The defense written application is below, along with the order of the tribunal.
1. That this Hon’ble Tribunal passed an Order rejecting the prayer of defence for recall of the Prosecution Witnesses Nos. 1, 2, 3, 4 and 5 under Rule 48(1) read with 46A of the International Crimes Tribunal Rules of Procedure, 2010 by it’s order no. 90 dated 12.11.2012.
2. That under section 17 ICTA which safeguards the rights of the accused during the trial, an accused shall have the right to present evidence at trial in support of his defence and to cross-examine any witness called by the Prosecution.
3. That under Rule 43(4) RoP the accused shall be entitled to a fair hearing.
4. That on 3rd July 2012 this Hon’ble Tribunal initiated recording the deposition of P.W against this Accused-n petitioner.
5. That on 4th November 2012 recording deposition of P.W ends with the Corss Examination of P.W.-12 Abdur Razzaq Khan.
6. 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.
7. 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.
8. 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.
9. 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.
10. On 11.11.2012 defence filed “An application for recall of the Prosecution Witnesses Nos. 1, 3, 4 and 5 under Rule 48(1) read with 46A of the International Crimes Tribunal Rules of Procedure, 2010.”
11. That in this application defence stated that the defence lawer inadvertently could not ask some contradictory questions mentioned in that application to the P.Ws as mentioned at para 5, 6, 7 and 8.
12. That on 12.11.2012 hering of this application taken place.
13. That it is sated that, the Hon’ble Tribunal rejected this application and passed Order No. 90 dated 12.11.12 to recall the prosecution witnesses Nos. 1, 3, 4, and 5. (A certified copy of Order No. 90 dated 12.11.2012 is annexed herewith and marked as Annexure- 1.)
14. In the submissions of the application main poitn’s were as follows:
a. In advertently the defence counsel could not examine the prosecution witnesses 1, 3, 4 and 5 asked by some contradictory questions as specified in that application.
b. If the defence is not allowed to examine by asking those questions to witnesses Nos. 1, 3, 4 and 5, the Accused-Petitioner shall be highly prejudiced.
c. Because of the inadvertent mistake of the counsel Accused should not suffer.
15. Following submissions, the Hon’ble Tribunal rejected the application stating that :
a. “Cross-Examination on re-call’ and‘re-examination on re-call’ is not the same thing.
b. The defence may ‘re-examined’ 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-examine’ only by the prosecution itself, after they are cross-examined by the defence [section 10(1)(e) of the Act].
c. The Examination and Cross Examination of prosecution witness nos. 1, 3, 4 and 5 have been compeated by the month of July 2012; in the mean time 3 month have been elapsed.
16. For the following reasons, the Accused-Petitioner prays for the Hon’ble Tribunal to review Order No. 90 dated 12.11.2012 and recall of the Prosecution Witnesses Nos. 1, 3, 4 and 5 to ‘re-examine’ them by the defence.
17. That inaccordance of Jamatraj Kewalji Govani vs. State of Moharashtra, reported in AIR 1968 SC 1768 (1) the court has ample power for re-call or re-summon P.W. at any stage of the trial.
18. The right to cross-examine any witness testifying against one’s case is one of the fundamental cornerstones of the adversarial system upon which the judicial process of Bangladesh is based.
19. That “Under the adversarial system of jurisprudence, the art of cross examination is the greatest weapon to attack an adversary. It is fundamental; it is the pivot, the central hub and gravity of the civil system. This is so because, cross examination is based on the rules of pleadings with its source on the rule of natural justice of audi alteram partem (that is, hear the other side). To deny a party the right to cross-examine his adversary without legal reasons amounts to denial of fair hearing” as enshrined in section 36(1) of the 1999 Constitution of Nigeria (P. 713, paras. C-H)
20. Section 17 ICTA enshrines fundamental aspects of due process and the equality of arms principle by providing that during the trial the accused person shall have,
(1) the right to give any explanation relevant to the charge against him;
(2) the right to conduct his own defence or to have the assistance of counsel;
(3) the right to present evidence at the trial in support of his defence, and to cross-examine any witness called by the prosecution.
