28 Mar 2012: Sayedee witness absence response

In response to the Prosecutions’ petition concerning the admission of 46 statements allegedly given to the Investigation Officer which was considered the previous day,  Tanvir Ahmed Al-Amin read out the following defence response:

1. That on 20th March 2012 the Prosecution filed an application pursuant to Section 19 (2) International Crimes (Tribunal) Act 1973 as amended 2009 (hereinafter “IC(T)A”) (hereinafter “the Application”) in order to tender into evidence the statements of the remaining 46 Prosecution Witnesses (hereinafter ‘the PWs) alleged to have been recorded by the Investigation Officer (hereinafter “the Investigation Officer”). Section 19 (2) provides: “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 trial, is dead or whose attendance cannot be procured without an amount of delay or expense which the Tribunal considers unreasonable (emphasis added)”.

2. It is stated that the Prosecution’s Section 19 (2) IC(T)A Application will seriously hinder a fair trial. It is unprecedented in domestic and international criminal legal systems. This application has been filed with a mala fide intention to bring as evidence the statements concocted by the Investigation Officer in the names of the PWs. If this application is allowed the Accused will be seriously prejudiced and will be deprived from fair trial and justice.

Background of the Application 

3. That it may be recalled that to date the Prosecution has called 27 witnesses to testify in its case against the Accused and the PW 27’s statement was heard before this Tribunal on 20th February 2012. Thereafter the prosecution repeatedly failed to bring witnesses in its case as the witnesses are not ready to give false evidence against the Accused. Thereafter on 7th March 2012 this Hon’ble Tribunal allowed adjournment to the Prosecution for ‘last time’ and fixed 18th March 2012 for bringing witnesses failing which the Tribunal was to pass ‘appropriate order’. Thereafter on 18th March 2012 the prosecution again failed to bring witnesses and wanted to produce the investigation officer for evidence. This Tribunal thereafter enquired to the Prosecutors as to whether they were going to close their case as Investigation Officer is usually the last witness of a case. The prosecution thereafter informed the Tribunal that they would continue trying to bring more witnesses after examination of the Investigation Officer. This Hon’ble Tribunal thereafter adjourned the case for that day and fixed 20th March 2012 asking the Prosecution to file an application to inform in writing as to what they want to do regarding attendance of the PWs.

4. That thereafter on 20th March 2012 the prosecution filed the instant application stating that they are unable to produce the remaining witnesses due to reasons explained in the Application. The prosecution thereafter prayed for tendering the statements of the PWs alleged to have been recorded by the Investigation Officer during investigation and admit them as evidence under section 19(2) of IC(T)A.

5. It may be recalled that paragraph 1 of the Application contained a table of 46 Prosecution Witnesses (PWs). The Prosecution claims in the said paragraph that the Investigation Officer of this case had recorded statements of the said PWs at the time of investigation of the case. According to prosecution the attendance of these PWs cannot be procured without an amount of delay and expense and it is not at all possible to bring those witnesses for the following five reasons:

a. With regard to serial 1 of the table it has been alleged Usha Rani Malakar is sick and has lost her memory and there is death risk in traveling.
b. Regarding serial no. 2 of the table it has been alleged that Sukharanjan Bali had been missing for last four months.
c. Regarding serial nos. 3 to 5 of the table it has been alleged that these three witnesses had been missing since first week of February 2012 and the prosecution claims that these witnesses has gone to India.
d. Regarding serial nos. 6 to 19 of the table it has been alleged that these 14 PWs had been threatened by armed terrorist group in Pirojpur in favour of the Accused and as such they are in fear and had concealed themselves; and
e. Regarding serial nos. 20 to 46 of the table the prosecution has alleged that these 27 PWs are not witnesses of facts. But their statements alleged to have been recorded by the Investigation Officer are important for the case.

According to the prosecution the statements of the said 46 PWs alleged to have been recorded by the Investigation Officer should be taken as evidence under section 19(2) of IC(T)A.

