Friday, July 13, 2012

11 Jun 2012: Sayedee witness fraud allegation

Newspaper complaint
Tajul Islam, a member of the defence team stood up and drew the court’s attention to an article in today’s Daily Bangladesh Protidin and a report on Ekushey Television, which he said would be provided in a CD. He referred to a statement made by Mr. Advocate Golam Arif Tipu.

‘It is the violation of the right of the accused’ Islam said. ‘So, your Lordship may take necessary action about it, and your Lordship should remember has taken some initiatives for one of the defence counsel for calling a, witness a Liar. It is our humble prayer before your Lordship to take necessary steps.’

Defence fraud allegation: review of statement admission order
Abdur Razzak, the defense counsel started the continuation of a hearing in the matter of the review petition conceding the order of 29th March, 2012 which allowed the admission of 15 statements without the witnesses being cross examined.

The background to this is as follows. The defense had reviewed this order, in part referring to news reports concerning the diaries held by the witness safe house which provided details of the witnesses coming and going from the safe house at the time that the prosecution was saying that these same witnesses could not give evidence.

The prosecution denied the existence of these documents, alleging that the safe house never had any such diaries and that the documents referred to by the defense were fabricated. In response the defense then provided copies of the documents. Links to all previous hearings on this issue are below:
Below is a summary of the arguments made by Razak, lawyer for the defense, concerning the significance of these documents and setting out the evidence for their genuineness.
On 9th May, 2012 the review petition was filed by the defence counsels. 22nd May was the date for first hearing. During another hearing on 3rd June, 2012 the defence counsel have produced copies of documents from the safe house where the witnesses stay and argued that the Prosecution have lied about the reason why 15 witnesses did not give evidence. These papers are the proof that the witnesses stayed at the safe house. Each document is correct and at least nine of the witnesses were there at the Golapbag Safe House, but they were reported by the prosecution to be sick or missing.

The GD Book of the Safe House contains detailed entries regarding movement of these prosecution witnesses and these show that most of these witnesses were brought from the safe house to the prosecution office. But these witnesses were not produced before the Tribunal as they were not ready to give false evidence against Mr. Sayedee.

Register No- A is the Register for the Witnesses and the Guests, Safe House Dhaka. The page starts at 00. My Lord, please look at the Annex- A. It is the Register of the witnesses and the Guests of the Safe House which is situated at Golapbag, Dhaka. It is stated there in the page- 01 that a guest has arrived there at the safe house with the Prosecution Witness-1 Mahbubul Alam Hawladar who arrived at 16-11-2011. On 11-12-2011 he was cross examined.

It has been stated that- S.I. Aminul Islam arrived at the safe house with the witnesses and their guests. The name and the addresses of the witnesses are as follows- 1) Mahbubul Alam; Father- Jomir Uddin Hawladar, Address- Tengrakhali, Indurkani, Pirojpur. 2) Mukundo Chakraborti; Father- Late Binod Bihari, Address- Umedpur, Zianagar, Pirojpur 3) Gourango Saha; Father- Late Horidas Saha; Address- Parerhat, Zianagar, Pirojpur 4) Anil Chandra Mondol; Father- Late Nokul Chandra Mondol, Address- Umedpur, Zianagar, Pirojpur. 5) Md. Bajlur Rahman; Father- Abdul Hamid Chaprashi; Address- Indurkani, Pirojpur 6) Abdul Halim Babul; Father- Late Abdul Khalek Kholifa; Address- Nolbunia, Zianagar, Pirojpur.

Can anyone say that these entries are false? The every movement of the witnesses from and to the safe house has been noted down, setting out the time, in the register. It has also provided notes about other Prosecution witnesses.

The Prosecution has claimed that Ashish Kumar Mondol did not come, but the register shows that he did came. So, on the Register it has been written when the witnesses came and when they departed.

I will show the movements of 4 witnesses and how meticulously it has been written down in the register. (PW1 Mahbub Alam Hawlader, PW 2 Ruhul Amin Nobin, PW 5 Mahtab Uddin Hawlader, PW 23 Modhu Shudon Ghorami). It contains hourly record of the Safe house from 18th October 2011 to 31st March 2012. It is impossible for a third party to create this document.

