Thursday, November 22, 2012

16 Oct 2012: Sayedee 13th defense witness, day 3

The tribunal started with the case of Sayedee (following on from here)

Chairman: Mr. Mizanul Islam, you are supposed to present the names of the defense witnesses in Sayedee and Azam's case

Mizanul Islam: We will submit it. I have something to say before your Lordship. We watching the great rush in these cases, but we can’t see what is the point actually. Even many of the media and newspapers are mentioning that there is a possibility of the conclusion of some of the Trials by December. Even some of the media have referred to the Registrar in these comment.

Justice Jahangir Hossain: It is our request to the Prosecution, Defence and even towards the Ministers that, please don’t say anything about the Tribunal which may raise any sorts of ambiguity. Even one of the learned members of the Prosecution has mentioned that-one of the trials may conclude within this December. But this is not really expected. It is unfortunate to hear such sorts of words. Don’t make any ambiguous comments about the process. We are not following by any dateline. The prosecutors should be careful in making any public comment. With regard to the comment of the Register I can say that he only said ‘may be’.

Masood Sayedee took his place in the witness box.
Defence: The first page and second page of the Daily Janata of 22-3-2012 contains a report. [this reported that the prosecution witnesses were available and the prosecution deliberately was not bringing them as they are not ready to support the statements submitted by the IO in their names.]
Chairman: This report has stated that the Prosecution has wrongly submitted some documents. But our question is whether any newspaper got the authority to criticize on this point? Who are they to fix which is wrong or right? We will not take the report. It is totally the interference on the judicial process.

Mizanul Islam denied this. He said that this is a report which shows that the prosecution was telling lies about the whereabouts of the prosecution; that on 20th March, the prosecution filed the 19(2) application claiming that 46 PWs including Shahrier Kabir and Jewel Eich were unavailable. This reporter went to Shahrier Kabir and Jewel Eich who denied being a prosecution witness and also denied giving any statement to the investigation officer. But he submitted statements in their names. This news report is relevant to the credibility of the IO. This news report is also relevant to our Safe House documents. You put the burden of proving the Safe House documents on us. If you do not allow us to exhibit this newspaper how we can prove the safe house documents. We are only presenting the information which have been concealed when the Prosecution has presented the application under section-19(2) of the ICT Act- 1973. But the Tribunal has said that- the burden of proof is on the head of the defence. The Prosecution has also disregarded the existence of the Register book also. I am stating that- the statements of those 15 witnesses have not been recorded even. And the Prosecution has applied under section- 19(2) of the ICT Act- 1973 with an ill motive.
Chairman asked how can you be sure about that? Prove that.

Mizanul Islam said that the defense have found from the interview of the 3 of the witnesses given on the television channel that, they are not even concerned about the matter. So, we are stating that the statements have not even been recorded.

Chairman said that this news report is about Shahrier Kabir and Jewel Eich. They are not 19(2) witnesses. Mizanul Islam responded that they were in the prosecution’s 19(2) application.

The chairman said I can remember that at the time of passing order on the prosecutions 19(2) application we condemned these types of investigative journalism about a pending issue in trial. At that time Mr. Abdur Razzaq apologized for the journalists and said that the journalist would not make any such report in future. So you have disowned this news report at that time. How you can rely upon them now?

Mizanul Islam: Mr. Razzaque has not stated anything about the Daily Janata.

Tanvir Ahmed Alamin: My Lord, we have presented the newspaper on 9th May, 2012 whereas you have passed the order on 29th March for the other reports published on 22nd March.

Chairman: The content of all the newspapers are same. Mr. Mizanul Islam you could go to the next question.

Mizanul Islam: My Lord, let the question be pending for our senior counsel to solve.

Chairman: You may do it. Okay proceed.
Witness: The page-1- column- 2 and page-13- column- 3 contains a report which has been published on 12-4-2012 on Daily Amar Desh which is to be counted as the material exhibit number- AW.

The Daily Janata published on 24-4-2012 on page- 1- column-2 and page-2- column- 5 contains a report to be counted as material exhibit number- AX.

The photocopies of the phone bills of the Safe house containing the number- 7547804, 7547801, 7547807 are submitted to be counted as the material exhibit number- AY, AY1 and AY2.

The Warishan certificate of Late Binodbihari Chakrabarti by the Chairman of Parerhat-1 is counted to be material exhibit number- AZ.

