Tuesday, July 3, 2012

10 Apr 2012: Sayedee investigation officer day 3

Sultan Mahmud, a prosecutor, began proceedings by mentioning to the Tribunal that the newspaper Daily Sangram published a report which distorted the proceedings of 8 April. It said that without giving the scope for a review application, the trial hearing starts at the tribunal. I object to this report.

Justice Nizamul Haq: On 16th April, 2012, the editor of Daily Sangram will attend the tribunal. On that day we will raise this issue also.

Helal Uddin, the investigation officer in the Sayedee case then continued to give his evidence in chief, with questions being asked by the prosecutor Haider Ali (a continuation from the previous day)
Prosecutor: We will start from page-05, serial-13.

Witness: At Page- 2763 of Volume No-11. On 11th August, 2010 at 10.00 A.M. I’ve seized the Daily janakantha [of 17 July, 2010] from PIB. The content of the news was: “The martyr Shahid: the victim of the atrocities committed by Sayedee.” I’ve sent the Newspaper to the custody of Mr. Rabiul Alam Khan. This is the seizure list. The photocopy of the newspaper is also here.

At page: 2768. On 27 March, 2011 at 9:11 A.M. I’ve seized the Daily Janakankantha [of 14 April, 2001] from PIB. The heading of the news was “Sayedee has not accepted the challenge of the freedom fighters to prove himself as non-razakar.” That newspaper has been sent to the custody of Mr. Rabiul Alam Khan. This is the seizure list.

On 30 March, 2011; at 11:05 A.M.; I’ve seized Daily Azad [of 3rd February, 1972] which has a title as “Vagirothi was killed brutally.” I have seized it with the assistance of a witness.

Prosecutor: There are total 24 papers including the present one.

Witness: I would like to add. In memory of late Vagirothi, there is a premise at Pirojpur dedicated to the memory of him.

Those newspapers have been attached to the visual list no: 24 and 28.

Page 2775. On 26th April, 2011, at 11:30 A.M. I’ve seized the daily Janakantha [of 13 February, 2002] which was titled as ‘What will happen after the end of Taleban- The war will continue against America—Sayeede.’ And it was reported on 16th March, 2004 that “Sayedee on no fly risk of U.S.” I’ve seized both the newspapers, which is contained in the seizure visual list no: 18. I’ve signed it. That newspaper has been send to the custody of Mr. Rabiul Alam Khan. This is the seizure list.

Then he mentioned the 10 reports published in Daily Janakantha on the dates from 18th December, 2000 to 26th December, 2000 under the column “Shei Razakar. I have seized those papers from PIB on 16th March, 2011 at 14:30 P.M. I’ve send the papers to the custody of Mr. Rabiul Alam Khan. Seizure visual list no: 21.
Defence Counsel, Mizanul Islam: My Lord, as far as I can remember the tribunal chairman has told me that the law will run on its own course about the copies which have not been provided to the defence. Today the Prosecution has submitted 10 papers, the copies have not yet been provided to me. What would the law say about this? Please see section-16(2) of the ICTAct- 1973, which read 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.”

He said, now here arise some questions: a copy should be supplied to the accused within the reasonable time. When the inspection is ought to be taken. And if in case of non-supply of copy, what would happen.  The copies shall be furnished before the trial starts. What is the problem about supplying these copies of newspapers? Section- 9(4) of the Act says that “The submission of a list of witnesses and documents under sub-section (3) shall not preclude the prosecution from calling, with the permission of the Tribunal, additional witnesses or tendering any further evidence at any stage of the trial.”  So the copies ought to be submitted before the trial. But if it is needed to be submitted afterwards then they have to comply with section-9(4), which provides that- after taking the permission of the tribunal; they have to notify us about the submission. I think Law is clear in this section.

The prosecutor responded that they were willing to give copies of the documents to the defence.

The chairman intervened and said that section 16(2) of the 1973 Act provides that if there is any difficulty giving copy of any document the defence should be given opportunity to inspect the documents and so the tribunal can allow the defence to inspect these documents once they are exhibited.

