Following from the previous day hearing relating to Mollah, the tribunal started with the Mollah defense lawyers filing an application seeking permission from the tribunal that it can call a witness who was on the prosecution list of witnesses. The written application is set out below.
The defense counsel said that the tribunal could do this by exercising the power of Rule 46 A of ICT for ends of justice and the defense argument is not correct. Advocate Abdus Sobhan Torafdar clarified that this witness was one of the 6. He said that use of Rule-46 A for this is not unprecedented; Tribunal-1 also gives order by using this power and charge was amended by using this rule in Ali Ahsan Mohammad Mujahid’s case.
The chief prosecutor argued that the statutory provision do not allow this in an explicit way, and to allow another rule to do so is effectively overwriting the law.
The defense counsel said that it does not overwrite, it is extension of the tribunal's power by Rules. He said that the tribunal curtail the witness list by exercising this Rule.
After much discussion, the tribunal allowed the witness to be examined. Abdus Sobhan Torafdar started to question the forth defence witness, Sahera (See third witness evidence)
1. That it is stated that on 22 July 2010, the Chief Prosecutor of the International Crimes Tribunal, Dhaka (hereinafter: “the Tribunal” or “the ICT”) requested the Tribunal to order the arrest of the Accused/Petitioner under Rule 9(1) of the Rules and Procedure of the International Crimes Tribunal for crimes committed under section 3(2) of the International Crimes (Tribunal) Act 1973 as amended 2009 (hereinafter: “ICTA”). On 2 August 2010, the International Crimes Tribunal ordered the Accused/Petitioner’s arrest.The prosecutor objected allow to her as a witness. He referred section-9(4) and 9(5) of ICT Act. He wants to say that defense is totally barred.
2. That on 28 December 2011, this Hon’ble Tribunal stated that a prima facie case had been established against the Accused/Petitioner and ordered that cognizance be taken under sections 3(2) ICTA. The Tribunal ordered for the Prosecution to disclose copies of the formal charge and all supporting documents relied upon while forming the charge concerned to the Defence by 2 January 2012. The framing of charges hearing was thereafter fixed for 29 January 2012.
3. That on 28 May 2012, the Tribunal issued its order on the framed charges against the Accused-Petitioner (hereinafter: 28 May 2012 Order). In doing so it framed a total of 6 charges against the Accused-Petitioner.
4. That the Prosecution opened its case on 3 July 2012 and closed it on 4 November 2012.
5. That the Defence opened its case on 11 November 2012 and it is still underway.
6. That this Hon’ble Tribunal recorded the deposition of Defence Witness no. 3 on 29.11.2012 and fixed 02.12.2012 for recording the deposition of next witness.
7. That the name of this witness was not included in the list of Defence Witness submitted by the defence on 15.07.2012.
8. That it is submitted that the name of this witness cited by the prosecution and on 10.04.2012 they submitted her statement as additional witness.
9. That this witness was not examined by the prosecution.
10. That there has no legal bar to examine the prosecution witness who has not been examined by prosecution as Defence Witness.
11. That she is a material witness and if her name is not adduced the defence will be highly prejudiced.
12. Therefore, for the reasons above, it is respectfully submitted that, the Accused-Petitioner prays that this Hon’ble Tribunal will pass an order adducing the name of Sahera into the list of Defence Witness.
The defense counsel said that the tribunal could do this by exercising the power of Rule 46 A of ICT for ends of justice and the defense argument is not correct. Advocate Abdus Sobhan Torafdar clarified that this witness was one of the 6. He said that use of Rule-46 A for this is not unprecedented; Tribunal-1 also gives order by using this power and charge was amended by using this rule in Ali Ahsan Mohammad Mujahid’s case.
The chief prosecutor argued that the statutory provision do not allow this in an explicit way, and to allow another rule to do so is effectively overwriting the law.
The defense counsel said that it does not overwrite, it is extension of the tribunal's power by Rules. He said that the tribunal curtail the witness list by exercising this Rule.
After much discussion, the tribunal allowed the witness to be examined. Abdus Sobhan Torafdar started to question the forth defence witness, Sahera (See third witness evidence)
Defence: Your name and address please?
Witness: My name is Mrs. Sahera wife of late Fazor Ali. Address- house no.-11 Taltola Bosti (slum), P.S. - Pollobi.
Defence: Your age?
Witness: Probably 60 years.
Defence: How many siblings does your husband have?
Witness: They were 5 brothers.
Defence: Can you say their name?
Witness: Sekandar, Fazor Ali, Montu, Tuntuni and Abbas.
Defence: What is the name of your father in law?
Witness: Late Manik Sorkar.
Defence: What is the name of your mother in law?
Witness: Golehar.Defence: Where did you stay in 1971?
Witness: At Savar.Defence: Before that?
Witness: Mirpur 12.Defence: with whom did you stay there?
Witness: I, my husband, my brothers in law and my mother in law altogether we lived there.
Defence: What was the address of such your resident?
Witness: 12no. Muslim Bazaar.
Defence: What was Tuntuni doing in 1971?
Witness: Tuntuni and Pollob was same person. He was a student of Mirpur Bangla College.
Defence: Had you any child during freedom fight?
Witness: Yes I had. My 1st son that time he was a 5 months child.
Defence: What his name?
Witness: Farooque.
Defence: Have you any National ID card?
Witness: Yes I have. I have taken it with me. (Shows the tribunal)
Defence: Can you say how Pollob was killed in 1971?
Witness: Pollob was killed by Akhter Gunda (terror) and Biharis.
Defence: When you come back from the Savar?
Witness: After the independence.
Defence: Where Pollob was killed can you say that?
Witness: When he started his journey to India, then Akhter Gunda and Biharis caught him from Nobabpur then after he had taken to Muslim Bazaar Idgah field and that place Tuntuni alias Pollob was killed by Akhter Gunda and Biharis.
Judge Shahinur Islam: did you seen that?
Witness: I heard.
Defence: You hear from whose people?At the end of providing the evidence the tribunal asked the prosecutor Mr. Mohammad Ali whether he wanted time to prepare for the cross examination , but he said that he was ready.
Witness: I heard the incident from the public.
Defence: Had you given any statement related to such incident?
Witness: I never made any statement related this case except today.
Prosecution: Have you got any summons from this tribunal for making witness?
Witness: No.
Prosecution: Who asked you to become a witness?
Witness: Abdul Quader Molla’s son asked me to become a witness on behalf Quader Molla.
Prosecution: How many days before he said this to you?
Witness: 3/4 days before.
Prosecution: Did you come along with him?Session was adjourned.
Witness: Yes.
Prosecution: How many children you have?
Witness: I have 2 sons and 1 daughter.
Prosecution: What name is your elder child?
Witness: Farooque.
Prosecution: Do you have any job?
Witness: I have making stitching on cloths. I don’t know reading or writing.
Prosecution: Do you know Nasiruddin?
Witness: I know Nasiruddin of pump house of Jollad Khana.
Prosecution: When did you go to Jolladkhana?
Witness: Probably 1 year ago I had gone to Jolladkhana then I informally talked with Nasiruddin.
Prosecution: There you have talked with I.O. Razzak Khan and Monwara Begum.
Witness: It is not true.
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