Para-wise reply to the Application 

6. That the statements made in paragraph 1 of the Application and the allegations contained therein are not correct and hence denied. It is not correct that the Investigation Officer has recorded statements of the said 46 PWs. In fact the copies of the statements that were served in the names of the PWs are prepared and concocted by the Investigation Officer. The PWs are not ready to support the statements that were served earlier in their names and they are not ready to give false evidence against the Accused and this is why the prosecution is unable to bring those PWs. This was reported on 24th March 2012 in The Daily Sangram, on 25th March 2012 in the Daily Amar Desh and on 27th March 2012 in the Daily Naya Diganta. The five reasons given by the prosecution in the table in the said paragraph for not being able to bring the 46 PWs are not at all correct and hence denied.

In relation to the Naya Diganto article, Justice Nassim asked how can a journalist talk with a witness and publish news on a sub judice matter.

Tanvir replied that the news report suggests that the journalist talked with the nearest relatives of the witness. The prosecutor then referred to a news article from the Daily Kalerkontho on 23rd March 2012 where a direct conversation with the witness was cited.

Judge Zahir Ahmed said that the tribunal should proceed against this reporter of the Daily Naya Digonto as he went to the prosecution witnesses and reported what they had to say on a sub-Judice matter. This will prejudice the prosecution.

Tanvir responded by saying that there are other news paper's false reports that seriously prejudice the accused - but you never want to proceed against those reporters.

The chairman said that this type of reporting must be stopped and the tribunal should proceed against the reporter. He said everything should have some limits and the tribunal has warned again and again for journalists to be very careful.

Tanvir then showed a report of the Daily Kaler Kontho and Daily Shomokal which he claimed seriously prejudiced the Accused. He then continued reading out from the written response.

7. That it is stated that the reasons put forward by the prosecution for non-attendance of the 46 PWs are not correct due to the following reasons and as such does not qualify for admission under section 19(2) of IC(T)A:  

a. The prosecution is not alleging that any of the 46 witnesses are dead as required for admission under section 19(2) of IC(T)A.

b. With regard to Usha Rani Malakar in serial 1 of the table though the prosecution has alleged that she is sick and has lost her memory and there is a risk of death if asked to travel to the Dhaka, the prosecution failed to produce any supporting document to show that this witness has lost her memory. Moreover there is no evidence as to whether Usha Rani Malakar’s alleged a statement was recorded before or after her mental disorder. It may be noted that a statement made by person with mental disorder does not have any value in the eye of law.  

c. Regarding missing information of Sukharanjan Bali for last four months in serial no. 2 of the table in paragraph 1 of the Application it is stated that the prosecution failed to produce a single evidence/document to support this claim. If this person was really missing for such a long time then his family members would have filed a general diariy in the local police station reporting the news of his missing. On 27th March 2012 the Daily Naya Diganta reported that this witness is not ready to give any false evidence as concocted by the Investigation Officer in his name. Perhaps, due to this reason the Prosecution cannot bring this person to the tribunal as they cannot rely upon this witness.

d. With regard to PWs Ashish Kumar Mondol, Sumoti Rani Mondol and Somor Mistri who are alleged to have been missing since first week of February 2012, it is stated that they were never missing. It may be recalled that in the January 2012 these witnesses were brought to Dhaka in the secret witness hostel and kept there for more than one month in the said hostel. At one stage the prosecution filed Haziras (Appearance) for these three witnesses. On 2nd of February the prosecution informed the tribunal that these witnesses left witness hostel on the previous day in the name of visiting their families and did not return back. On 27th March 20012 the Daily Naya Diganta reported giving reference to the close relatives of these three persons that in fact these witnesses were in the custody of the Investigation Officer for about 30 to 45 days. It is reported that they were tortured but they denied to give false evidence against the Accused. This is why they were not brought to the tribunal.