The defence lawyer argued that section 16(2) was not applicable here – only on service of documents at the time of commencement of trial. He went onto say that for application of Section 16(2) it must be shown that it is ‘difficult to give copy’. But the prosecution has already said that they can give the defence a copy, so it is clear that it is not difficult to give copies of these documents. He said, for service of any additional documents at this stage section 9(4) is applicable. The prosecution must get the Tribunal’s permission and give the defence sufficient notice so that the accused can defend any evidence to be used against him.

The prosecutor then argued that these news paper clippings are not new documents and that they had already been submitted with the investigation report before commencement of the trial.

The defence lawyers said that investigator may have collected lots of documents, but that the prosecution is not relying on all those documents but only upon the 400 pages that were served upon the defence at the commencement of trial.

The prosecutor responded by saying that the court can take these documents under section 19(1) of the Act and Rule 46A of the Rules of Procedure and that if the defence do not have a copy, we can give it now or they can inspect it from court’s record.

The defence lawyer then said that the prosecution is admitting that section 16(2) is not applicable since they do not have any difficulty giving us copies of these news paper reports.

Justice Nassim then passed the following order (summary below)
During recording of examination of the PW 28, the PW stated that he has seized some news paper cutting and prepared seizure list and left them in custody of custodian. The photocopies of these newspaper clippings were given to the Tribunal but not given to the Defence.

Legal debate arose to the point whether these news paper clippings can be considered or not. According the learned counsel appearing for the defence Mr. Mijanul Islam submitted that section 16(2) of the IC(T)A 1973 applies for service or inspection of documents before trial. Arguing on this section Mr. Mijanul Islam submitted that the copies of the news paper clipping should have been given before the Trial. Mr. Mijanul Islam further submitted that section 16(2) is not applicable. He refers to section 9(4) which provides that the prosecution may submit new documents at any stage of trial after getting permission from the tribunal and notice of the same should be given to the defence. According to him the prosecution can not mark these news paper clippings as exhibits.

The learned prosecutor Mr. Haider Ali submitted that under section 16(2) of the Act the prosecution can give documents before trial or at this moment because these documents were submitted before the tribunal in right time. The tribunal may direct to supply copy now. Section 9(4) is applicable for documents which are new. This section does not apply for these news paper clippings.

We have given our anxious thoughts to the submission made by the learned counsels for the prosecution and the defence. Section 16(2) of the 1973 Act shows that the first sentence is ‘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’. After semicolon it is said that ‘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’. We observe here that these are two distinct sentences.

Moreover earlier this tribunal has ordered to serve other documents to the defence at later stages where the served documents were illegible. The seizure list containing the list of the newspaper clippings was supplied to the defence earlier. They should have applied for copies of the newspaper clippings earlier. We have find that the defence never submitted any application for these documents.

Defence can inspect those newspaper clippings before cross examination. Moreover since the learned prosecutor Haider Ali already said that he can supply copy of the newspaper clippings, we direct him to serve the newspaper clippings as soon as possible.
The defence lawyer then argued that it was not correct that they had never asked for these unserved documents and argued that they had filed an application for service of these documents and that the application was rejected. He said that at that time the defence were told that if any document was not served upon the defence then the prosecution could not rely upon them.

Justice Jahir Ahmed said that he remembered that the defence had filed such an application.

The chairman said that they would change the relevant part of the order. But that these newspaper clippings can be exhibited now. He told the prosecutor that he should give these copies as soon as possible.

When the prosecutor said that they would give the copies within a week, the judge said that they should give them by 4pm that day.

After passing the order the Tribunal marked photocopies of the un-served newspaper clippings as exhibit Nos 50, 51, 52, 53, 54, 55, 56, 57, 58 and 59.

Then the cross examination continued
Witness: Page- 3241, volume-12>> Then he stated that- on 17th October, 2010,at 11 P.M. he has seized the historical speech of Bangabandhu Sheikh Mujibur Rahman, and provided the typed copy of that speech; the audio cassette of Bangabandhu as titled- Bojrokontho; the photo album titled ‘Jatir Jonok’ which was published by the Bangabandhu memorial trust.