21. Further, Article 67(1)(e) of the Statute of Rome for the International Criminal Court (hereinafter: ICC) provides that “In the determination of any charge, the accused shall be entitled to the following minimum guarantees, in full equality: “To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute”
22. The Hon’ble Tribunal is under a duty to uphold these fundamental and basic rights.
23. Indeed, it is respectfully submitted that Order No. 90 effectively denies the Accused-Petitioner’s right to raise defences as provided under section 17 ICTA and article 67(1)(e) ICC.
2. That under section 17 ICTA which safeguards the rights of the accused during the trial, an accused shall have the right to present evidence at trial in support of his defence and to cross-examine any witness called by the Prosecution.
3. That under Rule 43(4) RoP the accused shall be entitled to a fair hearing.
4. That on 3rd July 2012 this Hon’ble Tribunal initiated recording the deposition of P.W against this Accused-n petitioner.
5. That on 4th November 2012 recording deposition of P.W ends with the Corss Examination of P.W.-12 Abdur Razzaq Khan.
6. 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.
7. 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.
8. 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.
9. 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.
10. On 11.11.2012 defence filed “An application for recall of the Prosecution Witnesses Nos. 1, 3, 4 and 5 under Rule 48(1) read with 46A of the International Crimes Tribunal Rules of Procedure, 2010.”
11. That in this application defence stated that the defence lawer inadvertently could not ask some contradictory questions mentioned in that application to the P.Ws as mentioned at para 5, 6, 7 and 8.
12. That on 12.11.2012 hering of this application taken place.
13. That it is sated that, the Hon’ble Tribunal rejected this application and passed Order No. 90 dated 12.11.12 to recall the prosecution witnesses Nos. 1, 3, 4, and 5. (A certified copy of Order No. 90 dated 12.11.2012 is annexed herewith and marked as Annexure- 1.)
14. In the submissions of the application main poitn’s were as follows:
a. In advertently the defence counsel could not examine the prosecution witnesses 1, 3, 4 and 5 asked by some contradictory questions as specified in that application.
b. If the defence is not allowed to examine by asking those questions to witnesses Nos. 1, 3, 4 and 5, the Accused-Petitioner shall be highly prejudiced.
c. Because of the inadvertent mistake of the counsel Accused should not suffer.
15. Following submissions, the Hon’ble Tribunal rejected the application stating that :
a. “Cross-Examination on re-call’ and‘re-examination on re-call’ is not the same thing.
b. The defence may ‘re-examined’ 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-examine’ only by the prosecution itself, after they are cross-examined by the defence [section 10(1)(e) of the Act].
c. The Examination and Cross Examination of prosecution witness nos. 1, 3, 4 and 5 have been compeated by the month of July 2012; in the mean time 3 month have been elapsed.
16. For the following reasons, the Accused-Petitioner prays for the Hon’ble Tribunal to review Order No. 90 dated 12.11.2012 and recall of the Prosecution Witnesses Nos. 1, 3, 4 and 5 to ‘re-examine’ them by the defence.
17. That inaccordance of Jamatraj Kewalji Govani vs. State of Moharashtra, reported in AIR 1968 SC 1768 (1) the court has ample power for re-call or re-summon P.W. at any stage of the trial.
18. The right to cross-examine any witness testifying against one’s case is one of the fundamental cornerstones of the adversarial system upon which the judicial process of Bangladesh is based.
19. That “Under the adversarial system of jurisprudence, the art of cross examination is the greatest weapon to attack an adversary. It is fundamental; it is the pivot, the central hub and gravity of the civil system. This is so because, cross examination is based on the rules of pleadings with its source on the rule of natural justice of audi alteram partem (that is, hear the other side). To deny a party the right to cross-examine his adversary without legal reasons amounts to denial of fair hearing” as enshrined in section 36(1) of the 1999 Constitution of Nigeria (P. 713, paras. C-H)
20. Section 17 ICTA enshrines fundamental aspects of due process and the equality of arms principle by providing that during the trial the accused person shall have,
(1) the right to give any explanation relevant to the charge against him;
(2) the right to conduct his own defence or to have the assistance of counsel;
(3) the right to present evidence at the trial in support of his defence, and to cross-examine any witness called by the prosecution.
