24 Dec 2012: Molla defense seeks documents

After the prosecution finished their closing arguments, the Mollah defense lawyers argued four applications - all of them opposed by the prosecution. The first three are set out below; two concern seeking copies of two sets of documents and one concerns inspection of investigation report. The other application is on a separate page

Defence application seeking copy of complaint document of the investigation agency

1. That this application has been filed on behalf of the accused petitioner to provide the defence with a copy of the complaint recorded at Serial No. 1 dated 21.07.2010 (hereinafter referred to as “the said Complaint”) in the Complaint Register (R) of the Investigation Agency. The entire case against the accused petitioner has been prepared pursuant to the said Complaint, and as such the same is important for the defence in the preparation of its case and for ensuring a fair trial.

2. That on 28.11.2011, this Hon’ble Tribunal took cognizance of offences under the International Crimes (Tribunals) Act, 1973 against the accused petitioner.

3. That thereafter on 02.01.2012, the counsel of the accused petitioner was handed over the copies of the documents submitted by the Prosecution, which comprises of a set of witness statements and 9 volumes of documents.

4. That it is apparent from the Formal Charge and other documents submitted by the Prosecution that the Formal Charge was prepared pursuant to the said Complaint, which is a complaint recorded as serial No. 1 dated 21.07.2010 in Complain Register (R) of the Investigation Agency. However, the Prosecution has not included the said Complaint in either the Formal Charge or in the other Prosecution Documents submitted with the Formal Charge. By excluding the said Complaint from the Formal Charge and other Prosecution Documents, the Prosecution have denied the defence access to an important and essential document necessary for conducting a fair trial.

5. That the entire case against the accused petitioner is based on the said Complaint. As such the said Complaint is essential for the preparation of the defence case. Without the said Complaint the accused petitioner will be unable to prepare an effective defence case. Without providing the defence with a copy of the said Complaint, a fair trial cannot be ensured.

6. That in compliance with the said Rules, the Prosecution in the case of Chief Prosecutor -vs- Delwar Hossain Sayedee submitted the complaint in that case at page 1 in volume 1 of the Prosecution Documents.

7. That in the circumstances, this Hon’ble Tribunal may be pleased to direct that a copy of the complaint recorded at Serial No. 1 dated 21.07.2010 in the Complaint Register (R) of the Investigation Agency be given to the accused petitioner. Otherwise, the accused petitioner will suffer irreparable loss and injury.

Defence application seeking copy of 'Pallabi' police case

1. The Petitioner is detained in jail custody since his arrest on 13th July 2010 i.e. for the last more than two years.

2. That on 24th January 2008, one Md. Amir Hossain Mollah filed complaint Register Case No. 10 of 2008 alleging that on 24th April 1971, the Accused Petitioner 3 accompanied by 100-150 persons attacked the villagers of Alobdi village, Pallabi. It has been further alleged in the complaint petition that on 18th December 1971, the freedom fighter of the neighborhood attacked the Accused Petitioners, whereupon the retaliated by firing at the freedom fighters, thereby committing offences under sections 148/448/302/34/101/326/307 and 436 of the Penal code. Upon the filing of the aforesaid Complaint Case, the learned Magistrate sent the case to the police for investigation whereupon Pallabi P.S. Case no. 60 dated 26.02.2008 was initiated.

3. That no police report has been submitted in either the pallabi PS Case No. 60 dated 26.02.2008.

4. Thereafter, on 21.07.2010, the records of Pallabi P.S. Case were transferred from the court of Chief Metropolitan Magistrate, Dhaka to the International Crimes Tribunal, Dhaka (hereinafter referred to as ‘the tribunal’).