Then he further stated that on 30th March, 2011 at 15:11 P.M. from the Liberation War Museum; he has seized the foreign newspaper clippings of 1971 from the collection of newspaper clippings of 1971 by Abdul Matin, Liberation War Museum, Bangladesh. It contains five volumes [1. Vol-1 March to April, 1971 2. Vol-2 May- June, 1971 3. Vol-3, July September, 1971 4. Vol-4, October- November, 1971 5. Vol-5 December, 1971]

Then he mentioned that he has seized those five volumes. And submitted those volumes with the reports

The Tribunal marked these five volumes as Material Exhibit Nos. VI, VI(1), VI(2), VI(3) and VI (4).
The defence counsel however objected to this and said that they were never given any copy of these five volumes by the prosecution and they have no knowledge of what is contained in those five volumes and so cannot be exhibited. These are new documents. The prosecution must get prior permission of the tribunal and give the defence notice before they can rely upon them as required under section 9(4) of the IC(T)A.

The chairman said that the defence were given copy of the seizure list containing names of these documents so you know about these documents.

The defence laywer said that they were not given copy of these five volumes. ‘I have right to get copy of these documents before they are exhibited,’ he said.

The chairman said that the lawyer should not worry as we will allow him to inspect these documents.

The lawyer said that these documents are big and inspection is not sufficient, so the prosecution should provide a copy.

One of the judges asked the prosecutor whether the document were given to the tribunal earlier. Where is our copy?

The prosecutor said that there is only one copy hcih the investigator has seized from the Museum.

The chairman said that the documents cannot be copied as the exhibited copy is very faded.

The defence lawyer then said that it is already time for recess. I have further submissions on this. He asked whether the last sentence of the deposition could be delated as he wanted to make further submission after recess.

The chairman said that they will not delete it now, and that if submission is allowed after recess then the tribunal can delete at that time.

The defence lawyer said that the investigation officer will however now sign the statement and that if they want to delete it after the recess it may become complicated as then the tribunal will have to pass an order for deletion.

The chairman said that the tribunal can delete this any time but that it wants to keep it now.

Justice AKM Zaheer also asked the prosecutor whether you are submitting these clippings and documents only for this case or also for the other cases?

Prosecutor said that they will submit these documents in other cases also.

Justice AKM Zaheer asked How he could do that? Before the disposal of this case you ought not to be holding these documents.

The prosecutor then asked for time to think about it .

The Court was adjourned till 2 P.M.

Justice Nassim: Mr.Abdur Razzak, Charge hearing matter of Matiur Rahman Nizami, Quamaruzzaman, Ali Ahsan Mujahid, Quder Mullah are all completed except your submission. Therefore, please give us a date when it is convenient for you to submit your argument.

Abdur razzak (defence): My lord, on Monday (16.4.12) I will submit.

Justice Nassim: Okay.

Mizanul Islam: With regard to the news paper clippings in Exhibit 50-59 you have already passed an order to exhibit them. We objected then as being new documents but you rejected the objection saying that they were given to the tribunal before trial though the defence were not given copies. But the five volume document were clearly not given to the tribunal earlier. We were also not given copies. They are brought by the investigation officer today. These are clearly new documents and section 16(2) does not apply to them. The prosecution must follow Section 9(4) procedure before exhibiting these documents.

The chairman denied this and said that they were given to the tribunal earlier.

The defence lawyer said that they had seen the investigation officer bring them and that one of the judges had also said that he saw the documents today for first time and so they are clearly new documents and the five volumes cannot be exhibited without giving the defence a copy.

The chairman said that the tribunal will allow you to inspect the documents, but there is nothing to stop the prosecution exhibiting the documents now.

Abdur Razzak also came to the dais and read out section 9(4) and 16(2) of the Act. My lord, if it not possible to provide documents then we should be given a right to inspect the document before exhibition. And in case of additional evidence we should be given a notice earlier. My humble submission before the Tribunal is that, the matter is very serious matter and the tribunal should pass an order to that effect.

Haider Ali: Tendering additional evidence does not arise; here all the documents are already produced before the Tribunal. And my lord, giving notice is not mentioned anywhere. If they want to inspect, they can do so as all are open.

Razzaq then said that if these documents cannot be copied how can the prosecution have given a copy to the court. He asks if he can see the copy produced before this tribunal.

The chairman said that he could not see it now. It is original. The IO seized it from the Museum.

Razzak said that if this document is exhibited then it is being used against me. The copy was never given to us. Section 9(4) requires that permission is required before submitting such new documents.

