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| Delwar Hossain Sayedee being taken from court |
The first article dealt with an order by the tribunal to restrict the number of defense witnesses to 20 (from the 48 sought). This one considers a number of decisions by the Tribunal to reject applications on behalf of Delwar Hossain Sayedee's defense lawyers requesting that the tribunal issues a 'summons' for named witnesses to give evidence at the tribunal.
Summonsing witnesses to a court is a normal judicial process by which magistrates/judges ensure that witnesses come and give evidence. The compulsory nature of a summons provides protection to witnesses who (a) do now want to give evidence or (b) might want to go to provide evidence but are scared of local community or other repercussions; it allows such witnesses to say, 'I had no choice but to go and give evidence.'
Summary of the facts/concerns
The International Crimes Tribunal Rules of Procedure explicitly gives the tribunal the power to issue a summons 'at any stage of the trial'.
The tribunal rules do not set out any other arrangements by which witnesses should come to testify to the court.
A summons imposes a legal obligation upon the person who it is served to attend court on the day stated by the court. It helps ensure that witnesses attend a court to provide it evidence.
Following applications by the prosecution, this tribunal has issued as many as 29 summonses to ensure the attendance of its witness. 20 prosecution witnesses gave evidence at the tribunal. The tribunal did not reject a single prosecution application (as far as one knows).
Although the defense brought 17 witnesses to the court without seeking a summons, on four occasions the defense lawyers have made an application to the tribunal asking that it summons a total of 43 named people.
On each of the occasions the tribunal has refused to issue the summons - though there was very good reason to suggest that the evidence that these witnesses would have given would well have been highly relevant to issues directly before the tribunal.
These rejections of defense applications should be seen in the context of the tribunal having earlier agreed to summons about 29 prosecution summons of witnesses.
On three of the four occasions where the tribunal rejected the application, it simply stated the the defense team was solely responsible for bringing its own witness. On these three occasions the tribunal did not provide any actual reasons for refusing to issue a summons.
On the forth occasion, the tribunal refused to issue the summons, as (on 23 October) it had already closed the defense case (though against the defense wishes). The law however specifically says that a summons can be issued 'at any stage of the tribunal'.
Five of the witnesses which the defense sought to summon had been prosecution witnesses whose unsigned statements (which incriminated Sayedee) were admitted as evidence. These statements were admitted on the basis of a prosecution claim that they were missing or had been threatened by the armed cadres of the accused which the defense denied. The defense claimed that two of these witnesses were never missing but were in the safe custody house.
The evidence that each of these five witnesses would have given would have been highly relevant to the determination of the guilt/innocence of Sayedee. Their evidence would also have helped determine why they had not turned up in the tribunal as prosecution witnesses.
The other 38 witnesses for which the defense sought a summons were responsible for the security and running of the safe witness house. The tribunal had repeatedly told the defense legal team that it must prove 'in evidence' the authenticity of the safe house registrars (which appeared to show that some witnesses were not missing but were present in the house).
However, when the tribunal was given an opportunity for this to happen, the tribunal refused to assist.
The non-issuance of summonses to these 38 witnesses, all of them government employees and most of them police, made it extremely difficult for the defense (if not impossible) to obtain their attendance at the tribunal as witnesses.
This failure to issue all of these summonses should be seen also in the context of the tribunal's decision made in August 2012 to refuse to allow the defense to bring 28 witnesses.
The defense lawyers claim that the tribunal has not provided it copies of any its orders which rejects the summonses. As a result these orders could not be subject to a review application - a right given under the tribunal rules.
The law
Bangladesh: In the normal Bangladesh courts, the magistrate will issue summons on behalf of the prosecution to bring the state's witnesses to court. After the prosecution witnesses have deposed, and if the defense seeks to call witnesses, a defense lawyer can either bring his own witnesses to court without a summons or s/he can request that the court issue a summons. A failure to comply with a summons can result in criminal sanctions.
International Courts: In the international courts, the issuing of summons is the normal means by which prosecution and defense witnesses are called to testify (though the process which this is done is complicated by the involvement of the witness and victims support units which are present in these courts)
Bangladesh International Crimes Tribunal: The International Crimes (Tribunal) Act 1973 and the rules of procedure refer on a number of occasion to the process of issuing summons.
