Nizami's arguments in review

Top war criminal Motiur Rahman Nizami had sought review of the three counts on which the Appellate Division upheld his death penalty. The occurrence in respect of charge 2 had been committed at Baousgari, Ruposhi and Demra villages of Santhia in Pabna on May 14, 1971. Around 6:30am, Nizami along with the Pakistani Army and other razakars besieged the villages, picked up 450 civilians and then shot them to death. Nizami's counsel submitted that the tribunal as well as the Appellate Division arrived at “incorrect assumption” of the petitioner’s involvement with the Pakistani Army. His second contention was that the apex court committed error of law in maintaining the conviction of the petitioner on improbable facts. Thirdly, he alleged that prosecution witnesses 11 and 17 were motivated witnesses and therefore, the court had committed error of law in maintaining the conviction of the petitioner relying upon these two witnesses. In response to the arguments, the court said during the Liberation War of Bangladesh, the appellant not only sided with the Pakistani Army but also incited the members of al-Badr Bahini and Islami Chhatra Sangha to co-operate with the Pakistani Army. On the other points, the court said that those were not legal grounds for review. It said: “The witnesses have deposed to the effect that the Pakistani Army committed that incident of mass killing by firing indiscriminately at the instruction of the appellant [Nizami].” The court also observed that though the defence had pointed out some contradictions in the evidence of the witnesses, “we do not think that these alleged contradictions are fatal at all to make their evidence unbelievable.” In respect of charge 6, Nizami was also sentenced to death by the tribunal and the top court affirmed the conviction and sentence. It was related to an occurrence committed around 3:30am on November 27 at Dhulaura village at Santhia. The war criminal with the help of razakars and the Pakistani Army raided the house of Dr Abdul Awal of Dhulaura and neighbouring houses of the village on the plea of searching freedom fighters, caught a good number of unarmed people numbering about 30 and killed them indiscriminately on the Dhulaura School field around 6:30am. Defence counsel Khandaker Mahbub Hossain argued that the court has committed error of law in believing the sixth prosecution witness' identification of the petitioner in the incident which was not at all believable story, and that relying upon the “improbable facts” narrated by the sixth and the eighth witnesses was further error. The top court responded that determination of these points also depends upon re-assessment of evidence which is not a legal ground for review. The last charge which earned Nizami death penalty is related to committing genocide by killing professional and intellectuals on the eve of the independence of the country. The court said when Nizami and his force realised that the liberation of the country was nearing, “they committed atrocities by selective elimination of professionals and intellectuals so that even if the independence was achieved, they (leaders) would not be able to run the country.” Khandaker Mahbub submitted that the court had committed error of law by believing two prosecution witnesses who made inconsistent statements to the investigation officer. He spoke against a documentary evidence that suggests Nizami was an al-Badr leader. The counsel also argued that the court had erred in law in assuming that the petitioner passed the order for killing martyr Dr Abdul Alim and that though it has also relied upon some books it has misread them. Finally, he argued that even if it is assumed that the petitioner had collaborated with the Pakistani Army, his acts attract abetment of the offences, and therefore, leaving the principal offenders, the sentence of death awarded to the petitioner is an error of law. Attorney General Mahbubey Alam argued that the defence counsel had failed to point out any error apparent on the face of the judgement of the top court. “Therefore, the grounds on which the review petition been filed are not entertainable, and thus this petition is liable to be dismissed,” he told the court. The Appellate Division bench observed that the commission of these crimes – even the slightest complicity in these most cruel, gruesome and barbarous crimes warrants death sentence only. “There is no mitigating circumstances to reduce the death sentence, rather there are aggravating circumstances. The court mentioned that the petitioner had not challenged his life-term jail terms given on two other charges which involve his direct participation in the killing of Sohrab Ali of Brishalikha and instigating to kill Bodi, Rumi, Jewel and Azad at the Old MP Hostel at Dhaka's Nakhalpara. “Therefore, the petitioner's involvement and complicity in the perpetration of offences of crimes against humanity and genocide have been impliedly admitted by the accused. More so, in view of the submission of the learned [defence] counsel to commute the sentence, the petitioner cannot dispute his involvement in those offences. “We find no merit in this petition. It is, accordingly, dismissed,” the top court said in the full text of the judgement published on Monday.