The photocopy of the Prosecution reports about threatening a witness of Pirojpur, about which a case has been filed on the Pirojpur Police Station- Diary no- 1078 dated- 24-3-2010 have been submitted to be counted as the material exhibit numbers-BA, BA1,BA2.
The defense witness then wanted to exhibit the following news reports .
(1) News report of the Daily Sangram dated 24.03.2012 reporting that the proposed PWs of 19(2) refused giving any statement to the Investigation Officer and are not willing to give false evidence against the Accused (filed as Annexure – A Series of the ‘Reply to the Prosecution’s Section 19(2) Application’ – filed on 28th March 2012)

(2) News report of the Daily Amar Desh dated 25.03.2012 reporting that the proposed PWs of 19(2) refused giving any statement to the Investigation Officer and are not willing to give false evidence against the Accused (filed as Annexure – A Series of the ‘Reply to the Prosecution’s Section 19(2) Application’ – filed on 28th March 2012

(3) News report of the Daily Naya Diganta dated 27.03.2012 reporting that the proposed PWs of 19(2) refused giving any statement to the Investigation Officer and are not willing to give false evidence against the Accused (filed as Annexure – A Series of the ‘Reply to the Prosecution’s Section 19(2) Application’ – filed on 28th March 2012),
The chairman said that these news reports cannot be exhibited for the reasons said earlier. We are sorry. These are regarding pending proceeding before the Tribunal. So they cannot be exhibited.

Mizanul Islam said that it is very frustrating. I have evidence to discredit the IO (PW 28). But you are not allowing me to prove this.

At this moment the defence counsel in the case of Salahuddin Quader Chowdhury has appeared before the dock and Zead Al Malum has also stood beside him and stated that the Prosecution witness is not present. Then the defence counsel has prayed before the Lordship to hear the matter on next week and the Tribunal has consented to record further prosecution witness on 22-10-2012.

Witness: On 08-11-2011 the Police Inspector Amjad Hossain has recorded a GD entry No. 491, 492 by the Officer in Charge of Safe House alleging a telephone threat against Prosecution witness- 1 has been threatened.

The chairman said that these are photocopies of the general diaries. Cannot be exhibited.

Defence lawyer said we need to exhibit these documents to prove our Safe House documents. In the safe house document it is recorded that the officer in charge have reported an incidents of telephone threat to prosecution one while staying in the Safe House to the Jatrabari Police Station, Dhaka. The prosecution is claiming that the Safe House documents do not exist. The Defence have collected these GD No. 491 and 492 from the Jatra Bari Police Station to prove that the Safe House documents exist.

Chairman said that I warn you, these GDs will go against you. They are about threatening the prosecution witness. We will presume that these threats were from the Accused side.

The defense lawyer said how you can presume this. The GDs do not disclose any such fact.

Chairman said that where there is a threat to a PW, we will automatically presume that this is from the Accused.

Defence lawyer said that presumption is a legal issue. You cannot come to a presumption without any basis.

Chairman said we may allow these GDs to be exhibited, but we will keep a note that despite warning the defence lawyers they have exhibited these documents and they should take all responsibilities of exhibiting this document.

The lawyer asked why the chairman was keeping a note for these GDs only.

The chairman said that so that you can be found responsible if these documents are found to be forged. Think carefully and then decide.

Justice Jahangir Hossain: Might be it is better not to submit this document from the defence side, because the liability of threatening a Prosecution witness might fall on their shoulder afterwards. And about the objection we would like to say that the Tribunal might take the note of anything which it thinks fit.

Tanvir Ahmed Alamin: As the burden of proof is on the defence’s shoulder so the defence may submit the required materials.

Mizanul Islam: My Lord, one matter is already pending in our case. Let this matter be pending with that matter.

Chairman: Okay.

The Tribunal was adjourned till 2 P.M.

After lunch the Abdur Razzaq made an application relating to the Golam Azam trial.

Then the defense lawyers said that they have decided in the Sayedee case that the GDs should be exhibited.

The chairman responded that then we will keep a note about your responsibility for submitting these documents and e will ask certain question to the DW.

Razzaq said you may certainly ask questions to the defense witness. But why would you want to keep a note in the deposition of DW. This is unusual.