Section 11(1)(a) of the Act gives the tribunal the power to summons witnesses. It says:
6. Forth application for summons - Chan Mia Poshari, Sumati Rani Mondal and Ashish Kumar Mondal. All three of these witnesses originally were prosecution witnesses (just like Bali and Gonesh, above) and they were also subject to an application argued on 27 March 2012, seeking to allow the introduction of their unsigned statement that they purportedly gave to the investigation officer. In the application, the prosecution alleged that the three were:
Ashish's written statement which has been introduced as evidence states (approximate translation):
International Courts: In the international courts, the issuing of summons is the normal means by which prosecution and defense witnesses are called to testify (though the process which this is done is complicated by the involvement of the witness and victims support units which are present in these courts)
Bangladesh International Crimes Tribunal: The International Crimes (Tribunal) Act 1973 and the rules of procedure refer on a number of occasion to the process of issuing summons.
Section 11(1)(a) of the Act gives the tribunal the power to summons witnesses. It says:
“A Tribunal shall have power-This is reflected in rule 48 of the Rules of Procedure (in the section on 'Evidence') the tribunal is given wide powers to issue summons. It states:
(a) to summon witnesses to the trial and to require their attendance and testimony and to put questions to them;”
(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.Rule 60 of the rules (in the section on Powers and function of registrar) makes it clear that the registrar is responsible for issuing summons, on the instruction of the tribunal.
(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.
The registrar shall: …..(7) be responsible for issuing summons or warrant of arrest under his signature for securing attendance of the accused or the witness or search warrant etc. from the Office as required by the Tribunal, bearing its seal, and be responsible also for maintaining a Process Register in this regard;The schedule to the rules, contains a form, ICT-BD Form No. 02 which should be used when issuing a summons.
Summons to Witness
In the International Crimes Tribunal, Dhaka
ICT-BD Case No.------------------
To------------------------------------------------
of-------------------------------------------------
Police Station-----------------------------------
District-------------------------------------------
WHEREAS complaint has been lodged before the Tribunal that---------------------
----------------------------- has or is suspected to have committed the offence
punishable under section 3 of the International Crimes (Tribunals) Act, 1973 and
it appears to the Tribunal that you are likely to testify or give material evidence
for the prosecution.
You are hereby summoned to appear before this Tribunal on the ----------day of --
------------(month) of ---------(year) at 10:00 A.M to disclose what you know
concerning the above offence. If you neglect or refuse to appear before the
Tribunal on the said date, a warrant will be issued to compel your attendance.
Given under my hand and the seal of the Tribunal as directed, this the ----------
day of----------of (year).
By Order of the Tribunal
Registrar
Report of Service
Endorsed to ----------------------------------------------for service
Served by me
on----------------
Signature of the accused Serving Officer
Returned to
Therefore, the legal position at the ICT seems to be as follows: there is nothing laid down in the Act or the rules to require that witnesses should be summonsed to court. However, the Act and the Rules explicitly provide wide powers to the Tribunal to issues summons to witnesses.
How the tribunal has acted
How the tribunal has acted
1. Prosecution witnesses: The investigation officer has acknowledged in his evidence that the tribunal issued 29 summonses for prosecution witnesses following applications by the prosecution lawyers. This apparently was done in three different phases - first for nine witnesses, then for eleven witnesses, then for another nine witnesses. The investigation officer also said that some witnesses came to the tribunal without receiving a summons - though it is not clear how many or which ones (see below). One assumes - though this can't be said with certainty - that all of the prosecution applications for summonses resulted in a summons being issued
2. Overall situation with defense witnesses: The defense have mostly brought their witnesses to the tribunal without summons, but on four occasions it has applied to the tribune for a summons to be issued by the court. These 4 summonses involve a total of 43 witnesses (set out in detail below) On each occasion the tribunal has refused.
3. The first application - Safe house custody witnesses: The first request for a summons involves those who worked at the safe custody house. This is a complicated story that will be dealt with be explain in detail in a later post. But for the purposes of this note, one needs only to know that the tribunal had ruled that the defense lawyers must show 'in evidence' that registers of the safe house (that they had obtained and which appeared to show that prosecutors were lying about witnesses) were authentic.
In response to this order, the defense filed an application on 22 July in which it requested the tribunal to summons 38 witnesses connected to the safe house (police officers responsible for it, drivers or providers of services to it.) This application was heard on 29 July, but the tribunal did not make an order and ruled that it should be 'kept on the record'.
