Tribunal not consider submitted affidavits supporting SQC’s alibi

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by David Bergman

The tribunal that passed the death sentence on opposition leader Salauddin Quader Chowdhury for offences committed during the independence war of Bangladesh did not consider in its judgment the contents of six affidavits which supported his claim that he was not in Chittagong at the time the offences were committed.

The affidavits supported the accused’s alibi defence that on 29 March 1971 he flew out of Dhaka to Karachi where he stayed for three weeks, then travelling on to Lahore where he studied, until August of that year, for a degree at Punjab University.

Chowdhury’s lawyers had submitted the evidence in the form of written statements as the tribunal had earlier restricted to five the number of witnesses which the defence could bring. In the end, due to time restrictions imposed by the tribunal, Chowdhury could only bring four witnesses.

The affidavits were from people whose names were contained on a long list of 1153 people which the defence had initially provided to the tribunal as possible witnesses.

The prosecution had no limits placed on the number of people it could bring to testify in court – with 41 people giving evidence.

In its final judgment, the tribunal stated ‘some documents’ had been submitted at ‘the fag end of [the] defence argument’ but said that this was done so ‘in violation of the provision’ of the law, and that the lawyers had ‘intentionally refrained from proving those documents by recalling defence witnesses.’

It then went onto state that the ‘defence has miserably failed to prove its plea by documentary evidence that the accused stayed in West Pakistan during [the] whole period of the Liberation War of Bangladesh.’

The judgment however did not mention that the court had earlier allowed the defence lawyer ‘to submit’ the affidavits as evidence to the tribunal.

‘It is an admitted fact that there is no provision to file additional documents on behalf of the defence during trial,’ the court’s 21 July 2013 order stated, referring to these six affidavits and 49 other documents submitted by the defense.

‘Despite of this fact, for the end of justice we are inclined to give permission to the defence to submit additional documents’ and should ‘be kept with the documents filed earlier by the defence.’ The tribunal did not suggest in its order that it considered these documents had no probative value.

No appeal has yet been lodged by the defence or prosecution lawyers. 30 October is the filing deadline.

On 1 October 2013, Chowdhury was convicted for 9 offences concerned with crimes committed during the 1971 war of Independence.

Six of these nine offences – including all four of the offences which Chowdhury was sentenced to death – took place on just two days, the 13th and 17th April 1971 – within one month of the beginning of the independence war.

The thee other offences took place on 14 April, 5 July, and in the third week of July 1971.

Apart from the Salauddin Quader Chowdhury himself, the defence lawyers presented three witnesses at the trial who supported the accused’s alibi defence.

Qayum Reza Chowdhury, told the court that he dropped the accused, his first cousin, at Tejgaon airport on 29 March 1971 to take a flight to Karachi, and that, just over a week later on 8 April, went himself to the city, along with two friends Salman Rahman and Nizamuddin.

Nizamuddin, a friend, confirmed that he had travelled with Qayum and Salman Rahman on 8 or 9 April 1971 to Karachi, and that after a few days, he had met the accused at Salman Rahman’s house.

Abdul Momen Chowdhury, who at that time was a diplomat based in Pakistan, said that in the second or third week of April 1971 he went to Karachi and met the accused for the first time at the office of an old school friend Asiqur Rahman.

In its judgment, the tribunal dismissed this evidence citing 14 eye-witnesses who had confirmed that the accused was present at the scene of the alleged offences.

The judgment also referred to evidence that showed Chowdhury was present in Chittagong in September 1971 – including a newspaper article and a special branch report which mentioned that the accused was injured in an attack on his car during that month, and the testimony of doctor who said that he had treated him on that occasion.

However, in coming to this conclusion, the tribunal did not consider the documentary evidence which the tribunal had previously accepted from the defence.

This included an affidavit from Muhammad Osman Siddique, a former United States ambassador, who had known Chowdhury since college days, which stated that he was on the same flight as the accused when he flew to Karachi.

In another statement, Karachi-based Muneeb Arjmand Khan, a friend of the accused since school days, stated that he ‘received’ Chowdhury from the airport and took him to ‘Mr Yusuf Haroon’s residence, known as Seafield.’

He also says that he was also amongst those who took Chowdhury to Karachi airport when he moved to Lahore ‘after about 3 weeks’ to go to Punjab university.

Amber Haroon Siddiqui also provided an affidavit which stated that on arrival in Karachi, Chowdhury lived at her family house, (known as ‘Seafield’) for ‘about three weeks.’

‘We used to have discussions at the dinner table where [Salauddin Quader Chowdhury] would join me, my sisters and my parents,’ it stated.

A further detailed statement was given by Ishaq Khan Khakwani, a former member of the National Assembly of Pakistan.

‘[Salauddin Quader Chowhdury] arrived at Karachi a few days after … 26th March 1971,’ the affidavit stated.

‘Salauddin was picked up from the airport by our mutual friend Muneeb Khan and I spoke to both of them once they reached Mr Yusuf Haroon’s [father or Amber] residence called Seafield House.’

It goes onto state that when Chowdhury came to Lahore, ‘with great difficulty we got him admitted in the Punjab university’ and that the accused stayed within him ‘in our family house … where he stayed with me throughout till we left for London in October 1971.’

He mentioned the names of five people who would congregate with the accused ‘almost daily’ in that period, and stated that ‘Shamin Hasnain, who is now a justice of the High Court in Bangladesh’ would sometimes join them.

Ishaq also mentioned a trip taken on May 20 1971 when he and Chowhdury drove from Lahore to Malton to attend ‘the engagement ceremony of Dr Nasir Khakwani,’ a classmate of the accused from schooldays.

The statement also states how after their exams in August 1971, he and Chowdhury went along with five other named people – including that of Salman F Rahman – to the hill stations in Muree.

Amongst the documents given to the tribunal along with the affidavits was a letter written by the sitting High Court judge Shamim Hosnain to the country’s current chief justice which stated ‘[the accused] was a classmate of mine at Punjab University at Lahore. It is true that Salauddin Quader Chowdhury was at the Punjab University Campus between the first week of May 1971 till August of the same year.’

A letter signed by Dr Umbreen Javaid, the Chairperson of the Department of Political Science at the University of Punjab, dated 24 January 1971, certified that Salauddin Quader Chowdhury was a student of political science ‘who secured 233/500 for the academic session of 1970-71’ having appeared in the ‘final examination in August 1971.

Two other affidavits – that of Mohamedmian Soomro, and Riaz Ahmed Noon – also supported different elements of the alibi defense.

Zead-Al Malum, the prosecutor in Chowdhury’s case told New Age that, it was not relevant that the tribunal had earlier allowed the defence to submit the documents; what was at issue was whether the documents had ‘probative value’ or not.

‘Documents only claim probative value if they have been exhibited by the witnesses of the respected parties,’ and these documents were not, he stated.

He added that, ‘At time of pronouncement of judgment the tribunal legally passed its opinion that the documents additionally submitted by the defence was in violation of the law,’ in that they had not been included in a list of documents submitted at the beginning of the trial.