16 Jan 2012: Investigation report sought

At the beginning of proceedings, the tribunal asked the prosecution whether it had submitted the formal charge against Ali Ahsan Muzahid’s, and they said that they had. The chairman then passed an order.

“In compliance of the order dated 28.12.2011, the prosecution has resubmitted the formal charge in the Office of the Register today. Let the formal charge be accepted. The Tribunal will pass order in relation to taking cognizance on this matter on 26.012012.”

Mr Munshi, lawyer acting for Abdul Qader Molla, asked about his application for a date to obtain privileged communcation with his client. Nassim stated that the order previously made by this Tribunal applies to any similar matter. The lawyer then asked whether he could meet his client for 5 minutes downstairs? The tribunal said that he could have more than five minutes.

Investigation report application
Then the application by the Defence lawyers seeking a copy of the investigation report relating to Abdul Qader Molla was taken up by the tribunal. (See subsequent post relating to the evidence given by witness number 13 and his examination chief which was given after this application)

In its written application, parts of which it read out to the tribunal, it stated:

3. That the Tribunal fixed 18.12.2011 for submitting petition of formal charge in relation to the Accused Petitioner and accordingly, the learned Prosecutor submitted the formal charge, the statements of witnesses, Investigation Report and other documents regarding Abdul Qader Mollah. Thereafter, the Tribunal fixed 28.12.2011as the date for passing an order as to cognizance of offences against the Accused Petitioner

4. That on 28.12.201, the Hon’ble Tribunal took cognizance of caseagainst the Accused-Petitioner after perusal of all documents submitted by the Prosecution, including the Investigation Report. The relevant portion of the order is quoted below for ready reference: “We have perused the formal charge, the statement of witness’s investigation report and other materials submitted therewith by the prosecution. We are of the view that Prima facie case under section 3(2) of the International Crime Tribunal Act, 1973 is available in the materials submitted by the prosecution. As such we take cognizance of the offence under section 3(2) of the International Crimes Tribunal Act against accused Abdul Kader Molla”

5. That Section 9(3) of the International Crimes Tribunal Act1973states as follows: “The Chief Prosecutor shall, at least three weeks before thecommencement of the trial, furnish to the Tribunal a list ofwitnesses intended to be produced along with the recordedstatement of such witnesses or copies thereof and copies ofdocuments which the prosecution intends to rely upon in support of such charges.”

6 That Rule 18 of the International Crimes Tribunal Rules of Procedure, 2010 provides as follows: “Upon receipt of report of investigation of offence(s), the Chief Prosecutor or any other Prosecutor authorized by him shall prepare a formalcharge in the form of a petition on the basis of the papers and documents and the evidences collected and submitted by the Investigation Officer and shall submit the same before the Tribunal.”

7. That section 16(2) of The International Crimes Tribunal Act1973 provides as follows: “A copy of the formal charge and a copy of each of the documents lodged with the formal charge shall be furnished to the accused person at a reasonable time before the trial; and in case of any difficulty in furnishing copies of the documents, reasonable opportunity for inspection shall be given to the accused person in such manner as the Tribunal may decide.”

8. That Rules 11 and 15 of the International Crimes Tribunal Rules of Procedure, 2010 provide the definition of ‘formal charge’ and‘Investigation Report’ as follows: “(11). “formal charge” means accusation of crimes against the accused in the form of a petition lodged by the Prosecutor with the Tribunal on receipt of the Investigation Report; (15). “Investigation Report” refers to the report submitted by the Investigation Agency after completion of investigation in a case under the Act;”

9. That it is stated that by its Order dated 28.12.2011, the Hon’ble Tribunal directed the prosecution submit all documents within Sunday, 1st January 2012 in the office of the Registrar so that they may be supplied to the Accused Petitioner. The relevant portion of the order is quoted below for ready reference: “The prosecution is directed to submit the relevant documents within Sunday next, so that this can be served upon the accused by Monday, 02.01.2012 for preparing of defense. To 29.01.2012 for hearing charge matter”

The application then sets out the sequence of events relating to the attempts by the defence lawyers to collect document from the registrar and how they were unable to get a copy of the investigation report.