The chairman said that we have given permission now. The permission may be verbal – there is no requirement that the permission needs to be in writing.

Abdur Razzak: My lord, if any document is given to you but not given to us then it will be considered as injustice to us.

Justice Nassim: Newspaper from different countries after compiling has been kept in the Muktijuddha museam. Then these were seized from the museum. Mr. Razzak names of these documents are given to you in the seizure list and 5 volumes book have been given to us. It is not possible to provide you the copy of those books. Therefore, you must have given a right to inspect.

Abdur Razzak: My lord, defence has the right to inspect and I will not be prejudiced if I am getting reasonable opportunity to inspect. And I should be given effective knowledge regarding the additional evidence.

Justice Nassim: Okay, then you will inspect the documents at any time but exhibition is completed now.

Abdur Razzak: No, My lord, how can an exhibition be completed without inspecting the materials. We should first have done our inspection and then exhibition.

Justice Nizam: No, there are no rules like that. Basically, you seek to see a copy of the document through a petition. Still we giving the right to you to inspect.

Abdur Razzak: My lord we pray for notice and notice means right to give reasonable opportunity to inspect. And my lord, we know that, show cause notice has been given before passing an order then why exhibition has been done before inspection?

The chairman said that the prosecution gave the defence a copy of the seizure list and that this was notice for these documents.

Razzaq said taht but merely giving seizure list is not enough. The prosecution should give us copies of these five volumes.

The chairman asked why the defence did not apply for these documents earlier? You should have at least apply to inspect these documents earlier.

Razaq said that we have in fact applied for service of all the un-served documents. And that the tribunal rejected that application at that time and told us that if copies of any documents is not given then the prosecution cannot use them. Now you are allowing the prosecution to exhibit these documents. The prosecution has not given us notice.

Justice Nizam: Technical rules of evidence will not apply here.

Abdur Razzak: Just give us notice three days before exhibition.

Justice Nizam: You have said this but we have heard it that, someone says “this tribunal is accused friendly Tribunal”

Abdur Razzak: My lord, this is law which I have said.

Justice Nizam: With due all respect to you, we reject the application. And what would happen if three days are given to you?

Abdur Razzak: My lord, three days is long time, many things might be happened in three days. In fact, we are failing to assist you and give due justice to our client as well. So it is better we leave the court room. And my lord, what you have said now is not supported by section 9(4) of the Act. The notice must be effective. If you are giving me notice about these five volumes today then you cannot exhibit them now. You should give me copy now then it can be exhibited later. I may have objection. This is my right to see these documents before it is exhibited.

The chairman said ‘No. We can allow you to inspect it later. But we will keep them as exhibit.’

Razaq asked how you can you exhibit first and then give us notice? The proceeding may continue but you should refrain from exhibiting these five volumes now.

The chairman said that ‘No we will not delete the exhibits. You may inspect the documents later.’

Razaq sais that if the tribunal exhibits these documents it would be a violation of section 9(4).

He then said that it appears that ‘we are unable to assist this tribunal. We will not be able to do justice to our client. We should leave.’

The chairman said that it was up to the defence and asked why should the tribunal wait to marking these documents for notice. The proceeding should continue. We will give order on these documents tomorrow morning.

Razaq said I have no objection if the examination of IO continues for today. My only objection is you should allow these documents to be exhibited now. Since you will pass order tomorrow morning, you should leave the matter for exhibit for tomorrow morning.

The chairman said, that no these exhibits should remain and that if the tribunal decides later on to delete them then it can delete these exhibits at any stage.

The defence lawyers then left the court.

The court proceeding continued and Haider Ali started to examine the investigation officer At that moment all of the defence counsel walked out the Tribunal.

Then the Tribunal was compelled to adjourn as there were no presence of accused and his appointed lawyer, and that if they continue proceedings it would be considered as violation of the sec 12 of the ICT.

The prosecutor said that the walk out was pre-planned. He claimed that the accused was not present as they had asked him not to appear because of him not feeling well, and so they were able to walk out of the tribunal.

The chairman then spoke very angrily and said that next time the accused will not be allowed to leave court before finishing of the day’s proceeding.

The prosecutor said that if the defence counsel continues their walk out then we may think about appointing state defence.

Then the court is adjourned.

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