1 Jan 2012: Mofiz cross-exam day 2

Following the tribunal dealing with the Molla charges, the cross examination of Mofiz Uddin Poshari, witness number seven against Sayedee continued in the morning. The questions were asked by defence lawyer Kofil Uddin. (Subsequent to this, the evidence-in-chief of witness number eight was taken, set out in the next post)

Evidence-in-chief
Cross-examination, day one

Below is an unofficial translation of the cross-examination. (Notes and translation undertaken by Fazle Elahi. Every attempt has been made to ensure accuracy, but there may be some small omissions.)  

Defence: So, what was the date of the incident?

Witness: 8 May (1971).

Defence: The date you have told can you please tell us whether it is of Bengali or English (Christian) era?

Witness: English (Christian) era.

Defence: Can please tell us what is the name of the month before May?

Witness: I cannot say.

Defence: Well, in that case, can please tell us how many days in May?

Witness: 29 days I guess.

Defence: Your daughter’s name is Chandra Banu, is that true?

Witness: Yes.

Defence: She has got an allotment of a house in the Shelter Centre at Parerhat after you have become the witness of this case- is that true?

Witness: True. My son-in-law collected information about that and got the allotment.

Defence: What is your mother’s name?

Witness: Roopmala Begum.

Defence: How many siblings your mother has?

Witness: 3 brothers and sister (2 brothers and my mother)

Defence: What are the names of your maternal uncles?

Witness: (1) Kashem Ali Poshari - elder uncle, (2) Hossain Ali Poshari - younger uncle.

Defence: Your second wife’s name is Farida Begum and your mother-in-law’s name is Saleha Begum- is that true?

Witness: True.

Defence: So you are living with them right now?

Witness: Yes.

Defence: Your wife and your mother-in-law are beggars by profession in Parerhat area, right?

Witness: My wife does not beg. My mother-in-law might have involvement in begging.

Defence: The rajakars and Pakistani army grabbed you from Manik Poshari’s house, they tortured you and you escaped from their camp. When did Manik Poshari come to know that?

Witness: On the same day, at the time of Fazr prayer (it should be the next day i.e. the 9th May, 1971)

Defence: Did you go to any doctor for treatment of your wounds?

Witness: No.

Defence: Did you meet your wife/mother-in-law/sister-in-law/brother-in-law after you came back after rajakars’ camp?

Witness: No.

Defence: So you met them after the War of Independence?

Witness: No. I met them before the victory.

Defence: When?

Witness: Just after 2/3 days of the incident when I started for the Sundarbans.

Defence: Where did you meet them?

Witness: At my father-in-laws house where they used to live then.

Defence: Did not the rajakars loot or arson your father-in-laws house as you had escaped from their camp during you escaped and you left for the Sundarbans?

Witness: No. They did not. However, they set fire to my house at the first instance.

Defence lawyer did not want the Tribunal to include the statement from the witness that his house was set on fire, but the prosecution counsel Haidar Ali argued that it should be included.

Defence: Did the rajakar take away your father-in-law/mother-in-law/wife/sister-in-law in between those 2/3 days from the house they lived in?

Witness: I do not have any idea.

Defence: You have stated in your statement that you could not file a case against Delwar Hossain Saidi because you did not have financial ability to do the same. Are you financial able now?

Witness: No. I am not.

Justice Zahir: He has not file the case even. The case has been filed by CIO and he is just a witness.

Defence: How long you stayed at the Sundarbans?

Witness: Until the end of the victory.

Defence: Which/whose camp did you stay?

Witness: I stayed with Roijuddin’s family at the first instance. Later on I stayed at Zia Mia’s camp (Major Zia) and served the freedom fighters.

Defence: How long you stayed at Zia Mia’s camp?

Witness: About one month or one and half months.

Defence: So, in Zia Mia’s camp there were other freedom fighters as well, right?

Witness: Yes. Some others used come and go i.e. they stayed in the camp temporary basis.

Defence: Can please name 10/20 freedom fighters who stayed in that camp at that time?

Witness: (1) Amzed Hossain, (2) Alamgir Mia, there were some other freedom fighters and I knew their names but I cannot remember their name right now.

Defence: Well, can you please tell us, whether Zia Mia used to contact the other freedom fighters/camp/head quarter from the camp or he had separate office for this purpose?

Witness: There was separate house in the camp area for this purpose.

Defence: Was there in photograph in that room?