On 8 October, the defense lawyer then resubmitted the application to summons the witnesses - on the assumption that their first application had been rejected. On the following day the tribunal disposed of the application but it made 4 observations. These were (in summary form)
[It remain unclear whether the reference to requiring the permission of the prosecution before bringing any of the persons of the investigation agency refers only to the head of the Investigation Agency, Mr Hannan, or to all the other police officers on the defense list. If it is the latter, the tribunal was not just refusing to issue a summons, but effectively putting an impossible obstacle before the defense lawyers.]
The tribunal has, according to the defence lawyers not released a written copy of the order, so it is not clear whether any further reasons were given - though it appears not.
So in relation to this application, the situation about the summons can be summarized as follows:
2. Overall situation with defense witnesses: The defense have mostly brought their witnesses to the tribunal without summons, but on four occasions it has applied to the tribune for a summons to be issued by the court. These 4 summonses involve a total of 43 witnesses (set out in detail below) On each occasion the tribunal has refused.
3. The first application - Safe house custody witnesses: The first request for a summons involves those who worked at the safe custody house. This is a complicated story that will be dealt with be explain in detail in a later post. But for the purposes of this note, one needs only to know that the tribunal had ruled that the defense lawyers must show 'in evidence' that registers of the safe house (that they had obtained and which appeared to show that prosecutors were lying about witnesses) were authentic.
In response to this order, the defense filed an application on 22 July in which it requested the tribunal to summons 38 witnesses connected to the safe house (police officers responsible for it, drivers or providers of services to it.) This application was heard on 29 July, but the tribunal did not make an order and ruled that it should be 'kept on the record'.
On 8 October, the defense lawyer then resubmitted the application to summons the witnesses - on the assumption that their first application had been rejected. On the following day the tribunal disposed of the application but it made 4 observations. These were (in summary form)
i. The defense is authorized to bring witnesses as they wish. They can bring those witnesses (mentioned in the Application) but it must be within the limit of 20 defense witnesses [limit of 20 witnesses refers to the limit placed place by the tribunal on numbers of witnesses it could bring to the tribunal]
ii. The Tribunal will not issue summons upon those witnesses. If the defence wants to bring any of those witnesses then it is upto them to arrange attendance of those witnesses in the Tribunal.
iii. According to Section 8 (1) of the 1973 Act the members of the investigation agencies are to assist the prosecution in the trial. So the defence cannot bring any of the persons of the Investigation Agencies persons as defense witness if objected to by the Prosecution.
iv. The defense may bring the person as defense witness from whom these documents were collected.
[Section 8(1) states: "The Government may establish an Agency for the purposes of investigation into crimes specified in section 3; and any officer belonging to the Agency shall have the right to assist the prosecution during the trial."]
[It remain unclear whether the reference to requiring the permission of the prosecution before bringing any of the persons of the investigation agency refers only to the head of the Investigation Agency, Mr Hannan, or to all the other police officers on the defense list. If it is the latter, the tribunal was not just refusing to issue a summons, but effectively putting an impossible obstacle before the defense lawyers.]
The tribunal has, according to the defence lawyers not released a written copy of the order, so it is not clear whether any further reasons were given - though it appears not.
So in relation to this application, the situation about the summons can be summarized as follows:
The court told the defense lawyers to prove the authenticity of the safe house registers 'by evidence'; when the defense lawyers asked the tribunal to summons witnesses from the safe house so that it could do just that, the tribunal refused to issue an application; it did not provide any reasons for this refusal; it has not released a copy of the order; the tribunal must have known that police officers and other people employed by the government would not voluntarily come to court on this matter, and that a summons would be necessary to get them to come to the tribunal; as a result the refusal to issue summons in effect meant that the defense was being prevented from doing what the court had earlier required it to do - to prove the authenticity of the registers through evidence.
4. Second application for summons - Gonesh Chondro Shaha: Gonesh Chondro Shaha was originally a witness for the prosecution. In an application argued on 27 March 2012, seeking to allow the introduction of an unsigned statement that he purportedly gave to the investigation officer, the prosecution alleged that he was one of 14 witnesses who were threatened by:
His written statement which has been introduced as evidence states (approximate translation):
'the armed terrorist group in Pirojpur in favour of the accused ... [and] as such they are in fear and have concealed themselves and therefore they could not be found.'The tribunal in in its order of 29 March, allowed the statement of Gonesh (and 14 other witnesses) to be introduced as evidence.