It then goes onto state that the learned defense counsel engaged by Saluadduin Quder Chowdhury had received the investigation reportfrom the office of Registrar, which was submitted by theInvestigation Agency. The application went onto say:

16. That the investigation report is a vital document which contains important information regarding the subject matter of the instant proceedings. It is necessary to go through the investigation report in order to understand the nature of the allegations against the Accused Petitioner. In the absence of the Investigation Report, it will be impossible for the Accused Petitioner to prepare his defence and he will be seriously prejudiced. As such, this Hon’ble Tribunal may be pleased to direct the Registrar to supply the Petitioner’s counsels with a copy of the Investigation Report

The application then deals with some international law arguments - that were not stated in court - as to why they should have access to the investigation document It then went onto state:

21. That it is stated that, the petition of formal charge containing theallegations of commission of crimes by the Accused Petitioner have been prepared and submitted on the basis of the Investigation Report.

22. That furthermore in its order dated 28.12.2011, Hon’ble Tribunal clearly referred to the Investigation Report upon which it placed reliance in order to take the cognizance against the accused –petitioner.

In his oral arguments Defence counsel Tazul also read out rules 29, 35, 37 & 38 of the International Crimes Tribunal Procedure & Rules 2010.

29. (1) The Tribunal shall take cognizance of an offence against any accused upon examination of the formal charge, the Investigation Report, the papers, documents and the evidence submitted by a Prosecutor in support thereof,  if they disclose a prima facie case for trial of the accused.

35. When the case is ready for trial, the Tribunal shall proceed to hear the case in accordance with the procedure of trial under section 10 of the Act on the basis of a charge to be framed considering the formal charge, Investigation Report together with the documents and materials produced and submitted in support of such report.

37. When the accused appears or is brought before the Tribunal, and if the Tribunal, upon consideration of record of the case and documents submitted therewith and after giving the prosecution and the accused an opportunity of being heard, finds that there is no sufficient ground to presume that the accused has committed an offence, it shall discharge the accused and record its reasons for so doing.

38. If, after consideration and hearing under rule 37, the Tribunal is of opinion that there is sufficient ground to presume that the accused has committed an offence, the Tribunal shall frame one or more charges for the offences of which he is accused and he shall be asked whether he admits that he has committed the offence with which he is charged.

He then said that from the 4 rules I have just read out before your Lordship, it is clear that ‘investigation reports’ by the Chief Investigating Officer and/or other Investigating Officers is important in making the formal charge by the prosecution and in the taking cognizance by the Tribunal. He said that Section 9 (3) (see above) of the International Crimes Tribunal Act 1973 also show this.

He said that the Tribunal considered the ‘investigation report’ like other documents which were relied by the prosecution while preparing the formal charge, and it was considered by the Tribunal in taking congisance and framing the charge. Despite that, however, he said that the defence had received the said ‘investigation report’.

He then quoted section 16(2) of the Act and argued that meant that the defence was entitled to have a copy of the formal charge and other supporting documents relied on to prepare it. As the investigation report was considered by the both prosecution and the Tribunal members, we believe the investigation report is also a part of those supporting documents.

He said that since the accused petitioner has not got a copy he will suffer irreparable loss and there may be a miscarriage of justice.

He added that though he understood that the Code of Criminal Procedure 1898 (CrPC) is not applicable in a matter before this Tribunal, however, it is the common practice and right of the accused under it and other criminal laws of Bangladesh to get the ‘charge sheet’ by the Investigating Officer. 'Anyone can have a copy of the First Information Report (FIR) filed against an accused. We do not want the FIR, however, at least we should be allowed to have a copy of the investigation report. Otherwise, it is a bar to a fair trial.'

He added that if the investigation report was provided to us, there is no chance that the prosecution will be prejudiced as the formal charge is already prepared and produced before the Tribunal.

Prosecution response
Tribunal Chairman Justice Nassim then invited the prosecution to make their submission against defence submission.

Mohammed Ali then made the following submissions on behalf of the prosecution. He said that the defence counsel had misled his Lordship as the CrPC 1898 and ICT Act 1973 are not the same. Further, in the Memorandum of the Application, the defence has written ‘Prayer for supplying the Investigation Report’. However, they have not mentioned under which law they have made the application because they know very well that there is no law to provide the same.

He then said that although the defence counsel read out rule 29 of ICT Procedure & Rules 2010 before this Tribunal, it does not say anything about supplying investigation report to the accused.

He added that rule 35 of ICT Procedure & Rules 2010 before this Tribunal also does not provide room to require that the investigation report be given to the defence.

He said that although the defence read out rules 37 & 38 of ICT Procedure & Rules 2010 before this Tribunal and claimed that these rules supported his submission for supplying the investigation report, it was the prosecution’s submission that they are premature submission as both of the rules are related to the procedure ‘after framing of charge’. He added that there was no provision in either of the rules to provide investigation report to the accused/defence.

He also stated that nowhere in section 9 has it been written that investigation report to be supplied to the defence.

