1. That the application itself is not maintainable as there has been no provision and scope provided anywhere in the Act to come up with this application for retrial of the case and as such liable to be rejected.
2. That there has been not even a single word or language in the Act providing any scope or opportunity to the accused for retrial and as such this application is not entertainable.
3. That we should keep in our mind that the present Tribunal has been set up under section 6 (l) of the Act and the Rules of procedure have been regulated by this Tribunal by virtue of section 22 of the Act. So all concerned with this tribunal should abide by and proceed on in accordance with the provision of this Act.
4. That the application has been filed under what section of law of the Act has not been mentioned herein as there has been no such section provided in the Act to come up with this application.
5. That there has been provided the procedure of trial to proceed on in section 10 of this Act. But no where arry section providing any scope for the accused to come up with this application in the Act for retrial and as such it is liable to be rejected.
6. That the concerned section 6 (4) of the Act provides that if any member of a Tribunal dies or is due to illness or any other reason, unable to continue to perform his function, the government may by notification in the official gazette declare such member to be vacant and appoint thereto another person qualified to hold the office. In view of the provisions above stated in this Act, the government has declared of office of the honorable chairman vacant and appointed thereto the present MR. Justice Obaidul Hasan, as the chairman of the Tribunal who now holding the office according to law. And in case of the office of another member in the Tribunal was fallen vacant and thereto MR. Justice Md. Mojibur Rahaman Mia who holding the office accordingly.
7. That in view of the section 6 (6) of the Act merely by reason of aforesaid change of the Tribunal there has been no scope provided in the Act for retrial of the case. Rather the provision has given the silent instruction to all of us to proceed with the case from where such change took place. Further to submit the section 6(6) of the Act reminds that the Tribunal is not bound to recall the order of taking cognizance of the offence as well the order of framing charge and also not bound to hear or examine any witness who has already given testimony.
8. That in the present case the placement of argument summing up their case of both the prosecution and the defense has been started after the evidence of both the parties was closed and the prosecution has completed its argument and for placement of the defense argument has been fixed on 7th lanuary 2013. In the instance case we find expressed provision provided in section 6 (6) of the Act that in event of any change in the membership, the Tribunal may proceed from stage of the case from where such change.
9. That under the above mentioned provision of law the Tribunal has got no scope to recall any order or witness for retrial of the case in the interest of expeditious trial as contemplated in section I I (3) (a), (b), and 1l (4) of the Act read with section 19(1) of the Act and also Rule 53 (iii) of the Rules of procedure of the Act.
10. That in spite of knowing fully well of the provision of law both in the Act as well in the Rules of procedure of the Act the learned defense counsel submitted this application just with malafide intention to cause delay the expeditious disposal of the trial of the case and thereby to finally frustrate the justice and as such for ends of and in the interest of justice the Tribunal may kindly pass necessary order in the light of the provisions of law as laid down in section I I (3) (b)and I I(a) of the Act read with Rule 45 of the Rules of procedure against accused for obstructing or abusing the process of the Tribunal with intent to prejudice the case of the prosecution.
I l. That also in the present case the defense also submitted in their application of the matte of skype conversation of the former chairman of the Tribunal- 1 with one Ahmed Ziauddin base in Belgium about some cases pending there in the Tribunal- I which is not at all applicable in the 'present case in the Tribunal-2 and as such whatever might happened in the aforesaid skype conversation in about some cases in Tribunal- I can not be submitted and entertained in the present Tribunal in the instant case. And those applications in some cases submitted earlier in the Tribunal- l have already been disposed of by the order of rejection of those application on the grounds as assigned there on the order. So there is no scope to entertain the present application filed by the defense for retrial of the case on the grounds stated in the application and as such the application should be rejected.
12. That the other ground or grounds shall be placed at the time of hearing. It is therefore humble prayed that your Lordships would be pleased enough to reject the prayer for recalling the order of taking cognizance of offence and framing charge for a full and complete retrial of the case for ends of and in the interest of justice under Rule 46 A of Rules of procedure of International Crimes (Tribunals) Act, 1973
Tuesday, February 19, 2013
The prosecution responded to the Molla defense application seeking a retrial with this written response: