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Afghan witness in Ben Roberts-Smith trial denies he is allowed to lie to infidels as a Muslim

An Afghan farmer has denied lying about what happened the day Ben Roberts-Smith is accused of ordering the execution of a prisoner in his village.

Man Gul had sworn on the Koran to give truthful testimony and would not concede it was acceptable for him to lie to 'infidels' in a secular Australian court under his religion's rules. 

Mr Gul is one of four Afghans giving evidence about the death of a man called Ali Jan in the Federal Court defamation action brought against Nine newspapers by Mr Roberts-Smith. 

He has said a 'big soldier' was present when Ali Jan was taken into custody but has not claimed to have seen Mr Roberts-Smith shoot the prisoner or push him off a cliff.

Nine alleges Australia's most decorated soldier was responsible for Ali Jan's murder and has called the four witnesses from the village of Darwan to support their case. 

Mr Gul was accused several times on Thursday by Mr Roberts-Smith's barrister Bruce McClintock SC of deliberately giving false evidence. 

Man Gul is giving evidence for Nine newspapers about the death of a man called Ali Jan. at Darwan. Mr Gul is a corn, wheat, tomato and potato farmer, had spent all his life in Darwan and said Ali Jan was 'a distant cousin'

Mr Gul is one of four Afghans set to give evidence about the alleged death of Ali Jan who Nine claims Mr Roberts-Smith ordered to be executed after kicking him off a cliff. Mr Roberts-Smith is pictured in Afghanistan in 2006 

The Afghan witnesses are giving evidence about an Australian raid on Darwan (pictured) in which Ali Jan was allegedly killed. That day SAS troopers came to the village looking for a rogue Afghan soldier who had shot dead three Australian soldiers a fortnight earlier

He denied his version of events was false but said Ali Jan had been 'martyred' and he considered foreign soldiers in his war-torn homeland to be 'infidels'.

When asked if he hated the foreign soldiers who invaded his country and did not share his Islamic faith, Mr Gul said: 'Yes, it is like that.' 

Mr McClintock: 'Do you believe your religion imposes any obligation to tell the truth to infidels, Man Gul?'

Mr Gul: 'Yes, it is there, of course.'

Mr McClintock: 'It is in fact permissible to lie to infidels under your religion isn't it?'

Mr Gul: ''No, I haven't seen anything like that. You should not tell a lie.'

The Afghan witnesses are giving their testimony from a lawyer's office in Kabul through a Pashtu interpreter in Ontario, Canada via audio/visual link.  

When electricity in Kabul fails and the feed is lost, a generator kicks in. During his evidence Mr Gul appeared to snort snuff - ground tobacco leaves - from a tin.

Mr Roberts-Smith, 42, is suing Nine newspapers at the Federal Court trial in Sydney over media reports alleging he was involved in war crimes including murdering prisoners in Afghanistan. He is pictured arriving at court on Monday

Mohammed Hanifa, who has lived most of his life in the tiny village of Darwan, told the Federal Court on Tuesday a Dr Sharif had been paying for his accommodation, food and transport since earlier this year. Dr Sharif works for representatives of Nine newspapers

The Victoria Cross recipient has told the Federal Court he did not mistreat any prisoner, there was no unlawful killing and there was not even a cliff at Darwan. 

Ali Jan was allegedly killed in the village of Darwan which was raided by Australian soldiers including Mr Roberts-Smith on September 11, 2012.

The Special Air Service had come to Darwan looking for a rogue Afghan soldier called Hekmatullah, who had shot dead three Australian soldiers a fortnight earlier. 

Mr Gul, a corn, wheat, tomato and potato farmer, had spent all his life in Darwan until moving recently to Kabul via Kandahar, and said Ali Jan was 'a distant cousin'.

The villagers giving evidence against Mr Roberts-Smith are all from Darwan (pictured) in the Taliban stronghold of Uruzgan province and three have been described as members of the same extended family

He was not sure exactly when Ali Jan died because he did not understand dates but thought it was seven or eight years ago and remembered it was 'the corn crop time'.

The 38-year-old said Ali Jan was not a member of the Taliban. He owned animals and gathered wood from the mountains to sell.

