge No. 13:- That about 2/3 months after the start of the LiberationWar in one night the accused along with members of Peace Committee andPakistani Army raided the house of Azhar Ali of Village Nalbunia and caughthim with his son Shaheb Ali then accused tortured them and abducted ShahebAli and he was taken to Pirojpur and ultimately he was killed and his dead bodywas thrown in the river. The accused committed the crimes against Humanityspecified in section 3(2)(a) of the Act.46. We have perused the statements of the following witnesses namelyAsishkumar Mondal (Exbt. No. 254) Sumati Rani Mondal (Exbt. No. 265)Sitara Begum (Exbt. No. 266) and Md. Mostafa (Exbt. No. 267). It transpiresfrom the statements of seven witnesses that they narrated the occurrences ofrelating to charge Nos. 1 to 4 and 13 before the investigation officer but theydid not turn up before the Tribunal to prove said charges brought against theaccused.2247. Mr. Syed Haider, the learned prosecutor stressed much on theacceptance of the statement of witnesses as reliable evidence on the plea thatthe provision of law provided under section 19(2) of the Act has empoweredthe Tribunal to receive statement of witnesses as evidence subject to unavailabilityof those witnesses.48. Mr. Abdur Razzak the learned defence counsel drew our attention to thedocuments submitted by the defence and submitted that the alleged witnessesare neither dead nor unavailable persons and as such the Tribunal cannot relyupon so-called statements of witnesses as evidence under section 19(2) of theAct. In support of his contention, Mr. Abdur Razzak cited 3 decisions in thecases of windisch Vs. Australia ECTHR, Al-Khaawaja and Tahery Vs. theUnited Kingdom ECTHR-2009 1996 -11 No. 6.49. Facts remain that the prosecution could not produce any oral ordocumentary evidence to prove the occurrences mentioned in charge Nos.1,2,3,4 and 13 except statement of seven witnesses recorded by theinvestigation officer under section 19(2) of the Act. It is undisputed that not asingle maker of those statements has been examined to prove the occurrancesand as such it is undeniable that the defence did not get an opportunity tocross-examine those makers of statements to find out the truth. The statementsof witnesses recorded by the investigation officer are always considered asunsafe documents and if the maker of such statement is not confronted duringtrial, such unsafe statement looses its credibility.2350. Having considered the legal aspects of those statement of witnesses, weare of the openion that the statements of witnesses recorded under section19(2) of the Act alone do not form the basis of conviction and such statementof witnesses may be used as corroborative evidence to prove a particularoccurrence. It is further observed that the Tribunal may gather informationabout the conduct of the accused by using statement of witnesses but no onecan be held criminally responsible solely on the basis of such statement ofwitnesses 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 PirojpurSub-Division (now District) organized Sarbo Dalio Sangram Parishad to inspirethe people for participating in the War of Liberation. Knowing this fact,accused Delwar Hossain Sayeedi declared publicly to arrest him for his proliberationactivities. On 5th May, 1971 the accused along with his associateMonnaf (now deceased), the member of Peace (Shanti) Committeeaccompanied with some members of Pakistani Army riding on a Military Jeepwent to Pirojpur Hospital at noon where Mr. Saief Mizanur Rahman was intohiding.Evaluation of evidence and finding:-52. The prosecution has examined only one witness Saief Hafizur RahmanKhokon (P.W-27) to prove charge No. 5. Upon scrutiny of the evidenceadduced by P.W. 27, it is found that during War of Liberation, three24administrative officers of Pirojpur Sub–Division namely Abdur Razzak S.D.O,Foyezur Rahman S.D.P.O. and Saief Mizanur Rahman, Magistrate (brother ofP.W. 27 ) were brutally killed by Pakistani Army. On getting the death news ofhis brother he went to pirojpur from Narail, he met Khan Bahadur Afzal whotold him that one Monnaf identified his brother to Pak-Army and thereby threetop officers were gunned down by Pakistani Army. He heard from KhanBahadur Afzal and local people that one Monnaf and Delowar Hossain Sayeediwere in the vehicle of the Pak- Army, Evidence of P.W. 27 is itself hearsayevidence but such evidence has not been corroborated by any local witness orby any documentary evidence. Prosecution has submitted some paper cuttingsof daily news paper namely Dainik Janakanta dated 5.3.2001 as Exhibit-8and Dainik Vorer Kagoge dated 4.11.2007 as Exhibit-11 which have narratedgeneral attrocities allegedly committed by the accused, there is no allegationagainst him as to killing of aforesaid three officers in Pirojpur. Considering theevidence on record we are inclined to hold that the uncorroborated hearsayevidence adduced by P.W. 27 has got no provative value and as such chargeNo. 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 ofPeace (Shanti) Committee to receive Pakistani Army at Parerhat Bazar underPirojpur Sadar Police Station, then the accused identified the houses and shopsof the people belonging to Awami Legue, Hindu Community and supporters ofthe Liberation War. The accused as one of the perpetrators raided those shops25and houses and looted away valuable including 22 seers of gold and silver fromthe shop of Makhanlal Saha. These acts are considered as crime of persecutionon 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 theatrocities committed by the Pakistani Army with the assistance of localperpetrators at Parerhat area during the War of Libaration in 1971. Uponcritical analysis of the evidence adduced by P.W. Nos. 1,2,3,4,8,9,12 and 13 it isfound that accused Delowar Hossain Sayeedi along with local members ofPeace Committee and Razakars wel-comed about 52 Pakistani Army personnelheaded by captain Ejaz at Parerhat on 7th May, 1971. Accused DelowarHossain Sayeedi could speak in Urdu well which brought him to a closeassociation of captain Ejaz. It is evident that all the attacks including looting ofvaluables made by Pakistani Army coupled with local members of PeaceCommittee and Razakar Bahini