e. With regard to the prosecution witnesses in serial nos. 6 to 19 of the table in paragraph No. 1 of the Application it has been alleged that these 14 prosecution witnesses had been threatened by ‘armed terrorist group in Pirojpur in favour of the Accused and as such they are in fear and had concealed themselves. This allegation is already denied as being incorrect, fabricated and false. The prosecution fails to substantiate these allegations and there is no factual basis. It is submitted that the prosecution failed to produce a single evidence/document to support this claim. In fact the Accused has no armed or unarmed terrorist supporter who may have threatened the said PWs. It is not at all possible since the local administration has kept a very sharp eye on the PWs. The government party has very strong presences in Pirojpur and in these circumstances no one will dare to communicate or threat any PW. In fact the defence counsels have experienced this when they went to Pirojpur for PO visit in last December. They were unable to visit the relevant places and had to leave Pirojpur at the advice of the law enforcing agencies who did not answer any call for security of the defence counsels. Perhaps the PWs in serial nos. 6 to 19 are not ready to give false evidence against the Accused and this is why the prosecution is deliberately not bringing them (Annexure ‘A’ series). It is stated that none of these witnesses are missing or have concealed themselves. For instances PW Gopal Krishno Mondol who is claimed to have concealed himself is an Advocate and he regularly attends Pirojpur Court.

f. It may be recalled that at the time of hearing of the Application on 27th March 2012 the prosecution submitted a report of the concern Police station (copy of which is not given to the Defence) to show that the witnesses in serial nos. 6 to 19 of the table are missing. But at that time the Prosecution admitted that the report did not contain names of Gopal Krishno Mondol (Sl 10), Bozlur Rahman (Sl 11), Khalilur Rahman Sheikh (Sl 18) and Eshak Ali Khan (Sl 19).

g. With regard to the other 27 PWs in Serial Nos. 20 to 46 the prosecution failed to provide any reason as to why they are unable to bring them in Tribunal for giving evidence in the instant case. Even the prosecution does not claim that these witnesses are unable to come. It is to be noted that most of these witnesses are well known in the society and some of them regularly address print and electronic Medias of the country. They are very much available. Perhaps they are not ready to give evidence against the Accused and this is why the prosecution is not willing to produce them to give oral evidence in the Tribunal. If these witnesses are examined by the Tribunal then there is a very high possibility that the false allegations against the Accused will be revealed. These PWs are not ready to support the statements prepared by Investigation Officer in their names.

h. It is submitted that section 19(2) of IC(T)A is applicable only for the statements of a person who is dead or whose attendance cannot be procured without an amount of delay or expense which the Tribunal consider unreasonable. It may be noted that this does section does not apply for persons who are alleged to have been missing.

8. That the statements made in paragraph 2 of the Application are not correct and hence denied by this Accused. It is not correct 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 IC(T)A. It is not correct that these statements of the PWs alleged to have been recorded by the Investigation Officer are corroborating and admissible with the seized materials, circumstances, pictures and other matters of the case as alleged in the said paragraph or at all. It is stated that there is no scope to use the said statements as documentary evidence as alleged in the last part of paragraph 2 of the Application.

9. That the statements made in Paragraph 3 of the Application are not correct and hence denied. It is not correct that the statements made by the other witnesses before this Tribunal who also gave statements 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. It is also not correct that there is no legal problem to admit those statements as evidence. Further it is also not correct that the attendance of the said PWs cannot be procured without an amount of delay and expense and it is not at all possible to bring those witnesses and as such it is not logical to try such thing as alleged in the last part of paragraph 3 of the Application.

10. That with regard to the statements made in Paragraph 4 of the Application it is to be noted that though the prosecution has claimed to have attached a report of the Investigation Officer regarding attendance of the PWs, no such report was attached with the application. The prosecution may be directed to serve a copy of the report that they claimed to have attached with the Application.

