21 May 2012: Sayedee witness recall

The tribunal had set this day for argument on a defence application to review the tribunal's order on section 19(2) relating to the admissibility of witness statements without cross examination, but Tajul Islam said that Abdur Razzaq was not available for this.

Tajul then drew the court's attention to a news published in that days Daily Nayadiganta under the heading “Sayedee’s defense witness has been Arrested”. It says that the police has arrested a defense witness named Hemayat Uddin yesterday in what it termed a false case. It also reported that the police had gone to another defense witness Sakayat’s home in Pirojpur and abused the family after they found him not present. He said that the police and the other law enforcing agencies have been following the list of the defense witnesses provided by the defence to the Tribuanl and threatening them continuously and these witnesses are in fear of their personal safety. 'My Lord, if the police start arresting the defence witnesses what would ultimately be the result?' he asked.

The chairman said that if any case is filed against any defense witness then what we can do. 'Let the police complete their investigation. We cannot interfere' he said.

Tajul responded by saying that the tribunal could direct the police not to intimidate the defense witnesses, under rule 58A of the Rules of Procedure.

The chairman said that no purpose would be served by seeking a report from the police as one could imagine what it will state but that if the defence files any application for witness protection then the tribunal will consider.

Fakrul Islam, the defence Lawyer of Salauddin Quader Chowdhury then came to the Dais and mentioned that in the trial of Chowdhury during the witness examination, the Investigation Officer of this case, who is a prosecution witness, is being allowed to be present during examination of other prosecution witnesses. He said that 'this is not possible in our local trial.'

The chairman said that in this tribunal the investigation officer can be present during examination of other prosecution witnesses. He said that they had decided this after a long debate in Sayedee’s case.

The defense lawyer, Mizanul Islam then placed before the tribunal the defense application for recall of prosecution witnesses 1, 2 and 6. The written application, in part read out in court, stated the following:

1. That the Accused-Petitioner is filing this application with prayer to recall the following Prosecution Witnesses (PW) under Rule 46 of the Rules of Procedure:
A. PW – 1 – Mahbub Alam Hawlader;
B. PW – 2 – Ruhul Amin Nobin and
C. PW – 6 – Manik Poshari.

2. Rule 46A of the International Crimes Tribunal Rules of Procedure, 2010 (hereinafter ‘Rules of Procedure’) provides as follows: 46(A) Nothing in these Rules shall be deemed to limit or otherwise affect the inherent power of the Tribunal to make such order(s) as may be necessary to meet the ends of justice or to prevent abuse of the process.

A. PW – 1 – Mahbub Alam Hawlader:

3. That on 7.12.2011, 11.12.2011, 12.12.2011, 13.12.2011, 14.12.2011 and 15.12.2011 the Prosecution Witness No. 1, Mr. Mahbub Alam Hawlader gave evidence before the Tribunal in the instant case. At the time of cross examination of PW-1 the Defence counsel asked him whether he gave any interview to any TV channel about the allegations in the instant case. PW 1 replied that he could not remember.

4. On 18.04.2012 the PW 28, Mr. Helal Uddin, the Investigation Officer exhibited a Video CD called ‘Ekusher Chokh’ (Eye of Twenty One) of ETV TV channel. This Video CD was played before the Tribunal and exhibited as Material Exhibit No. XI where the PW 1 Mahbub Alam Hawlader gave interview to the news reporter of ETV against the Accused about the allegations in the instant case.

5. On 19.04.2012 the PW 28, Mr. Helal Uddin, the Investigation Officer exhibited a Video CD called ‘Ekatturer Ghatokera’ (Killers of Seventy One) which is compilation of news reports of ATN Bangla TV Channel. One of the news clips was about the Accused Petitioner where the PW 1 Mahbub Alam Hawlader gave interview to the news reporter of ATN Bangla TV Channel. This Video CD of ATN Bangla was exhibited as Material Exhibit No. XV.

6. That from the above two paragraph it is clear that PW 1 gave interview to at least two TV channels called ETV and ATN Bangla about the incidents alleged in the instant case against the Accused-Petitioner. That since the above two Video CDs were not exhibited by the Prosecution at the time of cross examination of the PW 1, it was not possible for the Defence Counsel to cross-examine him about the said two TV interviews. It is submitted that after exhibition of the above two Video CDs as Material Exhibit Nos. XI and XV, it is very much necessary to cross examine the PW1 about his interviews to the above two Material Exhibits. The Accused-Petitioner has right to cross examine PW 1 on those TV interviews. It is therefore necessary to recall the Accused-Petitioner to cross examine him on his interviews to ETV and ATN Bangla.