On the morning Ali Jan was allegedly killed Mr Gul said helicopters had passed by the village and one had landed on a hill. 

His neighbour Mohammed Hanifa had called out to him and came to his house. The pair then saw Ali Jan in a creek bed with three donkeys.

Mr Hanifa had gone down to join Ali Jan but after Mr Gul heard shots fired the two men walked up to his house. 

Mr Gul said soldiers came towards the house and shouted at him, and a black dog bit him on the upper thigh. 

The alleged murder of a man called Ali Jan is the centrepiece claim in a series of stories Nine newspapers published in 2018 accusing Mr Roberts-Smith of war crimes. Mr Roberts-Smith is pictured in Aghanistan in 2006

Mr Hanifa is the oldest of 19 siblings and lives a primitive existence in his home village. One brother was killed when a cousin struck him with a rock in the head. In Darwan (pictured) he farmed wheat, corn, kidney beans and tomatoes with his father and did not own his own fields.

Barrister Bruce McClintock for Mr Roberts-Smith has accused Mr Hanifa of lying about details of the Darwan raid. Mr Hanifa has responded with versions of the same phrase: 'I have seen it with my own eyes. Whether you call it a lie, that is up to you.' Mr Roberts-Smith is pictured

The soldiers tied his hands behind his back and made him sit next to Mr Hanifa and Ali Jan as an interpreter began asking questions.

'After that the interpreter pulled out the pistol,' Mr Gul told the court. 'He was holding the pistol at Mohammed Hanifa and he was telling him "We are after the Taliban".

'Mohammed Hanifa told him, "I don't know where the Taliban are".'

Mr Gul said the interpreter (falsely) claimed the soldiers had killed Mr Hanifa's father Shahzad Aka and hit him in the head when he asked why.

'There was a big soldier sitting beside me,' Mr Gul said. 'I looked at him and he hit me. I looked at him again and he hit me.

Nine will suggest the 'big soldier' is Mr Roberts-Smith, who is 202cm (6'6") tall.

The interpreter then told Mr Gul not to look at the big soldier because he did not like it. 'They told me they are after Taliban,' Mr Gul told the court. 'I said, "The Taliban are not sitting here with me".'

Mr Gul said the soldiers took Ali Jan away. 'After this the big soldier went away from me. I didn't see him anymore.' 

Once the soldiers were gone, Mr Gul asked one of his daughters to cut the ties binding his and Mr Hanifa's hands.

'I said, "Mohammed Hanifa, where is Ali Jan?" He said they kicked him and he went down to the river.'

Mr Roberts-Smith is pictured receiving his Victoria Cross for gallantry from then Governor-General Dame Quentin Bryce in 2011. He also holds the Medal for Gallantry 

Mr Gul said he and Mr Hanifa went to a cornfield on the other side of the creek and found Ali Jan's body in a cornfield.

'He was laying on his back, he was shot,' he said, motioning to his the right side of his jaw and the left side of his head. 'He was also hit in the chest area.'

'We cleared his face. There was a lot of dirt on his face and then brought him under the shade of the berry tree and then put a shawl over his body.'

Mr Gul was shown a picture of Ali Jan's body which showed a bag and radio next to him. 

'This wireless device and then the white bag they were not there,' he said.

Mr Gul said he had not seen Ali Jan carrying a radio that day and wouldn't know how to use one. 'No,no,' he said. 'He didn't even know how to work a watch.' 

Two other men were killed that day in Darwan - Haji Nazar Gul and Yaro Mama Faqir - and Mr Gul said neither was in the Taliban. An insurgent called Mullah Ghafur was shot dead by Mr Roberts-Smith on the other side of the Helmand River.

Asked if he supported the Taliban's aim to rid Afghanistan of infidels, Mr Gul said: 'I do not agree with the Taliban.'

'The Taliban have done injustices to us and the foreigners have also done injustices to us.'

Mr Gul is the second Afghan witness to give evidence following Mr Hanifa. 

Mr Hanifa had also spent all his life in Darwan until recently moving to Afghanistan's capital. One of his father's two wives is Ali Jan's sister.

