This application was one of the five applications made on 22 October 2012
1. That on 18th October 2012 this Hon’ble Tribunal directed the Defence to produce all the remaining defence witnesses (DWs) for giving evidence before the Tribunal on 21st October 2012, Sunday. In default, it was ordered that, the defence would be barred to call any further Defence witnesses.
2. That the DW 13 is being cross examined and will continue for today. The Defence tried its level best to produce as many DWs as possible, as a result of which DW 16 – Abdul Halim Fakir is present today before the Tribunal. That as a result of threats and harassments from different quarters it becomes impossible to bring the previously listed DWs in the instant case. The Accused Petitioner is filing the instant petition for recall of the said order with prayer to allow an adjournment for at least One Week so that he can produce the remaining Defence Witnesses (DWs) before the Tribunal.
3. That it is stated that the prosecution case started on 7th December 2011 and ended on 13th August 2012. Thereafter the defence case started on 2nd September 2012 and following is brief summary of the proceeding of the Defence case so far:
i. On 2nd September 2012 Mr. Shamsul Alam Talukder testified as DW-1. The next date was fixed on 4th September 2012.4. It is therefore clear that on the last one and half months of the defence case it was adjourned only for 4 days i.e. on 9th, 11th, 20th and 26th September for lack of DW. In other days the DWs were present in the tribunal when either DWs were recorded or the recording of DWs were postponed as the Tribunal was busy with other cases.
ii. On 4th September 2012 DW-2 was present. But the Tribunal could not hear this case as it was busy in hearing other cases on that day.
iii. On the next date i.e. on 5th September 2012 Mr. Abdur Razzak Akond testified as DW-2 and his cross examination continued to the next day.
iv. On 6th September 2012 cross examination of DW-2 continued and concluded. Then the Tribunal fixed 9th September 2012 for examination of the next DW.
v. On 9th September 2012 DW-3 Nurul Haq Hawlader was sick and as such the tribunal allowed an adjournment for one day and fixed the next day to record his evidence.
vi. On 10th September 2012 DW-3 was examined and the prosecution could not complete his cross examination on that day.
vii. On the next day i.e. on 11th September 2012 DW-3 was sick and as such the matter was adjourned for that day and the Tribunal continued hearing the other cases fixed on that day.
viii. On 12th September 2012 Mr. Abul Hossen testified as DW-4 as the DW – 3 was sick until then.
ix. On 13th September 2012, DW-5 was ready, but the Tribunal could not record his evidence as it was busy to record a prosecution witness in another case throughout the day.
x. On the next day i.e. on 16th September 2012 Mr. Khosrul Alom testified as DW-5 and his cross examination was not completed on that day.
xi. On the next day i.e. on 17th September 2012, DW-5 was ready, but the Tribunal could not record his evidence as it was busy to record a prosecution witnesses in other cases throughout the day.
xii. On 18th September 2012 the remaining cross examination of DW – 5 was completed.
xiii. On 19th September 2012 DW-3’s remaining part of cross examination was recorded and then the Tribunal recorded prosecution witness in another case throughout the day.
xiv. On the next day i.e. on 20th September 2012 the case was adjourned as there was no DW.
xv. On the next working day i.e. on 23rd September 2012 the defence counsels and DWs could not attend the Tribunal due to Hartal and the matter was adjourned for the next day.
xvi. On 24th September 2012 Mr. Rowshan Ali testified as DW-6 and the Tribunal was busy with hearing of the other cases throughout the day.
xvii. On the next date of the case i.e. on 26th September 2012 the defence filed an application for adjournment for one week as the DW could not attend the Tribunal due to threat and harassments from the law enforcing agencies and members of Jubo League and Chatro League. The Accused Petitioner prayed for direction upon the law enforcing agencies to not to harass, arrest, threat, intimidate or visit any of the defenece witnesses before or after their testimony before this Hon’ble Tribunal in the instant case. Adjournment for one day was allowed and the next date was fixed to be 30th September 2012.
xviii. On 30th September 2012, DW-7, Mr. Jamal Hossen Fakir was ready, but the Tribunal could not record his evidence as it was busy to record a prosecution witnesses in other cases throughout the day.
xix. On the next day i.e. on 1st October 2012 DW-7 was ready, but the Tribunal could not record his evidence as it was busy to record a prosecution witnesses in other cases throughout the day.
xx. On the next day i.e. on 2nd October 2012 DW-7, Mr. Jamal Hossen Fakir was examined and the prosecution continued his cross examination until next day.