Please first look at the Annex- B, Page- 125 Entry No: 208, 08: 05 A.M. of 16-11-2011 It has been stated there that- ‘the in-charge of the safe house, Golapbag, Syedabad, Dhaka, do hereby note down that In total 9 witnesses has been taken up by the custody of Police Super Obaydul Haque and Suvash Chandra Ghosh and has been taken up to the 1st floor of the safe house; room number- 210, 211, 213. Arrangements have been taken for their repose and they have been provided with the breakfast and tea. Steps have been initiated for their security. The attendance, officer and the forces of the Safe house has been informed to take necessary steps for the security of the witnesses and to provide them with all of their necessary materials. ‘

Let me start with PW-1 Mahbubul Alam Hawladar. See- Annex- B; Page- 125 Diary Entry No- 208, 08: 05 A.M. they have been hosted with tea and snacks at the 2nd floor of the safe house. There were Mahbubul Alam Hawladar, Ruhul Amin Nobin, Mostofa Hawladar, Ashish Kumar Mondol, Manik Poshari.

This document states that- 9 witnesses came on the early morning. Specifically in relation to Mahbubul Alam’s movement, he has 4 times come from and to the safe house.

See, page-150 Entry No- 305, it has stated about the SI Enamul Huq and Somor Mistri also. The Prosecution is stating that- Abdul Latif Hawladar and Ashish Kumar has not come. But Mr. Ashish Kumar has come with Somor Mistri.

No one can deny the veracity of the diary as recorded meticulously the movement of the witnesses. 
Please look at page- 185 Entry No- 89. Mr. Manik Poshari, Ruhul Amin Nobin, Mahbubul Alam Hawladar, Md. Sultan left the safe house towards the High Court Division with the Investigation Officer, which information is being recorded as entry.

This kind of information cannot be known by anyone else other than the personnel of the safe house.

Please look at- Page- 186 Entry No- 95. Date- 7-12-2011; 5:30 A.M. The record is showing that- on 7-12-2011 the Chief Examination of Mr. Mahbubul Alam Hawladar was completed.

Whether the defence counsel or the Prosecution is misleading the Court it is easily determined from this information.

Page- 187 Entry- 110 refers to Mahbubul Alam Hawladar, Ruhul Amin Nobin, Md. Sultan, Manik Poshari.
Chairman: Mr Razaq, you do not need to go into detail of these registers of the Safe House. If these documents are found to be true then what is your submission?

Razaq: Ok, I will not go that detail. That may take more than a day. But I should show you that there is no scope for any other person to create these documents. The prosecution is claiming that we have created these documents.
Look at the note of 09-12-2011, entry Nos. 115, 116, 117 which states that someone has called Mr. Mahabubul Alam Hawladar and threatened him. The note states that- ‘I the In Charge of Safe House, hereby noting it down that- I have called the Operation Officer Majharul Islam of Jatrabari Police Station to take necessary steps about the GD Entry No- 490, 491, 492, 516 and 534 dated- 08-12-2011 about the threatening of the witness of the safe house over telephone. I hereby record the matter for the future reference. Majharul Islam has made a GD Entry No- 516, dated- 9-12-1011 about the above matter.’

You may check the records of the Jatrabari Police Station. How we could we know this information. It is impossible for us to create these documents.

The number of two phone numbers can be verified and there is also the name of the Police Station.

Entry No- 173 states that ‘On 12-12-11 the Prosecution witness-1 Mahbubul Alam Hawladar has come and informed that- he has been threatened again over the telephone by intolerable words and languages.’
Justice Nizamul Huq: You are mentioning this to show how detailed is the Register Book? Is it so?

Abdur Razzak [Defence Counsel]: Yes My Lord.
Please look at page- 37, 38, 39- which are blank. These pages only contain some phone numbers, from whom the chairs and table has been bought, the number of the Savar Police Control Room etc. So, these numbers or the entries could only be known to the Police Officer.

Please look at page-40: ‘I hereby start by the name of Almighty Allah. By the Order No- 24 of 11-10-2011 this dairy is being opened up for the register of all activities of this safe house. The Investigation Agency is formed under section-8 of the ICT Act- 1973.’

