Friday, July 6, 2012

23 May 2012: Sayedee witness order review 3

The hearing started with Haider Ali being asked to address the court on behalf of the prosecution in response to the defence review application relating to the order made by the tribunal to allow the statements of 15 witnesses to be admitted to the tribunal. See here and here for the defense written application and oral arguments,

Ali made the following points:

- that in the impugned order under 19(2) the tribunal has already decided that the news paper reporters should not approach witnesses. This is contemptuous and this is against confidentiality of the prosecution witnesses. But despite that order the news paper reporters are still approaching the witnesses. This proves our concern that the people supporting the accused have been intimidating the witnesses.

- the comments made in the review petition about the investigation officer and the prosecutor are highly contemptuous.

- the order could not be reviewed, as at the time of passing the impugned order the tribunal did not pass any final order. You said in the order that you will consider other aspects at the time of judgment. So it is not a final order.

- the prosecution could have filed the section 19(2) application after cross examination of the investigation officer, but it was filed earlier to allow the defence to cross examine him on these statements of the prosecution witnesses. So the defence is not prejudiced by the impugned order.

- section 8(9) of the 1973 Act provides that any investigation by the IO shall be deemed to have been made under the Act (“Any investigation done into the crimes specified in section 3 shall be deemed to have been done under the provisions of this Act.”). So the investigation by the investigation officer cannot be challenged. The investigation officer has given his statement as was given to him by the witnesses.

- There is no proof that the video shown before the tribunal and containing interviews of the witnesses is accurate.

- Rafiqul Haq’s comments in the video should not be considered. How he can say that it is illegal to receive as evidence the written statements of the PWs before he had gone through the 1973 Act.

- The video recordings shown yesterday should not have been played like this. The defence could have submitted these video CDs through defence witnesses. Necessary steps should be taken for protecting the prosecution witnesses. This should not be allowed to continue.

- In the review application by the defence team yesterday, they criticized the position and background of the 46 prosecution witnesses. In the previous order, among the long list of prosecution witnesses, you have only allowed 15 witnesses as you thought it was acceptable and rejected the admissibility of other witnesses. You have accepted the admissibility after considering the matter. We’ve provided the list of witnesses by complying with the provision of law. There has not been any distraction of law for making the application under section 19 (2) of the ICT Act-1973. This states:

“A Tribunal may receive in evidence any statement recorded by a Magistrate or an Investigation Officer being a statement made by any person who, at the time of the trial, is dead or whose attendance cannot be procured without an amount of delay or expense which the Tribunal considers unreasonable.”

- The investigation officer has given the statement as was given to him by the witnesses. In this time- how could it be justifiable to mention a witness as “fraud”? It is totally an illegal statement. There is a safeguard under section-9 of the ICT Act- 1973.

Whilst Haider Ali was making his arguments the following interchange took place

Haider Ali [Prosecutor]: Now I’d like to state something about the video which has been previewed yesterday by the defence team. It is not fair to present the videos in this manner. By this means, the witnesses could fall victim to a vulnerable condition. It is better not to present them before the public.

Justice Nizamul Huq: There are many things which have been coming out in the blogs, I wonder whether there is any way out to stop those coming out in the blogs.

Haider Ali [Prosecutor]: No, there is no way to stop those comments coming out in the blogs.

Justice Nizamul Huq: Hence if I claim to someone, whether you have posted this on the blog, he would say that he did not do so. So, nowadays we take no action and just allow people to consider the matter.

Haider Ali [Prosecutor]: Another matter is that the defence team has said that- there are the witnesses who are available but they are not giving statement. And another matter they have contended was that- the witnesses had left the place by stating we are going to our relative’s place, afterwards they didn’t return. Now is there is any provision to confine a witness if he would prefer to leave the place? The defence lawyers have stated, what the witnesses have eaten, what the witnesses have done- by the help of news clippings. Till today there is an official secrecy Act prevailing. So, it is not expected from anyone to disclose the secrecy.

Justice Nizamul Huq: The witnesses have stayed at the safe house till 16th march. From where have they gathered the knowledge? Why it had been kept in the registrars’ book? Now we’re asking you these two questions.

Justice AKM Zaheer: You have said that Usha Rani is very sick and unable to move, but in the video clippings we’ve watched she is talking spontaneously and looking quite fine.

Justice Nizamul Huq: Mr. Prosecutor; the defence team have stated that they have found the details of the witnesses by the help of investigative journalism.

Haider Ali: Now I would like to say it is false news.

Justice Nizamul Huq: If you would like to mention that as false news in that case you have to provide the true news.

Haider Ali: The defence team has stated the witnesses have stayed over here for 15 to 16 days. Now what were the points which have been stated by me and the investigator about the witness. The investigation officer have stated that the witness Usha Rani is so sick, she cannot move on her own initiative, she spends most of her time lying on her bed. And our position is that- she is so sick, she has almost lost her memory, she is an aged person of 78 years of age etc. Now we’ve produced the photograph of the aged witness, whereas the defence has produced a video. The date of the photograph has been mentioned there. Regarding Usha Rani Malakar’s TV interview it is not clear when this interview was taken. It may have been taken a long before when he was not sick.

Justice Nizamul Huq: Yes, it seems to us she has given the interview right after passing our order on the matter of witness, this has been recorded after passing the order.

Haider Ali: If her physical conditions improves now, what we can do. Now we are producing the witnesses who are available, so there is no way for the defence now to pray for the review of the order. It is a premature application; it is not the time to raise an issue like this. The defence can bring this argument at the last stage of the trial and they can cross examine the investigation officer on the statements of the 15 prosecution witnesses.

Justice Nizamul Huq: No, you can’t deny their contention; as the witnesses were absent, they didn’t go for the cross examination, the witnesses didn’t have to take an oath.