xxi. On 3rd October 2012 DW7, Mr. Jamal Hossen Fakir’s cross examination was continued by the prosecution.
xxii. On 4th October 2012 DW8, Mr. Kubad Ali was examined and cross examined.
xxiii. On the next working day i.e. on 7th October 2012, Mr. Hemayet Uddin testified as DW -9 and the Tribunal was busy throughout the day in recording evidence of a prosecution witness in another case.
xxiv. On 8th October 2012 the Tribunal was busy hearing all applications including the above two applications in the instant case and recording evidence of a prosecution witness in another case.
xxv. On 9th October 2012 Mr. Anwar Hossain testified as DW-10 and Mr. Golam Mostofa testified as DW-11.
xxvi. On 10th October 2012 Mr. Hafizul Haq testified as DW-12. On that day the proceeding of the case adjourned for one day at the application of the Accused to call the Safe House witness and the Witness for exhibiting the defence documents.
xxvii. On 14th October 2012 Mr. Masood Sayedee testified as DW-13 throughout the day.
xxviii. On 15th October 2012 Mr. Masood Sayedee testified as DW-13 throughout the day.
xxix. On 16th October 2012 Mr. Masood Sayedee testified as DW-13 throughout the day.
xxx. On 17th October 2012 Mr. Emran Hossen testified as DW 14 and Mr. Abdus Salam Hawlader testified as DW – 15 and his cross examination did not start. Mr. Masood Sayedee was also cross examined as DW 13 on that day.
xxxi. On 16th October 2012 cross examination of Mr. Masood Sayedee continued as DW-13 throughout the day.
5. That on the other hand the prosecution case continued for more than nine months. The prosecution case started on 7th December 2011 and concluded on 13th August 2012. During these nine months and seven days time the prosecution examined 28 prosecution witnesses (PWs). It is stated that despite assistances of all government machineries the prosecution obtained numerous adjournments for not being able to produce a PW. Following is a brief summary of the adjournments that the prosecution obtained for failure to produce a PW:
i. On 4th January 2012 Learned Prosecutor Haider Ali informed the Tribunal that he had two PWs in hand. One was Mokhles Poshari and another was Abdul Latif Hawlader. Mokhles Poshari became sick and could not come on that day and Abdul Latif Hawlader was present in the Tribunal but was also feeling uneasy and sick. As a result the case was adjourned and the next date was fixed to be 8th January 2012 for recording further PWs.6. It is therefore clear that the Hon’ble Tribunal has allowed numerous adjournments to the Prosecution giving them ample opportunity to produce as many PWs as they can. As a result the prosecution case continued for more than nine months. It is submitted that in the interest of justice similar opportunity should be allowed to the Defence to produce the remaining DWs. Otherwise the Accused Petitioner will be deprived of his right to equal opportunity.
ii. On 12th January 2012 the prosecution obtained an adjournment as the PW Shahidul Islam Selim was Sick and could not attend the Tribunal.
iii. On 17th January 2012 PW 14 Abdul Halim Babul testified and the Tribunal had to close the proceeding at 12.10 pm as the prosecution had no further witness.
iv. On 18th January 2012 the prosecution could not bring any PW and the Tribunal allowed an adjourn for one week so that the prosecution could bring PWs and fixed 24th January 2012 for recording PWs.
v. On 29th January 2012 the prosecution examined seizure list witnesses and the proceeding of the case adjourned in the first half as the prosecution had no further witness.
vi. On 30th January 2012 the Prosecution examined seizure list witnesses and the proceeding of the case adjourned the before first half at 12.20 pm as the prosecution had no further witness.
vii. On 31st January 2012 PW 23 – Mr. Modhu Sudon Ghorami became sick at 11.05 am and the Tribunal proceeding concluded as the prosecution did not have other PWs.
viii. On 1st Feb 2012 PW 23 – Mr. Modhu Sudon Ghorami completed his testimony in the first half and the Tribunal proceeding concluded as the prosecution had no further witness.
ix. On 2nd February 2012 the prosecution could not bring any PW and the Tribunal allowed adjournment and fixed 7th February 2012 for recording of PWs.
x. On 7th February 2012 the PW 24 – Hosen Ali testified and the proceeding of the Tribunal concluded at 11.15 am as the prosecution had no further PW for that day. The Tribunal allowed an adjournment for one week and fixed 13th February 2012 so that the Prosecution can bring PWs.