were directed against unarmed civilianpopulation specially targeting Hindu Community and liberation loving people.All the aforesaid 8 prosecution witnesses have categorically testified that on 7May, 1971 accused Delowar Hossain Sayeedi was very much present atParerhat and he took active part in all occurrences of looting of goods from25/30 shops and houses of Hindus and Awami Leagues situated at Parerhatarea under Pirojpur Sub-division. Aforesaid P.Ws have succinctly stated thataccused Delowar Hossain Sayeedi, could speak in Urdu, so he used toaccompany the Pakistani forces to the place of occurances and identified shops26and houses of pro-liberation people and Hundu Community for committingcrimes such as looting of goods, setting fire on the houses of civilians, etc. Theevidence discussed above, appears to be unshaken. It sufficiently indicates thatthe accused substantially contributed and facilitated to the crimes againstHumanity with full knowledge. All the P.Ws. belong to same locality of theaccused and they identified him in the dock. No doubt remains there as toidentification of the accused. DW Nos. 1,3,13,14 and 16 have corroborated thebarbarous atrocities such as genocide, rape , looting, arson, etc. committed byPakistani 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 lootinggoods and setting fire on his house)55. That on 8th May, 1971 at about 1.30 p.m. accused Delwar HossainSayeedi led a team of armed accomplices accompanied with Pakistani Armyraided the house of Shahidul Islam Selim, son of Nurul Islam Khan of villageBaduria under Pirojpur Sadar Police Station and he identified Nurul IslamKhan as an Awami Legue leader and his son Shahidul Islam Selim, a freedomfighter,then the accused detained Nurul Islam Khan and handed over him toPakistani 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 thehouse by fire is considered as crime of persecution as crimes against Humanityon political ground and the accused also abetted in the torture of Nurul IslamKhan by the Pakistani Army.27Evaluation of evidence and findings56. The prosecution has examined three witnesses to prove specially theoccurrence of burning house of Shahidul Islam Selim son of Nurul IslamKhan of village Baduria by Pakistani Army with the assistance of accusedDelowar Hossain Sayeedi. Upon critical analysis of the evidence adduced byP.W. Nos. 1, 8 and 12, it is found that on 8 May, 1971, Pakistany Army alongwith 30/35 Razakars including accused Delowar Hossain Sayeedi went tovillage Baduria where the accused identified the house of Shahidul Islam Selim(Freedom Fighter) then the said house was destroyed by setting fire which waswitnessed by P.W.8 Md. Mostafa Hawlader from other side of the Khaladjacent to that house. It is evident that Pakistani Army accompanied byRazakars went to village Baduria and destroyed a house of a freedom fighter bysetting fire which is considered as a crime of persecution. It is further provedthat the attack (setting fire) was directed against civilian population with intentto destroy a political group (freedom fighters).57. It is further revealed from the evidence of D.Ws. 3,7 and 15 that theyhave categorically corroborated the prosecution case to that extent that on thedate of occurrence the Pakistani Army along with some other people went tovillege Baduria and they destroyed the house of Nurul Islam Khan by settingfire and they also destroyed some other houses of another village Chitholia onthe same date.58. The evidence adduced by P.Ws. and D.Ws are collectively scrutinizedwhich indicates that Pak Army with intent to make a systematic attack in a large28scale they destroyed the houses of two villages namely, Baduria and Chitholiaon the same date with the assistance of local Razakars. From the evidence ofaforesaid P.Ws it is found that the accused substantially contributed andfacilitated the crime against Humanity with full knowledge as he was present atthe crime sites.XXII. Adjudication of charge no. 8(Killing of Kutti and setting fire on the houses ofHindu Community of Parerhat area)59. That on 8th May, 1971 at about 3.00 p.m. under the leadership of accusedDelowar Hossain Sayeedi and his accomplices accompanied with PakistaniArmy raided the house of Manik Posari of village-Chitholia under PirojpurSadar Police Station and caught his brother Mofizuddin and one Ibrahim @Kutti therefrom. At his instance other accomplices after pouring kerosene oilon five houses, those were burnt to ashes causing a great havoc. On the way toArmy Camp, the accused instigated Pakistani Army who killed Ibrahim @Kutti by gun-shot and the dead body was dumped near a bridge, then Mofizwas taken to Army Camp and was tortured. Thereafter, the accused and othersset fire on the houses of Hindu Community at Parerhat Bandar causing hugedevastations. The acts of looting goods and setting fire on dwelling houses areconsidered as persecution as crimes against Humanity on religious ground. Theaccused directly participated in the occurrences of abduction, murder andpersecution which are identified as crimes against Humanity.Evaluation of Evidence and findings:2960. The prosecution has examined as many as 9 witnesses to prove thecharge No. 8 relating to killing of Kutti and setting fire on the houses of HinduCommunity of Parerhart areas under Pirojpur police station made by PakistaniArmy and local Razakers headed by accused Delowar Hossain Sayeedi. Uponcritical analysis of the evidence adduced by P.W Nos.2,4,6,7,8,9,10,11 and 12 itis found that on 8 May,1971, the Pakistani Army along with a good number ofRazakars including accused Delowar Hossain Sayeedi came to the house ofManik Posari from where they caught victim Ibrahim alias Kutti, andMofizuddin Posari. It is evident that on that day Pak-Army and local Razakarslooted goods from different houses and set fire on the houses of RaisuddinPosari, Helaluddin Posari, Saizuddin Posari and Manik Posari, Nurul IslamKhan and others of village Baduria and Chitholia adjacent to Parerhat Bandar.It is evident from the evidence educed by aforesaid 9 witnesses that on seedingPakistani 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 fastenedtheir hands by a rope and dragged them towards Parerhat Razakars Camp, onthe way, near a