11. That the statements made in paragraph 5 of the application are not correct and hence denied. It is not correct that if the statements of the 46 PWs alleged to have been recorded by the Investigation Officer are not admitted the fair trial will be hampered and the prosecution will suffer loss. In fact fair trial will be seriously hampered if the Application is allowed and the Accused will be seriously prejudiced.

12. That at the time of hearing the application on 27th March 2012 the prosecution submitted a news paper report of the Daily Kaler Kontho dated 23rd March 2012 to support their claim. It is stated that the allegations made in the Daily Kaler Kontho are not correct and denied by the Accused.

Investigation Officer recorded statements are not reliable13. That it is stated that there is no scope under section 19(2) of IC(T)A to tender as evidence the statements of the 46 witnesses alleged to have been recorded by the Investigation Officer. In fact these statements are not statements of the said 46 PWs for the following reasons:

a. It is stated that there is no prove that the above 46 witnesses gave any statement to the Investigation Officer at the time of investigation. These are in fact prepared by the Investigation Officer in the name of the PWs. There is no evidence to show that these are the statements of the relevant PWs.

b. Some of the PWs who have already given oral evidence before this tribunal did not admit giving evidence to the Investigation Officer at the time of investigation despite the fact that Prosecution has served witness statements in their names claiming them to have been recorded by the Investigation Officer at the time of Investigation. For instance the Complainant, PW 1, Mr. Mahbub Alam Talukder in his cross examination admitted that between the date of filing of the case on 20th July 2012 and giving evidence in tribunal on 7.12.2012 he did not make any statement to anyone. This clearly indicates that he did not make any statement to the Investigation Officer during investigation that commenced after filing of the complaint. Moreover the PW 2, Mr. Ruhul Amin Nobin in his cross examination stated that he as discussion with the Investigation Officer about this case on March 2010 i.e. before comencement of the investigation. But he did not admit giving statement to Investigation Officer after commencement of the inestigation. It is to be noted that the Proseuction has filed statements of these two witnesses alleging them to be recorded by the Investigation Officer during investigation. But from the above statements it is clear that Investigation Officer did not have any opportunity to record the statements of these two witnesses.

c. Most of the material PWs who have already given evidence before the tribunal has contradicted their statement made to the Investigation Officer. In fact some of the PWs have totally contradicted their statements alleged to have been made beofore the Investigation Officer. For instance PW 24, Mr. Hosen Ali in his oral evidence before the Tribunal stated that he saw the Accused in the residence of Rawshan Ali in Bagharpara. He stated that he could not remember whether it was before or after the liberation war. This PW did not make any further statement about the case in the Tribunal. But it is to be noted that Investigation Officer prepared a very long statement in the name of this witnesses, which was served upon the defence. There is no similarity in the statement made by this PW in Court and in the staement alleged to have been recorded by the Investigation Officer. There are many other examples where the prosecution witness admitted that there statements are not correctly recorded by the Investigation Officer. It is therefore clear that the Investigation Officer has not recorded the statements of the PWs correctly and honestly. In fact the PW statements alleged to have been recorded by the Investigation Officer are not statements of those PWs. These are prepared and concocted by the Investigation Officer. The remaining PWs are not willing to support the false statements prepared by the Investigation Officer in their names. Perhaps this is the reason for which the remaining PWs are not willing to come to court to give false evidence agaisnt the Accused.

The chairman said the the lawyers cannot make a statement that the Investigation Officer did not 'honestly' record the statement’ and ordered that these words be deleted

d. It is submitted that if a fact is narrated by several persons then the contents of the statements may be same but the wordings of the statements will definitely be different. This is because the way of expression, language and particularly the nature of every person are not same. But it is surprising to note that the statements of the PWs alleged to have been recorded by the Investigation Officer are exactly the same. Sometimes it is merely a copy and paste work by the Investigation Officer. Some of the example is given below:

