8 Oct 2012: Sayedee evidence admissability

Main 8 October applications page

The tribunal then heard an application about admissibility of documents relating to Sayedee case.

Below is the written application. The annex to this application can be found here.

1. This is an application for the admission in evidence of the documents listed in Schedule X of the Application under Section 19(1) of the International Crimes (Tribunal) Act 1973 as amended in 2009 (hereinafter: “IC(T)A 1973”) read with Rule 54(2) and Rule 44 of the International Crimes Tribunal Rules of Procedure, 2010 (hereinafter: ‘RoP’) and mark them as Exhibit under Rule 58 of the RoP (hereinafter referred to as ‘the Application’) .

2. That section 19(1) IC(T)A 1973 provides, “A Tribunal shall not be bound by technical rules of evidence; and it shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and may admit any evidence, including reports and photographs published in newspapers, periodicals and magazines, films and tape-recordings and other materials as may be tendered before it, which it deems to have probative value.”(emphasis added)

3. That Rule 54(2) RoP provides, “Pursuant to section 19(1) of the Act, the Tribunal may admit any document or its photo copies in evidence if such documents initially appear to have probative value.”

4. Rule 44 RoP provides, “The Tribunal shall be at liberty to admit any evidence oral or documentary, print or electronic including books, reports and photographs published in news papers, periodicals, and magazines, films and tape recoding and other materials as may be tendered before it and it may exclude any evidence which does not inspire any confidence in it, and admission or non-admission of evidence by the Tribunal is final and cannot be challenged.”

5. Rule 58 (1) Rop provides
(1) “Evidence that is produced by the prosecution or the defence shall be suitably identified, proved by the respective party and marked with consecutive numbers as exhibits.
(2) Exhibits of the prosecution shall be marked with English numerals while those of the defence with English alphabets and all exhibits shall constitute part of the record.”

6. In view of the above provisions the Tribunal may admit in evidence any material or document or their photocopies, including books, reports and photographs published in newspapers, periodicals, magazines and online, films and tape-recordings, and other materials as may be tendered before it, which it deems to have probative value. The defence documents shall be marked with consecutive numbers as exhibits with English alphabets.

7. It is submitted that the word ‘probative value’ in the context of the law of evidence refers to those documents that are sufficiently useful to prove something relevant in a trial. If a document or material or their photocopies are relevant then the same has probative value and should be admitted in evidence.

8. Further, Section 3(16) of the General Clauses Act 1897, which is applicable in the instant case, provides the following definition of ‘document’: “‘Document’ shall include any matter written, expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means which is intended to be used, or which may be used, for the purpose of recording that matter.”

9. Section 3 of the General Clauses Act 1897 applies to the IC(T)A 1973, therefore, any book, newspaper article, report, audio file, video file or other material is a document under the meaning of Section 3(16) of the General Clauses Act 1897, Section 19(1) of the IC(T)A 1973 and Rules 54(2) and 44 RoP.

Evidence filed before the Hon’ble Tribunal
10. It is recalled that the following evidence has been filed before the Hon’ble Tribunal on behalf of the Accused/Petitioner:
a. Copies of documents in Document Volumes No. 1 to 10 of Schedule X were submitted before the Hon’ble Tribunal at the time of commencement of trial. The defence have original copies of these documents which will be submitted before this Hon’ble Tribunal as and when directed;
b. Document Volume No. 11 of Schedule X was filed before the Hon’ble Tribunal on 3 June 2012 as Annexure ‘A’, ‘B’ and ‘C’ of the ‘Reply to the Prosecution’s Written Objection on the Application for Review of the Accused-Petitioner against the order under Section 19(2) IC(T)A’;
c. The documents described in Sl Nos. 84, 85 and 86 of the Document Volume 12 of Schedule X below were filed on 28 March 2012 as Annexure – ‘A Series’ of the ‘Reply to the Prosecution’s Section 19(2) Application’.
d. The documents described in Sl Nos. 83 and 87 of the Document Volume 12 of Schedule X below were filed on 9 May 2012 as Annexure – ‘X-1’ and ‘X’ of the Application for Review of the Order dated 29 March 2012 under Section 19(2) IC(T)A.
e. The documents described in Sl Nos. 89 of the Document Volume 12 of Schedule X below were filed on 7 June 2012 as Annexure – ‘D’ of the ‘Supplementary Statements to the Reply of the Accused Petitioner dated 03.06.2012 to the Written Objection of the Prosecution towards the Application Accused Petitioner for Review of the Section 19(2) Order’.
f. The Video files in Schedule X below, it is stated that CD/DVD-1 were filed with the defence documents at the beginning of the trial. The CD/DVD No. 2 and 3 have been filed on 23 May 2012 as Annexure ‘1’ and ‘2’ of the ‘Supplementary Statements to the Review Application dated 9 May 2012’.
g. The prosecution was given copies of all the above documents and video files at the times they were filed before the Hon’ble Tribunal.