Witness: No.

Defence: Was there any type machine (type writer) in that office?

Witness: I did not notice.

Defence: Where was the camp/office- in the plain land/in water/in a basement or in a bunker?

Witness: In a plain land. The cut the bush/trees in the jangal (forest) and made the land plain and sat up the camp and office.

Defence: Did you cross Bagi and Sharan Khola on your way to the Sundarbans?

Witness: Yes.

Defence: Is there any market place/office in Bagi?

Witness: Yes. There is market place on the side of the canal.

Defence: Did you hear the name of Khotur Baria during the war of independence?

Witness: No. I cannot remember.

Defence: I am saying you did not even go to the Sundarbans- what do you say?

Witness: It is not true.

Defence: You do not even have any established profession- what do you say?

Witness: It is not true as well.

Defence: Basically you were not Manik Poshari’s servant. You were in fact his ‘gun man’- is that true?

Witness: Not true. I was his servant.

Defence: You were not even aware of the fact of looting and arsoning of Manik Poshari’s house and that is why you did not become a witness in the case filed by Manik Poshari in the Chief Judicial Magistrate’s (CJM’s) court in Pirojpur- is that true?

Witness: It is not true.

Defence: There is no reference in that case of the fact that the rajakars took you away to their camp, tortured you, and finally you escaped, right?

The chief prosecutor raised objection at this point arguing that as witness was not a party or even witness to that case, he could not be aware of the facts. Justice Nassim agreed with that point.

Defence: You have mentioned the name of Delu alias Delwar Shikder s/o Late Rasul Shikder. He is not the same person named Delwar Hossain Saidi, right?

Witness: Not true. He is the same person with different names.

Defence: I am saying, Delu alias Delwar Shikder was a rajakar commander of Parerhat area and he was killed after the War of Independence by a member of Bangladesh Army- what do you say?

Witness: I did not see who killed the said Delu Shikder you are talking about.

Defence: There was a notorious razakar in your area named Delwar Hossain Mollik, is that true?

Witness: Not true.

Defence: The said Delwar Hossain Mollik was arrested after the War of Independence and was sent to jail- is that true?

Witness: It is not true.

Defence: As you are financially insolvent, you local MP of your area AKMA Awal gave you cash, put your name in the ‘old age benefit’ and ‘freedom fighter benefit’, allotted a house for your daughter at Parerhat Shelter Centre and gave you the hope to give you more cash so that you wrongfully identify Delu alias Delwar Hossain Shikder and Delwar Hossain Mollik as Delwar Hossain Saidi and you have done the same- what do you say?

Witness: It is not true.

Defence: I am saying- Delwar Hossain Saidi was never known as Delwar Hossain Shikder. He was known as Delwar Hossain Saidi since his student life- what do you say?

Witness: Not true.

Defence: Your statement before this Tribunal is not true because you did not make a complain/statement in this regard in last 40 years- is that true?

Witness: Not true.

Defence: Whatever you are saying here is not your own statement, basically someone instructed you to say the same here.

Witness: Not true.

At this point another defence Counsel Manjur Ahamed Ansari started to the cross examine the witness, but Justice Kabir protested that one witness was being examined by at least 3 defence counsels and this was killing valuable time of the tribunal. He suggested that one witness should be examined by one counsel.

In reply, defence counsel Tajul Islam submitted before the Tribunal that there is a lot of evidence and that therefore they have to divide the witness statements amongst themselves. Mizanul Islam also refered to the thousands of pages that they have received from the prosecution.

Justice Nassim then said in reply that, “In that case, one counsel can conduct the examination and the other may help him in certain situation”. In response Tajul Islam submitted that it would be practically impossible to do it like this but in the future they will try their level best to do it.

Justice Zahir said, “You are asking unnecessary and irrelevant questions and wasting the valuable time of the Tribunal”. Manjur Ahamed Ansari replied they do not have any intention to prolong the trial hearing and he is only here to show the contradiction in the examination in chief and cross examination. Justice Nassim aksed him to proceed.

Manjur Ahamed Ansari: You have stated in your statement you made a statement before a court officer at Pirajpur court. Who were with you then?

Justice Zahir said, “You said before proceeding that you will only deal with the contradictions. However, this question is not a contradiction anyway.”