i. PW27, Mr. Sayef Hafizur Rahman (PW Volume 2, Witness no-3, Page 8) gave oral evidence before this tribunal. This witness have said in his cross examination that he gave statement to Investigation Officer in Norail while his younger Sister, another PW, who has not yet deposed, Ms. Afroza Parveen (PW Volume 1, Witness no-6, Page 23), gave statement to the Investigation Officer in Dhaka on different dates. It is surprising to note that the sentences, paragraphs and even wrodings of their statements alleged to have been recorded by the Investigation Officer are exactly same though made by two different persons on difrent dates on differnt places. This clearly indicates that it is the Investigation Officer who has prepared these statemetns from his own imagination and they cannot be said to be statement of the PWs. Further PW 27 Mr. Sayed Hafizu Rahman also said in his cross examination that his statements are not correctly recorded by the Investigation Officer.

ii. The statements in the name of Asish Kumar Mondol (PW Volume 1, Witness no-7, Page 25), Sumoti Rani Mondol (PW Volume 1, Witness no -8 Page 26) and Somor Mistri (PW Volume 1, Witness no -9 Page 27) alleged to have been recorded by the Investigation Officer are exactly same. They are merely copy and Paste from one statement to the others. It is submitted that it will be unrealistic for the prosecution to claim that all these witnesses used the same words and sentences if they had given statements to the Investigation Officer during investigaiton.

iii. The statements of PW 15, Md. Solaiman Hossen (PW Volume 1, Witness no-7, Page 25) and PW 24, Hossen Ali (PW Volume 2, Witness no 34, Page 57) alleged to have been recorded by the Investigation Officer are merely copy and paste from one statement to the other. It is to be noted that both these witnesses have already given oral evidence before this Tribunal and their evidence is contradictory. This also clearly indicates that the statements alleged to have been recorded by Investigation Officer are not the statemnts of the PWs.
iv. The statemens of Khondokar Sohidullah, (PW Volume 2, Witness no 35, Page 58) and PW 16, Julfikar Ali (PW Volume 2, Witness no 36 Page-59) alleged to have been recorded by the Investigation Officer are exactly the same. They are merely copy and paste work by the Investigation Officer.

v. The statements of Md. Mostafa (PW Volume 2, Witness no26, Page 47), Rani Begum (PW Volume 1, Witness no 24, Page 58) and Setara Begum, (PW Volume 1, Witness no25, Page 59) alleged to have been recorded by the Investigation Officer are exactly the same as they are merely copy Paste of one another.

vi. There are other examples where some parts of statement of one PW is exactly the same as other parts of statements of other PWs which are alleged to have been recorded by the Investigation Officer. A plain reading of the witness statements of the PWs in Witness Volume Nos. 1 and 2 is sufficient to show these striking similarities.

e. In view of the above it is therefore clear that the Investigation Officer did not record the statements of the PWs correctly and honestly. These are not statements of the PWs as they are prepared by the Investigation Officer from his own imagination. The PWs has already contradicted these statements and not ready to give false evidence in line of the statements prepared by the Investigation Officer in their names. This is why there is no scope to admit these statements as evidence under section 19(2) of IC(T)A.

Justice AKM Zaheer: Now, we are not evaluating the evidentiary value of the statement.

Tanvir Ahmed Al-Amin: In case of one fact described by three persons, then the description of the statements would be different.

Right of Cross-examination:
14. It is submitted that the nature of proceedings before the Tribunal are adversarial in nature and allow for the cross examination of all witnesses by both the Prosecution and Defence and the Tribunal pursuant to section 10 (1) (e), (f) and (g) IC(T)A. Moreover it is settled legal principle that an accused person should be given opportunity to cross examine the prosecution witness(es) so that he can test the veracity of the statements of the PWs and challenge his credibility. This right cross examination is recognised by Sections 10(1)(e) and 17(3) of the IC(T)A which are quoted below for ready reference:

Section 10(1)(e): ‘(e) the witnesses for the prosecution shall be examined, the defence may cross-examine such witnesses and the prosecution may reexamine them;’