At the time of buying utensils for cooking, blanket in the winter etc have all been noted in the book. Please look at Page- 261; Entry- 339, at 18:50 P.M. On 30th December, 2011 4 blankets were being bought for the witnesses as it was the time of winter. Please look at Entry No- 53 which states in the verse of S.I. Abdullah Al Baki that initiatives have been taken up to make the place comfortable 
 Justice Nizamul Huq: It seems that- all the writings are that of Mr. Baki.
Entry No. 59 dated 22.10.2011 shows that they purchased furniture, cookeries in the Safe House. It contained a list of those things. How anyone other than the concerned officers of the Safe House can keep such detailed notes.

Abdur Razzak: Please look at the entry no- 249 which is of 16-1-2012 at 22: 20 P.M. It has been stated there in the register book that- ‘The Chief Coordinator of the International Crimes Tribunal has asked to know whether the new witness Modhusudon Ghorami has come and how is he feeling; he has also stated that the statement before the Tribunal of another witness witness Gourango Saha was splendid. When conversing with him at the telephone- the Prosecution Witness Gourango claimed to treat him with sweet for the good deposition. When letting the matter known to the superior authority- Mr. Gourango was admittd to be treated with sweets and new Pajama-Panjabi [new dress]. The Chief also stated if Mr. Gourango demands anything, in that case try to provide him with those things. When letting the matter known to Sanaullah Sir, he has also given the direction like the previous one. So that- Mr. Gourango along with other witnesses Mahbubul Alam Hawladar and Md. Abdul Halim Babul were treated with sweets bought from Bikrampur Mistanno Vandar costing 250/- taka along with Cigarette, Medicines and some cosmetics— in total costing 500/- taka. The matter is recorded in the diary for the future reference.’
 Member Judge Zahir Ahmed: Your purpose is to argue on you application for review of the 19(2) order. So you want to show that the 15 PWs were in fact available to give evidence?

Razaq: We will go beyond that. I will show that the investigation officer has committed fraud with this Tribunal. He has perverted the course of Justice. The Prosecution is now claiming that we have created these registers. I will prove that these are genuine documents.
Regarding prosecution witnesses Ashish Kumar Mondol, Somor Mistri, and Sumoti Rani. On 2nd February 2012 one of the prosecutors informed the Tribunal that these witnesses were unable to come to the Tribunal as they left the Safe House on the previous evening to meet their families and never returned back. The prosecutor misled the tribunal. The above three registers of the Safe House show that these witnesses were in the Safe House at that time and they stayed there for 46 days until 16th March 2012.

I would like to sum up by presenting two things before the Tribunal that prove the authenticity of the document

Please look at the Entry No- 175, Page- 308; O8:20 A.M. On 12-01-12 S.I. Kalachan has left the safe house to go to the CMM Court Number-31 Dhaka- to give a statement on the case of Chawkbazar Police Station containing case no- 41(03)10 GR Case- 102/10 in Metropolitan Magistrate Court No. 31, Dhaka.

Now, how could we have come to know that Mr. Kalachan has gone on to give deposition? He then passed the relevant Papers from that Magistrate Court to the tribunal which shows that Kalachan did go to the court.

Now I would like to present some phone bills to prove that we have presented accurate documents.

The General Diary contains three phone numbers of the safe house. Entry no 75 dated 06.02.2012 and Entry No. 175 dated 23.02.2012 of the GD Books shows payment of telephone bills of the Safe Houses telephone numbers being 7547810, 7547807 and 7547804 to BTCL. The bill of November- 2011 of those three numbers has been stated as follows- 4912 taka, 4114 taka and 4168 taka. Afterwards it has been written aside that- “The bill has been sent to the ICT Head Office.”

We have collected the copies of the bills from the BTCL office. The bills state the address as- 645, Atish Diponkor Road, Police Tower Building, Golapbag, Dhaka. The Bill has been sent in the name of International Crimes Tribunal.

The address of the safe house has been mentioned at the same location of 645, Atish Diponkor Road, Police Tower Building, Golapbag, Dhaka.

These supporting documents conclusively prove the genuineness of these three Registers of the Safe House.

Let me show you the copies of the Telephone Bills.
Justice Nizamul Huq: It seems that- your team is expert in photocopying secret documents.

Abdur Razzak [Defence Counsel]: No My Lord. Don’t look at it like that
Please look at Entry No- 374 It has been stated that- the bill as mentioned foreside has been paid. We will show the relevant document as regards the payment of the bill.
Haidar Ali [Prosecutor]: Can we see the bill.