21. Further, Article 67(1)(e) of the Statute of Rome for the International Criminal Court (hereinafter: ICC) provides that “In the determination of any charge, the accused shall be entitled to the following minimum guarantees, in full equality: “To examine, or have examined, the witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute”
22. The Hon’ble Tribunal is under a duty to uphold these fundamental and basic rights.
23. Indeed, it is respectfully submitted that Order No. 90 effectively denies the Accused-Petitioner’s right to raise defences as provided under section 17 ICTA and article 67(1)(e) ICC.
24. Therefore, it is respectfully submitted that Order No. 90 dated 12.11.12 amounts to a significant breach of the Accused-Petitioner’s right under section 17 ICTA.
25. For these reasons and those laid out below, the Accused-Petitioner prays the Hon’ble Tribunal to review Order No. 90 and insert safeguards for time to protect the Accused-Petitioner’s rights under the relevant sections.
25. For these reasons and those laid out below, the Accused-Petitioner prays the Hon’ble Tribunal to review Order No. 90 and insert safeguards for time to protect the Accused-Petitioner’s rights under the relevant sections.
26. That the Examination and Cross- Examination of prosecution witness’s nos. 1, 3, 4, and 5 have been completed by the month of July 2012.
27. That the prosecution produced all of their witness into the wintness box rapidaly with out giving any interval.
28. That the defence consel passed a busy time to take preparation for Cross Examining them and prepard defence case.
29. That after the end of the prosecution case it’s come into the notice of the Defence Counsel.
30. That A party who fails to file a counter affidavit is by operation of law deemed to have accepted the facts deposed in the affidavit and such unchallenged facts are treated as having been established before the court. In the instant case, the facts deposed to in the supportive affidavit to the appellant's application remained unchallenged as the respondent did not file a counter-affidavit. [Ayoola v. Baruwa (1999) 11 NWLR (Pt628) 595,Rakol Clinic & Maternity Hasp. v. S.F.I. Co. Ltd. (1999) 7 NWLR (Pt. 612) 613; Comptroller of Nigeria Prison v. Adekanye (1999) 10 NWLR (Pt.623) 400 referred to.](Pp.709-710, paras. G-E, E-F)
31. That the defence counsel inadvertently could not asked those questions the specific P.W and raised this matter into the notice of This Hon’ble Tribunal.
32. That if those questions could not put by the defence the Accused-Peititioner would be prejudiced sevierly for the inadvertent mistake of his counsel.
33. Therefore, it is respectfully requested that the Hon’ble Tribunal review Order No. 90 and allow the Accused-Petitioner further time to adequately prepare its defence to these testimonies by the Prosecution Witnesses.
34. It is respectfully submitted that the Hon’ble Tribunal failed to give satisfactory reasons for the rejection of the application for recall of the Prosecution Witnesses Nos. 1, 3, 4 and 5 filed on 11.11.2012 and argued on 12.11.2012.
35. Rule 64(2) ICC RoP provides that “A Chamber shall give reasons for any rulings it makes on evidentiary matters. These reasons shall be placed in the record of the proceedings if they have not already been incorporated into the record during the course of the proceedings in accordance with article 64, paragraph 10, and rule 137, sub-rule 1.” [emphasis added]
36. Article 64(10) ICC provides that “The Trial Chamber shall ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused”.
37. The Hon’ble Tribunal is therefore required to provide proper or adequate reasons for its refusal to an adjournment and the infringement of the rights of the Accused-Petitioner under section 17 ICTA and article 67 ICC.
38. That on 15.11.2012 defence got certified copy of the order no. 90 dated 12. 11. 2012 but unfortunately 4 days delayed to file this review application. That delay has been occurred for mere a mistake and wrong perception on the part of the defence counsels and the Accused- petitioner should not suffer irreparable loss for taking only delayed step his counsels and defence humbly prayed to condone a delay of 4 days to file this application for review.