Section 17(3): ‘(3) An accused person shall have the right to present evidence at the trial in support of his defence, and to cross-examine any witness called by the prosecution.’ (emphasis added)

15. This is also supported by the application of Rule 20 (1) of the Rules of Procedure which requires the full personal details of Prosecution witnesses to be disclosed to the Defence and Tribunal at the outset of proceedings in order to secure their attendance and allow for the Defence to be placed in an equal position to the Prosecution: “At the time of submitting a formal charge in the form of a petition it must contain the name and address of the accused person, witnesses, and the date, time and place of the occurrence.”

The inclusion of the word 'must' indicates that the disclosure of the names and addresses of witnesses is a mandatory requirement and thereby reflecting the importance of securing the attendance of a witness in trial proceedings before this Tribunal.

16. It may be mentioned here that the 1973 Act is in line with the international right of an accused to confront a witness testifying against him. This is upheld in Article 14 (3) (e) International Covenant on Civil and Political Rights (hereinafter: “ICCPR”) which provides for the right: “To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”.

17. It is submitted that the purpose and spirit of the abovementioned right has been discussed by the Human Rights Committee, which is tasked with upholding provisions of the ICCPR, and has held that Article 14 (3) (e) is a part of the principle of equality of arms. In its General Comment No. 13 it stated as follows: “[Article 14 (3) (e)] is designed to guarantee to the accused the same legal powers of compelling the attendance of witnesses and of examining or cross-examining any witnesses as are available to the prosecution.”

18. The same guarantee has been provided for under Article 67 (1) (e) of the Rome Statute for the International Criminal Court (hereinafter “ICC”), to which Bangladesh has agreed to be a party. In an appeal in the case of the Prosecutor v. Jean-Pierre Bemba Gombo, the ICC Appeals Chamber favourably cited ECHR jurisprudence which holds that, as a general rule, all evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument (ICC-01/05-01/08-1386, para. 80, n. 135).

19. Article 6(3)(d) of the European Convention on Human Rights (hereinafter: Convention), and by analogy Article 14 of the ICCPR, which serves as an extension to the equality of arms principle, guarantees an accused person the right to summon and examine witnesses under the same conditions vis-à-vis the prosecution. Article 6(3)(d) guarantees the right to have such a witness called to give oral evidence and be subjected to cross-examination (Eur. Court HR, Kostovski v. Netherlands, 20 October 1989, Series A No. 166).

20. In summary it submitted that there is a general recognised right to secure the attendance of a witness and examine him in proceedings as upheld by the IC(T)A. If the prosecution is allowed to bring in evidence the statements of the PWs alleged to have been recorded by the Investigation Officer, the Accused will be seriously prejudiced as in that situation the Accused would have no opportunity to cross-examine those PW’s to test the veracity of their statements and their credibility. It is well settled position of law that a statement which cannot be tested by cross examination is not at all admissible.

Securing attendance of the PWs would not be ‘unreasonable’
21. For the following reasons, it is submitted that the Prosecution has failed to factually establish that an unreasonable amount of delay of expense would be incurred in securing the attendance of the remaining 46 Prosecution Witnesses.

22. Firstly, it is submitted that for Prosecution witnesses 20 to 46, the Prosecution has failed to provide any indication as to the reasons why an unreasonable delay or expense may be incurred in securing the attendance of these 26 witnesses. This is not only contrary to section 19 (2) IC(T)A but also fails to appreciate the fundamental importance of securing these witnesses and allowing for cross-examination.

23. Secondly, that the Prosecution has failed to produce any proof of fact for the reasons cited as failure to secure the attendance of witnesses.

