14 Aug 2012: Sayedee 20 defence witness order

The tribunal started with the chairman dealing with a number of outstanding application.

He said that the following pending application dated 13/8/2012, 22/7/2012, 30/5/2012, 15/5/2012, 26/4/2012. should be kept on record. All of these application were filed by the defense during cross examination of the investigation officer requesting that certain questions be asked in cross examination.

Privileged Communication

The defense lawyer asked for at least a two days meeting with Sayedee. 

The chairman asked for the names for Privileged Communication with Mr. Sayedee.

The defence counsel gave the names of Tanvir Ahmed Alamin and Tajul Islam for the privileged communication. He asked if his son could be present during the meetings as Sayedee was very sick. The chairman did not allow this, and the lawyers argued that the meeting would not be helpful if the son was not present. The chairman said that the son was not allowed to be present during privileged communication.

The chairman fixed 21/8/2012 or privileged communication.

Tajul Islam: It is not possible to go for privileged communication on that day because we will go to our home districts on this Eid Vacation.

Chairman: A lawyer ought to be prepared every time. Okay set the date on or before 21st instant.

Tajul Islam: Such a short time is not adequate.

Chairman: In that case, today it will be rejected, apply later

Contempt application against Sharier Kabir and Manna of Channel 1
The chairman said that they would be heard after Eid

Application to allow cross examination on prosecution exhibits upon which Guillotine was used

Tajul Islam made the following argument: This is an application to allow the Defence Counsel to cross examine the investigation officer on the documents exhibited by the prosecution bearing exhibit marks 54 to 59, 62 to 84, 86 to 127, 129 to 150, 158 to 165 and 167 to 251. He said that the tribunal had restricted the defence counsels from cross examining on these prosecution exhibited documents claiming them to be irrelevant, even though the prosecution is claiming that these are relevant for their case. The investigation Officer, who exhibited all these documents also refused to accept that these are irrelevant. He concluded by saying that the Defence should be allowed to cross examine on these prosecution documents.

The chairman rejected this application

Application for review on the order dated 8th August 2012 under section 19(2) regarding Mukundo Chakrabarti.

The tribunal wanted this to be heard that day, but the defense said that on a previous day the tribunal had agreed not to hear this until 26th August. The chairman said that they wanted to hear it that day, and the defense argument said that this was not fair as the defense lawyer Mizanul Islam had some arguments. The Judge Zahir Ahmed supported the defense, and the chairman agreed to hear the application on the 26th

Privileged Communication
This came up again and the tribunal chairman said that the only day the defense could go was on 22 August. The defense argued that because of Eid this was not possible and asked for a day after 24th. Then it was agreed that it could take place on the 23rd

Twenty Witness Order

The chairman then passed the following order (Transcribed from a copy)

Accused Delowar Hossain Sayeedi has not been produced in this Tribunal today by the prison authority as directed by this Tribunal. The applications which were pending in this Tribunal for disposal are taken up for hearing.

There are 4(four) applications filed by the accused to allow the defence counsel to ask certain questions to the prosecution witness filed on different dates. Let those petitions be kept in the record.

This is another application filed by the accused for recording question put upon the prosecution witness in cross-examination. Let also be kept in the record.

This is another application fiIed by the accused to allow the defence counsels to cross examine the investigation officer P.w.-28 on some exhibited documents. It is submitted that when question regarding exhibit to exhibit was asked, and regarding the 1st question on the exhibit, the accused petitioner was not stated nor one question and asked the defence to the witness as in those exhibits it is of or involvement of the accused was not stated nor mentioned, this tribunal asked one question and asked the defence counsel not to mention more questions to the witness as in those exhibits it is admitted that nowhere the name of or involvement of the accused was available. Regarding all the mentioned exhibited docurnents the allowed question was whether the name and involvement of the accused person is available in the exhibited documents mentioned and the answer was 'no'' It is clear that any other question in the case against Delower Hossain Sayeedi need not be asked on those exhibited documents mentioned and as such there is no merit in the instant application to allow defence counsel to cross-examine PW 28 the Invesdgation Officer again over the exhibited documents marked. The application is rejected.

This is an application filed by the prosecution to recall and re examine witness No. 28. It appears taht the similar points has already been asked to the IO by the prosecution and he has also been cross-examined while his re examination was conducted' Thus this petition has become in fructuous as all the question and points have been raised in the reexamination.

