In the afternoon, following the application by Salauddin Quader Chowdhury, Abdur Razak submitted common arguments relating to Matiur Rahman Nizami and Ali Ahsan Mujahid’s matter.
[Previous hearing relating to Nizami on charge framing can be seen here and one relating to Mujahid can be seen here]
First Ground: This is the prosecution for political purpose. Therefore, prosecution is political purpose as such mala-fide. In 1990’s decade when Jamaat was not involved with BNP, Awami Leagues organized a meeting together with the Jamaat. [He shows newspaper report and photographs of a meeting on Care–taker Government where Sheikh Hasina, Matiur Rahman Nizami, Ali Ahsan Mujahid and others were set together for meeting.]
So my lord, my question is why they did not take any action then. Therefore, it is clear that only from political motivation they are doing it nothing else.
Justice Nassim: Is there any problem if I take action now? Just think, you were my good friend that does not mean this relation works as a bar to take action against you. It is enough to take action if you have committed crime in 1971, therefore 40 years cannot be considered a bar to take action.
Abdur Razzak: My lord, the formal charge also does not disclose any offence. If it is proved that the act is mala-fide then nothing is needed to prove the case. (33 DLR AD page 1)
My lord, in total there are 7 War Crime Tribunals and the other 6 tribunals started their proceedings immediately after the crime but only in our case has there been 40 years delay and this is the only tribunal which started its proceedings from political motivation.
Justice Nassim: No, it is not true. Till today who have been tried for war crime, their opposite party was in power that time.
Abdur Razzak: My Lord, Mr. Nizami is 70 years old; Mr. Mujahid is 65 years old. And their name was neither in collaborators Act nor in War Crime Tribunal Act -1973. Then why they are prosecuted after 40 years? My lord, it should be taken as mala-fide also because of executive interference.
Justice Nizam: This can not be considered interference.
Abdur Razzak: My lord, they are not general people but they are people who are executively powerful.
Justice Nassim: Then it is executive wish. It will be considered as interference if there is any interference at the regular proceedings of the court.
Second Submission: The Act was basically enacted for 195 prisoners not for the member of Jamaat-islam. They are neither the members of auxiliary force nor armed forces. Intention of the 1973 parliament was different from today’s parliament.
Third Submission: Principle offender was given clemency then why are they being prosecuted now?
Fourth Submission: If they are war criminal then they might have been tried under the collaborators Act. In no way they come under scope of this Act.
My lord, these are my common argument.
Now, I am going to argue on the point of formal charge of Matiur Rahman Nizami’s matter.
On 13 August, 1971, in Chittagong he delivered a speech that Pakistan is the home of Allah, Allah will protect the Pakistan, and Allah will save the Pakistan through the soldiers of Pakistan Army.
By delivering this speech he is alleged to have committed offence under section 3 (2) (a) (g).
My lord, now the question is how these three sentence falls under section 3 (2) (a) (g) of ICT? There is no crime against humanity, torture murder, rape, then how this speech falls under the scope of section 3(2) (a) (g)?
Praying for Pakistan, supporting Pakistan is not an offence, neither were they commander nor superior officer then, mere delivery of speech never being an offence.
Therefore it is clear that his formal charge was not framed properly.
In another speech, he said that we had been separated from Hindu in 1947, so now we should not work together with Hindu people.
So my lord, is there any offence for considering this statement as an offence? And this cannot be described in “any other offence” also because for being other offence the nature of the offence should be like murder, incitement, and abetment.
My lord, in criminal offence mere sitting cannot be termed as offence.
Justice Nizam: No leader works on field level. They just give order to others to work.
Abdur Razzak: But leaders have the knowledge of that work. And my lord, command responsibility is not applied here as he did not know anything and he did not give order to do any act.
Speech delivered on 22 August, 1971 at Dhaka University: He said to his followers to follow the Madani path by way of Jihad. Madani (he was the supporter of Pakistan). If we take the revenge of blood of Al-Madani then it is proved that we are showing full respect to him. We should establish that Islamic system. Persons who are against the Pakistan they are simply nothing but the enemy of Pakistan.
Therefore he is alleged to have committed offence under section 3 (2) (a) (g). My lord, where is the offence?
Justice Nizam: If we find prima facie case then only we will frame charge otherwise not.
Abdur Razzak continued: the conclusion which has been given by the prosecution has never be extracted from the facts.
Single killing is not Genocide. For being genocide there should have killing of more than one person and there should have an intention and chain of working.
Speech delivered on 8 September at Dhaka University campus: We have to determine that we will protect every inch of the Pakistan. We are ready as well to attack upon the Hindu religion.
My lord, my question is how this speech comes under section 3 (2) (g)?
Justice Zaheer: Mr. Razzak as far I understand your submission is, whether there is any provocation among the Bengali people after his speech and whether political speech comes under section 3 (2) (a) or not? Whether conclusion of the prosecution can be extracted from the facts or not?
Justice Nassim: Basically he (Nizami) was addressing towards the member of Islamic Student Association. So if the effect of this speech is that an offence is committed then he will be liable for this act.
Abdur Razzak: My lord, it is necessary to mention particularly the name of the offence which was occurred as a consequence of his speech.
Justice Nizam: Offence done by Islamic student Association has been mentioned here.
Abdur Razzak: My lord, these are nothing but a mere speech of prosecution. These are termed as hate speech nothing else.
Justice Nassim: As an example I want to explain that if a person blast a boom in meeting and as a result of this 5 or 10 people is died then it is not necessary to see who has been died.
Or if people start to commit atrocity only because of inciting speech of the President then why president will not be liable?
Abdur Razzak: My lord, everything should have a link or nexus.
Justice Nizam: Yes, prosecution is explaining it.
