Some eminent jurists have expressed surprise at the recent verdict against Jamaat-e Islami leader Abdul Quader Mollah in the crimes against humanity case.
The International Crimes Tribunal-2 on Tuesday awarded Mollah life in prison in the case filed for the crimes against humanity he had committed during the Liberation War in 1971.
Talking to The Daily Star yesterday, a number of jurists said the judges of the ICT-2 could have given capital punishment in this case, as five charges out of six brought against the convict were proved.
The legal experts, however, were divided over an appeal by the government against this verdict.
Advocate Shahdeen Malik said the International Crimes Tribunal-2 gave life term imprisonment to Mollah based on its best consideration, although the people had expected a death sentence.
A judgement is delivered on the basis of law, evidence and fact but can never be a competitor for popularity such as songs or films and cannot be supposed to reflect public expectations, he observed.
Malik also said awarding a sentence to any accused depends on the discretion of the judges, as there are no specific rules in the country's judicial system to this effect.
Criminal law expert Anisul Huq said it should be examined whether the prosecution had any fault in placing the charges against the convict before the tribunal.
The judges of the tribunal possibly gave life term instead of capital punishment because the charges brought against Mollah were not proved beyond doubt, he observed.
He said the government could move an appeal before the Supreme Court against the portion of the verdict that acquitted the Jamaat leader of the charge of murders in Keraniganj.
The counsel added the government could not pray to the apex court to enhance the conviction to death penalty in other charges of the case.
Expressing surprise, Dr M Zahir said he was disappointed and dissatisfied with the verdict against Mollah like others in the country.
Asked whether the judges of the ICT-2 could have awarded Mollah death penalty on the charges which were proved, the eminent jurist said there is nothing to do now in this regard.
Advocate Khurshid Alam Khan said the tribunal could have awarded capital punishment as five serious charges brought against the convict were proved.
He opined that the government could file an application with the Supreme Court seeking permission to file an appeal challenging the portion of the verdict that acquitted Mollah of a murder charge.
If the Appellate Division permits the government to move an appeal challenging the verdict, the government can do it, he said.
He also said the government has to mention in the application whether it would pray to the apex court to enhance the punishment from life term imprisonment to death penalty.
Speaking anonymously, a top constitution expert said the ICT-2 judges, beyond any doubt, could have awarded death penalty to Mollah, as five charges out of six were proved.
Some eyewitnesses had given statement before the tribunal against Mollah about his serious offences like murder, but the court has awarded him life term imprisonment.
He said the same tribunal had earlier given death penalty to another accused Abul Kalam Azad alias Bachchu Razakar for committing similar crimes against humanity.
The senior counsel added the government might have made an underhand settlement with Jamaat for giving less punishment to Mollah through the ICT-2 for any political purpose.
The charge, of which the tribunal acquitted Mollah, was that he along with his 60 to 70 accomplices on November 25, 1971 went to the village of Khanbari and Ghatar Char, now Shaheed Nagar of Keraniganj, and caught two unarmed freedom fighters from the house of Mozaffar Ahmed Khan.
Freedom fighters Osman Gani and Golam Mostafa were brutally murdered by charging bayonet in broad daylight.
A systematic attack and indiscriminate shooting by Mollah and his gang killed hundreds of unarmed people of the two villages that day. Among them, 24 people were named in the charge.
The prosecution have failed to prove this charge against Mollah before the tribunal.