xi. On 13th February 2012 the prosecution comes up with PW 25 – Mr. Mobarak Hossen and recording of his evidence completed before the lunch break. There was no further PW in Prosecution’s hand and the tribunal adjourned for that day after allowing three days to the prosecution to bring PW 26. The next date was fixed to be 16th February 2012.
xii. On 16th February 2012 the Hon’ble Tribunal recorded evidence of PW 26 – Mr. Abed Khan and allowed an adjournment and fixed 20th February 2012 for recording of further PWs.
xiii. On 22nd February 2012 the prosecution failed to bring any PW and as a result the proceeding of the case adjourned for the next day.
xiv. On the next day i.e. on 23rd February 2012 the Prosecution again failed to produce any PW and prayed for adjournment for brining Prosecution witnesses. The tribunal allowed one week adjournment and fixed 4th March 2012 for recording other PWs.
xv. On 4th March 2012 the cross examination of PW 26 completed and the Tribunal allowed an adjournment for two days and fixed 7th March 2012 for further PWs.
xvi. On 7th March 2012 the prosecution failed to produce any PW. The Tribunal allowed an adjournment for 11 days and fixed 18th March 2012 so that the Prosecution can bring PWs.
xvii. On 18th March 2012 the case was again adjourned without recording any evidence of prosecution witness.
xviii. The next prosecution witness was PW 28 i.e. the Investigation Officer, whose examination in chief started on 8th April 2012.
7. It is submitted that in the trials of cases before ICC, ICTR, ICTY and other international criminal courts it is a practice that the defence have been given equal time and opportunity as enjoyed by the prosecution to present the defence case.
8. It is stated the defence witnesses are from Pirojpur and Jeshore. The local police of Pirojpur and Jessore, the government agencies, members of Chatra League and Jubo League have been threatening the defence witnesses by telling them that if they give evidence for the Accused-Petitioner then they would be harassed by false criminal cases filed against them. Some of the defence witnesses were also threatened to suffer physical violence as a consequences of giving evidence for the Accused. The defence witnesses are hiding for their security and safety. As a result many of the DWs are untraceable. This was reported in national daily news papers. Copies of these newspapers were produced before the tribunal as ANNEXURE – 1, 2, 3 and 4 in an application for adjournment filed by the Accused Petitioner on 26th September 2012.
9. That on 16th October 2012 the Accused Petitioner submitted a list of the remaining 7 DWs before the Tribunal and to the Prosecution. Thereafter police and law enforcing agencies visited their houses and work places. DW 14 Mr. Emran Hossen is a teacher of Bagharpara Pilot Girls High School in Jeshore. On 16th October 2012 they called the School of DW 14 and enquired about him. DW 14 was in Dhaka for giving evidence in this case. At that time and the Headmaster of the School called to his mobile phone and asked him to return back to Jeshore without giving evidence before the Tribunal. It is submitted that as a result of these harassments the remaining DWs have been panicked and became traceless. It is submitted that the defence would require at least one week adjournment so that the remaining DWs can be produced before the Tribunal.
10. It may be noted that the defence had 48 defence witnesses. But the Hon’ble Tribunal limited the Accused Petitioner to only 20 Defence Witnesses. It is submitted that the Accused Petitioner should be allowed reasonable opportunity and time to produce all theses 20 DWs. Otherwise the Accused Petitioner will not be able to controvert the false allegations brought by the Prosecution. As a result the Accused Petitioner will be deprived from proving his defence.
11. That it is submitted that the order dated 18th October 2012 debarring the defence to call any further DWs was passed without any fault of the Defence. On 18th October 2012 DW 13 was cross examined throughout the day. Even if other DWs were present on that day they could not be examined. So there was no valid reason for the Tribunal to pass the order. As such the said order should be recalled for ends of justice.
12. In the above circumstances the Accused Petitioner should be allowed at least one week time so that the defence can produce the remaining 4 DWs before this Tribunal. Otherwise it will be impossible for the defence to bring any further witnesses and the Accused-Petitioner will be highly prejudiced.
