26 Dec 2012: Tribunal order on applications

This order was passed in response to four applications. See this page for the  three dealing with obtaining copies of various documents and inspection of investigation report and this page for the application relating to seeking permission to call more defense witnesses.

This order rejected three of the application, but allowed the application to inspect documents.

The record is taken up for passing decision on four applications filed by the defence. We have heard the applications on 24 December 2012.  

First and Fourth Applications [Decision on application filed by the delence praying certilied copy of ‘complaint’ and FIR as stated in the application] 

At the ouset let us dispose of the first and fourth application together as the same relate to prayer for obtaining copy of the ‘complaint’ and the First Information Report of Pallabi Police Stateion and Keraniganj Police Station as described therein. 

The learned defence counsel Mr Tajul Islam has submitted that the defence is in need to have copy of the 'complaint' and the First Information Report in furtherance of which investigation was initiated on the basis of which investigation was initiated into this case' For the purpose of proper opportunity of defence the accused shall have right to get these.
The learned prosecutor Mr. Mohammad Ari, vehemently opposing the application, has submitted that neither the Act nor the Rop provides provision of supplying the above documents' The Act of 1973 contains explicit provision as to which documents the defence is entitled for the purpose of preparation of defense.  

 'Complaint, has been defined in Rule 2(6) of the ROp as follows: “Compliaint” means any information oral or in writing obtained by the Investigation Agency including its own knowledge relating to the commission of crimes under section 3(2) of the Act  

Thus the First Information Report as stated in the application of the defence may not necessarily be the sole basis of initiating investigation as to commission of crimes. The same might have been taken into account by the Investigation Agency as merely one of sources of information for initiating the task of investigation and the same does not form part of the judicial record of the case. Nor it has been submitted along with the formal charge for consideration of the Tribunal for the purpose of adjudication of the case.  

Additionaily, it is quite patent from section 9(3) of the Act of 1973 and Rule 18(4) of the RoP as to which documents the accused is entitled for the purpose of preparation of its defence. Next, at the stage of summing up of prosecution case under section 10(l)( i) of the Act of 1973 seeking any further document to which accused is not at all entitled is simply devoid of merit and not tenable too.  

Having regard to submission and in view of reasons stated aforesaid the application is hereby rejected.

Second Applications Decision on application filed by the defence praying permission to inspect the investigation report.

Now, let us turn our look toward the second application. This has been application seeking permission to inspect the Investigation report on grounds stated therein.
The learned counsel Mr. Tajul Islam has submitted that accused shall have right to inspect the investigation report as it is the basis of the case. For ends of justice the defence should be permitted in this regard and in such case there is no likelihood of causing prejudice to the prosecution. It is further submitted that without inspecting the investigation report the accused has no scope to know detail about the process of investigation as the investigation report is the base ofthe prosecution case. 

Mr Mohamad Ali , the learned Prosecutor has opposed the application adding that there has been no provision of inspecting the investigation report.  

First it appears from the paragraph 12 of the application that already similar application seeking permission to inspect investigation report has been rejected twice by the tribunal. Second, the prosecution case is not based on the report. It is founded on formal charge, statement of witnesses and documents submitted under section 9(3) of the Act and copies thereof have been duly provided with the accused for preparation of defence. Third, Section 16(2) of the Act of 1973 provides provision of such inspection only in one circumstance. The section l6(2) runs as below; “A copy of the formal charge and a copy of each of the documents lodged with the formal charge shall be furnished to the accused person at a reasonable time before the trial; and in a case of any difficulty in furnishing copies of the documents, reasonable opportunity for inspection shall be given to the accused person in such manner as the Tribunal may decide.’  

 Admittedly copy of each of the documents lodged with the formal charge have been supplied to the accused person at a reasonable time before the trial as required under section 16(2) of the Act. There has been no provision inspecting any document, in no other circumstance.  

However, despite the above legal position we are thus persuaded to express our view that the application may be considered permitting the defence to inspect the investigation report as under Rule 29(l) of the RoP the Tribunal examined the investigation report together with other documents for the purpose of taking cognizance of offense.  

 In view of above reason the application is allowed and tow of learned counsel of the defence team is permitted to inspect the investigation report in presence of the Bench Officer on 27 Demce ber from 04.00pm and 05.00 pm.  

Third Application Decision on application filed by the defence seeking permission to allow the accused to addue and examine additional 06 witnesses. 
 Finally, we are going to render decision on third application. This has been application seeking permission to adduce and examine additional 06 witnesses in support of defense.
The learned counsel Mr Tajul Isam has submitted that accused shall have right to examine witnesses it intends in support of its defence. Considering the nature and gravity of charges accused should have fair opportunity to examine such number of additional witnesses that it considers necessary. Limiting the number of defence witness has shortened the right of defence which is not in consonance of the intemationally recognised principle of right of defense.  

Conversely, the learned prosecutor Mr. Mohamad Ali, opposing the application, has submitted that already the Tribunal in two earlier occasions has given i1s reasoned decision in respect of limiting the number of defence witnesses and accordingly defence has already examined 06 witnesses including the accused. The instant application does not contain any new ground for consideration.  

We have seen and perused the application and the case record. First, there has been no provision to permit the defence for tendering additional witnesses. Section 9(4) provides provisions of permitting only the prosecution for tendering additional witnesses, at any stage of trial.  

Second, it appears that by an order dated 5.11.2012 the Tribunal permitted the defence to adduce and examine 06 witnesses from the list of witnesses submitted under section 9(5) of the Act, in support of its defence. Thereafter, the defence filed an application seeking re-call of the order dated 05 November 2012 with prayer to adduce and examine 06 more witnesses. The Tribunal, on hearing both sides, rejected the application stating reasons by its order dated 12 November 2012. 

Thereafter, the defence brought a delayed application seeking review of order dated 05 November 2012 almost on similar grounds raised in its earlier application seeking re-call. However, the Tribunal rejected the review application by its reasoned order passed on 26November 2012. Subsequently, the Tribunal , on its own motion reviewed its order dated 05 November relaxing the condition of adducing DWs from the 'list of witnesses' submitted under section 9(5) ofthe Act of 1973.  

 In view of above facts, the instant application does not appear to have new and substantial ground for consideration. Now, we, in disposing of the application in hand, are constrained to echo our earlier view, on the matter. that -:   

The defence is to prove nothing and the burden squarely lies upon the prosecution to prove the charges beyond reasonable doubt. Despite this universally recongised position, in our earlier order by stating reasons we have permitted the defence to call and examine in all 06 witnesses. In exercise of power given under section 22 we have regulated the number of defence witnesses, even in absence of any explicit provision either in the Act or in the ROP.

Additionally the please of alibi does not constitute a defence in its proper sense. An alibi, however, is nothing more thatn the denial of the accused’s presence during the commission of a criminal act. An Alibi in contrast to a defence is intente to raise reasonable doubt about the present of the accused at the crime site, this being an element of the prosecution’s case, thus the burden of proof is on the prosecution.’ 

 Having regard to submissions and in viee, of above reasons we do not find any new ground to permit the defence to adduce and examine additional witnesses and as such the application is hereby rejected.