It appears that the recording of prosecution witnesses has been Completed. Now the next step according to the Act is fixing a date for defence witness. lt appears that the defence has submitted list of witnesses and also materials upon which they want to rely with. This case involves 20 charges against the accused Person The witness produced in this Tribunal by the prosecution is number 28 including the Investigation Officer. Upon eye view of them, we find that that out of 28 witnesses the Investigation Officer is witness Nos 28 and there are 27 witnesses more who have been produced in this Tribunal by the prosecution Among them, we find 20 witnesses made statements regarding occurrence and there are more witnesses who have produced documents and are seizure list witnesses. We now find that 20 witnesses have been produced by the prosecution in support of the 20 charges brought against the accused' We have also examined section 11 (3) (a) and (b) of the Act and Rule 51(A)(1)(2) and 53(3) of the Rules. We have given our anxious thought as to the number of defence witnesses to be allowed to be produced. The defence has submitted list of 48 witnesses and we find that this is excessive. There is no reason to allow 48 witnesses to be produced by the defence Rather it has been given with the intention to delay the trial. After due consideration of the fact and laws, we are of the view that the accused may be allowed to produce 20 witnesses in his favour and in that case, ends of justice will be met. As such the defence is directed to submit the list of those 20 witnesses along with particulars of the points and the charges on which the witnesses will adduce their evidence by 23.08.2012 positively' To 28.08.2012 for defence witness'

Tajul Islam: How could we prove by producing 20 witnesses whereas we have supplied the names of 48 witnesses. Prosecution has produced 20 witnesses it’s solely their matter, we should not be bound by their selection of the number of witnesses.

Chairman: Throughout the world it is going on.

Tajul Islam: This is a domestic Tribunal, fixing the Defence witness in number 20 is totally against the justice. There is no authority of the Tribunal to look at how many witnesses should be produced by the Defence. Please don’t give this type of order.

Chairman: We have fixed the time for cross examination already. On 23rd August, go and produce the names and particulars of the Defence Witnesses. After that if it is found needed then we will look after the matter.

Tajul Islam: You can fix the time but by which law you are fixing the number of Defence Witness?

Chairman: Give the names and particulars of the Defence Witnesses on 23rd August, 2012. The order has been passed and it should be obeyed.

The defense then asked when the tribunal would hear the accused. 'Under section 342 of the Cr.P.C. the general system is that the defece case starts with the statement of the Accused. Then the accused call his witnesses.'

The chairman said that there is no 342 in our law. We are not bound to hear the Accused under 342.

The defense lawyer then said but according to section 17 of the Act you should allow the accused to explain the charges during the trial.

Justice Anwarul Haq then said that tf you read section 16 you will find that the right under section 17 has already been exercised when we asked the accused whether to plea guilty or not. Section 17 does not allow any further right.

The defense lawyer then argued that section 17 is not for any guilty or not guilty plea.

The chairman said, that the defense lawyer should note that it is ‘during the trial’. It does not mean that at the ‘beginning of the Defence case’ and said that the defense may allow the Accused at the end of the trial after closing evidence.

The defense lawyer asked what was the point of taking explanation of the Accused after closing evidence. 'It is a well settled practice in BD to hear the accused at the beginning of the defence case. Why you want to deviate from that practice?'

The chairman said that the Tribunal can interpret the Act and the Rules as they wish.

The argument about restricting the witnesses to 20 then continued. The defense said that the law does not give the tribunal the power to do so. The chairman said “We have got every right to pass any Order which is legal according to us”. The defense said that 20 charges have been framed against them including murder, rape etc. 'With only 20 witnesses how I can prove my case.'

Tanvir Ahmed then stated to the tribunal that your reason for restricting us to 20 witnesses is that you found prosecution producing 28 witnesses including 20 PWs. But in fact the prosectuion have 44 witnesses. You ignored the 16 statements of the prosecution witnesses whose statements are received as evidence under 19(2) of the Act. So the Prosecution actually presented 20 live witnesses on facts + 7 seizure list witnesses + 1 Investigation Officer + 16 witnesses under 19(2) = 44 witnesses. Prosecution could produce 44 witnesses. How you can restrict the Defense to 20 witnesses only. There was no restriction on the prosecution on numbers of witnesses. They had 138 in their list. They could bring only 28 before the Tribunal. It is not our fault. Why we should suffer for the prosecution’s not being able to produce other witnesses?'

The chairman said that it had passed the order and the defense have to comply. Haidar Ali, the prosecutor then said that the defense have no scope to question the Authority of the Tribunal; that Rule 22 is framed for time management and that