His written statement which has been introduced as evidence states (approximate translation):
My name is Gonesh Chondro Shaha; my age is around 45 years. According to your inquiries I am giving you the statement that during the liberation war of Bangladesh I was 3/4 years old. My father had died before the liberation war. During the liberation war my mother worked as a dishwasher of the Pakistani soldiers in a school near Majhighat. My mother used to inform the freedom fighters about the routes by which Pakistani soldiers will go to their operation. According to her information the freedom fighters used to attack and kill them. My mother gave information to many freedom fighters including freedom fighter Motiur Rahman Shordar who is now Upozilla (Sub district) Chairman. My elder brother Kartik Chondro Shaha asked Uncle Motiur Rahman Shordar one day, “Where you have sent my mother?” Then uncle replied, “We have sent him to collect information, you will get your mother after the liberation of Bangladesh.”
My mother used to give information to the freedom fighters regularly. Many days later the Rajakars informed Pakistani soldiers that Vagirothi is giving information to the freedom fighters about Pakistani soldiers. The freedom fighters were prepared when Pakistani soldiers were going to the Bagmara operation. The freedom fighters attacked the Pakistani army. The battle started and in this battle 50/60 Pakistani soldiers died. After this incident when my mother went to the camp they tied her to a motor cycle and dragged her along the all roads of the city. After that they took her to the wharf of the Boleshshor River and shot her. Then they threw my mother’s dead body into the river.
Bangladesh became free from the occupation army. I grew up in the independent Bangladesh. I have heard many stories from other people's mouths. I didn’t see with my own eyes either the truth or otherwise. Many people have told me that Delwar Hossain Sayeedi was directly involved in the execution of my mother. (emphasis added)
Six months later, in October 2012, the defense then applied to the tribunal for the issuance of a summons for him to attend court as one of their witnesses. In the application, argued on 22 October, the prosecution stated:
No written copy of this order has been made available by the tribunal, so it is not clear whether any additional reasons have been provided - but from notes taken in the proceedings, it appears not.
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.
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 Witness.
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.The chairman ruled that it is the responsibility of the defence to produce anyone as their witness, so the court would not issue any summons.
No written copy of this order has been made available by the tribunal, so it is not clear whether any additional reasons have been provided - but from notes taken in the proceedings, it appears not.
What is particularly odd about this situation, is that one would imagine that the tribunal would really want to hear what this witness had to say. He was originally a prosecution witness who says in the statement that he purportedly gave the investigation officer (admitted as evidence) that 'Many people have told me that Delwar Hossain Sayeedi was directly involved in the execution of my mother'. The prosecution also alleged that he had been threatened by Sayedee's violent supporters, and therefore could not come to the tribunal. Surely the tribunal would want to go to great lengths for a witness of this kind to come to court so they can hear his evidence? However, instead the tribunal - while not refusing to allow him to be brought by the defense as their witness - refused to do what was necessary to make it more likely that he would come.
It remains baffling why the tribunal would not agree to issue a summons to hear his evidence. If the prosecution or indeed the court consider that Gonesh was only now coming to the tribunal as he has been threatened or brought off by Sayedee's supporters, then they can cross examine him about those issues.
What is certainly clear, however, is that the prosecution potentially had a lot to lose from him coming as a witness as, one assumes since the defense have sought him as their witness, he would have (a) denied that he told the investigation officer that he had heard Sayedee was involved with his mother's death and (b) denied that he did not came to court because he was threatened. If he gave evidence on (b) this would have raised further issues about the integrity of prosecution statements to the court about the other allegedly 'missing' witnesses.
5. Third application for summons - Sukhoranjan Bali: He is the witness who was subsequently alleged to have been abducted by the law enforcement agencies. His background as a witness is set out on this page. In summary, he was a prosecution witness, whose statement was accepted as evidence in the tribunal's order of 29 March along with that of Gonesh Chanda Shoha (above). His statement is even more accusatory of Sayedee.
On 22 October, along with the application relating to Gonesh, the defense also filed an application seeking a summons for Bali. As with the application relating to Gonesh, the tribunal also refused to issue a summons for him.
Again, it is notable the tribunal did not take the necessary steps to assist with getting a witness like Bali to come to the tribunal to give evidence.
