A defence counsel for alleged 1971 Al Badr commander ATM Azharul Islam on Sunday vehemently opposed the prosecution plea for compensation to Birangana Mansura Khatun, a Liberation War victim, in sentencing the accused to death penalty, saying there is no such provision in the International Crimes (Tribunals) Act, 1973.
Barrister M Shishir Manir came up with the view while submitting the defence case summing-up arguments on the remaining law points before the three-member International Crimes Tribunal-1.
Referring to the Bangladesh Penal Code (BPC), the defence counsel argued that even the BPC carries the term fine as a penal offence, but there is no provision sentencing an accused to compensation as punishment since compensation and fine fundamentally differs with each other.
Referring to the ICT Rules of Procedure (RP), Shishir said that though the tribunal enjoys the power of regulating its own procedure subject to the provision of the ICT Act, 1973, it may also impose fine or reparation in sentencing the accused proportionate to the gravity of the crime. The RP did not provide the term compensation as penal offence, he added.
Interrupting Shishir, the tribunal pointed out that compensation as the penal offence has been incorporated under the Nari-O-Shishu Nirjatan Daman Ain.
Replying to the tribunal’s query, Shishir said the very concept of the term compensation is different. In that case the penal offence of compensation has to be mentioned specifically, he contended.
Further referring to the ICT RP, the defence counsel said it has incorporated reparation which is not identical with compensation.
The defence counsel submitted that the tribunal has to give sentence alternative to the capital punishment following the general principle of the law. Or else, it will go against the parent law -- the ICT Act, 1973, he said, adding that fine or reparation can’t go with the compensation as it caries different legal nomenclature.
About the hearsay evidence, the defence counsel admitted the prosecution argument on its admissibility. He, however, said that although admissible, any hearsay evidence must be corroborated by the other witnesses. In this context, the tribunal will have to follow the legal principles of jurisprudence about its probative value and reliability.
The tribunal has to consider prudently whether the hearsay witness provides evidence beyond his knowledge since the charge against the accused carries capital punishment, said Shishir.
About the credibility of the old evidence to prove the charges made against his client, the defence counsel said there might be inconsistencies of the evidence over the facts as the incidents had taken place long ago. In that case, the fundamental feature of the fact has to be considered, he argued, referring to the RP section 50 that says, ”The burden of proving the charge shall lie upon the prosecution (beyond reasonable doubt).”
The defence case summing-up arguments over, designated prosecutor Zead Al Malum sought time for homework for rebuttal.
Allowing the prosecution plea, the tribunal adjourned the trial proceedings for September 18.
On November 12, 2013, the tribunal framed charges against ATM Azharul Islam for his involvement in crimes against humanity, including genocide, during the Liberation War in collaboration with the Pakistan occupation army, dismissing his discharge plea.
Also assistant secretary general of Jamaat-e-Islami, Azharul faces six counts of charges of crimes against humanity during the 1971 Liberation War like killing, abduction, confinement, torture, loot, arson, rape and genocide in Rangpur district.
A week after submitting the formal charge by the prosecution, the tribunal on July 25, 2013 took cognisance of the charge against Azharul as it found a strong prima facie case against the accused under subsections 3(2) and 4(1) (2) of the International Crimes (Tribunals) Act 1973.
According to the prosecution case, Azharul had been involved in the killing of more than 1,200 unarmed innocent civilians in Rangpur during the Liberation War in collaboration with the Pakistan occupation army.
It mentioned that Azharul Islam had played a key role in the killing of intellectuals, cultural personalities, physicians and lawyers in different areas of Rangpur during the 1971 war.
On August 22, 2012, police arrested Azharul from his Moghbazar house in the capital in connection with the war crimes case, after the tribunal issued a warrant for his arrest upon a prosecution plea.
Azharul Trial Defence oppose prosecution plea