8 Mar: Molla charge framing 3

The tribunal only sat in the afternoon and continued with issues relating to the charge framing application relating to Kader Molla (which had started the previous day)

Prosecutor Muhammad Ali came to the dais and pronounced the name of the Judge Fazle Kabir as Faizul Kabir. Then Justice Nassim said “Mr. Muhammad Ali please remember one thing that is the pronouncement .of the name of judge should be correct”. Then the lawyer apologized.

He made an application seeking to add another charge to his frame charging application.

Mr. Muhammad Ali: My lord, according to section 9(4) ICT-1973 and rules 46(2) (a) International crimes Tribunal Rules of Procedure 2010, there is a scope for including additional charge into the formal charge.

Defence counsel, Farid Uddin Khan: My lord, generally after filing complaint petition and final report the court can take into account these documents at the time of framing charge. But the problem is that neither the complaint petition nor final report has been provided to us.

Justice Nassim: But the question is whether the formal charge and statement of witness has been given to you or not? Basically formal charge is based on Investigation report and other materials given by Investigation officer.

Justice Nassim: Okay, Now can you tell me what you meant by referring the term “Complaint Petition” and please fully avoid Code of criminal procedure and Evidence Act.

Justice Fazle Kabir: Learned counsel, is this term specified in our Act?

Mr. Farid: No, my lord but according to the formal charge page no.32, the term “complaint registrar” has been used by the Prosecution.

Justice Nassim: Learned defence, Investigation authority for the sake of their investigation have used this term.

Mr. Farid: My lord, my humble submission is that, in formal charge no new grounds can be added.

Justice Nassim: In case of framing charge, not only from the formal charge but also from other materials if we find any relevancy then this materials also be taken into account for framing of charge.

Mr. Farid: So my lord, since we are relying on formal charge so no new grounds should be added.

Mr. Tajul Islam: My lord, I want to say something. Basically formal charge is the first formal allegation against the accused. It is like an First Information Report (FIR). If it is an F.I.R then there is no chance of adding new ground with the formal charge.

Justice Nassim: How can a formal charge could be treated as an FIR?

Mr. Tajul Islam: My lord, you have said it before that formal charge is like an F.I.R. Therefore, our humble submission is that application of the prosecution should be rejected.

Order given by the Justice Nassim (summary below)

This is an application for taking into account the additional charge as a count in the formal charge. Mr. Muhammad Ali learned prosecutor appearing for the prosecution side submitted that a sub-statement which ought to have in formal charge has been omitted. Prosecutor was referring to sec 9 (4) and 46(2)(a) for adding of their materials. This application has been opposed by the Defence counsel.

Mr. Farid uddin khan submitted that when formal charge has been submitted there is no provision to amend the formal charge. Therefore the application should not be granted.

Tajul Islam supported Mr.Farid’s statement and submitted this above-mentioned application can not be granted because formal charge is the basis of starting proceedings.

Now on perusal of the application we are not rejecting or allowing this application. We should keep it in our record. However, if we find any reasonable ground later from other materials and from the testimony of witness no.24 then we will take into account these grounds for framing charge.’

Then the court wass adjourned as the prosecution was not prepared for formal argument of the formal charge. Muhammad Ali said my lord, 20% of the formal charge is yet to be corrected. I have already corrected 80% of the formal charge.