27 Mar 2012: Sayedee witness absence request

After dealing with the application relating to the investigation report, then asked Haider Ali to place before his court the arguments in the application as to why statements of witnesses should abe admitted even if they are not subject to cross examination.

He then read out his application:

1. At the time of investigation of this case, from the statements recorded under section 8(6) of the Act by the Investigation Officer, it is difficult, time consuming, expensive and not at all possible to produce the following witnesses for the following reasons and as such the statements recorded by the Investigation Officer should be taken as evidence for ends of justice.

Sl No.	Name of the witness	Age	Reason for not to produce
01	Usha Rani Malakar	78	Sick, Lost memory, Death risk in travelling
02	Shkhoronjon Bali	57	Missing for about last 4 months after he went out of his house.
03	Ashish Kumar Mondol	54	Missing from the first week of February 2012. We came to know that they secretly went to India.
04	Sumoti Rani Mondol	58
05	Somor Mistri	57
06	Suresh Mondol	70	The armed terrorist group in Pirojpur in favour of the accused threatened the witness Nos. 6 to 19 and as such they are in fear and concealed themselves and therefore they could not be found. All these witnesses are eye witnesses of the incidents which is clear from the statements recorded by the Investigation Officer.
07	Gonesh Chondro Shaha	45
08	Shahidul Islam Selim	55
09	Md. Ayub Ali Hawlader	62
10	Gopal Krishno Mondol	54
11	Bozlur Rahman	61
12	Sitara Begum	75
13	Rani Begum	52
14	Md. Mostofa	50
15	Abdul Latif Hawlader	62
16	Anil Chondro Mondol	76
17	Ajit Kumar Sheel	75
18	Khalilur Rahman Sheikh	55
19	Eshak Ali Khan	61
20	Syed Sharafat Ali	48	Witnesses Nos. 20 to 46 are not witnesses of facts. But their statements recorded by the Investigation Officer are important for the case.
21	Kadir Bepari	85
22	Ruhul Amin Hawlader	62
23	Bonkim Shaha Talukder	71
24	Manik Hawlader	60
25	Chan Mia Poshari	60
26	Bimol Chondro Hawlader	59
27	Abdul Halim	57
28	Golam Hossen Talukder	61
29	Ramgopal Shaha Talukder	60
30	Tojammel Hossen	72
31	Md. Sodor Uddin	72
32	Jafor Iqbal	59
33	Sufia Haider	62
34	Afroza Parvin	54
35	Mukundo Chokroborti	75
36	Major Ziauddin	61
37	Joshna Biswas	54
38	Pulok Chowdhury	57
39	Ali Haider Khan	72
40	Fosiul Islam Bacchu	41
41	AKM Joglul Haider Afrik	54
42	Jwel Eich	63
43	Shahrier Kabir	62
44	Mokhles Poshari	56
45	Khondoker Shohidullah	60
46	Ayub Ali Talukder	61

2. That at the time of investigation of the instant case the Investigation Officer has recorded the statements of the witnesses under section 8(6) of the ICT act 1973 which are corroborating and acceptable/admissible with the seized materials, circumstances, pictures and other matters of the case and as such the statements of the above witnesses should be used as documentary evidence for proper adjudication of the case.

3. That since, the statements made by the other witnesses before this Honourable court who also gave statement to the Investigation Officer at the time of investigation and the statements of the witnesses to the Investigation Officer who could not be present before the court, are of same type and quality, there is no legal problem to admit those statements as evidence. The attendance of the said witnesses cannot be procured without an amount of delay and expense and it is not at all possible to bring those witnesses and for that reason it is not logical to try such thing.

4. That the Investigation Officer has received the above information regarding attendance of the above witnesses. (Report Attached)

5. If the statements of the above witnesses recorded by the Investigation Officer are not admitted as evidence the fair trial will be hampered and the Prosecution will suffer loss.

Then Haider Ali started to read out the report of Investigation officer relating to the status of the witness.

Defence Abdur Razzak told the court that they have not been given this report, and raised a serious objection to that

Then Haider Ali said you have no right to access on investigation report. So this report can not be given to you.

Justice Nassim: Mr. Razzak tell your junior to take notes.