bridge, Pakistani Army killed Ibrahim Kutti by gun shot andtaking Mofizuddin to the Camp tortured upon him but in the night he managedto escape from the clutches of Razakars. P.W-7 Mofizuddin Posari is the eyewitness of the killing of Ibrahim Kutti and he luckily saved his life by escapingfrom Razakar Camp. He categorically testified that accused Delowar HossainSayeedi as a member of Razakar Bahini caught them at crime site and ultimatelyIbrahim was killed by Pak-Army, under the above circumstances, we find noreason to disbelieve evidence of P.W-7 as to murder of Kutti, destruction of30houses of civilians in a large scale by setting fire which constitute crimes againstHumanity.XXIII. Adjudication of charge no.9(Attack on the house of Abdul Halim Babul andlooting valuables and setting fire on it)61. That on 02.06.1971 at about 9.00 a.m. under the leadership of accusedDelwar Hossain Sayeedi with his armed associates accompanied with PakistaniArmy raided the house of Abdul Halim Babul of village-Nolbunia underIndurkani Police Station and looted away valuables, then set the house on fireto ashes. The acts of burning house to ashes and looting goods therefrom areconsidered as persecution as crimes against Humanity.Evaluation of evidence and findings:62. It appears from the record that the prosecution has examined a goodnumber of witnesses to prove the charges brought against the accused. It isevident that solitary witness P.W-14 has been examined to prove the chargeNo.9 in respect of looting and burning of house of P.W-14 who testified thataccording to S.S.C. certificate his date of birth is 06.06.1960. It can bepresumed 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 boylike P.W-14, it was not possible to recognize accused Delowar Hossain Sayeediand his associates from a distant place at the time of alleged commission ofoffence. Moreover, no co-villager of P.W-14 has come forward to corroboratethe occurrence as stated by P.W-14. The evidence of P.W-14 is considered31weak type of evidence as well as uncorroborated one and as such theprosecution 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 Hindupara of village Umedpur)63. That on the same day i.e. 02.06.1971 at about 10.00 a.m. under theleadership of accused Delowar Hossain Sayeedi with his armed associatesaccompanied with Pakistani Army raided the Hindu Para of village-Umedpurunder Indurkani Police Station the accused burnt 25 houses including housesof Chitta Ranjan Talukder, Jahar Talukder, Horen Tagore, Anil Mondol,Bisabali, Sukabali, Satish Bala and others. At one stage Bisabali was tied to acoconut tree and at his insistence Bisabali was shot to dead by his accomplice.The act of burning dwelling houses of unarmed civilians is considered aspersecution. The accused directly participated in the acts of burning houses andkilling of Bisabali which is persecution and murder within the purview ofcrimes against Humanity.Evaluation of evidence and findings:64. The prosecution has examined 3 witnesses to prove charge No.10relating to killing of Bisabali and burning of 25 houses of Hindu para of villageUmedpur by Pakistani Army wtih the assistance of accused Delowar HossainSayeedi and his associates. Upon critical analysis of the evidence adduced byP.W. Nos.1,5 and9 it is found that on 02.06.1971, Pakistani Army accompaniedwith local Razakars including accused Delowar Hossain Sayeedi attacked Hindu32para of village Umedpur and after looting away valuables therefrom, they setfire on about 25 dwelling houses of unarmed civilians. It is evident that onecivilian named Bisabali was caught and tortured by Razakars, thereafter victimBasabali was fastened with a co-conut tree and he was shot dead by a Razakarat the insistence of accused Delowar Hossain Sayeedi, P.W-5 MahtabuddinHowlader and P.W-9 Altab Hossain Howlader have proved the occurrance ofburning dwelling houses of unarmed vivilians of Hindu para as well as killing ofBisabali at the insistence of the accused as eye witness of the occurrances. Themanner of setting fire on the houses of unarmed civilians gives sufficientindication that the perpetrators in a planned way burnt a Hindu para withintent to cause large scale devestation. It is also evidently revealed that theaccused knowingly contributed and facilitated in the commission of killling ofBiasbali and the act of burning huge number of dwelling houses by hispresence and participation is considered as persecutioin. It is well proved thatthe accused was involved with the commission of murder and persecutionwithin the purview of crimes against Humanity.XXV. Adjudication of charge no.11(Attack on the house of freedom-fighter MahbubulAlam Howlader and looting away valuablestherefrom)65. That on the same day i.e. on 02.06.1971, accused Delwar HossainSayeedi led a team of Peace (Shanti) Committee members accompanied withPakistani occupied forces raided the houses of Mahbubul Alam Howlader(freedom-fighter) of village-Tengra Khali under Indurkani Police Station and33the accused detained his elder brother Abdul Mazid Howlader and torturedhim. Thereafter, the accused looted cash money, jewellery and other valuablesfrom their houses and damaged the same. The accused directly participated inthe acts of looting valuables and destroying houses which are considered aspersecution on political grounds, and also tortured.Evaluation of evidence and findings:66. The prosecution has examined two witnesses to prove the occurrencespecified in charge No.11. Upon scrutiny of the evidence adduced by P.W-1and 5 it is evident that on 2nd June, 1971, Pakistani troops accompanied bymembers of local Peace Committee and Razakars including accused DelowarHossain 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 torturedAbdul 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 defencecross-examined P.W.1 and 5 elaborately but the verson as to presence ofaccused Delowar Hossain Sayeedi at crime site remains unshakened. Havingconsidered the evidence on record, we find that accused Delowar HossainSayeedi knowingly contributed and facilitated in the commission of lootingvaluables from the house of civilian population which is considered aspersecution within the purview of crimes aganist Humanity.XXVI. Adjudication of charge