Following previous day's hearing on Mollah, the tribunal first took up a defense application relating to the recall of certain witnesses. The written application is set out below:
1. That the Accused-Petitioner is filing this application with prayer to recall the following Prosecution Witnesses (PW) under Rule 48(1) read with 46 of the Rules of Procedure:
A. PW – 1 – Mujaffar Ahmed Khan;
B. PW – 2 – Sayad Shahidul Hoque Mama;
C. PW – 3 – Momena Begom;
D. PW – 4 – Kobi Kazi Rozi and
E. PW – 5 – Khandakar Abul Ahsan.
2. Rule 48(1) of the International Crimes Tribunal Rules of Procedure, 2010 (hereinafter ‘Rules of Procedure’) provides as follows: 48(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.
3. Rule 46A of the International Crimes Tribunal Rules of Procedure, 2010 (hereinafter ‘Rules of Procedure’) provides as follows: 46A) 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.
4. That on 03.07.2012, 08.07.2012 and 09.07.2012 the Prosecution Witness No. 1, Mr. Mujaffar Ahmed Khan gave evidence before the Tribunal in the instant case. At the time of cross examination of PW-1 the Defence counsel inadvertently failed to examine him to the following contradictory questions:-
You have not told to the Investigating officer that, “I have worked for Awami League candidate of Mirpur-Mohammadpur constituency Dhaka Metropolitan area (in the national election). At Mirpur-Mohammadpur constituency Jamat-e-Islami candidate was Professor Golam Azam. Abdul Kader Molla worked for Golam Azam (in the national election).”
You have not told to the Investigating officer that, “At that place I met Tiyeb Ali and Abdul Majid. Tiyeb Ali, Abdul Majid and some others started to identify the dead bodies – Hindu and Muslim. Then I asked them ‘who did this (mass killing)?’ Abdul Majid replied that, ‘between 23-24 November 1971, a meeting was held at Ghatar Char. Dr. Joynal, K.G. Karim Babla, Mukar Hossen, Foyzur Rahman of Muslim League were present in that meeting, they arranged the meeting contacting the Islami Chatra Shangha (‘Islami Student Wing’ in English) leader Abdul Kader Molla and Abdul Kader Molla was present at that meeting at that time. At that meeting they took decision to kill unarmed people at a large scale (genocide). On 25th November 1971, they acted according to that decision.”
You have not told to the Investigating officer that, “During the War of Independence, once I been to my uncle’s place at Mohammadpur putting veil. Then I return to my village home. There was a torture cell at Mohammadpur Physical Training Centre. On the way of my return I saw Kader Molla was standing over there with arms with his accompanies.”
You have not told to the Investigating officer that, “On 25th March (later on said) 25th November (of 1971) the genocide, arson and looting took place at Ghatar Char was done by the local rajakars under the leadership of Kader Molla by contacting him (prior to the incident).”
5. That on 17.07.2012 and 18.07.2012 the Prosecution Witness No. 3, Mrs. Momena Begom gave evidence before the Tribunal in the instant case. At the time of cross examination of PW-3 the Defence counsel inadvertently failed to examine him to the following contradictory questions:-
You have not told to the Investigating officer that, “At that time my father rushed (to our house) and started to say that Kader Molla would kill him.”
You have not told to the Investigating officer that, “Kader Molla and Biharis came in front of (our) door and shouted, ‘Hey son of a bitch! Open the door, (otherwise) we will charge bomb’ [said in urdu].”
You have not told to the Investigating officer that, “While my father tried to grab my mother, Kadel Molla grab my father’s shirt’s collar from the back and said, ‘hey son of a pig! Won’t you support Awami League anymore? Won’t you go to Bangabondhu (Seikh Muzibur Rahman)? Won’t you attend any procession shouting ‘Joy Bangla’ (stands for ‘may Bangla leave long; a popular slogan of Awami League) anymore?’ Then my father begged to Kader Molla, ‘Brother Kader, please leave me.’ He then begged to Akter Gunda (stands for ‘anti-socialist’), ‘Brother Akter, please leave me.’ Then they forcefully took my father outside of our home.”
You have not told to the Investigating officer that, “I have not found anyone at my house…there was odour everywhere…lot of people were killed there. There was a man named Kamal Khan who used make tea for the freedom fighters. He used to tell me that Kader Molla has killed your parents. Akkas Molla, who was my Ukil father (someone become guardian at time of Muslim marriage), also told me the same. He used to say, ‘You should seek justice to God. He will do justice to Kader Molla.’”
6. That on 24.07.2012 and 26.07.2012 the Prosecution Witness No. 4, Mrs. Kobi Kazi Rozi gave evidence before the Tribunal in the instant case. At the time of cross examination of PW-4 the Defence counsel inadvertently failed to examine him to the following contradictory questions:-
You have not told to the Investigating officer that, “In the election of 1970, Professor Golam Azam become the candidate with ‘Scale’ sign. There was an organisation then named Islami Chatra Shongha (‘Islami Student Wing’ in English). He was in the leadership of this organisation; he was considered as the chief. Under his leadership, non-Bengalis used to work with him then; they used to work for ‘scale’ sign.”
You have not told to the Investigating officer that, “On that very day they (rajakars) entered at the house of Meherunnesa under the leadership of Kader Molla but whether he (Kader Molla) himself entered into the house (of Meherunnesa) you are unable to confirm.”
You have not told it to the Investigation officer that, “After killing Meherunnesa, they cut her head and separated from the body and they hang the head with the (celling) fan. Meher(unnesa) was moving like slaughtered chicken.”
