19 Jul 2012: 15 witness admissibility application

The court then dealt with an application relating to admissibility of the 15 witness statement. The written application is below.  (Back to main page for this day)

1. That on 20th March 2012 the Prosecution filed an application pursuant to Section 19 (2) International Crimes (Tribunal) Act 1973 as amended 2009 (hereinafter “ICTA”) in order to tender into evidence the statements of the Prosecution witnesses who could not be produced before the Tribunal for giving evidence.

2. Thereafter on 29th March 2012, the Hon’ble Tribunal passed an order under section 19(2) of the ICTA 1973 allowing to receive in evidence the statements of the following 15 Prosecution Witness (PW) alleged to have been recorded by the Investigation Officer (hereinafter referred to as ‘the section 19(2) order’):  i. Usharani Malaker,  ii. Suhhraranian Bali,  iii. Ashish Kumar Mondal,  iv. Sumati Rani Mondal, v. Somar Mistri,  vi. Suresh Chandra Mondal,  vii. Ganesh Chandra Saha,  viii. Shahidul Islam Khan Selim,  ix. Md. Ayul AIi Howlader,  x. Sitara Begum,  xi. Rani Begurn,  xii. Md. Mostafa,  xiii. Abdul Latif Howlder,  xiv. Anil Chandra Mondal and  xv. Ajit Kurnar Shil

3. Threafter on 9th May 2012 the Accused-Petitioner filed an Application for Reveiw of the section 19(2) order. After hearing of several days, on 12th July 2012, this Hon’ble Tribunal rejected the Reveiw Application of the Accused-Petitioner.

4. That, in the meantime, on 24th April 2012, during the examination in chief of the PW 28, Mr. Helal Uddin, the Investigation Officer (‘IO’), this Hon’ble Tribunal allowed PW 28 to exhibit the statements of the 15 Prosecution Witnesses alleged to have been recorded by the IO. It is stated that the statements of the 15 PWs had been exhibited as Exhibit Nos. 254 to 268 in absence of the Defence Senior Counsels engaged by the Accused-Petitioner.  

5. That Rule 55 of the International Crimes Tribunal Rules of Procedure, 2010 (hereinafter ‘Rules of Procedure’) provides as follows:  ‘Once the document is marked as exhibit, the contents of a document shall be admissible.’

6. That in view of Rule 55 it is clear that a document can only be exhibited. It is stated that the witness statements of the 15 PWs, alleged to have been recorded by the IO, are not documents and hence there is no scope to exhibit them as documents under Rule 55. 

7. That it is submitted that under Section 19 (2) of IC(T)A there is no scope to exhibit the witness statements of the 15 PWs alleged to have been recorded by the IO. This provision merely allows the Tribunal to receive in evidence the statements of witnesses in exceptional circumstances. Section 19 (2) provides:  “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 trial, is dead or whose attendance cannot be procured without an amount of delay or expense which the Tribunal considers unreasonable (emphasis added)”.

8. That in view of the above statements it is therefore submitted that there is no scope to exhibit the witness statements of the 15 PWs as Exhibit Nos. 254 to 268 and hence the exhibit numbers should be removed from the statements of the said 15 PWs. Further the Exhibit Nos. 254 to 268 should be withdrawn from the List of Exhibits for ends of justice. Otherwise the Accused-Petitioner will be highly prejudiced. 

Wherefore it is most humbly prayed that the Hon’ble Tribunal would be pleased to remove the exhibit marks of the Exhibit Nos. 254 to 268 from the witness statements of the 15 Prosecution Witnesses alleged to have been recorded by the IO those were received in evidence under Section 19(2) of the International Crimes (Tribunal) Act 1973 and withdraw Exhibit Nos. 254 to 268 from the List of Exhibits and pass any further order(s) as it may deem fit and proper.   

The tribunal passed the following order (summary below)

This concerns the application for withdrawing the statements of 15 witnesses which has been admitted as evidence in the case of Sayedee. It has been stated that once the document has been marked as an exhibit the contents would be counted as evidence. The statement of 15 witnesses has been admitted as evidence. The defence counsel has the question about admissibility, but we have already passed an order about the matter that if we found any anomalies that the statements received was illegal in any way then in that case the question would arise. If it is found afterwards, we will look over the matter. So the petition at this moment is rejected.