Abdur Razzak [Defence Counsel]: For sure.
This GD book mentions that it was maintained as per section 377 of the Police Regulation of Bengal (PRB).
 Justice Nizamul Huq: How have you got this document?

Abdur Razzak [Defence Counsel]: How have we got it is not relevant.

Justice Nizamul Huq: If we have found some forgery has been done in that case we have to ask the authority about that.
Razak then quoted from a number of court decisions. He quoted from 48 DLR (1996) 108, Para – 11 which states that it is not necessary to look into how a document is collected. The test is relevance. If the document is relevant then you should consider it.

And another case. ALLER (1995) Vol-1 236 (P.C). This suggests that even if we steel a document, if it is relevant you have to consider them.
Chairman: we do not dispute theis legal position. But it is criminal offence to steel any document.

Razaq: Why don’t you ask the IO and the Prosecutor as to why they are denying these documents. Isn’t it fraud with this tribunal? We are assisting this Tribunal.
Razaq than pointed to two international cases involving concoction of evidence

Prosecutor v Lubanga. Para 483 states: 483. As set out above, there is a risk that P-0143 persuaded, encouraged, or assisted witnesses to give false evidence; there are strong reasons to believe that P-0316 persuaded witnesses to lie as to their involvement as child soldiers within the UPC; and a real possibility exists that P- 0321 encouraged and assisted witnesses to give false evidence. These individuals may have committed crimes under Article 70 of the Statute. Pursuant to Rule 165 of the Rules, the responsibility to initiate and conduct investigations in these circumstances lies with the prosecution. Investigations can be initiated on the basis of information communicated by a Chamber or any reliable source. The Chamber hereby communicates the information set out above to the OTP, and the Prosecutor should ensure that the risk of conflict is avoided for the purposes of any investigation.

In Prosecutor v Lubanga it was suggested that proceeding should be drawn against the person who forced the witnesses to change their statements.

Mbarushimana (DRC case). Para 51states, ' Finally, the Chamber wishes to highlight its concern at the technique followed in several instances by some Prosecution investigators, which seems utterly inappropriate when viewed in light of the objective, set out in article 54(l)(a) of the Statute, to establish the truth by "investigating incriminating and exonerating circumstances equally". The reader of the transcripts of interviews is repeatedly left with the impression that the investigator is so attached to his or her theory or assumption that he or she does not refrain from putting questions in leading terms and from showing resentment, impatience or disappointment whenever the witness replies in terms which
are not entirely in line with his or her expectations. Suggesting that the witness may not be "really remembering exactly what was said",(114) complaining about having "to milk out" from the witness details which are of relevance to the investigation,(115) lamenting that the witness does not "really understand what is important" to the investigators in the case,(116) or hinting at the fact that the witness may be "trying to cover" for the Suspect, (117) seem hardly reconcilable with a professional and impartial technique of witness questioning. Accordingly, the Chamber cannot refrain from deprecating such techniques and from highlighting that, as a consequence, the probative value of evidence obtained by these means may be significantly weakened.

Please look at the Annexure- C It states all the entries when and who has eaten up something, what was the menu, everything.

We have been able to show that the Prosecution is based on total lie. There was no way the tribunal could rely upon information produced by the investigation agency or the veracity of the prosecution's case. This Prosecution ought not to be run like this. Prosecution should be charged for providing such types of false verses about the witnesses and Mr. Syedee should be discharged. We want to file an application for discharge and for drawing up proceeding under section 11(4) against the investigation officer. You told us not to file and hold the application, but want to file it now.
Justice Nizamul Huq: Give a petition for that.
There is no earthly reason to believe that Somor Mistry was not there at the safe house.

It has been denied in oral submission that Mr. Ashish Kumar Mondol was there.
Justice Nizamul Huq: You are providing these documents to show that- Mr. X was there where the Prosecution is trying to prove that they were not there.

Abdur Razzak: The question here is that- The witnesses have come and done. The question here is about the purpose. They were asked to give false statements, so that is why they have left by disagreeing to give false statements.

Chairman: Even if we find that this Registers of the Safe House exist, where is the evidence to show that the investigation officer has forced the witnesses to tell lies?

