Thursday, September 26, 2013

Quader Molla, day 22: Defence and state arguments

6 June 2013

Abdur Razzaq, the defence lawyer went to the dais and continued to make his submission from the previous day: “ideally this question should be asked. My submission is that the accused petitioner...”

At this point Sinha J. stopped him and said, “The scheme of the law is...sections 161 and 162 of Code of Criminal Procedure 1898 (CrPC) and the section 165 of the Evidence Act. However, the procedure here is the special procedure. In such a scenario investigation depends on what is going on in the court. I believe there is no such provision for case diary and etc.” 

Razzaq argued, “My lord, yes there is such provision. May I request your lordship to turn page 92 of the volume I have provided to you (compilation of the ICT Acts). In this page your lordship will find rule-8 which state provisions regarding maintaining case diary by the Investigation Officer.” He further referred section 11 and section 9 (3) of the ICT Act 1973 in support of rule 8 of ICT Rules of Procedures 2010. 

He then submitted, “Our concern is what is said to I.O. and what is basically in the case dairy.”

Abdur Razzaq then started his regular submission and moved to the deposition of P.W.-3 Momena Begum. He readout her deposition. After that he submitted that they made an application to re-examine this witness as the lawyer engaged by them could not properly cross-examine this particular witness but the tribunal rejected that application. Wahab J. then made an enquiry to Razzaq- “There is rule (provision) in the CrPC to recall witnesses. Whether there is such specific provision in the ICT Rules of Procedures apart from ICT’s inherent power?” 

In response to that, Razzaq referred rule 48 (1) at page 141 of the compilation of ICT laws. He emphasised that this rule empowers the tribunal to re-call and re-examine any person already examined. 

He then referred P.W.-3’s cross examination at page 1441 of volume 4. The relevant paragraph he referred and read out was paragraph no. 5 at page 1443: “You did not depose to I.O. that your father rushed towards your house...” “ have now deposed that you heard from someone who used to make tea for the freedom fighters that your father was killed by Abdul Quader Mollah and Akter Goonda- you have not deposed to before the I.O.”

Razzaq then moved at page 471 of volume 2: ‘Order to suspend a defence counsel’. He read out the tribunal’s order in this behalf. The main reason for applying for such an order was that the counsel engaged by the defence could not do the ‘contradiction’ of the P.W.-3 properly. 

 Chowdhury J. asked Razzaq, “Whether the tribunal has got such power to pass an order?” Razzaq repied, “My lord, there are 2 main points here- firstly, section 48 (1) of the Act and then secondly, the inherent power of the tribunal.” He further referred section 561 of the CrPC 1898 where there is a similar provision. Razzaq further pointed out that I.O. cross examination was conducted on 11.01.2012 and they made that application on 11.11.2012.

After that, Razzaq then referred a case from 19 DLR (SC). Wahab commented, “that she deposed at Jalladkhana (killing place) she went to her father’s house 3 days before. Why it was not asked and clarified in the cross-examination? It was very material. Now, the sympathy goes in her favour. We are made of blood and flesh; we are sons of this soil.” 

Razzaq said, “There is Indian Supreme Court judgment and there is also American Supreme Court judgement where it has been decided that the judges cannot be emotional.”

Razzaq then said before the court, “Now, I shall make my legal submission.” 

Before he moved on, he submitted, “we got the Jalladkhana’s document on 13.12.2012.” Then he submitted, “under section 21 I have 2 submissions. Firstly, to re-call and re-examine the particular witness before this court; although this court (appellate division) has never done it before but my humble submission is to do that.” 

Razzaq then referred a UK case Birmingham 6 [1991 (93) Criminal Review] (fight took place at a pub) where due to an error of judgement the Court of Appeal of England re-examined witnesses where they did not have power to do so. Razzaq concluded, “our case is much better than that case.”

After an adjournment Razzaq went to the dais and submitted, “Tribunal shall not require but must take judicial notice.” He then referred an ICTR case on judicial notice. The relevant paragraph he read out was 198 at page 65. Here, in deciding “whether genocide took place in Rwanda?” the ICTR took notice of the fact that the type of the conflict at Rwanda was an international armed conflict.

Razzaq then cited his next case on Definition of judicial notice. The relevant paragraph he mentioned was paragraph 13. He submitted, “that the tribunal has taken judicial notice of lot of things about the respondent Abdul Quader Mollah.” He readout from his paperbook, “Mirpur was an area 90% people was Biharis (non-Bengalee) and Abdul Quader Mollah used to maintain close culpable association with Biharis.”, for example. Chowdhury J. then commented, “this and is not conjunction.” Mahmood J. opined, “if there were a ‘comma’ here then the meaning would have been different.” Razzaq then submitted, “my submission is- that and is conjunctive.”

He then cited two cases- the first one is 39 DLR (AD) 199 and the relevant part is at page 211 of the judgement. The second one is (1973) 3 SCC 493 and the relevant part is at page 495 of the judgement. He then submitted, “these are my submission and my learned friend (attorney general) will make his submission in this regard. Then I shall make my further submission when he finishes.”

After that the Attorney General came to the dais and the Chief Justice asked, “You are now going make your submission in respect of appeal no. 24, right? AG replied, “yes, my lord.”

AG then started to read out section 21 (2). Sinha J. asked him, “Are you reading out the amended one?” AG replied, “Yes, my lord.” As soon as the AG finished reading out the section before the court, he submitted, “All charges has been dealt individually.” Wahab J. reminded him, “Mr Razzaq submitted that ‘acquittal’ means ‘acquittal from the case; not from the charge’.” AG  replied, “I shall cite some decisions in this regard.” Sinha J. argued, “it is even in the judgement at page 22- ‘accused person is not guilty of charged offence...he was not guilty of offence mentioned in charge no.4’.” AG then submitted, “In this context I shall cite a decision. My learned friend (Razzaq) has cited 3 cases on acquittal. The first was regarding ‘provident fund. And none of those cases are related to the context of this case.”

Razzaq, the defence lawyer then submitted, “Now I shall cite a judgement from Nuremberg.” Wahab J. then said, “you have to show it was perverse to the evidence and the reasoning.” Razzaq then added, “I have clearly said how they misled the evidence of P.W.-7.” Wahab J. further asked, “What was his age? Whether it was possible for a person of his age where heavy firing was going on it is possible?” AG argued, “He was 17 then and he was a freedom fighter. And it has not been challenged.” He further added, “It was in the month of November (almost end of the war) and at that time it was not unusual to go outside out of curiosity listening gun fire.”

No comments:

Post a Comment