The day was fixed for the tribunal to pass its order in respect of a defence application seeking a copy of the investigation report prepared by the investigation agency into conduct of Kader Molla during the 1971 war. However, prior to giving its order, the tribunal was due to hear a similiar application relating to Delwar Hossain Sayedee.
Lack of page numbering
At the beginning of the session, Tajul Islam raised two matters with the tribunal. First he told the tribunal that the defence had received 8 volumes of documents from the Prosecution but they contained no page marks. At first the Tribunal Chairman Justice Nizamul Huq suggested that the defence just paginate the documents themselves, but Justice AKM Zaheer argued that this would cause problems for the other parties if the pagination was different. Tribunal Chairman Justice Nizamul Huq then suggested that both prosecution and defence team sit together and put the page marks. It was then agreed that the prosecution paginate the documents first and leave a copy with the Register’s office.
Privileged Communication
Islam then raised a second issue concerning the prison authorities failing to allow adequate time for the defence lawyers to have privileged communication with their client. He said, “Your Lordship has made an order on 12.01.2012 for the lawyers to have privileged communication with Matiur Rahman Nizami regarding his case. In accordance with the Tribunal’s direction, on Saturday the lawyers went to the jail and we met him, however, the jail authority did not allow us to continue the meeting for longer than 30 minutes. The reason they gave was that as per Jail Code, the fixed time for priviledged communication was 30 minutes. However, previously your Lorship allowed us time for such communcation from 10 am to 5 pm.” Tribunal Chairman Justice Nizamul Huq then replied, “We do not understand why Jail authority had done this. We explained in our order that when, how and with whom the ‘privileged communication’ should take place. I believe they do not understand the meaning of ‘privileged communication’ for this matter as we have used the word ‘as per Jail Code’. We shall amend that accordingly.”
Defence application on investigation reports
Then Islam submitted his application relating to seeking the investigation report of Delwar Hossain Sayedee
He said that their submission was similar to that which was argued in relation to Kader Molla’s but that there were two additional grounds. Firstly, he read out section 9 (3) of the International Crimes Tribunal Act 1973. This states: ‘The Chief Prosecutor shall, at least three weeks before the commencement of the trial, furnish to the Tribunal a list of witnesses intended to be produced along with the recorded statement of such witnesses or copies thereof and copies of documents which the prosecution intends to rely upon in support of such charges.
He said that the defence is entitled to have these documents which include the investigation report. He then read out section 16(2) of the Act which states: ‘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.’ He said that under this statement the defence should have a copy of the investigation report.
He then said that in respect of Delwar Hossain Sayedee’s matter, that the court has framed charge on the basis of the investigation report which was not in the formal charge. ‘Thus, as charges have been framed on the basis of that, we humbly submit that for the fairness it is the right of the accused to see the documents on the basis of what the charges have been framed,’ he said.
In response to that, Justice AKM Zaheer then stated that, the investigation report was not evidence itself, that in the International Crimes Tribunal Act 1973 there was no reference to the investigation report and, and that the investigation report is basically used to link the ‘supporting documents’ with the ‘formal charge’.
In response Islam said that ‘documents’ include the investigation report and he referred to the General Clauses Act which he said was ‘not excluded for this Tribunal’ unlike the Evidence Act and Code of Criminal Procedure, pointing to section 3(16) of the Act which states that the ‘investigation report is a document.” 3(16) states that: "document" shall include any matter written, expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means which is intended to be used, or which may be used, for the purpose of recording that matter:
Tribunal Chairman Justice Nizamul Huq then explained that it is entirely up to the prosecution whether they are going to rely on the investigation report or not. As per the provisions of the International Crimes Tribunal Act 1973, they are bound to provide ONLY those documents they are going to rely. Then he asked the defence counsel whether he believes that prosecution is going to rely on the investigation report.
Defence counsel M Tazul Islam said that he did not know at this stage but that they are submitting those documents they rely upon and so that they are entitled to receive them.
Prosecution response
Prosecutor Haider Ali then submitted on behalf of the prosecution. He said that If the sections 8 and 9 (3) of the International Crimes Act 1973 are read together it is very clear that that the prosecution is no where bound to supply the investigation report to defence. Investigation report is not submitted as a document as per rules 29 and 173 of the International Crimes Tribunal Procedures and Rules 2010.
In relation to section 16 (2) of the International Crimes Act 1973, he said that the prosecution are bound to provide only a copy of formal charge and the copies of each documents to the defence. He said that if this section was read with rule 18 (4) of the International Crimes Tribunal Procedures and Rules 2010 it will be crystal clear. As per rule 18 (4), for the purpose of Act documents means and includes only those documents which the prosecution intends to rely. 18(4) states: ‘The Chief prosecutor shall file extra copies of formal charge and copies of other documents for supplying the same to the accused(s) which the prosecution intends to rely upon in support of such charges so that the accused can prepare his defence.’