39. That for the abovementioned reasons, the Accused-Petitioner prays that the Hon’ble Tribunal exercise its discretion in the interests of justice and reviews the Order No. 90 dated 12.11.12.
The tribunal then passed the following order.
Second application Decision on application seeking review of order no 90 dated 12 November.
1. Now let us on to dispose of another application. There has been an application seeking review of order 90 dated 12.11.2012 rejecting prayer for recalling the prosecution witness nos. 1,3,4 and 5 filed on behalf of accused Abdul Quader Molla on the grounds stated therein together with a prayer to condone delay of 04 days in bringing instant application.
Defence Submission
2. Mr Siobhan Tarafder, the learned defence counsel has submitted that delay of 04 days has occurred in bringing the instant application due to mere mistake and wrong perception on part oft he defence counsels for which the accused should not suffer and as such the delay should be condoned; that the Tribunal, in exercise its inherent power may ensure re-examination of PW 1,3,4 and 5 on re-call, in the interest of justice; that 're-examination' of a witness a examined includes his' cross-examination’ on re-call, as contained in Rule 48 of the ROP
Submission by the Prosecutor
3. On other hand, the learned prosecutor Mr. Mohammad Ali, vehemently opposing the application, submitted that right to present evidence at the trial in support of defence, and to cross examine any witness called by the prosecution has been duly ensured. Neither the Act nor ROP provides provision of cross-examining any of prosecution witnesses on recall, on any ground. The application which is not well within time too is liable to be rejected. Discussion and Decision.
4. The application seems to have not been filed within the time prescribed in Rule 26(5) of the ROP. It is not acceptable that it happened merely due to 'wrong conception'. It appears that certified copy of the order under review was ready, on application on the part of the defense on 12.11. 2012 and the defence was supposed to obtain it timely, if it actually felt aggrieved by the order under review so that the instant application could have been filed within 07 days of the order i.e by 19 November as required under Rule 26(5) of the ROP. But the application appears to have been filed on 26 November 2012., The delay does not appear to have been satisfactorily explained. However, we hereby condone the delay so occurred, in the interest of justice and the application is taken up for disposal.
5. At the out set, we are reasonably unable to agree with the contention, as has been made in the application, that the Tribunal failed to give satisfactory reasons for the rejection of the application seeking re-call of 04 prosecution witnesses which is allegedly not consistent with the rule 64(2) of the ICC RPE. Besides it is to be borne in mind that the tribunal cannot travel beyond the provision contained in the Act of 1973 and the ROP formulated therein
6. It is not correct to say that the Tribunal has ample power to recall and re-examine PW, at any stage of trial. Rule 48(1) (2) provides that it may require attendance of a person as a witness or recall and examine any person already examined only if it considers essential to the just decision of the case. But the rules does not empower the Tribunal to recall a prosecution witness already examined and cross examined merely to provide opportunity to the defence to cross examine him/her on recall’ to compensate the alleged ‘inadvertant mistake’ on the part of the defence counsel.
7. The Act nowhere provides provision of 'cross-examination of prosecution witness on recall'. There can be no ambiguity in section f7(3) of the Act of 1973 which provides that an accused shall the right to cross examine any witness called by the prosecution. This right has not at all been denied.
8. ‘Right to cross-examination of prosecution witness' and right to 'cross-examine witness on recall' do not carry the identical connotation and impact. We reiterate our earlier reasoning that there should be no ambiguity that if a person who has already been examined by the prosecution but not 're-examined on re-call' by the prosecution in that case the question does not arise to 'cross-examine' him on re-call by the defense
9. In the application it has been further contended by referring Article 67(1)(e) of the Rome Statute that order under review amounts to denial of defence right. But the said Article predominantly relates to the right of accused to raise defence and to present other evidence admissible under the Statute. It is to be noted that, the Act of 1973 has also compatibly ensured this recognised right and currently the case is at the stage of adducing and examining witnesses in support of defence and in this process, defence already has examined 03 witnesses including the accused himself out of 06 witnesses, as permitted.
10. In view of above reasons, we do not find materials and any new ground for considering the application seeking review and as such the application is hereby rejected, with above observations
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