After the hearing relating to Golam Azam, and an adjournment for lunch, an application filed by the defense to inspect a copy of the investigation agency's report was heard.
Justice Nassim: There is an application by the defence to inspect and take notes of the investigation report.
Mizanul Islam: On 22nd January we filed an application to get the investigation report but we did not get the report because an order has been passed rejecting the application as “the prosecution did not rely upon that investigation report”
Justice Nassim: Was there no other reason for refusing the application?
Mizanul Islam: My lord, it was the basic reason. But the fact which we want to submit is “documents which are part of formal charge should be supplied to the defence also”
My lord, if investigation report is not evidence in the formal charge, then statements of witness is also not to be regarded as evidence - and only the deposition of witness before the tribunal might only be considered as evidence.
If you consider formal charge as evidence - then investigation report has the same value as evidence, so we should have the right to inspect this investigation report.
He referred to section 9 (3) and 16 (2) of the Act and said as the formal Charge is made on the basis of investigation report so we have to inspect it and have to confirm whether it was done correctly or not? As the Tribunal has perused it at the time of framing of Charge, so we need to inspect it.
The chairman said that the tribunal has perused many things along with formal charge and investigation report.
Mizanul Islam said that according to law the prosecution shall provide to the Tribunal every document they rely upon.
The chairman said that section 16(2) only refers to what documents prosecution need to submit and what not. It does not allow an inspection of the report.
The defense lawyer responded that the tribunal did not ask for the investigation Report. Prosecution themselves gave it and they did not give it mistakenly. They gave the Report as they relied upon this. Even Charge no 18 about the Vagirothi killing was taken from Investigation Report, so we are entitled to inspect the investigation report.
The chairman then said, how do you know that Vagirothi’s count was taken from the investigation report? We may have taken from the statemenst of witnesses.
He referred to section 9 (3) and 16 (2) of the Act and said as the formal Charge is made on the basis of investigation report so we have to inspect it and have to confirm whether it was done correctly or not? As the Tribunal has perused it at the time of framing of Charge, so we need to inspect it.
The chairman said that the tribunal has perused many things along with formal charge and investigation report.
Mizanul Islam said that according to law the prosecution shall provide to the Tribunal every document they rely upon.
The chairman said that section 16(2) only refers to what documents prosecution need to submit and what not. It does not allow an inspection of the report.
The defense lawyer responded that the tribunal did not ask for the investigation Report. Prosecution themselves gave it and they did not give it mistakenly. They gave the Report as they relied upon this. Even Charge no 18 about the Vagirothi killing was taken from Investigation Report, so we are entitled to inspect the investigation report.
The chairman then said, how do you know that Vagirothi’s count was taken from the investigation report? We may have taken from the statemenst of witnesses.
Then Justice Nassim asked prosecution Haider Ali to reply the application of the defence.
Haider Ali: My lord, this matter has already been decided regarding the investigation report. However, I beg your attention on section rule 2(58), rule 14, sec16 (2), rule 18(1) and rule 18(4). (Then he read out these sections)
No where it is mentioned that report should be given to the defence.
Mizanul Islam: According to section 9(3) of the Act, prosecution submitted those reports before the tribunal upon which they relied upon. And rule 16(2) of the rules of procedure corresponds with the sec 9 (3) of the Act.
My lordships, in your Order you have said that formal charge is the product of investigation report. Then it is very much important for us to inspect whether the investigation report has been properly done or not.
Justice Nassim: do you want review of the previous Order?
Mizanul Islam: No, my lord, Just we want to submit it that we have the right to get those documents which are supplied to the Tribunal because prosecution have relied upon that document otherwise they will not submit this document before you. However, my lord, in one case investigation report was supplied to the defence.
Justice Nassim: It was done mistakenly and after that we have taken back this report.
Then Mizanul Islam read out section 9(2) of the Act and rule 16(2) of the rules of procedure.
Justice Nassim: Who said that investigation report has been given to us under section 9(3)?
Mizanul Islam: My lord, according to section 9(3) prosecution will give you the document upon which they relied upon.
Order given by Nassimul Huq (summary):
Today is fixed for hearing an Application filed by Defense praying for Perusal of the Investigation Report and allow them to take necessary notes. Mr. Mizanul Islam is appeared on behalf of the Prosecution and Mr. Haider Ali, learned Prosecution appearing on behalf of the Prosecution has opposed the Application.The tribunal then dealt with an application by the prosecution concerning the admissibility of statements for the Sayedee trial
We have repeatedly found that Investigation Report is sought by the Defense in different forms. We have given our anxious thought on the matter. In our view a document which the Defense is not entitled to peruse cannot inspect. As such the Prayer for inspection of the Investigation Report is rejected.
No comments:
Post a Comment