The submissions concerned the question of the statements admitted under 19(2) of the ICT Act.
- On 20.03.2012 Prosecution filed their 19(2) application for 46 PWs. We filed reply on 27.03.2012. On 29.3.2012 you passed order allowing 15 PWs under 19(2).The chairman then said that no signature was required as per law. Razaq then said what happens if a witness denies that the statement is not his? The chairman asked in response, scan we disregard witness statement only for non existence of signature? He went onto say that if there was a signature you would raise question that what prompted the IO to take signatures since it was not required in 19(2)? Razaq then continued
- We thereafter filed review and showed you the Safe House documents to prove that the 15 PWs were not unavailable and many of them were brought to be Prosecution custody, but that the prosecution did not produce them before the Tribunal since they were not ready to give false testimony against the Accused.
- We wanted to call all relevant persons as court witnesses. But that application was rejected.
- We have exhibited Phone bill, relevant GD, Certified copy of the testimony of SI Kalachad Ghosh, officer of Safe house.
- The prosecution claimed that all these documents were concocted. You may note that it is impossible to concoct those documents. The Safe House documents meticulously recorded everything inside the safe house. No outsider would be able to get that information about what happened in the Safe House. Even little things were also written down. All these things prove that safe House exists and IO reports regarding these were false.
- IO recorded statements of Asish Kumar Mondol, Sumoti Rani Mondol and Somor Mondol, those were received in evidence under 19(2), were similar in effect a copy and paste job, verbatim. How statements of three different persons can be similiar. There is no sign and date in these statements.
- On the face of the document we find that these statements are concocted.Another exchange took place between Razak and the judges:
- The alleged IO recorded statements of Setara Begum, Rani Begum and Mostafa are also verbatim copies.
Tribunal: Generally we record the statement of the witness in our language. Should IO record the statement of the witness in his words?Razaq continued:
Razaq: Yes. As far as possible. IO is bound to record as the witness states.
Tribunal: if 3 men saw same incident and if all of them said similar things then if IO make a format and record their statements in similar words what is the harm?
Razaq: there is a difficulty to believe him if all of those statements are similar and seems to be copy paste.
Chairman: should IO record statement verbatim?
Razaq: wording is important here.
Chairman: we have received statements to see whether those are believable or not.
Razzaq: you have marked them with exhibit marks. As per rule 55 now the contents are admissible.
Tribunal: admissible does not mean conclusive true.
Razzaq: we have filed an application for Asish and Sumoti Rani Mondol to issue summons.
Chairman: we cannot give summons for DWs.
Razzaq: but you have issued at least 29 summonses for PWs.
Chairman: those were only for security purpose.
Razzaq: we have also applied for security purpose.
Chariman: no it was for other purpose.
- 19(2) statement of Gonesh Chandra Saha – this person later on became DW 17 and denied any allegation against the Accused. But the IO submitted a statement in his name where he allegedly said that the accused was involved in killing his mother Vagirothi.Another exchange took place
Chairman: if a witness finally depose in the tribunal, what is the value of the IO Recorded statement?Razaq continued:
Razaq: Value is Zero. But it goes further. If IO can concoct for one person how you can believe his other recorded statement. In IO recorded statement the witness said DHS had involvement in his mother’s killing but in live testimony he said DHS was not involved. So, IO concocted his statement. So, IO has committed fraud upon the Court. It attracts s 11(4) (contempt).
Chairman: No. this is not sufficient for s 11(4) action. We can only say that Gonesh did not say to the IO what he said before the Tribunal. It does not prove concoction by IO. This is not sufficient to prove fraud.
Razzaq: I will show from the Safe House registers how the IO committed fraud upon this Tribunal. He lied deliberately. The PWs were in his custody. But he reported to the Tribunal that they were unavailable so that their so called statements can be received as evidence under 19(2).