Razaq: It can reasonably be presumed. Why is the investigation officer and the prosecution denying these documents? About PWs Ashish Kumar, Sumoti Rani and Somor Mistri the prosecution claimed that they left safe house on certain dates. But we can show you that they were in the Safe House at that time. If the prosecution witnesses were here, why they were not produced before this Tribunal?
I would like to cite a story of Robindranath Thakur from his book “Golpoguccho”; where a girl named Kadombini has hugged death and thereby established that she was not dead previously; like so in this case the accused is alive to prove that all the matters of the safe house is false.
Razaq: we want to file an application for discharge and for drawing up proceeding under section 11(4) against the investigation officer. You told us not to file and hold the application, but want to file it now.

Chairman: Ok, file it now.
Please look at Annex-C, page- 489

Then he has mentioned the paragraph from there about the presence of Mr. Ashish Kumar Mondol and Somor Mistri at the safe house.

Our final submission is that-
- the foundation of this case is based on fraud. So this case should be discharged. The accused should be acquitted.
- the prosecution failed to perform their duty. They are supposed to bring the truth before the Tribunal so that the Tribunal can do justice. In stead, the Prosecutors and has taken recourse to unlawful means against Mr. Sayedee. Their only intention is to secure conviction for Mr. Sayedee by any means at any cost.
- The Investigation Officer has committed fraud upon the court and perverted the course of justice. This is why proceeding under Section 11(4) of the ICTA 1973 should be brought against the Investigation Officer.
- the fraud of the investigation officer proves that the whole proceeding is tainted with malafide intention to prosecute Mr. Sayedee for political reason. So Mr. Sayedee should be acquitted immediately.
Chairman: We do not have power to discharge the case at this stage.

Razaq: You have inherent power for ends of justice. It will be a sad day if you proceed against Mr. Sayedee even if the fraud of the prosecution and the IO has revealed. It will be a black chapter in our judicial system.

Chairman: We should investigate how these documents came into the public domain

Raazaq: If you appoint any investigator to investigate this matter then it will go nowhere. We all know how the investigation happens in Bangladesh. We know the fate of investigation on the killing of Saudi Official Khalaf, Journalist couple Sagor & Runi, abduction of Ilias.

Chairman: You are arguing about your Review Application. It may be fully or partly allowed or dismissed. We have no other alternative. We cannot discharge the case while at the time of disposing this review application.

Abdur Razzak: There is no bar to discharge the petitioner.

Justice AKM Zaheer Ahmed: By filing a review you would like to say that the witnesses has come but left after refusing to give the false statement. But there is no chance to review the matter of 16 witnesses whose depositions have already been recorded. How could the deposition be discarded without scanning that?

Razaq: If you allow our 19(2) review application then you must rely our submission of the fraud of the Investigation Officer. Fraud vitiates everything. The basis of this case has gone. These 16 PWs are brought by this IO. How you can rely upon them. You may ask for fresh investigation, if you wish.

Justice Zaheer: we can look at the 16 prosecution witnesses of facts and pass judgment on them.

Justice Nizamul Huq: We can consider the matter at the final judgment if it is being found out that the investigation agency has committed fraud.

Justice Anwarul Huq: The depositions of 16 witnesses have already been recorded. Without scanning those out, how to discard those matter? The deposition of 15 witnesses in their absence has already been allowed under section- 19 (2) of the ICT Act- 1973. Now the matter of your review petition would be disposed off and we will consider the matter at the time of writing the judgment.

Abdur Razzak: Your Lordship should be aware of the Investigation Agency.

Justice Anwarul Huq: Our case is about the Chief Prosecutor vs. Accused; it is nothing about the Investigation Agency vs. Accused.

Abdur Razzak: There is a proverb that behind every occurrence there is a woman; like that the Prosecution is supported by the Investigation Agency. In no way should the Prosecution continue and Mawlana Syedee should be discharged.

Justice Nizamul Huq: Prosecution; if you would like to say something, then please come at 2P.M.

Haidar Ali: We would like to reply on tomorrow.

Justice Nizamul Huq: It should be settled today. We would not like to make a delay with side tracks.

Razaq: This has now become main track. If Cr.PC was applicable, I could have filed an application for quashment of this proceeding under section 561A before the High Court Division.

Judge: Under the Act and the Rule we cannot discharge the case at this stage. We could have discharged at the time of framing of charge.

Razaq: you can do this for the ends of justice. You cannot ignore these registers of the Safe House. Justice Nizamul Huq: After hearing the Prosecution we will pass an order on the review and the discharge

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