The chairman said that the defense should satisfy the tribunal about the genuineness and existence of these documents. We should find out how you get these documents.

Razzaq said that prosecution also exhibited a large number of photocopied documents, but ou never kept a note about those documents. Why do you want to keep note for a defence documents. If you do not believe these documents then you may not consider them in your judgment. During our argument we will satisfy you about the probative value and genuineness of these documents. You should not keep any note about these documents.

Chairman then said that another danger is that if the documents are found to be forged then the lawyers should take responsibility.

Razzaq said that this document is preventing us proving our case. If you do not co-operate then how we can prove our case. Time will come when we will prove that these documents are genuine.

The GDs were exhibited and the tribunal keep a note that – ‘At the time of exhibiting the photocopies of the GDs we informed that they should think about the genuineness and responsibility on these documents and after thinking about this they replied that they want to exhibit these documents’

Chairman then asked some questions to the witness
Tribunal’s question: The photocopies of GD entry which you submitted in the Tribunal who told you that these were the true copy of GD entry? 
Witness: Nobody told me that, I understood from the face of it. 
Tribunal’s question: How did you know that the GD entry was filed in the Police Station?
Witness: After scrutinizing the documents of ‘Safe House’ my elder brother Rafique bin Saidee collected the photocopies of those GD entries.
Tribunal’s question: Do you know from where did he collect it? 
Witness: I heard from him that he collected it from the Munsi (person working in police station) and I also heard that if the GD entry numbers can be provided they can give the photocopy of it.
Then the tribunal moved back to exhibiting the Safe House Documents (1) Attendance Register, (2) General Diary Book and (3) Food Book. 

The chairman said that he cannot exhibit these documents. He should first explain how he got these documents.
Witness: On 12th April 2012 the Daily Amar Desh reported about these Safe House Documents. Then I contacted him and collected these documents from him.
Chairman said no he cannot exhibit those document. The concerned journalist may come as a defense witness. He said that at the time of exhibiting a documents some conditions need to be satisfied like relevance of the documents and whether a document is collected though legal process or not.

Mizanul Islam said that there is no dispute about relevancy of these documents. In case of prosecution you allowed them to exhibit documents when they could not explain how they got it. 19(1) does not provide for any requirement that a document need to be legally obtained.

Chairman said that we have been very liberal in the Sayedee case. You should not waste this opportunity.

Razzaq responded by saying that but the liberalism should apply for both parties. In a decision of our Appellate Division it was observed that even if a document is stolen it can be admitted if it is relevant.

Chairman said that we will not allow exhibiting these safe house documents through this witness. There are other available ways to prove the safe house registers.

Razzaq said how can the defense do this? A hand writing expert will not give any opinion on these documents since they are photocopies. We tried to call the relevant person as Court witness and then as defense witness. But you rejected those prayer saying that you would not issue summon on those witnesses. We have contacted with those Safe House officers and they are not ready to come to tribunal without Summons. Now you are not allowing us to exhibit these Safe House documents. You are closing all our ways to prove these Safe House documents. How we can prove them?

Chairman replied that 'this is upto you. The order is passed.

At one point the Chairman allowed the witness to say that he had seen the registers. Witness then stated that he had seen the witness safe house records that had all the details of witness movements. He said Ashish Kumar Mondol (a prosecution witness), his mother and another witness Somor Mistry were at the witness house until March.

The next item was the photocopy of the voter list published in 07/10/1995 where the name of Md. Alamgir Poshari son of Alhajj Soifuddin Poshari, Village- Chitoliya was written. I submitted it here and it was marked as exhibit no- BJ.

Then some material exhibit
i) The video clipping of the speech which was given by the Investigation Officer of this case Mr. Helaluddin towards the local people at the time of investigation.
ii) Two video clippings of interview of  a) Usha Rani Malakar: b) Sukharanjan: c) Ganesh Chandra Saha and d) Chan Mia Poshari which was telecasted in Diganta Television and Islamic Television of Bangladesh on 11/05/12 and 05/05/12?

This was the end of his deposition.

Cross Examination by the prosecutor Haider Ali of the witness then started
Haider Ali: When did you get exhibit A? 
Witness: Around 1 year ago. 
Haider Ali: Before you got it, who possessed this? 
Witness: Sitara Begum. 
Haider Ali: When did you apply for the document and when did you get this? 
Witness: I don’t know.

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