6. Forth application for summons - Chan Mia Poshari, Sumati Rani Mondal and Ashish Kumar Mondal. All three of these witnesses originally were prosecution witnesses (just like Bali and Gonesh, above) and they were also subject to an application argued on 27 March 2012, seeking to allow the introduction of their unsigned statement that they purportedly gave to the investigation officer. In the application, the prosecution alleged that the three were:
'Missing from the first week of February 2012. We came to know that they secretly went to India.'The tribunal in in its order of 29 March, allowed their statements to be introduced as evidence.
Ashish's written statement which has been introduced as evidence states (approximate translation):
My name is Ashish Kumar Mondol. I am 52 years old. Upon your questioning I hereby state that I was about 12 years old during the war in 1971. The Pakistani armed force invaded our village on the 4th of May 1971. 19/20 people from different areas gathered behind the Middle Masimpur bus stand to join in the liberation war with Sub sector commander Major Zia. Aider of the Pakistani army Delwar Hossain Sayeedee and his armed force the Razakar informed the army of this and took them to Middle Masimpur bus stand where the freedom fighters were waiting. The Pakistani army shot and killed them. On the same day the Pakistani army set fire to the house of Monindro Nath Mistri according to Sayeedee’s information. People panicked and started to run. The army fired on the crowd and killed 13 people. When the Pakistani force and the armed Razakar force left the people went to the Middle Masimpur and saw the dead bodies being eaten by fox and dogs. The situation was so bad that everyone went to a safe place and stayed there. Some of the people that died that day were: 1. Bijoy Krishno Mistri, 2. Upendronath, 3. Jogendronath Mistri, 4. Shurendronath Mistri, 5. Motilal Mistri, 6. Jogeshchor Mondol, 7. Shuren Mondol and 6 other people who could not be identified. (emphasis added)His mother, Shumoti Rani Mondal's s written statement which has been introduced as evidence states (approximate translation):
My name is Shumoti Rani Mondol. I am currently 76 years old. Upon your questioning I hereby state that I was about 36 years old during the war in 1971. The Pakistani armed force, The Peace Committee, and Armed Razakar force attacked our village on the 4th of May 1971. 20 people from different areas gathered behind the Middle Masimpur bus stand to join in the liberation war with Sub sector commander Major Zia. Upon hearing this news the aider of the Pakistani army and member of the Peace Committee and the Razakar Delwar Hossain Sayeedee and others arrived at the Middle Masimpur bus stand. The armed Pakistani military and the armed Razakar force shot and killed the waiting unarmed and innocent men who wanted to join the freedom fighters. On the same day the Pakistani army torched the house of Monindro Nath Mistri according to Sayeedee’s information. People panicked and started to flee. The army fired on the crowd and killed 13 people. When the Pakistani force and the armed Razakar force left, the people went to the Middle Masimpur and saw the dead bodies being eaten by foxes and dogs. Everyone was afraid of the torture and killing of innocent, unarmed people by the Pakistani army and the Razakar force. So they fled to safe places to survive the torture and killing. Some of the people that died that day were: 1. Bijoy Krishno Mistri, 2. Upendronath, 3. Jogendronath Mistri, 4. Shurendronath Mistri, 5. Motilal Mistri, 6. Jogeshchor Mondol, 7. Shuren Mondol and 6 other people who could not be identified. (emphasis added)
Chan Mia's written statement which has been introduced as evidence states (approximate translation):
... In 1971, I was 18 years old. On 1971, during the liberation war, Pakistani army established camp in Pirojpur. They also established a camp in Parerhat school. To identify and kill the freedom fighters, their families, leaders and workers of Awami League and the Hindus Pakistani army formed the Peace Committee at first afterwords they formed the Rajakar, Al Badr and Al Shams by recruiting the local people. Jamaat e Islami leader of Parerhat Sekendar Shikdar (now expired) and Danesh Molla (now expired) formed Rajakar force under the leadership of Delwar Hossain Sayeedi @ Delu. They recruited students of various madrasas and workers and supporters of local Jamaat e Islam and other liberation-opposing organisations in the Rajakar force as the auxiliary force of Pakistan occupation army. Though Danesh Molla and Sekendar Shikdar were in the leadership, all activities and communications with Pakistani Army were done according to the command and directions of Delwar Hossain Sayeedi @Delu as he was eloquent and could speak in Urdu. Within a few days, Delwar Hossain Sayeedi made a cordial friendship with Captain Ezaz. Shanti(Peace) Committee along with Rajakar force gave pledge to Pakistan Occupation Army to provide all kinds of support for protecting Pakistan. They stood firmly against the liberation of Bangladesh and they killed hundreds of freedom fighters and their supporters, workers and leaders of Awami league, innocent Hindu people. They also burnt the houses of those people, raped women and kidnapped women for Pakistani Army for abusing.
