9. (1) The proceedings before a Tribunal shall commence upon the submission by the Chief Prosecutor, or a Prosecutor authorised by the Chief Prosecutor in this behalf, of formal charges of crimes alleged to have been committed by each of the accused persons.
(2) The Tribunal shall thereafter fix a date for the trial of such accused person.
(3) The Chief Prosecutor shall, at least three weeks before the commencement of the trial, furnish to the Tribunal a list of witnesses intended to be produced along with the recorded statement of such witnesses or copies thereof and copies of documents which the prosecution intends to rely upon in support of such charges.
(4) The submission of a list of witnesses and documents under subsection (3) shall not preclude the prosecution from calling, with the permission of the Tribunal, additional witnesses or tendering any further evidence at any stage of the trial: Provided that notice shall be given to the defence of the additional witnesses intended to be called or additional evidence sought to be tendered by the prosecution.
Razzaq: 'At first, the Prosecutor gave a of 40 witnesses among which only three had been examined. On 2/5/2012 they applied for 3 additional witnesses among whom 1 has been examined. Previously they on 28/12/2011 had applied for 3 additional witnesses among whom 2 has been examined. Yesterday they applied for 8 additional witnesses among whom you’ve allowed 3.
'Now our suggestion is that the Prosecution is abusing sections 9 (3) and 9 (4) of the International Crimes (Tribunals) Act, 1973. Three weeks have passed since the trial began. ‘Additional’ means only where the original list has been exhausted. After completion of those 40 witnesses, then if the Prosecution feels the necessity of additional witnesses and you permit, then they can do so by giving us at least 3 weeks’ notice. Otherwise injustice will have taken place and defense will be seriously prejudiced. Tribunal has discretionary power, but that is exercised only for the interest of justice. There is also problem regarding the issue of summons. Now question arises, can the trial and investigation go together? We’ve been given 1 day’s notice which is not a notice at all.'
Prosecutor (Mohammad Ali): Section 9 (3) clearly defines commencement of proceedings as meaning before the commencement of the trial which is about the stage of the case. Commencement of proceedings as well as trial starts with the submission of formal charge. The need for 3 weeks notice is stated in section 9(3), nowhere of section 9(4). There is no provision in the Act, even in Rules of Procedure in this regard. Only if your lordship permits, it is your discretion. Section 9(4) has been included only because of judicial consideration. Nowhere it is also stated that summons to be served. One day before we’ve given the notice. As per your order passed yesterday, we are entitled to bring those witnesses.
Justice (Obaidul Hassan): Nowhere it is stated in section 9(3) that three weeks’ notice shall be served to you (defense counsel).
Defense Counsel (Abdur Razzak): What is the purpose of three weeks’ notice? The purpose is not for the honorable Tribunal but for the Defense. That would only be beneficial to us. The need of 3 weeks’ notice is that, we also have to investigate so that we get time to be prepared well. Rule 46 deals with abuse of process. Learned Prosecutor is committing abuse of process. Here, meaning should be given to the words ‘additional’, ‘further’ and ‘notice’. When the Prosecution feels a need, they are bringing additional witnesses.
Judge (Shahinur Islam): See Mr. learned counsel, why the phrase ‘at any stage of trial’ is used?
Defense Counsel (Abdur Razzak): Here you are given discretion.
Justice (Chairman): Not discretion, but direction.
Defense Counsel (Abdur Razzak): Whether you’ll give the permission or not it’s up to you, but the word ‘shall’ is used to consider that whether the issue appropriate or inappropriate. So, for God sake, it is our humble petition to consider our submission.
Justice (Chairman): You will not be prejudiced. We’ll not permit them to bring witnesses suddenly and you’ll get sufficient time for investigation.
The seventh witness, Abdul Majid Palwan, was brought to the court by prosecutor Mohamad Ali who asked the questions. The previous witness evidence can be found here.
'Now our suggestion is that the Prosecution is abusing sections 9 (3) and 9 (4) of the International Crimes (Tribunals) Act, 1973. Three weeks have passed since the trial began. ‘Additional’ means only where the original list has been exhausted. After completion of those 40 witnesses, then if the Prosecution feels the necessity of additional witnesses and you permit, then they can do so by giving us at least 3 weeks’ notice. Otherwise injustice will have taken place and defense will be seriously prejudiced. Tribunal has discretionary power, but that is exercised only for the interest of justice. There is also problem regarding the issue of summons. Now question arises, can the trial and investigation go together? We’ve been given 1 day’s notice which is not a notice at all.'
Prosecutor (Mohammad Ali): Section 9 (3) clearly defines commencement of proceedings as meaning before the commencement of the trial which is about the stage of the case. Commencement of proceedings as well as trial starts with the submission of formal charge. The need for 3 weeks notice is stated in section 9(3), nowhere of section 9(4). There is no provision in the Act, even in Rules of Procedure in this regard. Only if your lordship permits, it is your discretion. Section 9(4) has been included only because of judicial consideration. Nowhere it is also stated that summons to be served. One day before we’ve given the notice. As per your order passed yesterday, we are entitled to bring those witnesses.