The 38-year-old was living with his father Shahzad Aka and some of his 18 siblings in the village on the day the SAS came for Hekmatullah and Ali Jan was allegedly killed. 

Australian troops aboard helicopters are pictured searching for Hekmatullah in the Gizab region of Uruzgan province after he murdered three of their comrades in August 2012

Mr Hanifa said he did not know Hekmatullah but had known Ali Jan since childhood, although he lived in another village called Bagh three hours' walk from Darwan.

He knew Hekmatullah was a Taliban fighter who used the radio call sign 'Abid'. 'He has a wireless,' Mr Hanifa told the court. 'And he has a gun.' 

Ali Jan, Mr Hanifa said, was a married father-of-three engaged in irrigation, grazing cattle and selling wood.

Mr Hanifa denied Ali Jan was connected to the Taliban – 'no, nothing like that' – or any sort of fighter. 'No, he was providing for his children and he was protecting his family and his property,' he said.

Mr Hanifa said Ali Jan had come to Darwan to mill wheat and was planning to collect woods from the mountains. He had two donkeys with him.

The day Ali Jan was allegedly killed Mr Hanifa was at Mr Gul's house when he saw helicopters carrying soldiers arrive on the outskirts of the village.

'I told him there was a raid,' he said. Ali Jan was beside a creek with two donkeys heading towards the house and Mr Hanifa quickly hatched a plan.

Australian troops, including the Special Air Service, were based at Tarin Kowt during the war in Afghanistan. Four Afghans from Darwan will give evidence from Kabul about the alleged unlawful killing of a man called Ali Jan in their village on September 11, 2012

'I took one of the donkey from him thinking that we will look like nomads and the foreign forces will think that we are nomads,' Mr Hanifa told the court.

'Two shots were fired at us so we returned back. We had the donkeys with us and we stopped at the guest house.' Mr Gul brought Mr Hanifa and Ali tea.

Soldiers came into the village and one confronted Mr Hanifa. 'He told me to get up or stand up. I told Ali Jan not do to that because in these types of situations the soldier shoots you.'

The soldier grabbed Mr Hanifa by the neck and hit his against a wall, he told the court.

Mr Hanifa said he and Mr Gul were detained and he was accused by an interpreter of being a member of the Taliban.

'He took out a pistol and he put it on my throat. He put it there and he said, "You are a Talib. I shot your father".'

'Then he pointed the pistol to my head and he hit me with the pistol and he said, "Show me Hekmatullah, otherwise I will shoot you in your head".'

Mr Roberts-Smith is pictured with his barrister Bruce McClintock SC outside court on Monday. The war hero is 202cm - or 6'6' - tall

Mr Hanifa said he was ordered to stare into the eyes of a 'big soldier' while he was being interrogated and when he looked away that soldier punched him 'many, many times'.

Mr Hanifa said the big soldier also kicked him twice in the abdomen before the interrogators turned their attention to Ali Jan.

'I told Ali Jan, "Don't laugh or don't smile because they do not like when you smile or when you laugh,' he told the court.

Mr Hanifa said when the big soldier said something to Ali Jan, whose hands were tied, he smiled. The big soldier then kicked him 'really hard' and Ali Jan fell on his back.

'He was rolling down, rolling down, until he reached the river,' Mr Hanifa said.

'At that time, the big soldier, he shouted. Also a shot was fired.' Mr Hanifa said he saw two other soldiers drag Ali Jan to a berry tree and heard more shots.

He did not see the big soldier again and did not see Ali Jan being killed.

Mr Hanifa later followed a trail of blood and found what he said was the body of Ali Jan. He had one arm behind his back and his hands were not tied.

The Afghans giving evidence against Mr Roberts-Smith have previously given statements to the Inspector-General of the Australian Defence Force. Australian Special Operations Task Group troops are pictured in Uruzgan province in 2012

Ali Jan had been shot in the face, the left side of the head and the belly, he claimed. He was then shown a photograph taken that day of a dead man with a radio and bag near his body.

'This was Ali Jan,' he said. 'They put those things with his body.'

