29 Mar 2012: Tribunal Sayedee witness order

Before The tribunal chairman read out the order relating to the section 19(2) prosecution application seeking the admission of witness statements without cross examination in relation to the Sayedee case, the defense lawyer Mizanul Islam said that as per the report of the Daily Janota, Mr. Sahriar Kabir claimed that he was not a witness in Sayedee case even though the investigation officer has submitted a witness statement in his name. He asked, if the investigation officer can submit a false witness statement in the name of a person like Shahrier Kabir then how you can rely on the statements alleged to have been recorded by IO. The tribunal did not pay much attention to this and the chairman read out their order.

This order  - copied from the original - was in response to a previous application by the prosecution

Today is fixed for passing order upon the application filed by the prosecution under section 19(2) of the International Crimes Tribunal Act, 1973. The application filed by the prosecution contending inter alia that 27 witnesses have been examined in this case by the prosecution. More witnesses are remaining to be examined. The statements of the witnesses which were recorded by the investigating officer are also material records in this case and under section19(2) of the said Act, those statements subject to some conditions may be accepted by the Tribunal and considered as evidence. It was prayed for consideration of the statements by the Tribunal on behalf of the prosecution as according to the prosecution the attendance of those witnesses cannot be procured without an amount of delay.

It was further stated that out of 46 witnesses named, who have not been examined by the Tribunal as yet, 1 witness usharani Malaker is sick and she could not be brought to Dhaka to give her evidence as her life may be endanger in case of that. Regarding 4 witnesses namely Sukharatjan Bali, Ashis Kumar Mondal, Sumati Rani Mondal and Samor Mistri, it was stated by the prosecution that they have left their houses and are still untraceable. It is reported that they have left for India and as such they cannot be produced in the Tribunal to give their testimony. Regarding witness Suresh Chandra Mondal, Gonesh Chanfra Saha, Shah.idul lslam Khan Selim, Md. Ayub Ali Howalder, Gopal Krishna Mondal, Bazlur Rahman, Sitara Begum, Rani Begurn, Md Mostafa, Abdul Latif Howlader, Anil Chandra Mondal, Aiit . Kumat Shil, Khalilul Rahman Sheikh and Esahaque AIi Khan i.e. 14.witnesses it is stated by the prosecution that they were threatened by the unruly elements at Pirojpur who are armed cadre of the accused person and to save their life, these witness have left their houses and became untraceable and as such they cannot be produced to give their evidence.

Regarding remaining witnesses i.e. 27 witnesses in all, it is stated by the prosecution that their evidence is valuable for the prosecution but they are not eye witnesses and they cannot be produced to the Tribunal to give their evidence and as such it was prayed in the application to consider their statements made to the investigating officer as evidence under section 19(2) of the Act. Mr Syed Hyder Ali, learned prosecutor appearing on behalf of the prosecution submitted that in the petition they have clearly stated the reason as to why those witnesses cannot be produced in the Tribunal to give their evidence. He also submitted that the witnesses are living, but many of them are missing and for different reason they could not be produced in the Tribunal and as such according to Mr. Syed Haider Ali, under section 19(2) of the Act if their attendance cannot be procured without an amount of delay or expense of the Tribunal, then their statements recorded by the investigation officer may be received in evidence by the Tribunal.

In support of his submissions Mr. Syed Ali Haider Ali has also gave as two investigating officer’s reports wherein we find that the witness Sukhatanjan Bali could not be traced in his house and his wife and daughter informed the investigating officer that he left the house in Agrhayan, 1418 and did not come back to the house and he has become untraceable. By getting information from his neighbors, it is stated that the investigation officer became satisfied that he has become untraceable since that time. It was also stated that while the wife and daughter of Sukhatanjan Bali talked to the investigating officer, it has been recorded in video.

Regarding witness Usharani Malkker the investigating officer stated that he found this witness sick for her old age ailments and her son and the neighbors informed that she cannot move because her old age and she continues her natural calls in her bed. It she is taken to Dhaka her life may be in danger.

Regarding witnesses namely Ashis Kumar Mondal Sumoti Rani Mondol and Samar Mistri it is stated that they carne back from Dhaka after January, 3i and. after that they have become traceless from their area. The people of the area said that they have left for India. Then the investigating officer requested the Officer-in-Charge of Pirojpur Police Station to send them to Dhaka for producing in the Tribunal, but after sometime the Officer-in-Charge through mobile phone told that they could not be traced out because they might have left for India. The 1st report is dated 17.3.2012.

In another report dated 19.03.2012 it is stated that witnesses Suresh Chandra Mondal, Gonesh Chandra Shaha, Shahidul Islam Khan Selim, Md. Ayub Aii Howlader, Sitara Begum, Rani Begum Md. Mostafa, Abdul Latif Howlader, Anii Chandra Mondal and Ajit Kumar Shil, the investigating officer went to their houses and only found the witness Sitara Begum sick in her house and others could not be found. The investigating officer stated in the report that during his investigation, he found that the local arms cadre has given threats to those witnesses and as such due to fear of their Iife, they have kept themselves in the secret place so that they cannot be produced in the Tribunal and their life is saved. The investigating officer mentioned that the terrorist groups who gave threats are man of the accused. Based on that report, the learned prosecutor Mr. Syed Haider Ali submitted that a prima-facie material was found by the prosecution in support of their statements that these witnesses cannot be produced in this Tribunal and their attendance cannot be procured without an amount of delay or expense. Mr Ali further submits that considering this aspect, this petition may be allowed.