7. That further on 09.04.2012 the Investigation Officer has exhibited four Dhew Tins as Material Exhibit Nos. III, III(1), IV and IV(1) alleged to have been burnt during the liberation war in 1971 in PW 6 Manik Poshari’s house in Chitholia, Pirojpur. He also exhibited one wooden pillar and one wooden frame of a gate as Material Exhibit Nos. V and V(1) alleged to have been burnt during the liberation war in 1971 in the same house of PW 6. It is stated that the Investigation Officer seized these materials in presence of PW 1 who is also an attesting witness in the concerned Seizure List. Since the above Materials were not exhibited at the time of examination of PW 1 it was not possible for the defence counsel to cross examine him on those materials. It is stated that as a matter of right of the Accused-Petitioner it is very much important to cross examine the PW 1 about the above Material Exhibits for ends of justice and hence PW 1 should be recalled, otherwise the Accused Petitioner will be highly prejudiced.

B. PW – 2 – Ruhul Amin Nobin:

8. That on 7.12.2011, 8.12.2011, 18.12.2011 and 19.12.2011 the Prosecution Witness No. 2, Mr. Ruhul Amin Nobin gave evidence before the Tribunal in the instant case. At the time of cross examination of PW-2 the Defence counsel asked him whether he completed his Honors Degree from the University of Dhaka to which he replied that he completed his Hon’s Degree in the year 1978. But very recently the Accused party collected a copy of the Debarred List of the Degree (Hons.) Examination of 1976 held in April, July and August 1978 from the University of Dhaka (hereinafter referred to as the ‘Debarred List of 1978’). It is stated that the Debarred List of 1978 shows that PW 2 was a student of Fazlul Haq Hall of the Dhaka University and he was expelled from Degree (Hons.) examination in the year 1978. It is stated that the Debarred List of 1978 clearly shows that PW 2 was telling lies about his education in Dhaka University. [A copy of the Debarred List of 1978 has been annexed herewith and marked as ANNEXURE – ‘A’.]

9. It is submitted that PW 2 was suppressing facts before the tribunal which should be exposed in cross examination. But since the Defence Counsel was not aware about the Debarred List of 1978 at the time of cross examination it was not possible for him to draw to the attention of PW 2 to the fact that he was expelled from the University of Dhaka in 1978. It is submitted that it is very important to cross examine the PW 2 on this point on his credibility. As such he should be recalled so that the Defence counsel can cross examine the PW 2 on the Debarred List of 1978.

C. PW – 6 – Manik Poshari:

10. That on 27.12.2011 and 28.12.2011 the Prosecution Witness No. 6, Mr. Manik Poshari gave evidence before the Tribunal in the instant case. At the time of cross examination of PW-6 the Defence counsel asked him whether he gave any interview to any TV channel about the allegations in the instant case. PW 6 replied that he could not remember.

11. It is already stated in Paragraph 4 and 5 above that on 18.04.2012 and 19.04.2012 PW 28, Mr. Helal Uddin exhibited two Video CDs called ‘Ekusher Chokh’ (Eye of Twenty One) of ETV and ‘Ekatturer Ghatokera’ (Killers of Seventy One) of ATN Bangla TV Channel as Material Exhibit Nos. XI and XV respectively. These two VCDs were played before the Tribunal which shows that PW 6 – Manik Poshari gave interviews to the news reporters of ETV ATN Bangla against the Accused about the allegations in the instant case.

12. That since the above two Video CDs were not exhibited at the time of cross examination of the PW 6, it was not possible for the Defence Counsel to cross-examine him about the said two interviews before the TV channels. It is submitted that it is very much necessary to cross examine the PW6 about his interviews to the above two TV Channels. It is therefore necessary to recall the Accused-Petitioner to cross examine him on his interviews to ETV and ATN Bangla.

13. That further it is already stated in paragraph 6 above that on 09.04.2012 the Investigation Officer has exhibited four Dhew Tins as Material Exhibit Nos. III, III(1), IV and IV(1) one wooden pillar and one wooden frame of a gate as Material Exhibit Nos. V and V(1) alleged to have been burnt during the liberation war in 1971 from house of PW 6 in Chitholia, Pirojpur. Since the above Materials were not exhibited at the time of examination of the PW 6 it was not possible for the defence counsel to cross examine him on those materials. It is stated that it is very much important to cross examine the PW 6 about the above Material Exhibits for ends of justice and hence PW 6 should be recalled, otherwise the Accused Petitioner will be highly prejudiced.

Conclusion:

14. That in view of the submissions made above it is submitted that Prosecution Witness Nos 1, 2 and 6 should be recalled for ends of justice so that the Defence Counsels can cross examine them on the points raised above.

15. That it is submitted that this Hon’ble Tribunal has ample power to pass an order under Rule 46A of the Rules of Procedure to recall the Prosecution Witness Nos 1, 2 and 6 for ends of justice.

The chairman asked the prosecution to reply, and the prosecutor Saydur Rahman said that Haider Ali will come later and respond. The chairman said that if that was the case the prosecutor could have prayed for an adjournment when the application was taken up for hearing.  Judge Zahir Ahmed said to the prosecutor, 'It is a very simple application. The defence prayer is that they will have to cross examine PW 1, 2 & 6 about certain exhibits and documents which were exhibited later. You can do this – you don’t need to wait for Haider Ali'. The prosecutor again said that he would rather wait. The chairman said that the application will 'not be treated as heard'.