This is the written application:
1. That today is fixed for recording the defence witnesses. The Accused Petitioner filed this petition 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 and for adjournment as the defence witnesses are unavailable due to threat from the government agencies.Tajul Islam: Your Lordship, we have filed a petition before the Tribunal about the matter that the defence witnesses in the case of Mr. Delwar Hossain Syedee are being threatened. You could just have a look at the DW Abdur Razzak Akand’s house. It is totally devastated. We won’t be able to produce any further witnesses in cases if we are not getting any protection from this Tribunal.
2. That on 14th December 2011 the Defence submitted to the Tribunal a list of 48 Defence witnesses and associated documents as required under Section 9(5) of the International Crimes (Tribunal) Act 1973 (‘ICTA’) and Rule 18(6) of the Rules of Procedure (‘RoP’). Thereafter the prosecution case started on 7th December 2011 and ends on 13th August 2012. Thereafter on 14th August 2012 this Hon’ble Tribunal ordered that the defence case to commence on and from 23rd August 2012.
3. Thereafter the police and the members of Chatro League and Jubo League have been visiting the houses of the defence witness in Pirojpur and threatening them for not giving evidence for the Accused-Petitioner. On 17th August 2012 the Daily Sangram and on 18th August 2012 the Daily Naya Diganta and the Daily Amar Desh reported that after the midnight of 16th August 2012, Wednesday the local Chatro League members of Pirojpur and police from the Zianagar police station went to the houses of the defence witnesses in Nolbunia, Tengrakhali, Hoglabunia and Godorhawla village under Zianagar Upazila of District Pirojpur and threatened the defence witnesses. [Copy of the news report of the Daily Sangram dated 17th August 2012 and the Daily Naya Diganta and the Daily Amar Desh dated 18th August 2012 have been annexed herewith and marked as ANNEXURE – 1, 2 and 3.]
4. That on 26th August 2012 the Daily Amar Desh also reported that the local police of Pirojpur and the government agencies have threatened the defence witnesses for not giving any evidence for the Accused-Petitioner. It was reported that the Officer in Charge of the Zianagar Polices Station, Pirojpur has admitted that they were given a list of the defence witnesses by the government and they have visited the houses of the Defence witnesses. [Copy of the news report of the Daily Amar Desh dated 26th August 2012 has been annexed herewith and marked as ANNEXURE – 4. ]
5. That on 28th August 2012 the defence disclosed in the Tribunal that Mr. Shamsul Alam Talukder would be DW-1 in the instant case. On the next day police of Bagerhat Police Station, visited his residence at Bagerhat district and threatened his wife for his becoming a Defence Witnesses. This was reported on the Daily Amar Desh, the Daily Naya Diganta and the Daily Sangram on 30th August 2012. Despite this threat, on 2nd September 2012 Mr. Shamsul Alam Talukder testified as DW-1. On the same night the local Awami League leaders of Bagerhat district visited DW-1’s house and threatened his family members for Mr. Talukder’s becoming a DW.
6. Thereafter on 5th September 2012 Mr. Abdur Razzaq Akond testified as DW2 which continued on the next day. The polices from Parerhat Police Fari, Pirojpur and members of local Chatro League visited DW2’s house on both days and threatened his family members Mr. Abdur Razzaq Akond’s giving evidence the accused.
7. It is stated that on 12th September 2012 Mr. Abul Hossen testified as DW-4 in the instant case. Thereafter he returned to his house in Jessore on that night. On 15th September 2012 plain cloth police officers of Kotwali police station, Jessore visited DW4’s work place, Square Electric at Mikepotti, Jessore; and enquired about him. But he was not present at that time. The police officers called him and asked him why he testified in this Tribunal for the accused. They also enquired about his family members. On the next day i.e. on 16th September 2012 at about 11.00 am the plain cloth police officer of Kotwali Police Station went to Mr. Abul Hossen’s residence at House No. 185, Block A, Newtown, Jessore and asked him to supply them some documents. They received copy of National ID card of DW4 and asked him to give full details and documents regarding his brothers and sisters. They told DW4 not to leave Jessore without informing the police. It is stated that DW 4 is being harassed by the local police of Jeshore for becoming a DW in this case.
8. It is further stated that on 24th September 2012 Mr. Rowshan Ali testified as DW6 in the instant case. On the same night a Sub-inspector and five/six constables of Bagharpara Police Station, Jessore visited his residence in Bagharpara and threatened his family members for Rowshan Ali’s testifying for the Accused. They told that Rowshan may face criminal charge for becoming a DW on his return back to Jessore.