11. The copies of the remaining documents in Document Volume 12 of Schedule X below are filed with the present application. These documents have been collected during the proceedings of the case against the Accused-Petitioner, who was hence not in a position to file these documents at the beginning of the Trial as required under Rule 18(6) RoP. It may be recalled that the Hon’ble Tribunal has already accepted prosecution documents filed during the course of proceedings with little or no notice. Therefore, it is respectfully submitted that filing Document Volume No. 12 at this stage of the trial is not contentious. It is stated that the defence have original copies of these documents which will be submitted before this Hon’ble Tribunal as and when directed.

Application to admit the documents and video files under Section 19(1) IC(T)A12. All the documents, pursuant to the meaning under Section 3 of the General Clauses Act 1897, which are listed under Schedule X are of fundamental importance to the Accused-Petitioner’s defence against the offences with which he has been charged and are necessary for the proper and fair adjudication of the present case. They are essential to prove the following important points:

a. The documents listed in Sl 1 and 2 of the Volume 1; Sl 42 of the Volume 6 of Schedule X will establish the malafide intention and political motive of the Government and the prosecution to initiate the instant case against the Accused/Petitioner.
b. The documents listed in Sl 3 of the Volume 1; Sl 15 and 16 of Volume 2; Sl 39 of Volume 5; Sl 57 to 63 of the Volume 10; Sl 69 to 78 and 80 to 81 of the Volume 12 of Schedule X are on the point of credibility of PWs 1, 2, 3, 4, 5, 6, 8, 11, 12, 13, 16 and 27.
c. The documents listed in Sl 4 to 6 of the Volume 1 of Schedule X will establish that the Accused-Petitioner is not guilty of the offences charged and that he was not involved in any of the incidents in Charge 1 to 20.
d. The documents listed in Sl 7 of the Volume 1 and Sl 24 of Volume 2 of Schedule X are relevant to Charge No. 5 about killing of S.D.P.O Foysur Rahman.
e. The documents listed in Sl 8 to 13 of the Volume 1 of Schedule X are relevant to the Charge No. 6, 7, 8, 10, and 11 and credibility of PWs 1, 9, 5 and 4 and the proposed PW under section 19(2) of the 1973 Act namely, Abdul Latif Hawlader.
f. The documents listed in Sl 14 to 23 of the Volume 2 of Schedule X are copies of International Passports of the Accused Petitioner from 1975 to 1999 and the documents listed in Sl 43 to 53 of Volume – 7 of Schedule X are invitation letters of the Accused for attending Islamic conferences all over the world. These documents establish that the Accused’s name was always Delawar Hossain Sayedee and he was never known as Delwar Shikder as alleged by the Prosecution. These documents serve to rebut the suggestion that the Accused absconded after the Liberation War as alleged by the Prosecution.
g. The documents listed in Sl 25 in Volume 3 of Schedule X is a book published on December 1993, written by Major Jia Uddin (Retd), Sub-Sector Commander of Sector No. 9 of the Liberation War (a proposed PW) which describes the liberation war in Sunderban, Pirojpur and adjacent areas with description about the atrocities taken place therein. This is relevant to all the charges and will prove that the Accused Petitioner was never involved in any criminal conduct as alleged in the Charge.
h. The documents listed in Sl 26 of the Volume 4 of Schedule X is relevant to all the charges and will prove that the accused has challenged and denied any charge of war crime on 24th June 1997 in the 11th meeting of the 5th Session of the 7th National Parliament.
i. The documents listed in Sl 29 to 31 of Volume 4 of Schedule X are relevant to Charge No. 5, 18 and the other atrocities taken place in Pirojpur. This will prove that the Accused was not involved in any criminal acts that took place in Pirojpur and he was not a member of Peace Committee, Rajakar or Albadar as alleged by the prosecution.
j. The documents listed in Sl 32 to 38 of the Volume 5 of Schedule X are relevant to the Charge No. 6, and 8 and to the credibility of PWs 6, 7, 8 and 10 and the proposed PW under section 19(2) of the 1973 Act namely, (1) Ayub Ali Hawlader and (2) Muklech Poshari.
k. The documents listed in Sl 40 of Volume 5 and Sl 98 of Volume 12 of Schedule X are relevant to Charge 8 and to the credibility of the Prosecution Witnesses.
l. The document listed in Sl 41 Volume 5 of Schedule X will prove that the Accused was never a member of the Rajakar as alleged by the Prosecution.
m. The document listed in Sl 54 and 55 in volume 8a and 8b are a book named ‘The History of Pirojpur District’ by Zilla Parishad, Pirojpur on July 2007, an official document of the Government where the Accused was noted with credence and there was no allegation of anti-liberation activities against him. This will prove that the Accused was not involved in any of the criminal acts as alleged in Charge 1 to 20.
n. The document volume 9 in Sl 56 is an interview of Shamsul Alom Talukder (DW-1), 2nd in Command of the Sub-Sector Command of Sector No. 9 of the Liberation War of Bangladesh published on June 1984 in “Bangladesher Sadinota Juddho Dolil Potro” ‘HISTORY OF BANGLADESH WAR OF INDEPENDENCE’. 10th volume, Complied by, Mr. Hasan Hafizur Rahman, Published by the Ministry of Information of the Government of Bangladesh. This will prove that the Accused was not involved in any of the criminal acts as alleged in Charge 1 to 20.
o. The documents listed in Sl 64 to 66 of Volume 11; Sl No. 83 to 89 and 97, 100 & 101 of Volume 12 and Video File No. 3 and 4 of Schedule X are relevant to prove that the Prosecution witnesses who were alleged to have been unavailable as per the Prosecution’s Application dated 20th March 2012 under 19(2) of the 1973 Act were in fact available and some of them were brought to the Safe House in Dhaka. But they were not produced before the Tribunal, as they were unwilling to perjure themselves by giving false testimony against the Accused as organised by the Investigation Officer and the Prosecution. These documents will also prove that these prosecution witnesses did not give any statement against the Accused to the Investigation Officer. These documents will also prove the Safe House Registers (Volume 11).
p. The documents listed in Sl 67 and 68 of the Volume 12 of Schedule X will prove that there was one Rajakar called Delwar Hossain Mollik son of Late Yesuf Ali Mollik in Pirojpur and the Prosecution has attempted to transfer criminal responsibility for the acts of this person on to the Accused due to similarity in names.
q. The document listed in Sl 79 of the Volume 12 of Schedule X is to prove the Tri-Partite Agreement between India, Bangladesh and Pakistan in the context of the Liberation War in Bangladesh.
r. The documents listed in Sl 90 of the Volume 12 of Schedule X is relevant to Charge 10.
s. The documents listed in Sl 91 to 97 of the Volume 12 of Schedule X are to prove the falsity of the prosecution’s claim that the Accused and his supporters have threatened the prosecution witnesses. These documents also prove the overall malafide intent of the government to file the instant case against the Accused.
t. The document listed in Sl 99 of the Volume 12 of Schedule X is to challenge the credibility of the prosecution video documents of ATN Bangla TV Channels.
u. The document listed in Sl 102 of the Volume 12 of Schedule X is to challenge the Credibility of the prosecution news reports of the Daily Janakantha
v. The documents listed in Sl 1 of the Video file will prove the biased investigation of the instant case by the Investigation Officer, PW 28.