no.1234(Genocide of 14 Hindus of Hindupara under ParerhatBazar)67. That during Liberation War on one day a group of 15/20 armedaccomplices under the leadership of accused Delwar Hossain Sayeedi enteredthe Hindu Para of Parerhat Bazar under Pirojpur Sadar Police Station andcaptured 14 Hindus namely, Horolal Malakar, Aoro Kumer Mirza, TaronikantaSikder, Nando Kumer Sikder and others, all were civilians and supporters ofBangladesh independence. The accused tied them with a single rope anddragged them to Pirojpur and handed over them to Pakistani Militarty wherethey were killed and dead bodies were thrown into the river. This act wasdirected against a civilian population with intent to destroy in whole or part of areligious group, which is genocide.Evaluation of evidence and findings:-68. The prosecution has examined as many as 28 witnesses to prove 20charges as framed against the accused. It has been specifically mentioned incharge No. 12 that during the War of Liberation one day accused DelowarHossain Sayeedi along with his 15/20 armed accomplices entered in the HinduPara of Parerhat Bazar and caught 14 Hindu Civilian supporters ofindependence and after fastening those civilians with single rope they weredragged to Pirojpur and handed over them to Pakistani Army who killed themand their dead bodies were thrown into the river. On perusal of the evidenceadduced by the P.Ws including (P.W.1 and 12) it is revealed that no witness hasnarrated the story mentioned in charge No. 12 before this Tribunal. It is35evident that prosecution witnesses have narrated different incidents involvingthe accused but none has entengled him with the commission of genocide inquestion.69. The prosecution could not connect accused Delowar Hossain Sayeediwith the commission of genocide as described in charge No. 12. In view of thefact, 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 ofShefali Gharami and setting fire on houses.)70. That during the last part of the Liberation War, accused DelowarHossain Sayeedi led a team of Razakar Bahini consisting of 50 to 60, in themorning of the of occurrance in a planned way they attacked Hindu para ofHoglabunia under Indurkani police station. On seeing them Hindu peoplemanaged to flee away, but Shefali Ghaarami, the wife of Modhu SudhanGharami could not flee away, then some members of Razakar Bahini enteringinto her room raped Shefali Gharami. Being the leader of the team the accuseddid not prevent them in committing rape upon her. Thereafter, the accused andmembers of his team set-fire on the dwelling houses of the Hindu para ofvillage-Hoglabunia resulting complete destruction of houses of the Hinducivilians. The act of destruction of houses in the Hindu para by burning inlarge scale is considered crime of persecution on religious ground and the act ofraping both as crimes aganist Humanity.Evaluation of evidence and findings3671. The prosecution has examined a good number of witnesses out of themevidence 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 accusedDelowar Hossain Sayeedi was a member of Santi Committee and RazakarBahini of Parerhat under Pirojpur, the then Sub-division . He, as a Razakarused to take part in committing rape, looting goods, torture, arson and killingmembers of Hindu community in Parerhat area during War of Liberation. Theevidence adduced by P.W. 23- Madhu Sudan Gharami is very much importantfor 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 timehe was not present in his house. His wife Shefali Ghorami disclosed to him thatshe was raped by Razakars against her will. On query she told that she couldnot say the name of the rapist, but that man who converted him to Muslimraped her and, she also requested him to go away for security reasons. Hetestified that accused Delowar Hossain Sayeedi converted him to Muslim alongwith others under a threat that they would survive if they became Muslimsotherwise not. He further testified that his wife gave birth to a child who wasnamed Shandha but some people used to laugh at her recalling painfulmemories of her life, then she left for India in order to get rid of suchhumiliation . The evidence adduced by P.W. 23 as regards rape and forcedpregnancy of his wife, is a crime within the purview of crimes againstHumanity. Though the victim wife of P.W. 23 could not be examined as shewas not available in Bangladesh, the evidence as regards commission of rapeupon the wife of P.W. 23 cannot be disbelieved. Rwanda ICT Chamber37observed 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 relevantportion of it is quoted below for understanding crime of rape as explained.72. Second, the Trial Chamber identified the specific elements of the crimeof rape for the first time in international law, and distinguished sexual violencefrom rape. Although the Rwandan Tribunal had previously included rapeamong the enumerated acts that could constitute crimes against Humanity, itwas in Akayesu that a Trial Chamber first defined rape as “ a physical invasionof a sexual nature committed on a person under circumstances which arecoercive.” Sexual violence was broadly defined as “ any act of a sexual naturewhich is committed on a person under circumstances which are coercive.”Such an act, the Trial Chamber declared, could involve dignitary harms that didnot involve penetration or even physical contact. For example, the instance of astudent being forced to publicly undress and do gymnastics in the nude wasfound to constitute sexual violence.73. In the instant case, P.W. 23 has categorically testified that accusedDelowar Hossain Sayeedi was one of the Razakars who on the date ofoccurrence 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 amember of Razakar bahini was present in the crime site having full knowledgeabout the said crime of rape and he substantially contributed and facilitated inthe commission of said crime.XXVIII. Adjudication of charge no.1538(Last part of Liberation War, 1971 at HoglabuniaVillage ten (10) Civilians were killed and werethrown in the river)74. That during the last part of the Liberation War, 1971 accused DelowarHossain Sayeedi led 15/20 armed Razakars under his leadership and enteredinto 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 thentied all of them