Under cross-examination Mr Hanifa said he had not seen any shots fired at Ali Jan by anyone, including the big soldier.

Afghan National Army sergeant Hekmatullah (pictured) shot dead three Australian soldiers near Tarik Kowt in August 2012

'I don't know if he fired the shots or someone else,' he told barrister Bruce McClintock SC for Mr Roberts Smith.

'I told you that I saw Ali Jan being dragged to this tree, after that I didn't see him,' he told the court.

'Shots were fired, whether you consider this a lie or a truth is up to you.'

Mr Roberts-Smith, who Nine newspapers accused of involvement in six murders during his service in Afghanistan, has denied taking part in any unlawful killings.

He says that the day Nine claims Ali Jan was murdered the only Afghans killed were Taliban insurgents.

Early in the mission Mr Roberts-Smith had swum the Helmand River and shot dead Mullah Ghafur who was armed with an AK-47-style assault rifle.

Nine alleges that near the end of the mission Mr Roberts-Smith and members of his patrol detained, handcuffed and questioned Mr Hanifa, Mr Gul and Ali Jan.

The newspapers claim Mr Roberts-Smith forced Ali Jan to kneel at the edge of a cliff while still handcuffed and then took a number of steps back before kicking him hard in the midriff.

The former SAS corporal's legal team argues their client is a victim of a lying campaign by journalists and failed soldiers jealous of his stellar military career and Victoria Cross

Mr Roberts-Smith is suing newspapers including the Sydney Morning Herald which ran this front page investigation into allegations of war crimes committed in Afghanistan on the weekend of June 9 and 10, 2018

According to Nine, Ali Jan fell over the cliff and landed in a dry creek bed below. The impact of the fall was so great it knocked Ali Jan's teeth out of his mouth.

Nicholas Owens SC for Nine asked Mr Hanifa if there had been an embankment or slope up from the creek bed. 'No, nothing like that, no slope, anything like that,' he said. 

Nine alleges Ali Jan was moved by two soldiers to the other side of the creek bed where he was shot by Mr Roberts-Smith or another SAS member called Person 11, or both.

Mr Roberts-Smith has given evidence that no such incident ever took place and disputed there was even a drop he would consider a cliff at Darwan.

Instead of having executed a prisoner, Mr Roberts-Smith said he was nearby when Person 11 engaged and killed a Taliban 'spotter' in a cornfield.

What we know about Ben Roberts-Smith and his 'trial of the century' 

Victoria Cross recipient Ben Roberts-Smith is pictured on deployment in Afghanistan 

Ben Roberts-Smith is suing Nine-owned newspapers The Sydney Morning Herald and The Age, plus The Canberra Times over allegations he committed battlefield crimes including murder.

His case, being heard in the Federal Court in Sydney, was expected to last ten weeks but has been delayed by Covid-19. It is being bankrolled by his employer, the Seven Network's billionaire owner Kerry Stokes.

Mr Roberts-Smith served six operational tours in Afghanistan with the elite Special Air Service and left the regular army in 2013 with the rank of corporal.

He was awarded the Victoria Cross for actions at Tizak in June 2010 and the Medal for Gallantry for an earlier battle near the Chora Pass in May 2006.

The newspapers will plead that Mr Roberts-Smith was complicit in and responsible for the murders of six unarmed prisoners in Afghanistan, and that those actions constituted war crimes.

Nine alleges Mr Roberts-Smith killed insurgents who had been captured and none of the killings was the result of decisions made in the heat of battle.

Mr Roberts-Smith has also been accused of bullying other SAS troopers and punching a woman in the face after a Parliament House function in 2018, which he denies.

The 42-year-old says some of his onetime colleagues who are making allegations against him are jealous of his feats of soldiering and are telling lies.

Mr Robert-Smith's ex-wife Emma Roberts, the mother of his two children, is expected to give evidence for the publisher after 'flipping' sides.

Ms Roberts' friend Danielle Scott, John McLeod - a former bodyguard of drug smuggler Schapelle Corby, Afghan witnesses and 21 serving and former SAS members will also be called by Nine.

Mr Roberts-Smith's team will call evidence from witnesses including SAS comrades.

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