From report he said that (a) Sukho Ronjon Bali is not at home. His wife and daughter informed the officer that one day he went to Parerhat Bazar and did not come back till today. They have video statement of his wife and daughter.

(b) Usha Rani Malakar is suffering from old age complications; (c) Asish Kumar and Sumoti Rani, went to India; (d) Suresh Chandra Mondol is at home but threatened by local terrorists; (e) Gonesh is at home but threatened by local terrorists; (f) Ayub Ali - is physically sick. He is also at home but threatened by local terrorists.

He then says that witnesses 6 to 19 in his application were being threatened by Shamim; Parvez; and Almas Khan etc. all of whom are armed terrorists in that locality.

He then said that witnesses no 20 to 46 are very important for that Trial and Haider Ali started to read from written statements of those witnesses.

Justice Anwarul Kabir said that the contents of the statement is not important, you have to present the grounds why it is not possible to produce the witness.

Haider Ali then referred to a report in Kalor kantha on 23 March which stated that witnesses were being scared away from giving evidence. It said that supporters of Sayedee are publishing rumor that those who are giving testimony against Sayedee are falling at the anger of God. It mentioned that one of the prosecution witnesses Basudev Mistri (pw10) died by heart attack, and one police officer died while taking witnesses against Sayedee to the tribunal and for this reasons local witnesses are frightened. It alleged that one of the defense witnesses Mr. Mokarrom Hossen Kabir preached such propaganda among the people.

Haider Ali read out to section 11 (3) (a) and (b) and 19(2) which he said specifies clearly that delay and expense can be reasons for allowing statements to be admitted without witnesses presence in court.

Justice zaheer: Delay and expense are not related to the witnesses being lost, that they are untraceable. About this the Act is silent. And the amount of delay and expense required to bring them is also unknown to us

Haider Ali: My lord, we have to wait to find out them. So there must be delay.

Justice Zaheer: And expense?

Haider Ali: My lord, as they have gone to India so expense is very much related with this delay. And 

Justice Zaheer: And in relation to Rani Malaker is losing ones senses specified in our Act as ground for not procuring the witness before the tribunal?

Haider Ali : My lord, it will be too much risky to produce this type of witness before the Tribunal.

Justice Nassim: Is there any value of this type of witness if they are not cross-examined

Haider Ali: My lord, it will be considered as weak evidence. And Sukho Ronjon Bali has disappeared for the last 4 months. A GD was filed in local Police Station.

Chairman: you did not mention about the GD in your Application.

Haider Ali: Asish Kumar + Somor Mistri + Usah Rani Malakar were in our custody. They went away in the name of visiting their Relatives later on they did not come back.

Judge: why did you let them go?

Haider Ali: we did not confine them. We cannot restrain them from going out. The statements were prepared by proper persons and through proper process. There is no bar to taking their statement as evidence. The statements of witness nos 20 to 46 may have less value. But it may be taken as evidence.

Justice Nassim: Did they give their statement here?

Haider Ali: After giving their statement to the investigation officer they became relaxed. Witness no.1 to 19 are really aggrieved person and there is recorded statement of these witnesses.

Justice Zaheer: Persons who fled away, do they come under section 19(2) of the Act? And please tell us how the grounds of delay and expense will be related with this type of witness who is not anxious to come? Only delay and expense will be used to that type of persons who are stresses able and who are beyond my reach but present.

Haider Ali: My lord, we are trying to procure them.

Justice Zaheer: Delay and expenditure can be used in relation to the type of person who has gone to India but not that type person who are missing or unreachable. If they are alive then they may be brought, but you are claiming that they have disappeared totally. In case they are alive they may be brought but if not then the question of delay is immaterial. The Act is silent about disappearance.

Haider Ali: they cannot be brought without delay.

Abdur Razzak said that the defence would reply to this application tomorrow. 

He also raised a points before the Tribunal about Motiur Rahman Nizami, who was at present in Gazipur jail but is not being allowed to read documents.

Justice Nassim: We have said it before that it is totally decided by the Gazipur Jail authority.

Abdur Razzak: My lord, Gazipur jail authority did not give him the documents.

Then Justice Nassim asked chief prosecutor to sort out this problem. He also said any order which has passed is passed for all places. He further said “please do not argue upon the same ground because once a matter is decided, it is considered as decided for all cases”

Then the court was adjourned.