with a single rope with intent to kill and dragged them toPirojpur and handed over them to the Pakistani Army where they all werekilled and the dead bodies were thrown in the river. This conduct was directedagainst 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 orderto prove charge No. 15, only one witness P.W. 23has been examined. P.W.12A.K.M. A Awal M.P. has testfied that accused Delowar Hossain Sayeedi wasinvolved in the atrocious activities committed by local Razakars with the aid ofPakistani Army. Two statements of witnesses recorded by the investigationofficer under section 19(2) of the Act, have been perused but those statementscould not connect the accused with the commission of genocide allegedcommitted at village Hoglabunia. P.W. 23 Modhu Ghorami as an inhabitant ofvillage Hoglabunia has testified that in one night 9 people of his village wereabducted by unknown person and no trace of those 9 persons was found39afterwards. P.W. 23 did not even suspect accused Delowar Hossain Sayeedi inthe commission of alleged genocide.76. Upon scrutiny of the evidence on record it transpires that prosecutioncould not produce any evidence before this Tribunal to connect the accusedwith the commission of crime of genocide as stated in charge No. 15.XXIX. Adjudication of charge no.16(Abduction of three women confinement and rapeand abetment of offences)77. That during the time of Liberation War in 1971, accused DelowarHossain Sayeedi led a group of 10/12 armed Razakars and Peace Committeemembers and surrounded the houses of Gowranga Saha of Parerhat Bandorunder Indurkani police station, subsequently the accused and others abducted(i) Mohamaya (ii) Anno Rani (iii) Komol Rani, the sisters of Gowranga Sahaand handed over them to Pakistani Army Camp at Pirojpur where they wereconfined and raped for three days before release. The accused was directlyinvolved in abetting the offences of abduction, confinement and rape as crimesagainst Humanity.Evaluation of evidence and findingsThe prosecution has examined some witnesses to prove charge No. 16relating 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 Parerhat40during the War of Liberation. They have testified that accused as a member ofPeace Committee and a Razakar took part in the attacks directed againstunarmed civilians causing murder, looting, torture, converting Hindus toMuslims handing over women to Pakistani Army for committing rape uponthem. P.W. 13 – Gourango Chandra Saha has testified that in 1971 accusedDelowar Hossain Sayeedi along with his associate Razakars went to his houseand looted goods and they abducted his three sisters namely Mohamaya, AnnoRani and Komol Rani from his house and handed over those three woman tothe Pakistani Army Camp for committing rape upon them. He further testifiedthat his three sisters were forcefully raped and returned them after three days.He further stated that after a few days accused Delowar Hossain Sayeed wentto 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 threevictim sisters left for India.79. In cross-examination he denied the defence suggession that the accusedwas not involved in the act of abduction of his sisters and handing them overto 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 thestatement as to abduction of three sisters of P.W. 13 and handing over them toPakistani Army with the assistance of accused Delowar Hossain Sayeedi and hisassociates.80. Upon scrutiny of the evidence discussed above, we are led to hold thatthe accused knowingly contributed and facilitated the commission of abduction41of three women and paving the way in causing sexual violence upon them. Theact of abduction and rape of victims were directed against civilians whichmanifestly fall within the purview of crimes against Humanity.XXX. Adjutication of the charge no.17(Confinement of Bipod Saha’s daughter Bani Saha at theirhouse at Parerhat and committed rape upon her.)81. That during the time of liberation war in 1971, accused Delowar HossainSayeedi along with other armed Razakars kept confined Bipod Saha’s daughterVanu Saha at Bipod Saha’s house at Parerhat under Indurkani police stationand regularly used to go there to rape her. This was committed by force or bythreat and directed against a civilian population.Evaluation of evidence and findings:82. It is evident from the record that the prosecution has examined only onewitness namely P.W. 4 Md. Sultan Ahmed Hawlader who has stated thataccused Delowar Hossain Sayeedi and one Moslem Maulana used to rape BaniSaha, daughter of Bipod Saha of Parerhat regularly. He further stated that theaccused compelled the father and brother of Bani Saha to be converted toMuslims and saying prayer in the Mosque. In cross-examination P.W. 4 deniedthe defence sugession that he falsely implicated the accused with the allegedcommission of rape.83. It is evident on record that neither Bani Saha nor her near relation hascome forward before the Tribunal with the allegation of rape against theaccused. It appears that P.W.4 did not disclose his source of knowledge about42the allegation of rape against the accused. The uncorroborated testimony of asolitary witness (P.W.4), as to proving charge on rape is not sufficient torelyupon. In view of the fact, we hold that prosecution could not prove chargeNo. 16 beyond shadew of doubt.XXXI. Adjudication of charge no.18(Torture and killing of Vagirothi and throwing her deadbody into the river.)84. That during the Liberation War, Vagirothi used to work in the camp ofPakistani Army. On one day, after a fight with the freedom-fighters, and at theinstance of the accused said Bhagiorithi was arrested on charge of passinginformation to the freedom fighters and was tortured and then after taking herto the bank of river Boleshwar she was killed and the dead body was throwninto the river.Evaluation of evidence and finding85. The prosecution has examined P.W. 12 A.K.M. Awal M.P. to provecharge No. 18 relating to killing and torture of ill-fated Vagirothi, an unofficialspy of the freedom-fighters. P.W.12 has depicted her as a brave lady who usedto pass informations to the freedom-fighters about the movements of Pakistaniforces. It is stated that local Razakars suspected her as a spy of freedomfightersand