He also said that the defence counsel had mentioned the CrPC 1898 and the Evidence Act 1872. However, the trial is not being conducted under the CrPC 1898 or the Evidence Act 1872; both of the laws are excluded for this trial. And the trial is being conducted under ICT Act 1973 and ICT Procedure & Rules 2010 which is not the same as the CrPC 1898 or the Evidence Act 1872.

He then said that there is a lot of confidential information in the investigation report, so it cannot be provided to the defence to ensure the protection of the witness. ‘There is a Witness Protection law made by this Tribunal for protecting the interest of the witness. Even then the witnesses are getting threats from the accused/defence. However, still we are providing him the list of the witnesses and other documents we are relying on while preparing the formal charge,’ he said.

‘Further, at page 9 of the memorandum of the application, my learned friend has mentioned article 13 of the International Covenant on Civil and Political Rights 1966 (ICCPR) and at page 10 he has mentioned the Rome Statute and Human Rights Commission Report dated 13.04.1984. All of those contain the same provision i.e. an accused to be informed promptly and it has been done in this case. The accused has been informed 3 weeks before. However, nowhere in those instruments it has been written that the accused has to be provided the investigation report. Now, my submission is, the accused has no right to go through the Investigation Report anyway; the investigation report is the property of the prosecution,' he said.

Justice Zaheer: You have not addressed section 16(2) of the ICT Act 1973 which was mentioned by the defence counsel in his submission.

Prosecutor Haider Ali then got and argued in response to this question.

“Section 16 (2) of the ICT Act 1973 should be read alongside rules 18 & 29 of the ICT Procedure and Rules 2010. My learned friend has submitted that the Investigation Report is a part of the ‘document’ to be provided with the formal charge. However, as per rule 29 of the ICT Procedure and Rules 2010, it is not the same thing because it has been mentioned separately in that rule. Now the only issue is, if the investigation report is not provided to the defence, whether it is a bar to the fair trial. And my submission is there is no scope to go beyond rule 29 of the ICT Procedure and Rules 2010.”

Chairman Justice Nassim then asked the defence counsel Tazul to give reply to the above submission of defence. However, Mr. Tajul informed the Tribunal, that the defence counsel Mizanul Islam would reply.

He said that it was true that there is no provision in either in the ICT Act 1973 and ICT Proecdure and Rules 2010 to provide the investigation report to the accused. However, there is no prohibition even in this regard. Further, it is not written anywhere in the ICT Act 1973 and ICT Procedure and Rules 2010 that investigation report should be provided to your Lordship by the prosecution, however, they are providing the same to you as a ‘privileged communication’ between you and the prosecution. In the other criminal laws even in special criminal laws, documents includeing FIR, investigation report etc. are provided, then why not here? Furthermore, there might be lot of issues not dealt with in the ICT Act 1973 and ICT Procedure and Rules 2010 but the defence lawyers are still getting the same. For example, we are getting the certified copy of the witness statement everyday which is not in the ICT Procedure and Rules 2010. Therefore, my submission is- as it is not barred by the ICT Act 1973 and the ICT Procedure and Rules 2010, we can surely get it as it is being considered by the Tribunal and the Tribunal is relying on that until framing the charge.”

Justice Nassim: Mr Islam, can you please clarify, whether case diary (CD) can be considered by the Tribunal?

Defence: No, my Lord. The tribunal says that only the tribunal peruse the case diary; but it cannot be considered by you. But the investigation report is not specifically prohibited in the same say that the case diary is.

The prosecutor wanted to say something about the further submission by the defence. However, Justice Zaheer asked told him that before that he needs to be clear on one matter i.e. ‘what is the problem if the investigation report is provided to the defence?’ the Defence counsel Mizanul Islam then added, ‘in the matter of Delwar Hossain Saidee the Tribunal has framed charge on the basis of investigation report when one of the charges was not in the formal charge that had been made by the prosecution; thus, the investigation report should be provided to them’.

The prosecution replied to the judges in the following way “My Lord, if the investigation report is provided to the defence, the problem arises under rule 14 of the ICT Procedure and Rules 2010 on the ground of confidentiality of information and the protection of witnesses and victims. The ongoing situation of the country is very bad. The updates of the hearing are coming on the newspaper regularly. Some of the witnesses have already been threatened. We cannot allow the accused to go to the witnesses’ house and let them down for being witness in this case.”

Defence counsel Tazul then told the tribunal that, “In that case, it can be provided to us omitting the names and addresses and other confidential matters. We do not have any problem with that”

Chairman Justice Nassim then said that they would give the order on this matter on Sunday (22.01.2012).