Chairman perused the submitted petitions by the defence and started dealing with each one in turn. He said that he did not need to hear the parties
Application seeking recording of the reply of defense witness no 13, Masood Syedee.
The written application was as follows:
1. That on 18th October 2012, at the time of cross-examination of Defense Witness No 13, Mr. Masood Sayedee, the learned Prosecutor asked the following question to him and he has given his reply to the question as follows:
Question: Have the senior lawyers come in your case or not?
Answer: they have come. Because they have been harassed in various ways, we did not get them as our lawyers for a long time. The recent raid by the DB police on our lawyer Advocate Tajul Islam is a clear example of that
2. That this Hon’ble Tribunal did not record the reply given by the DW-13.
3. That it is submitted that the above question and its reply is very much important and relevant for proper adjudication of the matter and to ensure fair trial. Otherwise the Accused/Petitioner will be highly prejudiced.
The chairman ruled that the part of the answer should be kept on record except where he said ‘The recent raid by the DB police on our lawyer Advocate Tajul Islam is a clear example of that.'
Application to recall DW 13, Masood Sayedee under Rule 46A of the International Crimes Tribunal Rules of Procedure, 2010 to submit signed copy of Exhibit – AM.
Application to recall DW 13, Masood Sayedee under Rule 46A of the International Crimes Tribunal Rules of Procedure, 2010 to submit signed copy of Exhibit – AM.
Tribunal ruled that no recall was necessary and that the signed copy of Exhibit AM will be replaced in the file
Applications seeking Ganesh Chandra Shaha and Mr. Shukharanjan Bali to be summoned by tribunal as a defense witnessIn relation to Ganesh, the defense written application is set out below:
1. In this application, the Accused-Petitioner prays to call as defence witnesses Mr. Gonesh Chondro Shaha who is not called by the prosecution.
2. That it is stated that at the time of commencement of trial the prosecution submitted a list of 68 prosecution witnesses. But during the trial the prosecution called just 20 PWs from the list as witnesses of fact. The prosecution called 8 other witnesses who are seizure list witnesses and the Investigation Officer.
3. That it is stated that the prosecution did not call 48 of its list of 68 PWs during its case.
4. On 20th March 2012 the prosecution filed an application under section 19(2) of the 1973 Act for the admission of the statements of the 46 witnesses alleged to have been recorded by the Investigation Officer. The prosecution claimed each of these witnesses was unavailable and that it was not possible to bring them before the Tribunal. On 29th March 2012 the application was allowed in respect of 15 witnesses, the Tribunal being satisfied that their attendance could not be secured without unreasonable delay and/or expense. The 15 witnesses included Gonesh Chondro Shaha.
5. That it is averred, contrary to prosecution suggestion, that the prosecution witnesses were in fact available and that the prosecution deliberately chose not to call them before the tribunal given their refusal to testify against the accused. Gonesh Chondro Shaha of the prosecution’s list of 68 witnesses is ready and willing to give evidence before the Tribunal. Since the prosecution did not to call him, the defence applies to call him on behalf of the accused.
6. That it is stated that Gonesh Chondro Shaha has direct knowledge of the alleged incidents of the case. He is son of Bhagirothi who was allegedly killed at the instruction of the accused as per charge 18 of the instant case. As such it is necessary to issue summon upon Gonesh Chondro Shaha so that he can give evidence as Defence Witess.
7. That it is submitted that Gonesh Chondro Shaha is a material witnesses in the instant case. His testimony will assist the Hon’ble Tribunal to come to adjudicate on Charges 18. As such this Hon’ble Tribunal may kindly issue summon upon Gonesh Chondro Shaha so that he can give evidence as defence witness. Otherwise the Accused Petitioner will be highly prejudiced to produce him as Defence witness. Now, it is the responsibility of the defence to produce anyone as their witness. So we will not issue any Summons thereby.
A similar application was made in relation to Bali, but with the following paras 6 and 7
6. That it is stated that Shukharanjan Bali has direct knowledge of the alleged incidents of the case. He is the brother of the late Bishabali who was allegedly killed at the instruction of the accused as per charge 10 of the instant case. As such it is necessary to issue summon upon Shukharanjan Bali so that he can give evidence as Defence Witess.The chairman ruled that it is the responsibility of the defence to produce anyone as their witness, so the court will not issue any Summons.
7. That it is submitted that Shukharanjan Bali is a material witnesses in the instant case. His testimony will assist the Hon’ble Tribunal to come to adjudicate on Charges 10. As such this Hon’ble Tribunal may kindly issue summon upon Shukharanjan Bali so that he can give evidence as defence witness. Otherwise the Accused Petitioner will be highly prejudiced.
Application for privileged communication with the defence counsel.
The written application stated as follows:
1. That the Accused Petitioner is filing this application for privileged communication with the defence counsels.Mizanul Islam said he needed to submit on this point. He said that the accused needs to consult with his counsel before his gives explanation. You should recall that he was absent from the trial for long time after his son’s death. We need his instruction before legal argument.
2. That it is stated that the Accused Petitioner may be examined in this case very soon and after examination of the Accused the argument of this case will commence.
3. That it is submitted that the defence counsel may kindly be allowed to have privileged communication for at least 2 days with the defence counsels for ends of justice.
4. That it is submitted that no one will be prejudiced if the Accused Petitioner is allowed to have privileged communication with the defence counsels. But if this application is rejected the Accused Petitioner will be highly prejudi
The chairman responded by saying that there is no further scope for the accused to explain the charges. The next step is argument. You do not need instruction for legal argument.
Islam said that at the time of commencement of the defence case we wanted that the Accused should be allowed to make statement. At that time you told us that you would allow the accused to explain the charge after examination of the defense witnesses
The chairman said that this is possible under section 342 of Cr.P.C. but that there is no such provision under the 1973 Act. So there is no scope for the accused to make any statement.
He then rejected the application for Privileged communication.
Mizanul Islam said that the prosecution has challenged existences of certain documents. Under Rule 40 you have power to call for the records of these documents from relevant authorities.
The chairman said that the tribunal would not call for any record.
The application was allowed.
An application to allow the defense witness Mr. Masood Sayedee to exhibit Safe House Documents
The chairman said that the application would be kept on record.
Application seeking recall of the order of 18-10-2012.
This is set out here
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