Justice (Obaidul Hassan): Nowhere it is stated in section 9(3) that three weeks’ notice shall be served to you (defense counsel).
Defense Counsel (Abdur Razzak): What is the purpose of three weeks’ notice? The purpose is not for the honorable Tribunal but for the Defense. That would only be beneficial to us. The need of 3 weeks’ notice is that, we also have to investigate so that we get time to be prepared well. Rule 46 deals with abuse of process. Learned Prosecutor is committing abuse of process. Here, meaning should be given to the words ‘additional’, ‘further’ and ‘notice’. When the Prosecution feels a need, they are bringing additional witnesses.
Judge (Shahinur Islam): See Mr. learned counsel, why the phrase ‘at any stage of trial’ is used?
Defense Counsel (Abdur Razzak): Here you are given discretion.
Justice (Chairman): Not discretion, but direction.
Defense Counsel (Abdur Razzak): Whether you’ll give the permission or not it’s up to you, but the word ‘shall’ is used to consider that whether the issue appropriate or inappropriate. So, for God sake, it is our humble petition to consider our submission.
Justice (Chairman): You will not be prejudiced. We’ll not permit them to bring witnesses suddenly and you’ll get sufficient time for investigation.
The seventh witness, Abdul Majid Palwan, was brought to the court by prosecutor Mohamad Ali who asked the questions. The previous witness evidence can be found here.
Prosecution: Tell me your name.Prosecution: Now the learned defense counsel will cross examine you.
Witness: My name is Abdul Majid Palwan.
Prosecution: How old are you?
Witness: About 55 years old.
Prosecution: Was there any specific community who lived in your village in the time of Liberation War?
Witness: No, Hindu-Muslims- we all lived together.
Prosecution: Which party did the villagers support most before liberation?
Witness: Except some people, all supported Awami League.
Prosecution: What is the name of your village?
Witness: Village- Ghatarchar, Thana- Keraniganj. Our village was consisted with five Mohallas.
Prosecution: When did the occurrence occur regarding which you have come here to give witness?
Witness: On 25th November, 1971. In early morning of 25th November, we heard the sound of firing. Getting up from sleep, we got out to the courtyard and saw that the surrounding had been burning with fire. The sound of firing came from north side. Then I gradually start to the north side and stopped after reaching field of Ghatarchar School.
Prosecution: What did you see there?
Witness: At that time there were bushes. I hid behind a tree. I saw through a gap that Pak soldiers were killing people. There were some other people wearing ‘Panjabi-payjama’ with Pakistani armies. One of them was Quader Mollah.
Prosecution: What did they do?
Witness: Pak armies killed people. Rifle was also in the hand of Quader Mollah. He also participated in firing.
Prosecution: How long did that killing continue?
Witness: From early morning to 11.00 am that firing and killing continued. After 11.00 am the Pak army and the force of Quader Mollah left the area.
Prosecution: What did you do after their returning?
Witness: After their returning, we gathered people and tried to identify the dead bodies.
Prosecution: How many people died there?
Witness: About 60 people were killed together Hindus and Muslims.
Prosecution: Who was there at that time?
Witness: During the time of identification of dead bodies, district freedom fighter commander Mr. Mozaffar Ahmed Khan came there. We described him about the occurrence.
Prosecution: Can you remember any happening before 25th November?
Witness: At the previous night of 25th November, Quader Mollah attended a meeting in doctor Jaynal’s home.
Prosecution: Where was the house of doctor Jaynal?
Witness: His house was on east side and after three houses from my house.
Prosecution: Do you know what happened at that meeting?
Witness: After 11.00 a.m. of 25th November and after the returning of Pak armies I came to know that the name of the short companion of Pak soldiers wearing ‘Payjama and Panjabi’ was Quader Mollah. There were also some men wearing ‘borkha’ (covering whole body and face) so that they could not be identified.
Prosecution: Can you today identify Quader Mollah in this Court?
The witness then identified the accused sitting in the dock.
Prosecution: Did you tell anything to any Investigation Officer regarding the occurrence of that day?
Witness: Yes, I gave my statement to Investigation Officer on 27/6/2012.
Defence: Are you educated?As this witness was new from the list of additional witnesses, so the defense counsel prayed at least three weeks’ adjournment. The Tribunal requested to continue the cross examination till Sunday even for half an hour only for some procedural continuance of the Tribunal. After that, they will be given sufficient time. Though the defense was reluctant, the Tribunal fixed next date as 12/8/2012 (Sunday) at 2.00 pm for further examination of witness.
Witness: Very little, I studied up to class v.
Defence: Did you get any summons to give witness today?
Witness: Yes, I got.
Defence: Can you show that now?
Witness: No.
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