The New Nation - Internet Edition

Barrister Md. Abdul Halim

Four of our national leaders who played the most proactive role in our independence war and also in the post-independence nation building- Syed Nazrul Islam, Tajuddin Ahmed, M. Monsur Ali and A.H.M Qamruzzaman- were brutally and cowardly killed in the Dhaka central jail on the night of November 3, 1975. The incidence popularly known as 'jail killing case' has hitherto been given more political importance than legal as no criminal case was filed in 21 years since its happening. The whole incidence of this tragic killing was covered by Indemnity Ordinance issued by the then President Khandaker Mostaque Ahmed and the state was not given any power to file a case against anyone. It was in October 1996, when the Awami League government for the first time abolished the indemnity ordinance and paved way for investigation and trial of the gruesome killing. This write up is aimed at explaining legal aspect of the investigation and trial of the case and the ultimate verdict by the High Court Division on 28th August, 2008 acquitting most of the persons charged against. Both the trial court and the apex court stated that the merit of the case has been damaged by faults in the investigation. The verdict of the apex court has given rise to some important questions among general public: (i) why are the accused persons set free given that the jail killing is a historic fact in Bangladesh; there is no doubt about it; it was a killing within the state protection and the persons who killed them or instigated or abetted the killing were in the power and the killing itself or the intrusion into the central jail was done leaving behind ample proof of it? (ii) Is it not injustice if an accused who has committed a crime is not punished and is set free?

One of the avowed purposes of the judicial system in a country is to administer justice and to see that a person who commits crime must not go unpunished and set free. However, the dispensation of impartial criminal justice and punishing offenders by the judicial system is not always something like one-way traffic; it is depended upon some important factors. The most important of these factors is the preparation and collection of evidences by the state. Our judiciary is based on common law or adversarial system as opposed to inquisitorial or civil law system.

Under the inquisitorial system the judges play an active role in collection of evidence and preparation of the case whereas in the adversary system judges have to play impartial role. In a criminal case it is the state who, on behalf of the victim and against the accused person, will collect and prepare the case and the defence will scrutinise all the evidences produced by the state with a view to developing any possible defence; and in between these two parties the court will take an impartial view and give verdict on the basis of the evidence placed and proved in open court. The general public might perceive the court as a forum of justice but the term 'justice' is not always something as ordinary people perceive; justice is to be done and served within the four corners of law and the judges themselves cannot act going beyond the law.

If faulty investigation is made in a criminal case, all the court can do in our system is to order for a fresh investigation. The courts being in an impartial position cannot dictate or interfere in the manner and form of investigation.

The genesis of impartial criminal justice lies in the sense that state will collect, produce and prove all relevant evidences on the allegation against the accused person and if the charges can be proved beyond reasonable doubt, only then the court will convict the accused; if there is a reasonable doubt in favour of the accused, the judge is duty bound to set free the accused, does not matter whether the accused is a known killer or there is a common knowledge against the allegation.

The ground works for a successful conviction under a criminal law firstly depends upon the police and investigation authorities, and secondly upon the direct testimonial evidence given by witnesses in the open court. If they either accidentally or intentionally or negligently or being persuaded by any party manipulates or violates rules with regard to investigation or prosecution or does not bring a material evidence before the court, or the witnesses do not disclose the true fact, the trial court has nothing but to acquit the accused person and it would be futile to blame judicial system.

And this is why in some countries there is a department of prosecution service which is completely free and independent of the executive organ of the government.

After a long gap of 23 years when the investigation and subsequent trial of the jail killing case was started, many drawbacks were encountered by the investigating agency and the courts: first, people who masterminded this killing destroyed vital material evidences over this long period of time; second, it is unlikely that an investigation officer would be able to perform his duty properly 23 years after the incidence; third, many of the accused persons, having political influence over the government and/or opposition, manipulated the investigation process and this is why names of some culprits were not in the charge-sheet and some wrong persons' names were inserted and this was done, I believe, with a view to casting more doubts on the merit of the case; fourth, the verdict in this case largely depended on testimonial evidence by witnesses and since most of the witnesses gave complete contradictory statements in the court except with regard to the involvement of Moslem Uddin, the prosecution version of facts got stuck on the point of 'benefit of doubt' in favour of the defence and in such a case the court including the High Court Division cannot be blamed for giving a not guilty verdict.

Before such a historic case should have been sent to the court for trial, it was incumbent upon the government to think twice whether any breakthrough in proper investigation would be possible and witnesses and evidences could be collected for a successful conviction. Pushing the case to the court for trial with faulty investigation and insufficient evidence has not only paved the way for criminals to go unpunished against a historic truth but also left the prestige of the judicial system in tater and disrepute.

One commentator questioned: "is not it common knowledge that those who were involved in tragic killings of August 15 and November 3 were given safe passage out of the country, and later many of them were given government jobs in the diplomatic service? Was it beyond the purview of the trial court and the higher judiciary to take cognizance of this fact while delivering their verdicts? 'Common knowledge' can rarely be considered by the trial court judges for the purpose of conviction in a criminal trial; a criminal conviction can never be based on surmise, conjecture or emotion; it has to be strictly based on evidence. These are facts that those who were involved in August 15 and November 3 killings were given safe passage and posts in diplomatic missions subsequently but these must have been brought either by way of material evidence or testimonial evidence before the court and the prosecution must also prove that these evidences had relevance with killing in question. However, this evidential burden was not discharged by the prosecution.

Again, the trial court cannot take cognizance of any fact in isolation of some relevant facts. This is mainly because, as I have already mentioned, the judges in our country work on adversary system as opposed to civil law system and we technically call 'law is blind'. This is because judges cannot go beyond the evidences produced and/or proved before the court.

As far the merit of the case is concerned, there is still possibility of filing an appeal to the Appellate Division. Appeal process is considered to be the continuation of the proceeding and appellate court has the power to order a fresh trial, even with a fresh investigation for the ends of justice, if prayed for by the prosecution.