As per rule 2 of the International Crimes Tribunal Procedures and Rules 2010, the Investigation Officer (IO) shall submit a report to the Investigating Authority upon completion of the investigation. Now, on in the hearing relating to a similar application is respect to Kader Molla, what the defence counsel Mizanul Islam told about the case diary (C.D.) is not right. C.D. is the property of the prosecution as IO submits CD and all other documents along with his investigation report.
He said that as per rule 29 of the International Crimes Tribunal Procedures and Rules 2010, the defence will get only those documents which are related to the charge against the accused. The investigation report is in no way related to the charge as it is prepared after the completion of the investigation. Thus, as it is not related to the charge, the defence is not entitled to get it.”
Defence counsel response
Defence counsel Tazul Islam then responded and first said that rule 29 of the International Crimes Tribunal Procedures and Rules 2010, does cover the investigation report. He said that as per rule 35 of the International Crimes Tribunal Procedures and Rules 2010, the investigation report is something to be considered and it has been considered accordingly. And finally, we have given reference to section 16 of the International Crimes Tribunal Act 1973 and the International Crimes Tribunal Procedures and Rules 2010 cannot override the International Crimes Tribunal Act 1973.
He then said that the only lame excuses that the prosecution has is the ‘confidentiality’ and the ‘protection of the witness’. ‘it could be argued by the prosecution during the investigation period. However, now the investigation is finished already, therefore, it is not a problem now,’ he stated
He then again referred to the general clauses act to make the same point that he had earlier made.
He then argued that there was specific embargo/prohibition either in the International Crimes Tribunal Act 1973 or in the International Crimes Tribunal Procedures and Rules 2010 to prevent the supply of the investigation report to the defence.
He then said that in the other ordinary and special criminal courts in Bnagldesh, the chargesheet is provided to the defence.
Justice Zaheer interrupted and argued that the chargesheets and investigation reports are not the same things. Tribunal Chairman Justice Nizamul Huq added that in the ICT there is not even First Information Report (FIR) in these matters.
Defence counsel M Tazul Islam however argued, that the complaints that the court received were FIRs.
Prosecutor Haider Ali then argued, “The General Clauses Act does not provide any provision that we need to supply the investigation report to the defence.”
But M Tazul Islam argued, “It says that investigation report is a document and that is enough. And if it is a document then you are bound to provide us the same.”
Then the tribunal, immediately, passed the following order:
Lack of page numbering
At the beginning of the session, Tajul Islam raised two matters with the tribunal. First he told the tribunal that the defence had received 8 volumes of documents from the Prosecution but they contained no page marks. At first the Tribunal Chairman Justice Nizamul Huq suggested that the defence just paginate the documents themselves, but Justice AKM Zaheer argued that this would cause problems for the other parties if the pagination was different. Tribunal Chairman Justice Nizamul Huq then suggested that both prosecution and defence team sit together and put the page marks. It was then agreed that the prosecution paginate the documents first and leave a copy with the Register’s office.
Privileged Communication
Islam then raised a second issue concerning the prison authorities failing to allow adequate time for the defence lawyers to have privileged communication with their client. He said, “Your Lordship has made an order on 12.01.2012 for the lawyers to have privileged communication with Matiur Rahman Nizami regarding his case. In accordance with the Tribunal’s direction, on Saturday the lawyers went to the jail and we met him, however, the jail authority did not allow us to continue the meeting for longer than 30 minutes. The reason they gave was that as per Jail Code, the fixed time for priviledged communication was 30 minutes. However, previously your Lorship allowed us time for such communcation from 10 am to 5 pm.” Tribunal Chairman Justice Nizamul Huq then replied, “We do not understand why Jail authority had done this. We explained in our order that when, how and with whom the ‘privileged communication’ should take place. I believe they do not understand the meaning of ‘privileged communication’ for this matter as we have used the word ‘as per Jail Code’. We shall amend that accordingly.”
Defence application on investigation reports
Then Islam submitted his application relating to seeking the investigation report of Delwar Hossain Sayedee
He said that their submission was similar to that which was argued in relation to Kader Molla’s but that there were two additional grounds. Firstly, he read out section 9 (3) of the International Crimes Tribunal Act 1973. This states: ‘The Chief Prosecutor shall, at least three weeks before the commencement of the trial, furnish to the Tribunal a list of witnesses intended to be produced along with the recorded statement of such witnesses or copies thereof and copies of documents which the prosecution intends to rely upon in support of such charges.
