Sayedee safe house witness application
The tribunal heard an application from the defense requesting that the tribunal summons witnesses relating to the safe house register issue. This was argued by Abdur Razzaq. The written application is set out below:
Razak said: in the order of our 19(2) review application this Tribunal has asked us to prove the Safe House Registers. We wanted to call the officials of the Safe House as Court Witnesses. But you passed an order to keep that application in record. So that application was not allowed. On that occasion you told us that we could try to bring hand writing experts to prove the safe house registers. We have contacted with hand writing experts and none of them are ready to give any expert opinion as the documents are photocopies. They can give opinion only on original documents. So we have no other option but to call these safe house officials as DWs. There are 38 officials of the Safe house as listed in schedule X of the application. We want all of them in the witness doc so that we can prove the Safe House Registers.
1. In this application, the Accused-Petitioner prays for issance of summon upon the persons listed in Schedule X of this applicaion and direct them to attend and testify in the instant case as Defence Witnesses as the same is necessary to discover and prove relevent facts raised during trial of the instant case.
Background of the Application: -
2. On 20th March 2012 the Prosecution filed an application pursuant to Section 19 (2) of the Act in order to tender into evidence the statements of the Prosecution witnesses who could not be produced before the Tribunal for giving evidence (hereinafter referred to as ‘the Prosecution’s Section 19(2) Application’). In the said Application the Prosecution annexed two reports of the Investigation Officer (‘IO’) dated 17.03.2012 and 19.03.2012 to show that the Prosecution Witnesses were unavailable and their attendance could not be procured without an amount of unreasonable delay or expense.
3. On 28th March 2012 the Accused-Petitioner replied to the Prosecution’s Section 19(2) Application stating that the prosecution witnesses were available and the IO and the Prosecution were deliberately not bringing them before the Tribunal as they were not ready to give false evidence against the Accused-Petitioner.
4. On 29th March 2012, the Hon’ble Tribunal relied upon the abvoe two reports of the IO and passed an order under section 19(2) of the ICTA 1973 allowing to receive in evidence the statements of 15 Prosecution Witnesses (PWs) alleged to have been recorded by the Investigation Officer (hereinafter referred to as ‘the section 19(2) order’). The 15 PWs are (1) Usharani Malaker, (2) Suhhraranian Bali, (3) Ashish Kumar Mondal, (4) Sumati Rani Mondal, (5) Somar Mistri, (6) Suresh Chandra Mondal, (7) Ganesh Chandra Saha, (8) Shahidul Islam Khan Selim, (9) Md. Ayul AIi Howlader, (10) Sitara Begum, (11) Rani Begurn, (12) Md. Mostafa, (13) Abdul Latif Howlder, (14) Anil Chandra Mondal and (15) Ajit Kurnar Shil.
5. On 9th May 2012 the Accused-Petitioner filed an Application for Reveiw of the section 19(2) order (hereinafter referred to as ‘the Review Application’). In the Review Application the Accused-Petitioner stated that the Investigation Agency had practiced fraud upon this Hon’ble Tribunal and the prosecution had misled the Hon’ble Tribunal by falsely stating that the PWs were not available. In fact the 15 PWs were in the Safe House maintained for keeping the prosecuiton witnesses and therefore in control of the Investigation Agency and were available to give evidence before the Tribunal. The Accused-Petitioner annexed a news report of Daily Amar Desh dated 12th April 2012 to support his claim (Annexure – X of the Review Application). It has been reported in the said news report that the three registers namely, (i) Safe House General Diary, (ii) PWs’ Attendance Register and (iii) the Food Register of the Witness all maintained in the Safe House show that most of these PWs came to the Witness Safe House in Dhaka on several occassions for giving evidence. But they were not produced before this Tribunal since they did not agree to give false evidence against the Accused-Petitioner.
6. On 22nd May 2012 this Hon’ble Tribunal heard the Defence Counsels on the Review Application when TV interview of some of the PWs played before the Tribunal showing that these PWs were not unavailable as claimed by the prosecution. Moreover these PWs denied giving any statement against the Accused-Petitioner to the Investigation Officer. Thereafter on 23rd May 2012 the Prosecution argued against the Review Application when this Hon’ble Tribunal asked the Prosecution to file a written reply to the Review Application.
7. On 30th May 2012 the prosecution filed a Written Ojbection claiming the said news report of the Daily Amar Desh dated 12th April 2012 was baseless (hereinafter referred to as ‘the Written Objection’). In the Written Objection the Prosecution claimed that the witness Safe House does not maintain any General Diary, PWs’ Attendance Register and the Food Register of the Witness as reported in the news report of the Daily Amar Desh.
