2 July 2012: Investigation officer witness report

Tribunal one
This application on seeking a copy of the investigation officer's report into the difficulty in getting witnesses to give evidence in court, was dealt with as the final application mentioned in the report of the day (see this page).

The written application states as follows:

1. That on 20 March 2012 the Prosecution filed an application under Section 19 (2) International Crimes (Tribunal) Act 1973 as amended 2009 (hereinafter “IC(T)A”) in order to tender into evidence the statements of the remaining 46 Prosecution witnesses (hereinafter “Prosecution’s Section 19 (2) IC(T)A Application”) alleging that these witnesses were unavailable and their attendance could not be procured without an amount of unreasonable delay or expense.

2. It is stated that in the Prosecution’s Section 19(2) IC(T)A Application the Prosecution annexed two reports of the Investigation Officer dated 17.03.2012 and 19.03.2012 to show that the Prosecution Witnesses were unavailable and their attendance cannot be procured without an amount of unreasonable delay or expense.

3. By its Order dated 29 March 2012 under Section 19 (2) IC(T)A, this Hon’ble Tribunal solely relied upon the said two reports of the Investigation Officer and allowed to receive as evidence the statements of 15 witnesses.

4. That it is stated that copies of the reports of the Investigation Report dated 17.03.2012 and 19.03.2012 concerning the Prosecution Witnesses were not provided to the Accused-Petitioner. At the time of hearing of the Prosecution’s 19(2) Application the Defence Counsels verbally prayed for copies of the said reports but the same was not served upon the Accused-Petitioner. As a result the Accused-Petitioner was unable to respond to those reports. It is important to mention here that these two reports were the central documents upon which the Hon’ble Tribunal relied to satisfy itself that attendance of the 15 prosecution witnesses could not be procured without an amount of unreasonable delay or expense.

5. That the Investigation Officer is now being cross examined in the instant case. The Defence counsel needs to cross examine the Investigation Officer on his reports dated 17.03.2012 and 19.03.2012. This is why the Accused-Petitioner is entitled to get copies of the said two reports of the Investigation Officer.  

6. That in the above circumstances it is submitted that the reports of the Investigation Officer dated 17.03.2012 and 19.03.2012 should be supplied to the Accused-Petitioner for ends of justice. Otherwise the Accused-Petitioner will be highly prejudiced.

During the hearing of the defense review regarding the applicability of section 19(2) of the ICT Act the defense have asked for the certified copies of the reports, but it was not allowed. We would like to cross examine the investigation officer on these two reports.

The chairman said that it was now too late to file this application as the order was passed some time ago

The defense lawyer said that the tribunal is yet to pass an order on the review application. He said that that tribunal allowed the Prosecution 19(2) Application on the sole ground that the 15 PWs were unavailable and their attendance cannot be secured without an ‘unreasonable delay’. The prosecution stated that PWs were unavailable as some of them went to India and some of them were threatened by armed terrorists of the Accused. If they are from accused side why should their names not be given to the accused? Though armed threat was alleged, no case under Arms Act was filed. He added that during the cross examination, the investigation officer admitted that no summons was issued against two out of the 15 witnesses.

He said that the statements of the 15 PWs were exhibited by the investigation officer. Rule 55 says that once exhibited, the documents shall be treated as evidence. The defense should be able to cross examine IO about authenticity of his report upon which you passed the 19(2) order.

The chairman said that the statements were admitted with the observation that the the witnesses were cross examined. He asked the defense lawyer why they were so worried about these statements.

Mizanul Islam said that the tribunal has received them as evidence and allowed the prosecution to exhibit those statements. So we have sufficient reason for worrying. According to the Rules of Procedure only the case diary of the investigation officer will not be allowed to be seen by the Defense, but the prosecution must give copies of other documents upon which they rely. The prosecution is relying upon these two reports of the investigation officer and they are not part of CD. So we are entitled to get copies of these two reports. 

Justice Nizamul Huq: Yes, Prosecution. Do you have anything to say?

Haidar Ali made the following points:

- the Tribunal has already refused them to give the defense copies of the reports at the time of our 19(2) application and their review application. So the matter is settled.

- investigation officer's report was not the basis of 19 (2) application.

- the application mentioned 4 categories of prosecution witnesses in our 19(2) application. (a) Some were physically ill and could not travel; (b) some went to India. (c) some were threatened by Armed terrorist of the Accused (d) Important for the Case but not eye witness.

- according to section 9, 16(2) and Rule 18 (4) the defense are not entitled to copies.

- the application is premature since the Tribunal has not yet passed any order on the 19(2) review application.

Tajul Islam: Better he might show us which law prevents us from getting those documents?

Justice Nizamul Huq: You are no one to ask him for that. You are not someone to perform the duty of the Tribunals to ask for any document like that manner.

Tajul Islam: No I can say it.

Haidar Ali: We are watching. How could they cross the limit.

Tajul Islam: We are also watching.

Justice Nizamul Huq: Just stop it. Prosecutor, you may proceed on with your matter.

Haidar Ali: [He read out section- 9(4), 16(2) and Rule- 18(4) of the ICT Rules of Procedures.]

There is no other scope to provide them with the documents out of the ambit of these sections. When the matter is there in the review stage how could they raise such issue at this premature stage.

Mizanul Islam: If the petition is premature, them the cross examination of the investigation officer should have been stayed until you passed the order on our 19(2) review application. For smooth cross examination of the investigation officer - who is in the dock and is the maker of these documents - these reports are necessary. Principles of natural justice should allow us to have a copy of that report. Rule 18 (4) and section 16 (2) do not apply here.