He said that the defence is entitled to have these documents which include the investigation report. He then read out section 16(2) of the Act which states: ‘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.’ He said that under this statement the defence should have a copy of the investigation report.
He then said that in respect of Delwar Hossain Sayedee’s matter, that the court has framed charge on the basis of the investigation report which was not in the formal charge. ‘Thus, as charges have been framed on the basis of that, we humbly submit that for the fairness it is the right of the accused to see the documents on the basis of what the charges have been framed,’ he said.
In response to that, Justice AKM Zaheer then stated that, the investigation report was not evidence itself, that in the International Crimes Tribunal Act 1973 there was no reference to the investigation report and, and that the investigation report is basically used to link the ‘supporting documents’ with the ‘formal charge’.
In response Islam said that ‘documents’ include the investigation report and he referred to the General Clauses Act which he said was ‘not excluded for this Tribunal’ unlike the Evidence Act and Code of Criminal Procedure, pointing to section 3(16) of the Act which states that the ‘investigation report is a document.” 3(16) states that: "document" shall include any matter written, expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means which is intended to be used, or which may be used, for the purpose of recording that matter:
Tribunal Chairman Justice Nizamul Huq then explained that it is entirely up to the prosecution whether they are going to rely on the investigation report or not. As per the provisions of the International Crimes Tribunal Act 1973, they are bound to provide ONLY those documents they are going to rely. Then he asked the defence counsel whether he believes that prosecution is going to rely on the investigation report.
Defence counsel M Tazul Islam said that he did not know at this stage but that they are submitting those documents they rely upon and so that they are entitled to receive them.
Prosecution response
Prosecutor Haider Ali then submitted on behalf of the prosecution. He said that If the sections 8 and 9 (3) of the International Crimes Act 1973 are read together it is very clear that that the prosecution is no where bound to supply the investigation report to defence. Investigation report is not submitted as a document as per rules 29 and 173 of the International Crimes Tribunal Procedures and Rules 2010.
In relation to section 16 (2) of the International Crimes Act 1973, he said that the prosecution are bound to provide only a copy of formal charge and the copies of each documents to the defence. He said that if this section was read with rule 18 (4) of the International Crimes Tribunal Procedures and Rules 2010 it will be crystal clear. As per rule 18 (4), for the purpose of Act documents means and includes only those documents which the prosecution intends to rely. 18(4) states: ‘The Chief prosecutor shall file extra copies of formal charge and copies of other documents for supplying the same to the accused(s) which the prosecution intends to rely upon in support of such charges so that the accused can prepare his defence.’
As per rule 2 of the International Crimes Tribunal Procedures and Rules 2010, the Investigation Officer (IO) shall submit a report to the Investigating Authority upon completion of the investigation. Now, on in the hearing relating to a similar application is respect to Kader Molla, what the defence counsel Mizanul Islam told about the case diary (C.D.) is not right. C.D. is the property of the prosecution as IO submits CD and all other documents along with his investigation report.
He said that as per rule 29 of the International Crimes Tribunal Procedures and Rules 2010, the defence will get only those documents which are related to the charge against the accused. The investigation report is in no way related to the charge as it is prepared after the completion of the investigation. Thus, as it is not related to the charge, the defence is not entitled to get it.”
Defence counsel response
Defence counsel Tazul Islam then responded and first said that rule 29 of the International Crimes Tribunal Procedures and Rules 2010, does cover the investigation report. He said that as per rule 35 of the International Crimes Tribunal Procedures and Rules 2010, the investigation report is something to be considered and it has been considered accordingly. And finally, we have given reference to section 16 of the International Crimes Tribunal Act 1973 and the International Crimes Tribunal Procedures and Rules 2010 cannot override the International Crimes Tribunal Act 1973.
He then said that the only lame excuses that the prosecution has is the ‘confidentiality’ and the ‘protection of the witness’. ‘it could be argued by the prosecution during the investigation period. However, now the investigation is finished already, therefore, it is not a problem now,’ he stated
He then again referred to the general clauses act to make the same point that he had earlier made.
He then argued that there was specific embargo/prohibition either in the International Crimes Tribunal Act 1973 or in the International Crimes Tribunal Procedures and Rules 2010 to prevent the supply of the investigation report to the defence.
He then said that in the other ordinary and special criminal courts in Bnagldesh, the chargesheet is provided to the defence.
Justice Zaheer interrupted and argued that the chargesheets and investigation reports are not the same things. Tribunal Chairman Justice Nizamul Huq added that in the ICT there is not even First Information Report (FIR) in these matters.
Defence counsel M Tazul Islam however argued, that the complaints that the court received were FIRs.
Prosecutor Haider Ali then argued, “The General Clauses Act does not provide any provision that we need to supply the investigation report to the defence.”
