The New Nation - Internet Edition

BSS, Dhaka

Chief Counsel for the State Anisul Haque in the Bangabandhu Murder Case in his second day's submission yesterday stated that successive governments after 1975 expressly or impliedly prevented the lodging of FIR and bringing charges against the accused.

Referring to the contention of the appellants' counsels that the prosecution did not establish the causes of delay in lodging FIR, Anisul Haque said the answer was clearly stated in the complaint as well as in the deposition of the complainant in the Trial Court.

"The prosecution has not only explained the reasons of delay but also demonstrated cogent evidence to substantiate the stand as to why there was delay in lodging the FIR given the facts and circumstances of the instant case," he submitted.

Explaining the causes of delay in lodging FIR, the State Counsel said after the tragic incidents of August 15, 1975 an ordinance was promulgated by the President, which was usually known as Indemnity Ordinance, barring raising of any complaint on the killings.

This ordinance, he said, expressly stated that "no suit, prosecution or other proceedings, legal or disciplinary, shall lie or be taken in, before or by any Court, including the Supreme Court and Court Martial."

He said the ordinance was repealed by the Indemnity (Repeal) Act 1996 on November 14, 1996. "Accordingly, for long 21 years, an ordinance made by the President and not repealed by the successive governments coming into power purportedly tried to prevent the lodging of the case," Anisul Haque said.

The State Counsel said the accused persons in the case were influential and powerful in the society, which would discourage any person from lodging an FIR out of fear.

"One of the accused, Khandaker Abdur Rashid, contested the February 15, 1996 general elections from Chandina, Comilla and on being elected as member of the parliament was made the leader of the opposition," Anisul Haque stated in the Court.

He said Syed Faruq Rahman and Khandaker Abdur Rashid had floated a political party in the name and style of "Freedom Party" and Faruq Rahman contested the presidential election in 1980s.

"After Major General Ziaur Rahman came to power, he rewarded the accused persons by appointing them to various posts in the foreign missions," Anisul Haque stated while explaining the causes of delay in lodging FIR.

He said it was not plausible for any normal person to lodge an FIR when the accused were clearly in favour of the government in power.

Replying to the appellants' counsels' claim that it was a clear mutiny, the state counsel said if it is accepted in the interest of argument, even then no bar is there to try the accused under the existing criminal laws. "The army law did not prevent trying the mutineers under the criminal law," he stated.

"The punishment of such offence under the army act is death penalty and they would not have got the facilities they are getting under the civil law," he said. "Rather, the trial under civil law ensured their legal rights to defend them."

The State Counsel will resume his submission today.

Yesterday was the 22nd day of the hearing that began on October 5 before a five-judge bench after two years of granting leave to appeal brought by five condemned convicts, detained in jail, out of the total 12.

On a prayer of the state, the Appellate Division on August 24 set October 5 for hearing the appeals on the case of killing Father of the Nation Bangabandhu Sheikh Mujibur Rahman.

The Trial Court awarded 15 accused persons with capital penalty while the senior judge of a two-member bench of the High Court Division, after hearing appeals and mandatory death references, confirmed the punishment of 10 and the companion judge confirmed the conviction of all the 15.

A three-judge bench of the Appellate Division of the Supreme Court on September 23 in 2007 granted the pre-appeal prayers (leave to appeal) of the five convicts and asked them to file regular appeals.

A five-judge bench of the Appellate Division of the Supreme Court, comprising Justice Md Tafazzul Islam, Justice Md Abdul Aziz, Justice Bijan Kumar Das, Justice Md Mozammel Hossain and Justice Surendra Kumar Sinha, is hearing the appeals.

Chief Justice MM Ruhul Amin constituted the bench.

After 21 years of this tragic incident, receptionist-cum- residential personal assistant (PA) of Bangabandhu's residence AFM Muhitul Islam lodged a case with Dhanmondi police on October 2, 1996.

Complainant Muhitul in the FIR explained the cause of delay in lodging the case, saying due to adverse situation and his security it was not possible for him to file the case with the authorities concerned just after the incident. Investigation Officer (IO) of the case Abdul Kahhar Akhand, an assistant superintendent of police of the CID, submitted chargesheet to the Court on January 15, 1997, accusing 24 civil and military men for their alleged involvement in the incident.

Of them, former President Khandaker Moshtaque Ahmed, former Secretary Mahbubul Alam Chashi, Risaldar Syed Sarwar Hossain and Captain Mustafa Ahmed were relieved of the charge as they died before submission of the chargesheet.

Judge of the Trial Court Quazi Golam Rasul, the then district and sessions judge of Dhaka, on April 7, 1997, initiated the trial by indicting 20 civil and military persons for their involvement in the occurrence in different manners.

Of them, five of the accused, who faced the trial in person, denied their involvement and prayed for justice during framing of the charges.

After examining 61 witnesses, including the complainant and the investigation officer (IO), Judge Quazi Golam Rasul handed down death sentence to 15 ex-military officers in the case on November 8, 1998.

Five others, including Taheruddin Thakur, were acquitted of the charge, as the allegations brought against them were not proved beyond doubt.

Later, a High Court Division bench on December 14, 2000 delivered the split judgement after hearing appeals and mandatory death references.

Justice M Ruhul Amin, senior judge of the bench, confirmed death sentences to 10 convicts while his companion judge Justice ABM Khairul Haque upheld the punishment of all the 15.

Later, the matter was sent to a single bench (third bench) comprising Justice Mohammad Fazlul Karim, who upheld the death sentence to 12 convicts and acquitted three others.

The convicts whose death sentences were upheld are Lt.Col.(sacked) Syed Faruq Rahman, Lt. Col. (sacked) Sultan Shahriyar Rashid Khan, Lt. Col.(sacked) Mahiuddin Ahmed, Lt. Col. (sacked) Abdur Rashid, Lt. Col. (sacked) Shariful Haq Dalim, Lt.

Col. (sacked) Noor, Lt. Col. (sacked) Aziz Pasha, Maj. (sacked) Bazlul Huda, Maj. (sacked) AKM Mahiuddin Ahmed (lancer), Rishaldar (sacked) Moslem Uddin, Lt. Col. (sacked) Rashed Chowdhury and Lt. Col. (sacked) Mazed.

Of them, Syed Faruq Rahman, Shahriar Rashid Khan, Bazlul Huda, Mahiuddin Ahmed and AKM Mahiuddin Ahmed filed separate leave to appeals against the verdict of the High Court Division. One of the fugitive convicts, Aziz Pasha, reportedly died in Zimbabwe while the remaining six are still absconding.

The then President of the country and Father of the Nation Bangabandhu Sheikh Mujibur Rahman, along with most of his family members, was assassinated on August 15, 1975, at his Dhanmondi residence.