consequently she was caught and handed over to Pakistani forceswho brutally killed her by gun shot and threw her body into the river. It isevident that P.W.12 in his statement did not suspect the accused in any wayresponsible for the tragic murder of ill-fated Vagirothi. It transpires from the43statement (Exbt. No. 268) of Gonesh Chandra Saha that he has described thevalient role of his mother Vagirothi in the War of Liberation but he did notimplicate the accused with the killing of his mother. It is undisputed thatPakistani Army fastened Vagirothi with the back of a jeep and dragged her toriver side and killed by gun-shot. Admittedly Vagirothi sacrificed her life for thenoble cause of Liberation of Bangladesh. Having considered all aspects, we areled to hold that Prosecution could not connect the accused with thecommission of killing of Vagirothi.XXXII. Adjudication of the charge no. 19(Conversation of Hindus to Muslims by usingforce)86. That during the period of Liberation War starting from 26.03.1971to16.12.1971 accused Delowar Hossain Sayeedi being a member of RazakarBahini, by exercising his influence over Hindu community of the then PirojpurSubdivision (now Pirojpur District) converted the following Hindus toMuslims by force namely, (1) Modhusudan Gharami(2) Kristo Saha(3) Dr.Gonesh Saha(4) Azit Kurmar Sil(5)Bipod Saha(6)Narayan Saha(7)GowrangaPal(8)Sunil Pal(9)Narayan Pal(10) Amullya Hawlader,(11)Hari Roy(12) SantiRoy Guran (13) Fakir Das (14) Tona Das(15) Gourangaa Saha(16) his fatherHori 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 othervillages under Indurkani police station and the accused also compelled them togo the mosque to say prayers. The act of compelling somebody to convert his44own religious belief to another religion is considered as an inhuman act whichis treated as crimes against Humanity.Evaulation of evidence and findings:The prosecution has examined as many as 5 witnesses to prove chargeNo.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 iscorroboratively found that during the War of Liberation accused DelowarHossain Sayeedi was a member of local Peace Committee as well as member ofRazakar Bahini of Parerhat. It is evident from the evidence discussed abovethat he compelled a good number of Hindus to embrace Islam putting them infear of death. P.W-13 Gourango Chandra Saha and P.W.23 Modhu SudanGhorami are the victims of conversion who candidly narrated under whatcompelling circumstances they agreed to convert their religion. P.W-23 testifiedthat the accused took him along with members of his family to local mosqueand converted them to Muslims against their will. P.W.13 also gave directevidence asserting that the accused compelled all the members of his family toembrace Islam under threat and they were also compelled to go to mosqueregularly to say prayers. It is found on solid evidence that during the War ofLiberation the accused under coersion and threat compelled a good number ofHindu Community people to convert religious belief which is considered asinhuman act, torture and mental persecution which fall within the purview ofcrimes against humanity. Our Holly Quran teaches us not to impose any sort45of pressure upon the followers of other religion, because Islam was preachedonly by rational appeal and not by coersion or threat.However, havining considered the evidence on records, we are satisfiedto hold that prosecution has succesfully proved commission of offence againstthe accused mentioned in Charge No.19.XXXIII. Adjudication of charge no.20(Confinement of 85 persons at Talukdar Barilooting of valuables and women were raped)88. That in the last part of November 1971 while civilians were fleeing toIndia, accused Delowar Hossain Sayeedi with his associate Razakars attackedthem at the house of Talukdar Bari of Indurkani village and detained 85persons therein and looted away their valuables and some female persons wereraped by Pakistani Army by his assistance and thereby the accused committedoffences of abduction, torture and abetment of rape which fall within thepurview of the crimes aganist Humanity.Discussion on evidence:We have perused the documents both oral and documentary producedby the prosecution. It is found on evidence that no witness has beenexanmined to prove the occurrance of Talukdar Bari and the prosecution hasfailed to prove the charges mentioined in charge No.20.XXXIV. Plea of Alibi of the defence4689. On behalf of the accused Delowar Hossain Sayeedi a plea has been takento the effect that since before starting the war of Liberation of Bangaldesh heused to reside in Jessore and he came back to his village home at Pirojpur in themiddle of July, 1971.Evaluation of evidence as to proving plea of Alibi90. It may be mentioned here that failure to prove plea of alibi is not fatal tothe accused. Sub-rule (3) of Rule 51 of the Rules of Procedure have providedprotection of the defence which reads as follows:91. Mere failure to prove the plea of alibi and or documents and materials bythe defence shall not render the accused guilty. Moreover, the accused chargedwith 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 theevidence of P.W. 4 and 6 that they have categorically stated while accusedDelowar Hossain Sayeedi used to reside in Jessore before starting the War ofLiberation in 1971, at that time he had two children. The prosecution hasproved the copy of Nomination paper (Exbt. 151) for National Assemblyelection filed by accused Delowar Hossain Sayeedi which shows that theaccused gave particulars of his four sons with the date of birth as quatedbellow:-Name of son Date of birth1. Rafiq Bin Sayeedi 18.11.19702. Shamim Sayeedi 01.01.1972473. Masud Sayeedi 01.11.19754. Nasim Sayeedi 08.12.1976238. The Nomination Paper (Exbt. 151) dated 30.11.2008 submitted by theaccused goes to prove that he had only one son at the time of War ofLiberation 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 beforestarting the war of Liberation till middle of July, 1971 but all the P.Ws flatlydenied the suggessions as to his alleged residing in Jessore at the time ofstarting liberation struggle. The aforesaid P.Ws and the accused belong to samelocality and the PWs have categorically stated his presence and participations