But M Tazul Islam argued, “It says that investigation report is a document and that is enough. And if it is a document then you are bound to provide us the same.”
Then the tribunal, immediately, passed the following order:
Today is fixed for passing an order on an application filed by accused Abdul Kader Molla praying for directing the Registrar to supply a copy of the investigation report to him.
Mr. Tajul Islam with Mr. Mizanul, the learned counsels appeared on behalf of accused petitioner while Mr. Syed Haider Ali and Mr. Mohammad Ali the learned prosecutors appeared for the prosecution.
Mr. Tajul lslam, the learned counsel appearing for the petitioner took us through section 9(3), 16(2) of the International Crimes (Tribunal) Act, 1973 and also referred Rules No. 11, 15, 18, 29, 35, 36, 37 and 38 of procedure and submits that as per provision of Section 9(3) of the Act the prosecution has supplied formal charge statement of witnesses, list of witnesses and other documents which the prosecution intends to rely upon to prove their case but prosecution did not supply the copy of the investigation report.
The learned counsel further submits that the investigation report is very much vital document which contains important information regarding the subject matter of the case as such if the said investigation report is not given to him the accused shall be prejudiced to prepare his defence case. The learned counsel comparing the defence's position with the Tribunal submits that as per provision of Rules 29, 35, 37 and 38 before taking cognizance of offence and framing charge against the accused person the Tribunal uses to go through the formal charge, the investigation report, the papers and documents submitted by the prosecution as such the defence is also entitled to receive all copies of documents including the copy of the investigation report for preparation of his defence case.
He lastly submitted that the defence shall suffer irreparable loss and injury if the investigation report of this case is not supplied to the accused for preparation of his defence case and accordingly the Registrar may kindly be directed to supply the same to the defence lawyer.
Mr. Syed Haider Ali, the learned prosecutor opposed the application filed by accused Abdul Kader Mollah praying for a copy of the investigation report. The learned prosecutor by referring [to] Section 9(3) of the Act and Rule 18(a) of the Rules of procedure submits that law is very much clear in this respect of getting copies of documents by the defence which are legally entitled to get the same. The learned prosecutor by referring Rule 18(4) submits that defence is entitled to get the copy of only those documents which the prosecution intends to rely upon in support of charges brought against the accused.
The learned prosecutor further submits that the defence is not entitled to get the copy of investigation report as it is to some extent secret document of the prosecution considering the nature of crimes of this case.
Mr. Mohammed Ali, the learned prosecutor lastly submits that this Act of 1973 is a special law which does not contain any provision for supplying the copy of the investigation report to the accused as such the application for getting the copy of the investigation report is liable to be rejected.
We have heard the learned prosecutor and the learned counsels for the defence at length and perused the relevant law and Rules as referred by both the parties. It may be mentioned here that Intemational Crimes (Tribunal) Act, 1973 is special law and the Rules of procedure have been prepared by this Tribunal to supplement the provisions of the Act. It is undisputed that at the time of taking cognizance of offence and framing of charge this Tribunal uses to go through the formal charge, investigation report, documents and other materials submitted by the prosecution. The power and jurisdiction of this Tribunal is much higher then that of the defence as well as the prosecution. In the interest of fair justice this Tribunal can call for any document from the custody of any authority for taking its judicial notice or may used such documents in evidence but the defence or the prosecution has got a little chance to exercise such power. This Tribunal is legally entitled to go through all the secrets documents including C.D. in the interest of justice but the defence cannot.
In view of the facts, in no circumstances the power and jurisdiction of this Tribunal cannot be equated with that of the parties of the case. The investigation report submitted in this Tribunal is quite different than that of the ordinary courts which are generally guided by the Code of Criminal Procedure.
As a rule in the case, under this Act, the defence is supplied only the name of the witnesses without supplying the full particulars of witnesses on the ground of safety and security of such witnesses. It may be mentioned that the investigation report of each case of this Tribunal contains full particulars of the witnesses and under such circumstances if the copy of investigation report is supplied to the defence the identity of the witness will be disclosed and the safety and security of those witnesses will be endangered. Moreover, there is a basic difference between the investigation report and the other documents submitted by the prosecution to the Tribunal. The formal charge along with other documents submitted by the prosecution are admissible in evidence while the investigation report is not admissible in evidence as such the defence cannot claim the copy of investigation report as a matter of right in consideration of the nature of this case. To speak the truth, the formal charge prepared by the prosecution is the product of investigation report, statement of witnesses and the vital documents which are intended to be proved by the prosecution before this Tribunal. As such the accused will in no way be prejudiced for went of investigation report as it is not admissible in evidence.
Taking all the above factual and legal positions into consideration, the prayer for supplying a copy of the investigation report to the accused is thus rejected. '
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