Mr Abdur Razzaque, learned counsel appearing on behalf of the accused person by opposing the prayer, submitted that this is a petition which is not available in any country of the subcontinent. He also submitted that any statements made before the investigation officer cannot be considered by the Tribunal. Mr Razzaque further submitted that the statements which is made by the witness before the investigating officer may no tbe recorded correctly and even signature of the witness is not taken. As such the prevailing law of the land does not permit it to be taken in evidence. It is just used for contradicting and corroborating the statements made by the witness in court, and as such those cannot be received as evidence by the Tribunal. The learned counsel for the accused person further submitted that the law is a strict law and always to be followed strictly and if any dispute arise about the explanation of the Act then the explanation in favour of the accused side should be accepted by the Tribunal. He also stated that the statement made by the prosecution in the petition are not true and in support of that some news paper clipping have been placed which shows that after this petition was filed, the journalist went to the witnesses and talked to them and got the information that statements made in this petition are not true. We have also perused newspaper clippings annexed with written objection filed by the accused side specially the newspaper named Daily Naya Diganta has made detail reports about the discussion of the journalist and some of the witness.

We wonder how a journalist can talk with a witness on a sub judice matter and reproduce it in the newspaper, and make comment involving merit of the matter. This is not accepted and highly contemptuous. First we wanted to issue notice upon the reporter and the paper, but on rethinking we refrain ourselves from issuing notice. Moreover Mr. Razzaq, the learned counsel also submitted before the Tribunal that this type of occurrence will not occur in the future and everybody will be careful in future in writing or reporting a pending proceeding in the Tribunal. On the submissions of Mr Abdul Razzaque, we refrained ourselves from taking further action in this matter, but we caution the writer of this report to be more careful in future in writing regarding pending proceeding in future. We also observed here that this report satisfied ourselves that the allegation of the prosecution that the people in support of the accused are going to the prosecution witnesses and threatening them from coming to this Ttibunal.

We have considered the statements made in the petition and also made in the written objection. Rule 19(2) of the Act runs as follows: ‘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 statements made in the petition supported by the annexures with the petition and the submissions made by the prosecutor in this respect we are satisfied that the prosecution has been successful in making out a case that some of the mentioned witnesses cannot be procured without an amount of delay of expense. In this regard we are of the view that regarding witnesses Usharani Malaker, Sukhraranian Bali, Ashish Kumar Mondal, Sumati Rani Mndal, Somar Mistri, Suresh Chandra Mondal, Ganesh Chadraa Saha, Shahidul Islam Khan Selim, Md Ayub Ali Howlader, Sitara Begum, Rani Begurn, Md Mostafa, Abdul Latif Howlader, Anil Chandra Mondal and Ajit Kurnar Shil, the 15 witnesses, the prosecution has successfully satisfied the requirement of section 19(2) of the Act and regarding those witnesses, we pass the order to receive the statements made by them for the investigation officer in evidence. As regards the prayer for other witnesses, as we are not satisfied, the prayer is rejected. We are cautious about the matter that these witnesses are not being brought and produced before the Tribunal and cross-examined by the defence and no oath is there for consideration of them as evidence. The law will take its own course. These statements will be treated in evidence considering all these aspects. Accordingly the application is allowed in part. After the order was passed Mr. Syed Haider Ali, learned prosecutor informed us that they will produce only investigation officer for recording evidence and no more witness.

Mizanul Islam said that the defense we will file an application to review the Order.

Judge Zahir Ahmed then stated that these statements 'are received as evidence, not accepted as evidence.'

Justice Nizamul Haq: Okay, 8th April is fixed for the examination in chief of the Investigation Officer.

There then followed a short exchange about defense witnesses and their statements. The chairman said that the defense should consider they they will have to call their witnesses. He said the defense had statements of the prosecution witnesses but the defense witness statements are not in the prosecution hands. He then asked the defense, to specify which defence witness will give evidence on which count.

The defense lawyer Mizanul Islam said the law does not provide the scope to provide defense witness statements. 'Are we required to specify which defense witness will give evidence on which count?' he asked

The chairman said that the defense had the statements of the prosecution witnesses which had allowed them to prepare for the cross examination. The prosecution should have information as to which defense witness is giving evidence on which count so that they can be ready for cross examination.

Mizanul Islam said that he did agree with the chairman, that there is no such requirement and it is not practiced in our jurisdiction. He said that he would think over the matter.

Tanvir Ahmed Al-Amin, for the defence then sought the adjournment of the charge frame hearing relating to Quamrazzuman. The Tribunal has adjourned hearing the defence argument till 1st April, 2012.

The tribunal then went onto consider arguments made later in morning and afternoon concerning the charge framing of Gholam Azam.