inthe atrocities committed in Parerhat area since May, 1971. P.W. 2 Ruhul AminNobin as a commander of freedom-fighter testified that he went to ParerhatBazar on 18.12.1971 but he could not arrest accused Delowar Hossain Sayeediand 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. Itis evident that while Bangladesh war was over, diberted the accused left hisvillage home and went into hiding. The factual aspect supposes that soon afterLiberation the accused might have taken shelter in Jessore for his safety, at thattime D.W.4 and 6 might have seen the sons of the accused.93. In consideration of both oral and documentary evidence, we are inclinedto hold that the defence could not prove the plea of alibi. Thus, the plea of alibidoes not inspire any amount of credence and appears to be a futile effort withintent to evade the charges brought against him.XXXVI. Conclusion:4894. As Judges of this Tribunal, we firmly hold and believe in the doctrinethat ‘Justice in the future cannot be achieved unless injustice of the past isaddressed’.95. Horrendous incidents took place in Bangladesh about 40/41 years backin 1971 and as such memory of live witnesses may have been faded and as aresult discrepency may have occurred in their versions made before thisTribunal. But, in practice, we found no significant inconsistencies in theirtestimonies 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 notholding the trial of an Ex-M.P. or Nayb-e-Amir of Jamat-e-Islam namedAllama Delowar Hossain Sayeedi, a renouned Oazin who is popularly known asan Islamic orator through out the country for his gift of the gab. Now let us goback to 40/41 years while the struggle for Liberation War started in 1971.From the evidence on record we have found that accused Delowar HossainSayeedi had a very low profile having no significant social or political status inthe 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 thecommission of crimes against Huminity alleged to have been committed byhim about 41 years back at Parerhat area while he was a Potential Razakar aswell as member of local Peace Committee. The defence took a plea to theeffect that there was a Razakar named Delowar Hossain Mollik who was killed49after Liberation but prosecution with an ulterior motive, shifted the liability ofthat dead Delowar Mollik upon this present accused Delowar Hossain Sayeedi.97. In the above aspect, we find no substance because a good number ofprosecution witnesses and the accused himself hail from the same locality whoidentified the accused in dock as the sole accused in this case and as such thereis no confussion as to identity of the accused.98. The experssion ‘directed against civilian population’ as mentioned insection 3(2)(a) of the Act of 1973 specifies that in the conduct of a crimesagainst Humanity the civilian population is the primary object of the attack.From our discussion on adjudication of the charges we have found that all theattacks were systimatically made to cause widespread destruction of propertiesand lives directing against unarmed civilians belonging to pro-libeation poeple.Guiding Principle for fixing up liability for the crimes described insection 3(2) of the Act of 197399. According to Section 3(1) of the Act it is manifested that even anyperson (individual or a member of group of individuals) is liable to be tried andpunished if he is found to have committed crimes specified in Section 3(2) ofthe Act. In consideration of the nature of criminal charges brought against theaccused, we are led to hold that the principle for determining liability for crimesas laid down in Section 4(1) of the Act is the guide line in this regard. Theprovision for fixing up liability for crimes is quoted below:-50Section 4(1) of the Act of 1973 provides “When any crime as specified inSection-3 is committed by several persons, each of such person is liable for thatcrime in the same manner as if it were done by him alone.”100. From the oral and documentary evidence as produced by theprosecution, we are convinced to hold that the accused was a member ofRazakar Bahini of Parerhat during the War of Liberation in 1971 which hasbeen decided in chapter XVII of this judgment. It is also proved that theaccused could speak Urdu well which brought him to a close associate withPakistani Army. We are also convinced from the evidence on record that theaccused knowingly the context of Liberation War he purposely stood againstthe War of Liberation and joined the Razakar Bahini to resist it. From theforgoing discussion, it is proved that the accused as one of the Razakars or aperson of a group of individuals took active part in the attacks directed againstcivilian population at Parerhat area, causing murder, deportation, rape, lootingof goods, setting fire on the houses and shops of civilians, forceful religiousconversion, inhuman acts and torture which fall within the purview of crimesagainst Humanity. On scrutiny of the evidence on record, we have found thatout of 20 charges the prosecution has successfully proved 8 charges against theaccused who as a member of local Razakar Bahini contributed and facilitated incommitting those offences by his active participation and presence at the crimesites. According to the guiding principle for fixing up liability as provided undersection 4(1) of the Act, the accused is found guilty to the offences mentionedin charge Nos. 6,7,8,10,11,14,16 and 19 as if, those were done by him alone as a51member of Razakars and/or also in the capacity of a member of atrociousgroup of individuals.XXXVII. Verdict on conviction101. Having considered all evidence, materials on record and argumentsadvanced by the learned lawyers of both the parties, we hold that theprosecution has successfully proved 8(eight) charges out of 20 against accusedDelowar Hossain Sayeedi beyond reasonable doubt.Charge Nos. 1 to 4 and 13: The accused is found NOT GUILTY to theoffences of murder, persecution, genocide, abduction and torture which fallwithin the purview of crimes against Humanity and genocide as specified insection 3(2)(a) and 3(2)(c)(i) of the I.C.T. Act of 1973 and he be acquitted fromthe aforesaid charges levelled against him.Charge No. 5:- The accused is found NOT GUILTY to the offences