8. On 3rd June 2012 the Accused-Petitioner filed a Reply to the Prosecution’s Written Objection (hereinafter referred to as ‘the Accused’s Reply’) stating that there were PWs’ Attendance Register, General Diary Book and the Food Register in the Witness Safe House. The Reply included a bundle of 497 pages documents containing the Prosecution Witness Attendance Register, the General Diary Book, the Food Register, which were maintained by the Witness Safe House in Dhaka. These were joined to the Reply as Annexures A, B and C. All three Annexures prove conclusively as to the specific date and time of arrivals and departures of the Prosecution witnesses, the duration of their stay, name of the accompanying persons and the details of the meals they have taken at the Safe House. These Annexures therefore conclusively proves the presence of the PWs on various dates in the Safe House.
9. That the prosecution claimed that these Annexures were manufactured by the Defence.
10. On the 7th June 2012 the Accused-Petitioner filed an application to call for record to confirm the mobile numbers and badge numbers of the Police Constables/Officers in the Witness Safe House and the authenticity of the information recorded in the diary notes of the General Diary Book of the Witness Safe House.
11. It is submitted that these Annexures revealed that the IO and the Proseuction had committed fruad upon this Hon’ble Tribunal and thereby perverted the course of justice. On 11th June 2012 the Accused-Petitioner filed another application to draw up proceedings against the Investigation Officer under section 11(4) Act and issue an order for discharge of the Accused-Petitioner and a direction for fresh investigation.
12. On the same date i.e. on 11th June 2012 the Prosecution filed a Reply to the Accused’s Reply (hereinafter referred to as ‘the Prosecution’s Reply’) wherein the prosecution reiterated their earlier claim that the witness Safe House did not maintain any PW Attendence Register, General Diary Book and Food Book. The Prosecution claimed that Annexures A, B and C of the Accused’s Reply were concocted.
13. Thereafter on 12th July 2012 this Hon’ble Tribunal rejected the Reveiw Application on the ground inter alia that the prosecution has denied the documents submitted by the defence in support of the Review Application (i.e. Annexures A, B and C of the Accused’s Reply). This Hon’ble Tribunal also observed that it would not adjudicate on the genuineness of the documents submitted by the Defence with the Review Application at that stage. It also observed that the Defence might take steps to prove those documents at the time of trial and that the onus of proving those documents was upon the defence.
14. That thereafter on 19th July 2012 this Honble Tribunal also rejected the other applications, namely (1) an application for call for record to confirm the mobile numbers and badge numbers of the Police Constables/Officers in the Witness Safe House and the authenticity of the information recorded in the diary notes of the General Diary Book of the Witness Safe House and (2) the application to draw up proceedings against the Investigation Officer under section 11(4) Act and issue an order for discharge of the Accused-Petitioner and a direction for fresh investigation. It is stated that the Tribunal rejected the above two applications on the ground that the three registers of the safe house (i.e. the PW attendance Register, General Diary Book and hte Food Register) had been denied by the prosecution and it was the obligation of the Accused-Petitioenr to prove them during trial.
15. That in view of the above findings and observations of the Honble Tribunal the onus is now upon the Accused-Petitioner to prove the contents of the PW Attendence Register, General Diary Book and Food Register of the Safe House (i.e. Annexures A, B and C of the Accused’s Reply) during trial. It is emphatically stated that the safe house officials listed in Schedule - X are the persons who are in a position to prove the Safe House Registers.
16. As such on 22nd July 2012 the Accused Petitioner filed an Application for issuance of summon upon the persons listed in Schedule X of this application, who have performed their duties in the safe house, and direct them to attend and testify in the instant case as Court Witnesses under section 10(1)(h) read with section 11(1)(a) of the International Crimes (Tribunal) Act 1973 and Rule 48 of the International Crimes Tribunal Rules of Procedure, 2010. On 29th July 2012 the Hon’ble Tribunal heard the application and ordered the same to be kept in record. Since that application has not been allowed, and the trial is almost coming to an end, the accused \petitioner considered that application has been rejected by this Hon’ble Tribunal for all intents and purposes.
17. It is submitted that sufficient opportunity should be given to the Accused-Petitioner to prove the contents of the three registers o the Safe House by calling necessary and relevant witnesses. It is further submitted that the persons named in Schedul X are relevant witnesses without whose testimoney the contents of the three registers of the Safe House cannot be proved. They are necessary witnesses who have direct knowledge of the contents of those registers. It is also submitted that without calling those persons as witnessess it will be simply impossible for the Accused-Petitioner to prove the contents of the three registers of the Safe House because they acted as Inspector, Sub-inspectors, constables and perform other duties in the Safe House, as listed in Schedule X of this Application.