Haider Ali: My Lord, section- 19(2), 9, 8 (10) these are very much relevant here.

Justice AKM Zaheer: Under Section 19(2) of the 1973 Act we may receive as evidence of a prosecution witness for any one of three reasons (1) if the witness is dead, (2) to avoid unreasonable delay or (3) to avoid unreasonable expense. None of these 3 grounds apply to Usha Rani Malakar. According to you she is available and the TV interview shows that she is not sick. What is your reply? Have you made any enquiry about the TV interview of this witness.  There are three options in section 19(2). Now, according to the section and after watching the video- we can easily says that- she is still alive; as she is living in Pirojpur, so it is not a complicated task to produce her without delay and it is not a very expensive task also. Now my question after watching the previous days’ video is that- whether the section- 19(2) would be applicable anymore for this witness.

Haider Ali: These TV interviews are not reliable. We’ve already stated the condition of the witness Usha Rani- who is an old person and not capable of moving properly. She was very sick, she has no memory and she cannot move and need to do everything in her bed. I will enquire whether she has recovered now. 

Justice AKM Zaheer: You are stating that she does not have the capability to move and she has almost lost her memory, when the defence is stating that she is capable of moving.

Justice Nizamul Huq: For the interest of justice we could require her to come, now what would you have to say?

Justice AKM Zaheer: If their contention is found true, whether the applicability under section-19(2) of the ICT Act would stand?

Chairman: this video is a new material. At least on this new document the defence can come on review.

Haider Ali: Investigative journalism should have a limit. You have already passed an order that the journalist should not interview prosecution witnesses. If necessary Usha Rani Malakar will come to give evidence.

Zahir: What about the 3 witnesses about whom we were told that they were missing on 31st January. But the news report shows that they stayed in the Safe House until 16th March.

Haider Ali: This report is false.

Chairman: will you give any written reply?

Haider Ali: I have already made my submissions. But if you tell me to, I will give written reply.

Haider Ali: Is it justified to allow the review application in order to obstruct the protection.

Haider Ali: There has also been the mentioning of another witness Suranjan Bali. I really can’t understand how could a Government official document come to the hands of the defence by the help of investigative journalism.

Justice Nizamul Huq: Yes, how come a document of Government Office could be leaked out? Go, ask the custodian of the diary.

Justice AKM Zaheer: The allegation is very serious that. First that the investigation officer reported that the prosecution witness Usha Rani Malakar is very sick and on her death bed. But the video report shown yesterday shows that she is not sick. Her voice was very clear. Secondly of the prosecutors informed us on 31st January 2012 that the prosecution witnesses Ashish Kumar Mondol, Sumoti Rani Mondol and Somor Mistri had left Safe House and did not return back – but the defence claims that they stayed in Safe House until 16th March 2012.

The chairman asked Haider Ali: Do you say that these news reports are false?

Haider Ali: these news are false. 

Justice Nizamul Huq: Mr. Haider Ali, please give your written reply on the next Tuesday that is 29th May, 2012.

Abdur Razzak: My Lord, I’d like to say something.

Justice Nizamul Huq: Mr. Razzak, please express your view right after getting the reply of the prosecution.

Abdur Razzak: My Lord, yesterday I’ve submitted for 60 minutes, whereas Mr. Prosecutor has spent 90 minutes to give a reply. We brought very serious allegation. The application was filed on 9th May 2012. But the prosecution did not file any reply denying the allegations. Now the prosecution want to give a reply due to your insistences. You have right to ask for written reply, but perhpas you should not have done this here since the prosecution did not chose to file any reply in the last two weeks. Our allegations would remain uncontroverted. You are putting things into the mouth of the prosecutors.

Justice AKM Zaheer: We might not remember, what is stated orally, that is why we asked for a written statement, so that it would be easier for us before passing further order.

Abdur Razzak: Our submission was on question of fact and question of law. The prosecutor is not entitled to talk on the question of fact. The investigation officer could state what the witnesses have done but the counsel can’t do so.

Justice Nizamul Huq: Please give your submission in black and white, so that it would be easier for us.

Abdur Razzak: My second point is that, it is a review matter, but my learned friend [Prosecutor] has said what I have stated was not legal. I’ve started by quoting the three constitutions of Bangladesh, India and USA. I’ve referred to various International documents. I’ve another political identity beside the court, but I’ve not presented that identity. I’ve not raised issues in political motive.

I’ve said that the Investigation Officer is a senior man, but he has misled the court. The prosecution has quoted section- 8 and 9 of the Act, but the materials which have been submitted by the Investigation Officer do not fall under the purview of section 8 and 9 of the Act. Is the investigtor above the law?

My learned friend has contended the witness might be produced for deposition, but how she can she be brought as a witness if the impugned order is kept intact. This court must review the impugned order and then allow Usha Rani Malakar as prosecution witness.

He has also stated that I’ve violated the law by mentioning the 3 names of the witnesses; but I’ve quoted someone there. Can he say which law was violated by this. Haider Ali benefit is that he can say whatever he wants to say. But my difficulty is that I cannot say anything without legal authority. So this application should be allowed

Haider Ali [Prosecutor]: The matters that been stated in their application are controversial. Those are not acceptable. You did not put anything into my mouth. I would have given a written reply voluntarily.

Justice Nizamul Huq passed the following order
The accused Delwar Hossain Syedee has been produced in the tribunal. It was fixed for recording the statement of the witness and of the matter of hearing application on the matter of application for reviewing order of 19-3-2011.. Mr. Haider Ali, the prosecutor submitted his argument and Mr. Abdur Razzak replied. During the argument Mr. Haider Ali said he’d like to submit a written reply.

The date of reply is on 29th May, 2012. After that the order will be passed on a fresh day,

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