7. That on 29.07.2012 and 30.07.2012 the Prosecution Witness No. 5, Mr. Khandakar Abdul Ahsan gave evidence before the Tribunal in the instant case. At the time of cross examination of PW-5 the Defence counsel inadvertently failed to examine him to the following contradictory questions:-
You have not told to the Investigating officer that, “Your father worked for ‘boat’ sign during the (national) election. Because of great victory of Awami League in the election, the heinous killings were committed at Mirpur after 25th March 1975 by the losing party under the leadership of Kader Molla.”
You have not told it to the Investigation officer that, “I have never seen Kader Mollah face to face but I have seen him on television and newspapers.”
8. That in view of the submissions made above it is submitted that Prosecution Witness Nos 1, 2, 3, 4 and 5 should be recalled for ends of justice so that the defence Counsels can re-examine them on the question raised here in above; in default the Accused-Petitioner shall suffer irreparable loss and injurey.
9. That it is submitted that this Hon’ble Tribunal has ample power to pass an order under Rule 48(1) read with 46A of the Rules of Procedure to recall the Prosecution Witness Nos 1, 2, 3, 4 and 5 for re-examine for ends of justice.
For the defense in court Abdur Razzaq said that they need the recall of prosecution witness-1, 3, 4 and 5 for ends of justice. (Reference give Rule-48 and 46 A of ICT). In their statements some contradiction was made which are very important matters. Matters should be relevant for interest of justice. Those are not small inconsistency.
The prosecutor Mohammad Ali said that in respect of the witnesses sections-10E and F does not provide aprovision for re-examination and re-call. The defense are filing petitions everyday. Their motive is very clear. They want to delay the case. I strongly oppose it.
Razzaq then said that the court could allow this petition by exercising the inherent power.
The tribunal then passed the following order later that day.
Today is fixed for hearing two (02) applications filed yesterday by the defense. The record is taken up for hearing and disposing of the same accordingly.
First Application [Decision on application filed under Rule 48(1) of the ROP by the defence seeking permission to re-examine four prosecution witnesses on re-call] 1. This has been an application filed under Rule 48(1) of the ROP on behalf of accused Abdul Quader Molla seeking an order permitting the defence to 're-examine' the prosecution witness nos. 1,3,4 & 5, on the grounds stated therein.
Submission by the Defence 2. Abdur Razzak, the learned senior counsel, appearing on behalf of the accused petitioner submits, by citing the Rule 48(1) of the ROP, that at any stage of trial of a case any witness may be 're-called' and 're-examined' and the Tribunal is authorized to allow it in exercise of powers given under Rule 46A of the ROP. It has been further submitted that the defence counsel inadvertently failed to cross-examine the above prosecution witnesses to contradict their testimony with their earlier statement made to the Investigation Officer. The accused shall suffer ineparable loss and injury if he is not allowed to 're-examine' these four witnesses.
Submission by the Prosecution 3. On the other hand, Mr. Mohammad Ali, the learned prosecutor vehemently opposing the prayer submits that the Rule 48(1) does not contemplate provision of cross-examination of prosecution witness on 're-call', although any of prosecution witnesses may be summoned by the Tribunal for 're-examination' on 're-call' if it is considered essential by the Tribunal. The application being not maintainable is liable to be rejected.
Discussion and Decision
4. Having regard to submissions of both sides and the provisions as contained in Rule 48(1) and Rule 48(2) of the ROP it is quite patent that the Rule relates to discretion of the Tribunal which is empowered to summon any person already examined for the purpose of his 're-examination on re-call', if it appears to it essential to the just decision of the case, and it does not relate to 'cross-examination of prosecution witness on re-call'-
5. It is to be noted that 'cross-examination on re-call' and 're-examination on re-call' is not the same thing. The intent of the Rule 48(l) and Rule 48(2) are aimed at to get any matter on which a person already has been examined, the Tribunal may summon him for his re-examination. There should be no ambiguity that if a person who has already been examined by the prosecution, is not permitted to be 're-examined on recall', question does not arise to 'cross-examine' him on re-call by the defense.
6. The defence has prayed for 're-examination' of above four prosecution witnesses on 're-call'. But the defence may 're-examine' only its own witnesses, after they are cross-examined by the prosecution [Section 10(1)(f) of the Act]. Similarly, prosecution witnesses may be 're-examined' only by the prosecution itself, after they are cross-examined by the defence [Section 10(1)(e) of the Act]. Besides, neither the Act nor the ROP provides provision for 'cross-examination' of prosecution witnesses on 're-call'.
7. In addition, it is fairly evident on record that examination and cross-examination of prosecution witness nos. 1,3,4 and 5 have been completed by the month of July 2012. In the meantime, more than three (03) months have been elapsed but the defence did not care to come up with such application for re-calling above prosecution witnesses. Rather, by this time prosecution has completed examination of its own witnesses and the Tribunal has fixed dated for examination of defence witnesses by its order dated 05 November 2012. Thus, bringing the instant application by the defence visibly seems to be a tactic to cause unreasonable delay which the Tribunal is empowered to prevent [Section 11(3b) of the Act of 19731, for the purpose of speedy trial, one of requirements of fair trial.
8. The Tribunal may, as it appears, so summon any person already examined only of its own accord and not on any application from either party, if it is considered essential to the just decision of the case [Rule 48(2) of the ROP]. As a result, we do not consider it necessary to re-call the above prosecution witnesses, as prayed for, and even in exercise of inherent power under Rule 46,4 of the ROP.
9. In view of above reasons the application is hereby rejected.