- Usha Rani Malakar was told to be very sick. But we showed her TV interview (Material Ex (ii)) where she said that the accused was not involved in killing of her husband.Another exchange:
- Shukhaoronjon Bali is another 19(2) witness who wanted to be a DW. But the law enforcing agencies abducted him from the Tribunal premises so that he cannot tell the truth. We showed his TV interview (Material Ex (ii)) where he said that he wants to tell the truth. This is how the IO has concocted the 19(2) witness statements.
After a lunch adjournment, Razaq said that so far his submissions have sufficiently discredited IO. There are 5 charges those are solely based on 19(2) evidence. These are Charge 1,2,3,4 and 13.
- Charge 1, 2 and 3 are supported by Asish Kumar, Sumoti Rani, Somor Mistri and Suresh Chandra Mondol.
- Charge-4 is supported by Suresh Chandra Mondol.
- Charge-13 is supported by Rani Begum and Setara Begum and Mostafa.
- If IO’s credibility is damaged, then all charges solely supported by 19(2) witness statements only will drop.
Chairman: what is the legal value of 19(2)? Is it same like live witness?Razaq continued:
Razaq: value is very less. In no way these will carry value like live witness. These statements are not tested in cross examination. No Oath taken.
Chairman: if someone deposes to the court that someone has said this to me. What is the legal value of this statement? Is it equivalent to the statement to the IO recorded under 19(2)?
Razaq: IO recorded statement cannot be sole basis of conviction. It would not be safe, not justified. Similar provision in Cr.P.C is section 161 which is not admitted as evidence.
- IO allegedly recorded statement of Jewel Ich, Zafor Iqba and Sahriar Kabir. But defense exhibit AW- news report of the daily Jonota shows that they did not give statement to the IO.Another exchange:
- Sahrar Kabir denies to be the witness here, he do not know even that he is a witness in this case.
Tribunal: the IO may have gone to him many times, may have recorded his statement but he many not know that he is a witness in this case.Razq continued by referring to the safe house
Razaq: How it is possible? They are very learned man, written many books on War crimes. This is nothing but fraud upon the Court by IO. So his credibility is totally damaged.
Tribunal: if safe House documents are proved to be true then you are so powerful.
Razaq: truth is always powerful.
Prosecution: these documents were not exhibited so why they are arguing on these Safe House Registers?
Razzaq: in the order date 12.07.2012 on our Review of the 19(2) order the Tribunal observed that we are to prove the Safe House documents. Now we are submitting that by these documents the existence of Safe House is proved.
- By an Order of Investigation agency it was established.
- Day to day Proceedings were recorded meticulously in the General Diary of the Safe House
- Badges and phones of the constables and guards of the Safe House were recorded in those registers.
- The Safe House attendance registers show when the PWs came and left the safe house. I can show you that many of the 19(2) witnesses came in the safe house and left. (AR showed the entries on Ashish Kumar Mondol, Sumoti Rani Mondol, Somor Mistri, Abdul Latif Hawlader, Ayub Ali Hawlader, Sahhidul Islam Khan Selim, Monindro Mistri)
- Some important phone nos were written which is impossible for us to know.
- There were 3 books –General Diary book, food register and an attendance register. The food register contains record about how many times in which day the PWs took food while staying in the Safe House.
- All these proves that many of the witnesses of 19(2) were available at the time of allowing 19(2). But the IO reported on 17-3-2012 and 19-3-2012 that all these were unavailable. These are the two reports upon which you allowed the prosecution’s 19(2) application. We wanted copies of these two reports, but our application was rejected on the ground that those reports contained secret information about the PWs. We filed another application saying that these two reports may be given to us deleting the part where the ‘confidential’ information of the PWs are contained. But that application was also rejected without assigning any reason. Then we filed another application to inspect those reports. That application was also rejected saying that since we are not allowed to get copies of those reports, we are not allowed to inspect those copies. We filed another application to cross examine IO on those two reports. But that was also rejected saying that since we are not entitled to get copies of those reports, we are not entitled to cross examine the IO on those reports.