Tuesday, July 3, 2012

8 Apr 2012: Sayedee witness delay request

The tribunal hearing started with Tajul Islam seeking an adjournment of proceedings - to delay the evidence in chief of the investigation officer. He said that on 29th March 2012 the tribunal passed an order to receive as evidence the statements of 15 witnesses and the defense wanted to file a review petition against that order but the court had not yet provided them a certified copy of the order and so therefore could not file a review application. He said that the examination of the investigation officer should not start before disposal of our review petition as otherwise the purpose of the review would be frustrated.

Islam said that the review petition related to 15 prosecution witnesses whose statements alleged to have been recorded by the investigation officer have been received as evidence. He said that if the review petition is allowed then the prosecution may need to produce those witnesses before the examination of the investigation officer. If the review petition is rejected then we will need to cross examine the investigation officer on those 15 witnesses. He asked the tribunal, how it could proceed pending disposal of the review petition? He said that the lawyers were trying to file the review petition quickly but since the tribunal has not yet issued certified copy of the order, they had not been able. Had they received a copy of the certified copy of the order, then they could have filed the review petition today.

Judge Jahir Ahmed said that the Prosecution could not bring those 15 witnesses, so that even if the review petition is allowed they cannot bring those witnesses.

Tajul Islam said that the defence lawyers have recently collected information that the prosecution was misleading the Tribunal, that most of the 15 witnesses had come to Dhaka, but that the prosecution did not produce them since they were not ready to support the prosecution case. He said that they would show this in the review application.

The chairman allowed Mizanul Islam, another defence lawyer, to place the adjournment application. The lawyer repeated what his colleague has said – that the prosecutor has mislead the Tribunal in their application under Section 19(2).

The judge again said that if the review application was allowed the statements of those 15 PWs will be rejected, so that there was no reason to adjourn the investigation officer examination.

Mizanul Islam said that they would examine the investigation officer on these witnesses and that the line of examination would be different.

The prosecutor Haider Ali said that he was surprised that the defence was suggesting that the prosecution misled the tribunal in its application under Section 19(2). He said that the order was passed in accordance with law and that the accused would not be prejudiced if the investigation officer examination commences today.

He said that the allegations of fraud which has been stated in the adjournment application has not been made clear, and that before making an allegation against anyone it is necessary to clarify the criticism. He said that he had stated it in his application made on 19th April, 2012 that there would be an unreasonable delay to produce these 15 witnesses, that this is a special law, and that section-19(2) is for a good purpose. ‘Now if they would like to make any review then they could do so. But it is not necessary to adjourn the examination.’

Justice Nassim passed an order (copied from written order)
Accused Delwar Hossain Sayeedi has been produced in this Tribunal today by the prison Authority.  Today is fixed for hearing applications and recording of evidence of the Investigation Officer. 
This is an application for adjournment, Mr. Mizanul Islam, the learned counsel appearing for the accused submitted that on 29.03.2012 this Tribunal passed an order allowing an application filed by the prosecution under section 19(2) of the Act. By which the statement of 15 (fifteen) witness record  the Investigation Officer has been recieved in evidence. Md. Mizanul Islam further submitted that they want to file a review application against this order and they have not received the certified copy of the order. As such the review application could not be filed. He further submitted that the result of review application is very effective on the start of the recording of evidence of Investigation Officer. As such the prayer for adjournment be allowed and the review application may be heard then the recording of the evidence of the investigation officer may be taken. 
Mr. Syed Haider Ali, the learned prosecutor opposes the prayer for adiournment and submitted that in no way the result of the review application will be effective on the recording of evidence of the Investigation Officer. He further submitted that the defence has flled an application with certain reasons but some more submission have been made which should not have been done. He prays for rejection of the adjournment prayer 
We have heard both the sides and perused the application. 
We have repeatedly said that for review matter the proceeding will not be hampered. Today is fixed for recording Investigation Officer. The accused person may file review application, if they are so advised. We are of the view that for hearing of review application, the recording  evidence of the Investigation Officer is not required to be adjourned. Therefore adjournment is thus rejected.
The prosecution placed an application before the tribunal for the amendment of the charges. He said that in Charge numbers 6, 12, 13, 14, 15, 16, 17 and 19 Pirojpur Police Station’ is given as the name of police station where the incidents took place, but that ‘In fact it should be ‘Indurkani Police Station’. This is a clerical mistake in the charge framing order and as such should be amended.

Mizanul Islam, the defence counsel stated that, The charge was framed following the investigation report but that they have not been given a copy of the investigation report or allowed to inspect it. He said that the defence need to see whether the mistake is in the investigation report and that if it was we will have to question the investigation officer on that issue. He added that the prosecution filed a formal charge which contain ‘Pirojpur Police’ station when describing those places of occurrences. If the mistake is in the formal charge than it must be corrected before correcting the charge framing order. He said that so far as the defence are aware there is no police station called Indurkani police station. The official name should be ‘Zianagar Police station’ and that amendment can be made after consulting with the relevant authority.

The chairman said that the the people of this country are masters in changing names. So it is not a very striking issue. The tribunal had the power to make any change in the charge frmaing order at any time – whether it is a clerical error or a big mistake.

Justice Nizamul Haq passed an order (copied from written order)
Then the prosecution side filed an application for some correction.

We have heard the learned prosecutor Mr. Syed Haider Ali and Mr. Mizanul Islam, the learend counsel for the accused.

It appears that in the charge nos. 6,12,13,14,15,16,17 and 19, Perojpur Police Station has been mentioned as the police Station. It appears that the place of occurrence is rightly mentioned in the charges in question but Police Station Perojpur has been stated. It further appears to us and it is also admitted that from Pirojpur Police Station a new police station has been created in the name Indorkani, Police Staton, some people say it as Zianagar Police Station but place of occurrence remains the same. As the place of occurrence was Pirojpur police Station at the time of occurrence but it now falls in Indurkani or Zianagar Police Station, we feel it necessary to amend the name of the Police station in those charges from "Police Station Perojpur" to "Police Station Perojpur now Indurkani or Zia Nagar." with this, the charges are amended. Let this be noted in the Charge framing order. 
The prosecution then started its questioning of the Sayedee investigation officer

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