There was then an argument between defence and prosecution counsel. Tajul Islam claimed that it was in no way forbidden in the procedure of the Tribunal that more than one defence counsel could examine a prosecution witness and or that the defence counsel could not ask questions other than relating to contradiction. Justice Nassim asked then to proceed and witness started to answer Manjur Ahamed Ansari’s questions.

Witness: I went to Pirajpur Court alone and gave statement before court officer. None went with me.

Defence: You did not mention in that statement before the court officer that you went to grazing the cows and buffalos on 8th May 1971- is that true?

Witness: Not true. I told him.

Defence: You have mentioned in the statement before this Tribunal that you saw smoke and fume at northern side from the grazing field; however, you did not mention the same in your statement before the court officer, right?

Witness: Not true. I told him the same.

Defence: You have further stated in the statement before this Tribunal that seeing the smoke and fume Ibrahim alias Kutti suggest you to flee to the river; however, you did not mention the same in your statement before the court officer, right?

In this stage, prosecutor Haider Ali raised an objection on the ground that the other statement tha tthe defence counsel was talking about was given before another court (lower), and therefore, it was not relevant in this case. Justice Nassim agreed with him. However, defence counsel MI submitted that the statement was given before a court officer therefore, it was definitely relevant here.

There was then a lot of argument between the defence and prosecution on this point, with each set of lawyers saying that they knew the law better.

TI and a prosecutor which lasted for at least 10 minutes. Both of them claimed that they know the law better than other.

Defence counsel claimed there was nothing in the ICT Rules about what statements should be taken into consideration for contradiction. However, as per Evidence Act and Code of Criminal Procedure, such a statement e.g. statement given under s. 164 of the Evidence Act is always considered by the courts in Bangladesh for contradiction. Justice Nassim then explained, “This is a Special Tribunal and there is special law for it. The Evidence Act or Code of Civil Procedure does not apply here.” However, Justice Nassim asked the defence to submit the ‘certified copy’ of that statement in the CJM’s court to be benefited out of that statement.

Justice Nassim and Justice Zahir then suggested the defence instead of asking about the statement line by line, the defence should ask the Witness that whether he has given that statement or not. 'It would be be easier and faster. There was again a commotion between all the papries

Justice Nassim stated that, ‘We shall accept only the contradictions between Witness’s statement before this tribunal and cross examination thereof. If the statement contradicts with any other statements given in other court is not relevant here and is not an issue in the case. And we shall use the term ‘past statement’ for any such previous statement.

He then asked defence counsel Defence to proceed.

Defence: You did not state in your previous statement that, “...then grabbing Ibrahim alias Kutti’s hair, Delu Shikder said, ‘Son of a Bitch! Where are you going?’”- did you? [Justice Jahir did not want to include this word in their note but the defence persuaded him to allow it]

Witness: It is not true. I stated.

Defence: You did not state in your previous statement that, “...then some of them said, ‘Tie them with a rope?’ Then some of them tie us with a rope which we used to tie the buffalo.”- did you?

Witness: It is not true. I stated that previously.

Defence: You did not mention in your previous statement that, “Then rajakar commander Sekender Shikder, Danesh Molla and others spread kerosene all over and sat fire.”- did you say that?

Witness: It is not true.

Defence: You have stated in your witness statement that, “Then after tying them with one rope, they took us on the bridge of Parerhat and asked Ibrahim alias Kutti ‘So you are the bodyguard of Shohid Uddin Poshari f/o Manik Poshari. Tell us where are they? If you do not tell us, we shall kill you.’ Then they kicked him.” You have not stated the same in your past statement. You told the same for the first time before this Tribunal.

Witness: It is not true.

Defence: You did not state in your previous statement that, “After a while I heard a sharp sound of firing a bullet and Ibrahim alias Kutti screamed saying ‘Maa!’ (Mom!). I look behind and saw that the armies were continuously kicking him until he fell in the water”- did you that?

Witness: It is not true. I stated.

Defence: Now I am saying, whatever you have told before the Tribunal so far i.e. on 8th May 1971, you went to grazing the cows and buffalos, came back home seeing the smoke and fume, arrested by rajakars and Pakistani Army who took you to Parerhat, they then killed Ibrahim alias Kutti, then they took you to their camp and tortured you, you escaped from their camp and finally you went to the Sunderbans and came back after the war; is not true.

Witness: Whatever I have said so far is true.

Defence: Now I am saying whatever statement you have given against Delwar Hossain Saidi- all are false allegations.

Witness: No. It is not.

Adjournment for lunch