Abdur Razzak: No, my lord it is their own explanation.
Then the court is adjourned.
[Previous hearing relating to Nizami on charge framing can be seen here and one relating to Mujahid can be seen here]
First Ground: This is the prosecution for political purpose. Therefore, prosecution is political purpose as such mala-fide. In 1990’s decade when Jamaat was not involved with BNP, Awami Leagues organized a meeting together with the Jamaat. [He shows newspaper report and photographs of a meeting on Care–taker Government where Sheikh Hasina, Matiur Rahman Nizami, Ali Ahsan Mujahid and others were set together for meeting.]
So my lord, my question is why they did not take any action then. Therefore, it is clear that only from political motivation they are doing it nothing else.
Justice Nassim: Is there any problem if I take action now? Just think, you were my good friend that does not mean this relation works as a bar to take action against you. It is enough to take action if you have committed crime in 1971, therefore 40 years cannot be considered a bar to take action.
Abdur Razzak: My lord, the formal charge also does not disclose any offence. If it is proved that the act is mala-fide then nothing is needed to prove the case. (33 DLR AD page 1)
My lord, in total there are 7 War Crime Tribunals and the other 6 tribunals started their proceedings immediately after the crime but only in our case has there been 40 years delay and this is the only tribunal which started its proceedings from political motivation.
Justice Nassim: No, it is not true. Till today who have been tried for war crime, their opposite party was in power that time.
Abdur Razzak: My Lord, Mr. Nizami is 70 years old; Mr. Mujahid is 65 years old. And their name was neither in collaborators Act nor in War Crime Tribunal Act -1973. Then why they are prosecuted after 40 years? My lord, it should be taken as mala-fide also because of executive interference.
Justice Nizam: This can not be considered interference.
Abdur Razzak: My lord, they are not general people but they are people who are executively powerful.
Justice Nassim: Then it is executive wish. It will be considered as interference if there is any interference at the regular proceedings of the court.
Second Submission: The Act was basically enacted for 195 prisoners not for the member of Jamaat-islam. They are neither the members of auxiliary force nor armed forces. Intention of the 1973 parliament was different from today’s parliament.
Third Submission: Principle offender was given clemency then why are they being prosecuted now?
Fourth Submission: If they are war criminal then they might have been tried under the collaborators Act. In no way they come under scope of this Act.
My lord, these are my common argument.
Now, I am going to argue on the point of formal charge of Matiur Rahman Nizami’s matter.
On 13 August, 1971, in Chittagong he delivered a speech that Pakistan is the home of Allah, Allah will protect the Pakistan, and Allah will save the Pakistan through the soldiers of Pakistan Army.
By delivering this speech he is alleged to have committed offence under section 3 (2) (a) (g).
My lord, now the question is how these three sentence falls under section 3 (2) (a) (g) of ICT? There is no crime against humanity, torture murder, rape, then how this speech falls under the scope of section 3(2) (a) (g)?
Praying for Pakistan, supporting Pakistan is not an offence, neither were they commander nor superior officer then, mere delivery of speech never being an offence.
Therefore it is clear that his formal charge was not framed properly.
In another speech, he said that we had been separated from Hindu in 1947, so now we should not work together with Hindu people.
So my lord, is there any offence for considering this statement as an offence? And this cannot be described in “any other offence” also because for being other offence the nature of the offence should be like murder, incitement, and abetment.
My lord, in criminal offence mere sitting cannot be termed as offence.
Justice Nizam: No leader works on field level. They just give order to others to work.
Abdur Razzak: But leaders have the knowledge of that work. And my lord, command responsibility is not applied here as he did not know anything and he did not give order to do any act.
Speech delivered on 22 August, 1971 at Dhaka University: He said to his followers to follow the Madani path by way of Jihad. Madani (he was the supporter of Pakistan). If we take the revenge of blood of Al-Madani then it is proved that we are showing full respect to him. We should establish that Islamic system. Persons who are against the Pakistan they are simply nothing but the enemy of Pakistan.
Therefore he is alleged to have committed offence under section 3 (2) (a) (g). My lord, where is the offence?
Justice Nizam: If we find prima facie case then only we will frame charge otherwise not.
Abdur Razzak continued: the conclusion which has been given by the prosecution has never be extracted from the facts.
Single killing is not Genocide. For being genocide there should have killing of more than one person and there should have an intention and chain of working.
Speech delivered on 8 September at Dhaka University campus: We have to determine that we will protect every inch of the Pakistan. We are ready as well to attack upon the Hindu religion.
My lord, my question is how this speech comes under section 3 (2) (g)?
Justice Zaheer: Mr. Razzak as far I understand your submission is, whether there is any provocation among the Bengali people after his speech and whether political speech comes under section 3 (2) (a) or not? Whether conclusion of the prosecution can be extracted from the facts or not?
Justice Nassim: Basically he (Nizami) was addressing towards the member of Islamic Student Association. So if the effect of this speech is that an offence is committed then he will be liable for this act.
Abdur Razzak: My lord, it is necessary to mention particularly the name of the offence which was occurred as a consequence of his speech.
Justice Nizam: Offence done by Islamic student Association has been mentioned here.
Abdur Razzak: My lord, these are nothing but a mere speech of prosecution. These are termed as hate speech nothing else.
Justice Nassim: As an example I want to explain that if a person blast a boom in meeting and as a result of this 5 or 10 people is died then it is not necessary to see who has been died.
Or if people start to commit atrocity only because of inciting speech of the President then why president will not be liable?
Abdur Razzak: My lord, everything should have a link or nexus.
Justice Nizam: Yes, prosecution is explaining it.
Abdur Razzak: No, my lord it is their own explanation.
Then the court is adjourned.
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