18. That in the premises the Accused Petitioner has no other alternative but to call the Safe House Officials listed in Schedule X as defence witnesses.
Legal Basis of the Application:
19. Section 11(1) (a) of the Act provides as follows–
“A Tribunal shall have power-
(a) to summon witnesses to the trial and to require their attendance and testimony and to put questions to them;”
20. Rule 48 of the Rules of Procedure provides as follows –
“1) The Tribunal may, at any stage of trial of a case, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or re-call and re-examine any person already examined.
2) The Tribunal shall summon and examine or re-call and re-examine any such person if his evidence appears to it essential to the just decision of the case.”
21. Moreover Rule 46A of the Rules of Procedure provides as follows –
“Nothing in these Rules shall be deemed to limit or otherwise affect the inherent power of the Tribunal to make such order(s) as may be necessary to meet the ends of justice or to prevent abuse of the process.”
22. It is submitted that Section 11(1)(a) of the Act read with Rule 48 of the Rules of Procedure empowers the Tribunal to issue summons to the persons listed in Schedule X of this Applicaion and direct them to attend and testify in the instant case as defence witnesses to discover and prove relevant facts raised during the trial. Moreover in view of Rule 46A these persons should be summoned as defence witnesses for ends of justice, otherwise the Accused Petitioner will be highly prejudiced and consequently will be prevented from proving his case.
Wherefore it is most humbly prayed that the Hon’ble Tribunal would be pleased to issue summons upon the persons listed in Schedule X of this applicaion and direct them to attend and testify in the instant case as defence witnesses and pass any further order(s) as it may deem fit and proper.
Schedule – ‘X’
List of the persons in different duties
of the Safe House
SL
|
Names of the Witnesses
|
Duties in the Safe House
|
Phone Number
|
01.
|
Hannan Khan, Chief
Investigation Officer, International Crimes Tribunal (ICT)
|
Being the Chief
Investigation Officer of ICT, the Safe House and its Registers were under his
supervision and control.
|
01712526910,
9347156
|
02.
|
Abdur Rahim,
Additional IGP, related to ICT
|
Being the Additional
IGP, related to ICT, the Safe House and its Registers were under his control
|
01711544771
|
03.
|
Inspector Obaidullah
|
Inspector Admin of
Head Office (Baily Road) who was in charge to lesion with the Safe House.
|
01819490267
|
04.
|
Inspector Amzad Hossain, Son of Late Moksed Ali, Bangladesh Police Number
(BP No) - 5885009250
|
Officer-in-Charge of
the Safe House
|
01716211437
|
05.
|
Sub-Inspector Kalachand Gosh, son of Amullo Roton Gosh, BP No.
6281028661
|
In regular duty of
the Safe House as Sub-Inspector
|
01712177460
|
06.
|
Sub-Inspector Abdullah Al Baki, Son of Afsar Uddin Prodhan, BP No.
6179008850
|
In regular duty of
the Safe House as Sub-Inspector
|
01945652751
|
07.
|
Constable Masum Sheikh, son of Abu Bokkor Sheikh, BP No. 8607121306, Constable Number (C No.) - 24254
|
In regular duty of
the Safe House as Constable
|
01913163433
|
08.
|
Constable Shah Jamal, Son of Munshi Sirajul Islam, BP No. 7501021108,
C No. 5511
|
In regular duty of
the Safe House as Constable
|
|
09.
|
Constable Talukder Muniruzzaman, son of Alimuzzaman, BP No. 801041923
C No. 25278
|
In regular duty of
the Safe House as Constable
|
01725044312
|
10.
|
Constable Sohel Rana, son of Monjur Hosen Mia, BP No. 8605105783, C
No. 6983
|
In regular duty of
the Safe House as Constable
|
01725175903
|
11.
|
Constable Jamal Uddin, C No. 10952
|
In regular duty of
the Safe House as Constable
|
01913163433
|
12.
|
Constable Mohiuddin Molla, C No. 28218
|
In regular duty of
the Safe House as Constable
|
01714985516
|
13.
|
Constable Robiul Islam, Son of Hemayet Hossen, BP No. 8493090313, C
No. 19350
|
In regular duty of
the Safe House as Constable
|
01735054649
|
14.
|
Constable Tuhin Parvez, son of Late Sheikh
Khanjahan Ali, C No. 28588
|
In regular duty of
the Safe House as Constable
|
|
15
|
Constable Mehedi Hasan, C No. 24176
|
In regular duty of
the Safe House as Constable
|
|
16
|
Constable Sree Prodip Sorkar, Son of Ram Mohon Sorkar, BP No. 8605101908, C No. 27123
|
In regular duty of
the Safe House as Constable
|
01920123268
|
17
|
Ladis Constable Rina Akther, C No. 15013
|
In regular duty of
the Safe House as Constable
|
|
18
|
Inspector (Arms) Md. Abdul Hai Molla
|
Joined Safe House on
3.11.2011 according to office order
(¯§viK bs e`jx/21-011(Ask)/8890/AviI) dated 03.11.2011
|
01736591027
|
19
|
Sub-Inspector (AB) Md. Mojibur Rahman (No. 11587), Special CC No.