5. That on 17th December 2007, one Mozaffar Ahmed Khan filed complaint Register Case No. 15 of 2007 alleging inter alia that during the war of Independence, mass murders were committed in Keranigong Police Station under the supervision and direction of the accuse-petitioner. It has been further alleged in the Complaint Petition that at about 7.30 am on 25th November 1971, the Complainant accompanied by a group of freedom fighter attacked the Accused-Petitioner, whereupon they retaliated by burning down villages and committing mass murders with the help of the Palkstan army, thereby committing offences under section 447/448/436/302/109 and 114 of the Penal Code. Upon filing of the aforesaid Complaint Case, the learned Magistrate sent the case to the police for investigation whereupon Keranigang P.S. Case no. 34 dated 17.12.2007 was initiated.

6. That no police report has been submitted in either the Keranigong PS Case no. 34 dated 26.02.2008.

7. Thereafter, on 22.07.2010, the records of Keranigong P.S. Case were transferred from the court of Chief Metropolitan Magistrate, Dhaka to the International Crimes Tribunal, Dhaka (hereinafter referred to as ‘the tribunal’).

8. The on 13th July 2010, the police arrested the Accused Petitioner in connection with the Pallabi and Keranigong PS Cases.

9. That at the time of giving deposition P.W.-12 (Abdur Razzaq Khan), The Investigation Officer admitted regarding the transfer of those cases.

10. That On behalf of the accused-petitioner Mr. Abdul Quader Mollah we need Certified copy of the proceedings of Pallabi P.S. Case no. 60(01)08 which was transferred to this Hon’ble Tribunal on 21.07.12 and proceeding of Keranigang P.S. Case no. 34 dated 17.12.2007 transferred to this Tribunal no 22.07.2012 in ICT-BD Case No. 2 of 2012 for the following purposes-
a) For keeping record;
b) For preparation of the argument.

Defence application on inspection of investigation report

1. That on 10th January 2012 the Defence filed an application praying that the Registrar serve on it a copy of the investigation report compiled by the Investigation Officer into crimes alleged to have been committed by the Accused-Petitioner.

2. That on 22nd January 2012 the Hon’ble Tribunal passed Order No.5 (hereinafter ‘22nd January Order’) refusing to direct the Registrar to serve a copy of the investigation report on the Defence.
3. That on 16.10.2012 defence again filed an application for disclosing the investigation report has been filed.

4. That after hearing this application on 23.10.2012 this Hon’ble Tribunal was please to reject this application.

5. That it was further submitted that the investigation report is an essential document, which is the base of the Prosecution case against the Accused- Petitioner.

6. That it is also self-evident that without a copy of the Investigation Report the Accused-Petitioner has no scope to know any detail about the process of the investigation and as such it will not be possible for the Defence Counsel to conduct the case properly.

7. That from 03.07 2012 the prosecution commenced to produce P.Ws. before this Hon’ble Tribunal and with the Cross Examination of P.W.-12 on 04.11.2012 they completed their case.

8. That from 15.12.2012 this Hon’ble Tribunal initiated recording the Deposition of Defence Witnesses and it’s ended with the Cross Examination of Defence Witness no. 6 on 13.12.2012.

9. That subsequently this Hon’ble Tribunal asked the prosecution to start the argument.

10. That it is submitted the defence has no single knowledge regarding the process of the investigation though they are not provided any copy of the investigation report.

11. That without any knowledge about the Investigation Report it’s quite impossible for the defence counsel to conduct the case properly.

12. That it is submitted that, though this Hon’ble was please to reject the prayers of the defence to disclose the Investigation Report for 2 times, but to assist the Accused-petitioner properly the Defence Counsels feeling necessities of inspecting the Investigation Report.

13. That it is stated that the Accused Petitioner would be prejudiced if the Defence does not allowed to inspect the Investigation Report.

14. That it is stated that if this Hon’ble Tribunal give permission to the Defence for inspecting the Investigation Report no party would be prejudice.

15. That for the abovementioned reasons, the Accused-Petitioner prays that this Hon’ble Tribunal kindly issues an order giving permission to the defence for inspecting the investigation report.

See here for subsequent tribunal order