11 Jul 2012: Mobarek Hossain bail application

In the afternoon, following the cross examination in the Chowdhury case, the tribunal considered the case involving a man called Mobarek Hossain - accused in a case which has been transferred from the magistrate court to the International Crimes Tribunal. The accused is a resident of Brahmanbaria, and a case has been filed against him for the murder of a freedom fighter during the Liberation war. This case was filed in the Brahmanbaria magistrate court at a time when the Tribunal was yet to be established. Then when it was found that this case was related to war crimes it was transferred to the ICT by the Magistrate Court.

The previous hearing on this matter was on 4 June

Mr Hossain was represented by the lawyer SM Shahjahan

Prosecutor: My lord, there are total 640 cases has been filed all over the country among them on the basis of priority there are four cases now in the hands of investigation agency.

Chairman: Did you assign investigation Officer?

Prosecutor: Investigation officer will be assigned on Sunday.

Chairman: Let us to consider the merit of the case. There is a complaint petition, we have to see whether ICT is applied here or not and Mr. Shahjahan please (defence counsels) read out from page 4 of the petition.

Defence: During the Liberation War Mubbarak Hossain along with the Paksitan army abducted Abdul Khalek a freedom fighter and detained him in an Army camp. After that on the bank of Titash River he was fired on and killed.

Chairman: Now, you will say whether this case falls under the crimes of Genocide or Crimes against humanity or not?

Defence: No, it does not come under the purview of genocide and crime against humanity. This is basically simple murder. My lord, I have already surrendered to the High court Division and they granted me bail.

Chairman: Please read out section 3 of the ICT and tell us whether it falls under the scope of crime against humanity or not?

Then the defence counsels S.M Shahjahan read out section 3.

Chairman: Now answer please, the person who has been killed was the civilian or not?

Defence: Yes, he was the civilian.

Chairman: Whether it is the violation of domestic law or not, it does not matter. So, it comes under the purview of 3(2) (a).

S.M shahjahan: But, my lord till today I am not the accused of the case and I have submitted my bail application on 4.06.12 but Investigation has not been started yet. If I had an ulterior motive then I would never surrendered to the court and there is no progress of the case.

My lord, onus (burden of proof) lies upon the prosecution also to justify the case. So, onus not only lies upon me but also the prosecution. My lord, why they also have filed this case after the 38 years later? During the liberation War, he was only 15 years old. There is no such thing which restrained me to submit bail petition.

Justice Zaheer: Now, the accused is in custody. But the investigation has not been started yet. If this person has not been accused under the Tribunal then how can the tribunal detain him!

Prosecutor: Among the 640 cases there are four cases now at the investigation agency on the basis of priority. These cases are either CR or GR case and all these are related to the loot, arson, confinement, murder etc. And Tribunal has no authority to transfer the case to magistrate court.

Justice Zaheer: In this case complaint has been made under sec. 200 of the CrPc; FIR has been filed under section 154 of the CrPc, investigation has been done under section 173 of the CrPc, all these are relating to the CrPc not to the ICT. Mr. Malum just tells us, under what authority we will detain him. He is not accused under the ICT.

Chairman: Is there any serial number that has been given by the Investigation agency. We have told you to give serial number of the register. Rules have been framed on 2010 and this case has been transferred on 31.10.11 at the hand of deputy register to give it to the investigation agency and then why the serial number is not given? Mr. Malum just say whether he is under our custody or not?

Prosecutor: Yes, he is impliedly under our custody.

Chairman: If we grant bail please tell us under what case we will do it. Without a miscellaneous case number there is no case before us, we cannot grant bail in regards to the case filed as CR or GR case.

Justice Anwer-ul-Haq: Until or unless cognizance has been taken by tribunal, we cannot delete section 302 of the Penal Code.

Chairman: If we grant bail - in which ground or case we will grant it and who will give us the security bond?

S.M shahjahan: My lord, his lawyer will give the security bond.

Chairman: In which court.

Defence: My lord, before you.

Justice Anwerul-haque: In case of High Court Division, we are giving bail on miscellaneous case by saying that miscellaneous case no. 2 or 3 or whatever, it is out of GR or CR case no.

Prosecutor: It will not be fair to grant bail in such a stage of the Tribunal. Investigation officer will be assigned on Sunday.

Justice Zaheer: Okay then tell me under what authority or custody he will be in jail from today to next Sunday? And another thing is the investigation agency at any stage of the investigation if found nothing have the authority to reject the case.

Chairman: Will you give a number of complaint register on Sunday.

Prosecutor: Yes My lord, I will.

Chairman: Okay, then it will be easier for us to give any Order by referring the case number in the Order Sheet. I want to write it safely so that we have the Jurisdiction.

Then the Court was adjourned on this matter to Tuesday