185/11, dated 05.11.2011
|
Joined Safe House on
05.11.2011 as per the above office order
|
01915234079
|
20
|
Habilder Kashinath Goshami (no. 27193) Special CC No. 85/11, dated
04.11.2011
|
Joined Safe House on
05.11.2011 as per the above office order
|
|
21
|
Nayek Sri Chondon Kumar (No. 14224) Special CC No. 188/11, dated
05.11.2011
|
Joined Safe House on
05.11.2011 as per the above office order
|
|
22
|
Nayek Ad. Ayub Ali (No. 3449), Special CC No. 188/11, dated 05.11.2011
|
Joined Safe House on
05.11.2011 as per the above office order
|
|
23
|
Constable Bahadur Ali (C No. 19046) Special CC No. 188/11, dated
05.11.2011
|
Joined Safe House on
05.11.2011 as per the above office order
|
|
24
|
Constable Md. Shamim Hossen (C No. 25209), Special CC No. 186/11,
dated 05.11.2011
|
Joined Safe House on
05.11.2011 as per the above office order
|
|
25
|
Constable Md. Taslim Sultan (C No. 28846), Special CC No. 189/11,
dated 13.11.2011
|
Joined Safe House on
13.11.2011 as per the above office order
|
|
26
|
Constable Sri Liton Chondro (C No. 7713), Special CC No. 187/11, dated
05.11.2011
|
Joined Safe House on 05.11.2011
as per the above office order
|
|
27
|
Sub-inspector Enamul Haq, CC No. 144/11 dated 20.11.2011
|
Joined Safe House on
20.11.2011 as per the General Diary Book
|
01727787198
|
28
|
Md. Enayet Hossen (P.N. 2146)
|
Fireman worked in Safe House
on 21.11.2011
|
|
29
|
Inspector (Arms) Md. Sayed Shafikul Islam
|
Joined Safe House on
01.12.2011 as per CC No. 7806/RO(Head Office) dated 27.11.2011
|
|
30
|
Inpector Rofiqul Islam (incharge), City SB, Demra Zone
|
Connected with the
Safe House as per the General Diary Book
|
01730024126
|
31
|
Sub-Inspector Samsur Rahman, City SB, Demra Zone
|
Connected with the
Safe House as per the General Diary Book
|
01916607666
|
32
|
Sub-Inspector, Moazzem Hossen Khan
|
Connected with the
Safe House as per the General Diary Book
|
01733567404
|
33
|
Jafor Iqbal
|
Driver of Safe House
|
01913754999
|
34
|
Md. Delwar
|
Dirver of Safe House
|
01919410082
|
35
|
Golam Rosul
|
Cook of the Safe
House
|
01557648536
|
36
|
Yesuf
|
Engineer of Concord
for renovation of the Safe Hosue
|
01913531510
88140228
|
37
|
Sub-Inspector Mazharul Islam, Jatrabari Police Station
|
Connected with the
Safe House as per the General Diary Book
|
01711369486
01191003333
|
38
|
Ronju Ahmed, Officer of Public Works Department
|
Supplied furnitures
to the Safe House
|
Razak said: in the order of our 19(2) review application this Tribunal has asked us to prove the Safe House Registers. We wanted to call the officials of the Safe House as Court Witnesses. But you passed an order to keep that application in record. So that application was not allowed. On that occasion you told us that we could try to bring hand writing experts to prove the safe house registers. We have contacted with hand writing experts and none of them are ready to give any expert opinion as the documents are photocopies. They can give opinion only on original documents. So we have no other option but to call these safe house officials as DWs. There are 38 officials of the Safe house as listed in schedule X of the application. We want all of them in the witness doc so that we can prove the Safe House Registers.
Chairman has asked if all the 38 witnesses are required to be present. He has also stated that the defence has already got the order to produce 20 defence witnesses, so the further witness would have to be confined within this number. Abdur Razzaque has stated. This is totally a different issue, a different category of witness. they would be asked a question about the safe house. Chairman has again stated the number of the DW has been fixed on 20.
Register of safe house
Then Defence lawyer Tanvir Ahmed Alamin has stated about the next petition- where he has prayed to count the register book of the safe house and other documents as the defence documents. The Tribunal has granted the petition by saying that- these are to be proved.
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