24. Thirdly, it is submitted that the Prosecution has failed to establish measures taken to secure the attendance of witnesses or proof of expenses incurred or potentially incurred in securing the attendance of such witnesses. The Investigation Agency has been tasked with investigating this case since March 2010, having had over a year to submit its investigating report on 30th May 2011. The Prosecution further had more than a month to finalise its witness call list. It is thereby submitted that any difficulties in securing the attendance of witnesses would have been foreseeable at both the abovementioned stages and cannot therefore be deemed “unreasonable” at this stage of proceedings.

25. Fourthly, it is recalled that for Prosecution witnesses 6 to 19, the Prosecution states that a number of witnesses are in fear of attending before this Tribunal to testify against the Accused-Petitioner. However, the Prosecution has failed to offer any alternative despite the Rules of Procedure being amended in June 2011 to allow for special protective measures to be implemented under Rule 58A. It is duty of the prosecution to give protection to the witnesses. It is submitted that the Prosecution cannot prejudice the Accused if they fail to give protection to the PWs.

26. Fifthly, the PWs who have already been examined are from Dhaka, Pirojpur and Jeshore. It appears from the statements alleged to have been recorded by Investigation Officer that these remaining 46 PWs are also from Dhaka, Pirojpur and Jeshore. So if the prosecution can bring the previous witnesses from the above placess there is no reason why attendence of the remaining PWs from the same places cannot be procured without an amount of delay or expense that the tribunal may consider unreasonable.

27. Finally, the duration of investigation is usually lesser than the duration of trial. For instance under the traditional criminal trials in Bangladesh section 167(5) of Cr.PC set out 120 days as primary time lime for investigation and section 339(c) of CrPC set out 180 days for magistrate court trial and 360 days for session court trial. It may be noted here that the ammended Rule 9(5) of the International Crimes Tribunal Rules of Procedure, 2010 provides that ‘the investigation officer shall conclude the investigation within one yea’ of arrest of the Accused. On the other hand there is no time limit regarding duration of trial under IC(T)A, though section 11(3)(a) provides for ‘expedicious hearing’. In the instant case the Investigation Officer took more than a year to investigate the case. But the trial of the case has started since the last three and half months only i.e. from 7th December 2011 when the Tribunal started recording evidence of the prosecution witnesses. As such it cannot be said that the trial is being delayed for the want of prosecution witnesses. It is submitted that the Prosecution failed to show why the trial must be finished within such a short time.

Miscellaneous
28. It may be noted that the statement of the PWs alleged to have been recorded by Investigation Officer is similar to the statement recorded under Section 161 of Cr.PC in traditional trial in Bangladesh. It is well settled principle of law that the statements recorded by Investigation Officer have got no evidential value in the eye of law. It can only be used to show contradiction of a witness statement made in court. Moreover there is no valid reason why a statement alleged to have been recorded by the Investigation Officer should be believed, particularly when there is no proof that the Investigation Officer has actually recorded those statements. This has never been practiced in our legal system.

29. The starting point is that all evidence must normally be produced in the presence of an accused at a public hearing with a view to adversarial argument. As a general rule, this requires that an accused person be given an adequate and proper opportunity to challenge and question a witness against him either when he was making his statements or at a later stage of the proceedings (see Eur. Court HR, Saïdi v. France, judgment of 20 September 1993, Series A no. 261-C, p. 56, § 43, and A.M. v. Italy, no. 37019/97, § 25, ECHR 1999-IX).

30. The arguments set out above concern fundamental principles for ensuring a fair trial and ensuring equality of arms between the parties. It may be recalled that an accused person must have, through his counsel, an effective opportunity to challenge the case against him. If the Prosecution is permitted to serve hearsay statements, without the opportunity to challenge the author of the statement, where there exists grave concerns as to reliability and possible collusion, then the interests of justice will not served and an accused’s right to receive a fair trial will be irreparably harmed. It is the duty of the Tribunal to safeguard the fundamental rights of the accused and to ensure that there is equality of arms between the parties and that the defence has a fair opportunity to challenge the case brought by the Prosecution.

