The death bed statement of Mostofa simultaneously produces disbelief and inauthenticity. The Court in the Rashed versus State case (12 SCOB, AD 34, 72 DLR) outlines three determinants to verify the authenticity of death bed statement: (i) the inherent truth, (II) the proper identification of the attackers and (iii) making it free from external influences and consistent with the evidence of the cases. The Court, in another case Shahabuddin versus State (DLR 61), necessitating a medical certificate for the mental state of the injured person, said trusting a certificate from a magistrate confirming a person was in good mental health at death bed would be very risky. The Badal Mia versus State (DLR 24) judgement stressed that the Court must consider whether the person giving the death bed statement was in a good mental state.
Section 32 of our Evidence Act asserts the principle that a dying person must not tell lies at the death bed. This principle is known as Nemo Moriturus Praesumitur Mentire. We have to consider to what extent the death bed statement of Mostofa meets the three determinants because the death bed statement mainly worked as the basis of the conviction of Tofail Ahmed Joseph and Haris Ahmed.An established fact was the slain Mostofa had been a member belonging to the terrorist political front Freedom Party. The Awami League leaders Tofail Ahmed Joseph and Haris Ahmed had been his political opponents in Mohammadpur neighbourhood. Political vengeance of Mostofa against the two brothers ran so high that he even told lies at the death bed. It is unbelievable that a person sustaining nine bullets would give a vivid description of the arms used in his murder and about the persons who fired him from which side.
The statements of witnesses such as eyewitnesses Shadhin and Bahar, hearsay witnesses of Pagla (mad) Mizan, brother of Mostofa, and Shahjahan Hawlader, CDS printer employee Saidur and Selim Chowdhury were different and conflicting to some extent. Complaints filed by Rashida Parvin, wife of Mostofa, contradicted the statements of all eyewitnesses and hearsay witnesses, raising a question about the fairness of the trial.
Mostofa’s brother, also a hearsay witness, Shahjahan provided an astonishing statement about the life and activities of Mostofa. He said he did not know that Mostofa had been involved in the politics of Freedom Party and was accused of the assassination attempt on Sheikh Hasina. Mostofa faced three criminal cases in Mohammadpur, but Shahjahan said he did not know it. But would anyone believe that a sibling living in the same neighbourhood would not know anything about his brother, especially when his brother had been a notorious criminal?
A public servant threatened by Mostofa turned to his brother Pagla Mizan for safety. But Mostofa got angry with the employee for seeking protection from Pagla Mizan and ransacked a government office, taking away a costly TV set. But Shahjahan said he knew nothing about it.
Mostofa’s brother Pagla Mizan said clearly in his statement that his brother Mostofa and his accomplice Rajib were imprisoned on charges of extortion and terror activities.
Such contradictions lay bare the truth that the statements, investigations, papers and documents were compromised. Joseph and Haris had been the barriers of Mostofa, his brother Pagla Mizan and an Awami League leader Hazi Mokbul, who used the Mostofa murder case to victimise Joseph and Haris. The whole investigation and other procedures steered to meet the goal to get the two siblings convicted at any cost.The guiding principle of trial may permit acquittals of 10 perpetrators but it does not allow the conviction of a single innocent person. Based on this principle, a person is only convicted when proved beyond doubt and the complaints match the witnesses.
I want to make it clear that I do not attempt to raise any questions about the Court. It is because we must accept the Court judgment. My point is the Court is sure to be seriously misguided. (To be continued)
Nijhum Majumder is a writer and lawyer