On 8th May, 1971 Sekendar Shikdar, Danesh Molla, Delwar Hossain Sayeedi @ Delu and many other Rajakars came to our village with the Pakistani soldiers and armed Rajakars. No sooner had we seen their coming, that we fled from our home and took shelter in the nearest forest. At first they broke into the residence of Selim Khan. After looting they burnt the house. While burning the houses, Delu arrested Kutti @ Ibrahim who was in my house and my brother Mofizuddin Poshari with the help of Pakistani soldiers. After crossing the Parerhat Bridge, on the bank of the canal they shot Kutti and left his dead body there. They took Mofiz to their camp and tortured him. At night Mofiz escaped from the camp. After burning our house my father Soijuddin took us to the Shundorbon. There we ferried the refugees to India by boat. ... (emphasis added)
It should be clear that their statements are all very incriminating of Sayedee.
In relation to Ashish Kumar and Sumoti Rani Mondal, there is also another sperate issue: On 1 February 2012 the prosecution filed a notice of their appearance at the Tribunal but that on 2nd of February 2012 the prosecutors informed the tribunal that these witnesses had left the witness safe house on the previous day in order to visit their families and did not return back. However, the defense claimed that the register of the safe house shows that these two witnesses were in the Safe House in the control of the Prosecution until 16th March 2012.
On 5 November, the defense applied to the tribunal asking it to issue a summons. The application stated:
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 Sumati Rani Mondal and Ashish Kumar Mondal.
5. It may be recalled that in respect of Sumati Rani Mondal and Ashish Kumar Mondal on 01st February 2012 the Prosecution filed their Hazira (Appearance) in the Tribunal. Thereafter on 2nd of February 2012 one of the prosecutors informed the tribunal that these witnesses left witness Safe House (hereinafter ‘Safe House’) on the previous day in the name of visiting their families and did not return back. But the PWs’ Attendance Register, General Diary and the Food Book of the Safe House showed that these witnesses were in the Safe House in the control of the Prosecution until 16th March 2012. This was also reported on 12th April 2012 in the Daily Amardesh.
6. 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. Chan Mia Poshari, Sumati Rani Mondal and Ashish Kumar Mondal of the prosecution’s list of 68 witnesses are ready and willing to give evidence before the Tribunal. Since the prosecution did not to call them, the defence applies to call them on behalf of the accused.
7. That it is stated that Chan Mia Poshari is brother of PW 6 Manik Poshari has direct knowledge of the alleged incidents of the case and more particularly charge No. 8.
8. That it is submitted that (1) Chan Mia Poshari, (2) Sumati Rani Mondal and (3) Ashish Kumar Mondal are a material witnesses in the instant case. Their testimonies will assist the Hon’ble Tribunal to come to adjudicate on the Safe House Registers and many charges of the case. As such this Hon’ble Tribunal may kindly issue summon upon these witnesses so that they can give evidence as defence witnesses. Otherwise the Accused Petitioner will be highly prejudiced.
9. In the above circumstances it is therefore submitted that for ends of justice it is necessary to issue summon upon (1) Chan Mia Poshari, (2) Sumati Rani Mondal and (3) Ashish Kumar Mondal so that they can give evidence as Defence Witnesses.
Again the tribunal refused to issue a summons. On this occasion they stated that since the tribunal had closed the defense case on 23 October, no summons would be issued.
It is difficult to exaggerate the importance of the testimony of these witnesses. Not only did their written statements seriously incriminate Sayedee and so had they come to court they could provide testimony about this, but Ashish Kumar and Sumoti Rani Mondal would have clarified whether they actually were at the safe custody house in the period when the prosecutors claimed that they had left.
It is therefore, again, very difficult to explain why the tribunal did not issue a summons. Although this application took place after the tribunal truncated the defense case, rule 48 of the rules of procedure states that 'The Tribunal may, at any stage of trial of a case, summon any person as a witness ...'
One would have imagined that the importance of these witnesses would have been sufficiently significant for the tribunal to want to ensure they were called to the tribunal - and therefore to issue a summons.
One would have imagined that the importance of these witnesses would have been sufficiently significant for the tribunal to want to ensure they were called to the tribunal - and therefore to issue a summons.
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