31. In sum, it is submitted that should the Prosecution’s application under section 19 (2) be allowed, there would be an irreparable risk of prejudice against the Accused-Petitioner’s right to fair trial. This is particularly apparent considering that a number of witnesses called to testify already have shown in cross-examination that their live testimonies are materially different to the statements taken by the Investigation Officer.

32. In line with above point, the pressing need to cross-examine the remaining 46 Prosecution witnesses is highlighted by the fact that a number of witnesses statements alleged to have been taken by the Investigation Officer are suspiciously similar in description and wording. In order to dispel any fear of corroboration or falsifying of statements, it is inherently important to be able to examine these witnesses. Moreover the Prosecution has failed to establish any consent on behalf of the witness to use the statements in court on their behalf.

33. The Tribunal is aware that the Accused is charged with 20 counts of crimes against humanity and genocide all of which are serious charges that may result in the death penalty upon any conviction. For this reason, it is urged that the application of section 19 (2) IC(T)A should be rejected. For the abovementioned reasons the Accused-Petitioner prays that the Tribunal dismisses the Prosecution’s Section 19 (2) (IC(T)A Application.

After the response Barrister Abdur Razzak made some additional submissions.
- he went through the similarities of the statement of the witnesses to show that they are concocted, not reliable and should be rejected;
- that no medical Report was given in support of the claim that one of the witnesses was too sick to come to Dhaka;
- they did not produce any general diary/first information report in support of their allegation that the witnesses were being intimidated;
- the Accused is in custody for more than 18 months, how it is possible for him to intimidate witnesses through his supporters? So the accusation of intimidation is false.
- why are the prosecutors not providing their witnesses security under witness protection Rules?
- the prosecution is not pressing about the statements of witnesses in numbered 20-46 forcefully.

He also made the following legal points:
- Section 19 (2) does not cover those witnesses which are missing or untraceable.
- Prosecution does not substantiate why bringing them to the tribunal would result in delay or expense?
- case law supports the principle that if there is any ambiguity while interpreting any penal provision it must be resolved in favor of the accused. (He referred to 33 DLR 2; 56 DLR 454; 57 DLR 74; AIR 2004 SC 86; 1977 2 SCC 48: 1962 All AIR 37.)

During the argument, Justice Mr. Anwarul Haque asked Razak what would be the situation if any Govt. officer gave a statement before the Investigation Officer and he retires and his where-about cannot be traced. 

The prosecutor Haider Ali was asked to respond to the defense arguments.

He said the that the prosecution cannot afford unreasonable delay - if the tribunal would like them to find the missing witnesses who went to India they would need to scan 150 Crores people in India. This is not realistic, he said. He also submitted that section 8, 17 and 19 should be read together.

In response to Razak claims about the statements, he said that statement made to the investigation officer was reduced into writing as he deemed fit.

One of the judges asked him whether to make section 8(6) effective, the tribunal should apply 19 (2), and Haider Ali agreed.

Another judge asked why yesterday the prosecution did not strongly press for the witnesses numbered 20 to 46 to come to court. He said that some of these witnesses are well known and very much available. 'Can you explain why you cannot bring these 27 PWs?' he asked

The chairman then remarks that in fact they have applied for all the witnesses so that they can shift the burden on the judges so that they can say that it is the judges who did not allow about these 27 PWs.

Haider Ali then said that the prosecution does not strongly press their application in relation to these witnesses.

Justice Zahid then said that the prosecution did not give any information about witness numbers 10,11,18 and 19. 'Where did you get information that they are missing?' he asked

Haider Ali said that they have lots of sources of information but that the prosecution do not want to disclose them.

The chairman then said that the order would be given the following day.

Abdur Razak then said that, with regard to the report in the Daily Naya Digonto, if the tribunal wants to proceed against the reporter then then they should not overlook other news paper reports which seriously prejudice the accused. Why you overlook the TV interview of one of the prosecutors on ATN News who was reading out the witness statement and was discussing about the merit of case against Ali Ahsan Mujahid.