13. It is respectfully submitted that for the reasons listed above and because the documents are sufficiently probative to establish matters relevant to the case of the Accused-Petitioner, the documents listed under Schedule X are of sufficient probative value and ought to be admitted under Section 19(1) IC(T)A read with Rules 54 (2) and 44 RoP. According to Rule 58 RoP these defence documents shall be marked with consecutive numbers as exhibits with English alphabet as shown in Schedule X.

14. That it is submitted that this application ought to be allowed for ends of justice, otherwise the Accused-Petitioner will be highly prejudiced in the presentation of his defence.

Wherefore it is most humbly prayed that the Hon’ble Tribunal would be pleased to admit in evidence the documents listed in Schedule X of the Application under Section 19(1) of the IC(T)A 1973 read with Rule 54 (2) and 44 of the Rules of Procedure and mark them as exhibits with English alphabets under Rule 58 of the Rules of Procedure and pass such other or further order(s) as the Tribunal may deem fit and proper.

Tajul Islam argued that this is an application to exhibit the defence documents. Volume 1 to 10 were submitted before the tribunal at the time of commencement of the trial. The documents in volume 11 are the Safe House Registers. Some of the documents in Volume 12 are also related to the Safe House. These documents were given to the tribunal as annexures of different applications. But now we want to consider them as Defence documents. The other documents in volume 12 are new documents which came to our possession during this trial. All these documents are relevant to the issues raised in the Trial. So they have probative value and should be admitted as evidence under Section 19(1) of the Act.

Chairman: but you should exhibit those documents through your witnesses. This application is not sufficient to put exhibit mark on them.

Defence: there is no requirement in the law that these documents should be exhibited through a live witness.

Chairman: it is implied. How can we exhibit a document without a live witness.

Defence: Section 19(1) and Rule 54(2) empowers you to admit them as evidence and Rule 44, 55 58 empowers you to mark them as exhibits.

Chairman: Rule 58(1) requires that a documents needs to be proved. This means that it must be presented by a live witness. This application is partly allowed. These documents are allowed to be proved by live witnesses.