ofmurder, abduction and abetment which fall within the purview of crimesagainst Humanity as specified in section 3(2)(a) of the I.C.T. Act of 1973 andhe be acquited from the said charge.Charge No. 6:- The accused is found GUILTY to the offence of persecutionwhich falls within the purview of crimes against Humanity as specified insection 3(2)(a) of I.C.T. Act of 1973 and he be convicted and sentenced undersection 20(2) of the said Act.Charge No. 7:- The accused is found GUILTY to the offences of persecutionand abetment of torture which fall within the purview of crimes against52Humanity as specified in section 3(2)(a) and (g) of the I.C.T. Act of 1973 andhe 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 crimesagainst Humanity as specified in section 3(2)(a) of the I.C.T. Act of 1973 andhe be convicted and sentenced under section 20(2) of the said Act.Charge No. 9:- The accused is found NOT GUILTY to the offence ofpersecution which falls within the purview of the crimes against Humanity asspecified in section 3(2)(a) of the I.C.T. Act of 1973 and he be acquitted fromthe said charge.Charge No. 10:- The accused is found GUILTY to the offences of murder andpersecution which fall within the purview of the crimes against Humanity asspecified in section 3(2)(a) of the I.C.T. Act of 1973 and he be convicted andsentenced under section 20(2) of the said Act.Charge No. 11:- The accused is found GUILTY to the offences of torture andpersecution which fall within the purview of the crimes against Humanity asspecified in section -3(2)(a) of the I.C.T Act of 1973 and he be convicted andsentenced under section 20(2) of the said Act.Charge No. 12:- The accused is found NOT GUILTY to the offence ofgenocide which falls within the purview of genocide as specified in section3(2)(c)(i) of the said Act and he be acquitted from the said charge.53Charge No. 14:- The accused is found GUILTY to the offences of persecutionand rape which fall within the purview of crimes against Humanity as specifiedin section 3(2)(a) of the I.C.T. Act of 1973 and he be convicted and sentencedunder section 20(2) of the said Act.Charge No. 15:- The accused is found NOT GUILTY to the offence ofgenocide which falls within the purview of genocide as specified in section3(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 crimesagainst Humanity as specified in section 3(2)(a) and (g) of the I.C.T. Act of1973 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 rapewhich falls within the purview of crimes against Humanity as specified insection 3(2)(a) of the I.C.T. Act of 1973 and he be acquitted from the saidcharge.Charge No. 18:- The accused is found NOT GUILTY to the offence ofabetment of torture which falls within the purview of crimes against Humanityas specified in section 3(2)(a)(g) of the I.C.T. Act of 1973 and he be acquittedfrom the said charge.Charge No. 19:- The accused is found GUILTY to the offence of inhuman actwhich falls within the purview of crimes against Humanity as specified in54section 3(2)(a) of the I.C.T. Act of 1973 and he be convicted and sentencedunder section 20(2) of the Act.Charge No. 20:- The accused is found NOT GUILTY to the offences ofabduction, torture and rape which fall within the purview of the crimes againstHumanity as specified in section 3(2)(a) of the I.C.T. Act of 1973 and he beacquitted from the said charge.XXXVIII. Verdict on sentence250. From the foregoing discussions we have found the accused guilty tothe offences of murder, abduction, torture, rape, persecution, forcible religiousconversion and abatement as mentioned in 8(eight) chargeNos.6,7,8,10,11,14,16 and 19 which fall within the purview of crimes againsthumanity as specified in section 3(2)(a)(g) of ICT Act of 1973. Now a partinentquestion is before us as to decide what punishment can be awarded to theaccused which shall squarly meet the ends of justice.251. We have weighed up gravity of offences proportionately which hadbeen committed by the accused during the War of Liberation of Bangladesh.We are of agreed view that 8(eight) charges brought against the accused havebeen proved beyond reasonable doubt. It is well proved that accused DelowarHossain Sayeedi substentially contributed and facilitiated in killing Ibrahim aliasKutti and Bisabali as listed in charge Nos.8 and 10 respectively. It is alsoproved that the killing of Ibrahim alias Kutti and Bisabali was followed by55looting of properties and setting fire on two Hindu Para as a part of systematicattack directed agaisnt unarmed civilians as well as pro-liberation people.252. In consideation of the gravity and magnitude of the offencescommitted particularly in charge Nos. 8 and 10, we unanimously hold that theaccused deserves the highest punishment as provided under section 20(2) ofICT Act of 1973.Hence it is,ORDEREDThat accused Delowar Hossain Sayeedi alias Delu @ Abu NayeemMohammad Delowar Hossain@ Allama Delowar Hossain Sayeedi, son of lateYousuf 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 andbe hanged by the neck till he is dead under section 20(2) of the InternationalCrimes (Tribunals) Act, 1973.253. In our due consideration, the gravity of the offences as listed in chargeNos. 6,7,11,14,16 and 19 appear to be lesser than that of as listed in chargeNos.8 and 10. Since we have awarded Capital Punishment to the accused forthe offences as listed in charge Nos. 8 and 10, we refrain from passing anyseparate sentence of imprisonmant for the offences as listed in the rest chargeNos.6,7,11,14,16 and 19 though those charges have also been proved beyondreasonable doubt.56254. Accused Delower Hssain Sayeedi is, however, found not guilty to theoffences 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 AppellateDivision of the Supreme Court of Bangladesh against the order of convictionand sentence within 30(thirty) days from the date of passing the order ofsentence as per provisions of section 21 of the Act.Let a certified copy of the judgment be furnished to the prosecution andthe convict free of cost at once. Let another copy of the judgment be sent tothe District Magistrate, Dhaka for information and necessary action.Issue conviction warrant accordintly.(A.T.M. Fazle Kabir, Chairman)(Jahangir Hossain, Member)(Anwarul Haque, Member)