Mizanul Islam the defense lawyer added following oral arguments: Our DW-1 was present at this Tribunal where he has been harassed, He is a freedom fighters. He has not got any protection. When we have given any names of the witnesses that person has been taken to the Police Station by the Police and threatened not to give evidence. Officers of secret services, local Chatro Leagues and Jubo Leagues visit their houses in Pirojpur and Jeshore and harassed. Some of them were picked to the police station and threatened to not to give evidence for the Accused. The police are asking the property documents from the DWs. We have informed this to the Tribunal on several occasions. But the Tribunal did not take any step. Now the DWs are hiding and became traceless. It has become difficult for us to bring them. We have tried to produce our witnesses in this kind of environment. Police has visited every witness’s home except the home of DW-13 Masood Syedee who is the son of the petitioner. We have produced 16 witnesses so far. We had intention to produce some more witnesses. We were unable to produce all of the remaining witnesses today. So we need more time from your Lordship.
Prosecution: Yes.
Chairman: Okay, the parties may submit written argument in support of oral argument but that must not exceed 10 pages.
Jsutice Jahangir Hossen said that the written argument should be in summary. It cannot be detailed.
The chairman said that we will limit time of argument also. But that will be determined at the time of commencement of the argument on 5th November 2012. We will not allow parties to make a long argument.
Mizanul Islam said you should extend the time for argument. The next week is Eid vacation. You are again requiring us to work on Eid Vacation for defence case. Everyone knows that 24th to 28th October is closed for Durga puja for Hindus and Eid of Muslims. How can you expect us to work on this vacation.
Chairman said that we will not extend the time.
Islam salsa said that you should consider allowing the accused to give explanation before the argument. It is his legal right.
Chairman said that we will think over this matter.
Syed Haidar Ali: The list of the witnesses has been produced a long time ago. They have already got a long period oftime. The first five DWs did not complain about
any harassment. But suddenly other defense witnesses started complaining. The police may
visit a defense witness for different reason and not necessarily due to their being a defense witness. The defense have had sufficient time. So I pray before your Lordship to reject the petition as the order in this regard has been passed previously.You
may have observed that all the DWs are interested witnesses.
Mizanul Islam: It is not relevant whether a witness has an interest or not. All defense witnesses have complained about harassment . But we were helpless. When
the police is harassing there is no reasonable ground to expect protection from
police. We are seeking for 1 week adjournment.
Syed Haidar Ali: We are not part of the Police. The investigation agency is separate from the police.
Chairman: We will pass a short order.
The order passed on 18-10-2012 stands. The date is fixed on 5th November, 2012 for argument. For the end of justice we allow defence to produce witness within tomorrow if they have any.
Chairman: I hereby read out section- 10(1) for both the parties.
10. (1) The following procedure shall be followed at a trial before a Tribunal, namely:-Prosecution would you like to start the argument first?
(a) the charge shall be read out;
(b) the Tribunal shall ask each accused person whether he pleads guilty or not-guilty;
(c) if the accused person pleads guilty, the Tribunal shall record the plea, and may, in its discretion, convict him thereon;
(d) the prosecution shall make an opening statement;
(e) the witnesses for the prosecution shall be examined, the defense may cross-examine such witnesses and the prosecution may reexamine them;
(f) the witnesses for the defence, if any, shall be examined, the prosecution may cross-examine such witnesses and the defense may re-examine them;
(g) the Tribunal may, in its discretion, permit the party which calls a witness to put any question to him which might be put in cross-examination by the adverse party;
(h) the Tribunal may, in order to discover or obtain proof of relevant facts, ask any witness any question it pleases, in any form and at any time about any fact; and may order production of any document or thing or summon any witness, and neither the prosecution nor the defence shall be entitled either to make any objection to any such question or order or, without the leave of the Tribunal, to cross-examine any witness upon any answer given in reply to any such question;
(i) the prosecution shall first sum up its case, and thereafter the defence shall sum up its case: Provided that if any witness is examined by the defence, the prosecution shall have the right to sum up its case after the defence has done so;
(j) the Tribunal shall deliver its judgement and pronounce its verdict.
Prosecution: Yes.
Chairman: Okay, the parties may submit written argument in support of oral argument but that must not exceed 10 pages.
Jsutice Jahangir Hossen said that the written argument should be in summary. It cannot be detailed.
The chairman said that we will limit time of argument also. But that will be determined at the time of commencement of the argument on 5th November 2012. We will not allow parties to make a long argument.
Mizanul Islam said you should extend the time for argument. The next week is Eid vacation. You are again requiring us to work on Eid Vacation for defence case. Everyone knows that 24th to 28th October is closed for Durga puja for Hindus and Eid of Muslims. How can you expect us to work on this vacation.
Chairman said that we will not extend the time.
Islam salsa said that you should consider allowing the accused to give explanation before the argument. It is his legal right.
Chairman said that we will think over this matter.
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