9. It is stated that 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.
10. In the above circumstances it is impossible for the Accused-Petitioner to produce the defence witnesses before the Tribunal today. The defence witnesses are hiding for their security and safety. As such the defence may kindly be allowed an adjournment for at least one week so that they can bring the 7th defence witness.
11. It is also submitted that in these circumstances it is necessary to direct the law enforcing agencies 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. Otherwise it will be impossible for the defence to bring any witnesses and the Accused-Petitioner will be highly prejudiced.
Chairman: You are stating about the condition about this witness’s home, what about the other witnesses who are in Dhaka?
Mizanul Islam: One of the witnesses was in Dhaka yesterday, he has left for the treatment of his wife.
Syed Haidar Ali: 6 of the defence witnesses have already given their deposition. It is not believable that- one can threaten a witness after the completion of the deposition without threatening him before his coming at the Tribunal. It is a false and imaginary story. The witnesses even have not mentioned this before the Tribunal. So, your Lordship would be kind enough to reject the petition as it is based on a false fact.
Tajul Islam: My friend has said that- it is a false story. Had he investigated about that? Now I can say it with full confidence that right now Police is conducting search at the house of Abdur Razzak Akand. Whether the Prosecution has ever asked to the witness that- if anyone has threatened them? We have not mentioned the matter of threat before this time, because there was a possibility that further witnesses might not be get interest and security to come before this Tribunal. Is it possible that all of our witnesses will come at a time and stay at Dhaka by leaving all of their activities? The Prosecution has a safe house for the Prosecution witness. They have had a huge time for the completion of the deposition of the PWs. But we are not getting enough times.
We hereby praying for 7 days adjournment in this case to make the witnesses stable and feel secured to come before the Tribunal.
Chairman: You may ask for the protection to the Police also if there were any kinds of incidents like the following.
Tajul Islam: Polices are violating the law themselves now and then and it is not a rare incident. So is it justified to ask for the protection from them in such types of sensitive matters?
Chairman: The person who would like to give the deposition must have to know that he has to risk all the incidents.
Tajul Islam: Is there any necessity that- he must be a courageous person to risk all this? We hereby are praying before your Lordship to direct the Police to not to arrest and to harass the witnesses and not to intimidate the witnesses.
Syed Haidar Ali: The witness house has been formed under the Tribunal. This is not only the place for the Investigation unit or the Prosecution side. They might have kept the witnesses at this place also. And there is no ground mentioned in the petition why the particular witnesses have not been able to attend the Tribunal.
The following order was passed (see summary)
Accused Delwar Hossain Syedee has been produced before the Tribunal. Today is fixed for the recording of the statement of the defence witness. No witnesses have been produced. The defence have come with an application for the direction over the police to not to harass or arrest or to intimidate any of the DWs. Thus the defence have prayed for 1 week adjournment. Tajul Islam has prayed that a number of Police and the members of Jubo League and Chatro League are visiting the houses of the defence witness. They have submitted the reports of the 16th, 17th and 18th instant of this month of some of the Newspapers which have reported the matters. He has also produced some other reports of the newspapers. On 2nd September the DW-2 has been produced and on 12th September the DW-5 has been examined. On 15th September the Police have visited his working place and interviewed his family members. On 16th September the Police have visited his house at Jessore. On 24th September the DW-6 has been examined and afterwards the Police have visited his house also.
Then the defence after showing these grounds has stated that- the other witnesses are not willing to come before the Tribunal and after that the defence has prayed for 1 week adjournment.
Syed Haidar Ali, the Prosecutor has stated by opposing that- it is not believable that the witnesses have been threatened after the record of their statements. He has also stated that the particulars of the witnesses have also not been given here. The petition contains some false statements and ought to be rejected.
We have heard both the Prosecution and the defence side and perused the petition. From the very beggining we have told that we are very much cautious about the protection of the witnesses and when the Prosecution has prayed for any protection we have heard it in past. But before this order no such petition has been filed by the Defence side for seeking the protection. The police is the part of the State machinery. We are getting that this is a false prayer. As such we are not giving any direction over the law enforcing agencies to stop harassment. The defence counsel is directed to arrange their defence witness to come to Dhaka. They may keep the witnesses at the witness house also. The defence ought to produce their witnesses on the next Sunday. And the Superintendent of Police of Pirojpur is directed to take necessary steps regarding the matter.