16 Sep 2012: Mobarak Hossain bail

The tribunal first dealt with the case of Mobarak Hossain who has been enlarged on bail. The tribunal asked the prosecution whether a progress report was ready, and they said that it was.

Md. Shajahan then appeared on behalf of the petitioner and submitted a petition to the Tribunal seeking bail.  After perusal the Chairman said to the lawyer that he would like to say that- by getting the bail you are staying in a calm and quiet condition, thus you have not frustrated the condition of the bail and you are praying for the extension of the bail. 

Then he asked the Prosecution- if they have anything to say. Sultan Mahmud Simon appearing on behalf of the Prosecution has stated that they  have submitted the progress report of the investigation. There is an anomaly about his age in his several certificates. His name is also in the list of Razakars, and there is a charge against him for the crimes against humanity. There is no ground to enlarge him on bail, so we are drawing your kind attention for the cancellation of bail.

The Chairman then passed the following order (summary below)

Accused Md. Mobarok Hossain alias Haji Mobarok Hossain is present before the Tribunal today. On 16-7-2012 he has been enlarged on bail for two months and was directed to be produced before the Tribunal after two months. Today he is present. Md. Shahajahan on behalf of the petitioner has submitted an application for the extension of bail on behalf of the accused petitioner. We have perused the Application. On the other hand Sultan Mahmud Simon on behalf of the Prosecution has submitted the progress report. We have perused that. Along with the report the Prosecution has submitted a prayer for the cancellation of bail. It is alleged that the accused is threatening the witnesses; a GD entry has also been attached with it. One of the witnesses has made statement before the Magistrate. So, according to the Prosecution there is no scope for the enlargement of bail. We have perused the prayer. 

We have perused everything and the accused has prayed that he has not misused anything which can frustrate his enlargement of bail. The Prosecution has alleged that- the accused is threatening the witnesses. We are giving a caution to the witness that he is not supposed to do these sorts of activities. If things continue like this his bail will be rejected. So the prayer for bail of extension is allowed for 2 months, i.e. 15-11-2012. He is to be produced on the following day and the Prosecution is ought to submit the progress report of Investigation.

16 Jul 2012: Mobarek Hossain bail application

After dealing with the opening of the case of Nizami, the Tribunal then moved onto the case of Mobarek Hossain's bail application, carrying on from 11 July

Justice Nizamul Huq: Mr. Malum come forward. What would you like to say about the progress of the report and the proceeding? This is a bail application filed on 15-7-2012 and the investigation started on the same day.

Zeyaad Al Malum: As the investigation agency has already started their investigation, so there is no scope for bail. As Mr. Alim can’t move without wheelchair so he has been enlarged on bail. He should not be an example for the usual cases. The investigation agency should be given time to find out the facts. The matter is on the judicial notice. The war criminals are taking various sorts of advantages. Right at this moment we strongly oppose enlarging Mr. Mobarok Hossain in bail.

Justice Nizamul Huq: I would like to say, this is a Police Station Case. Investigation agency can start investigation by any application suo moto or by any other means. He is in custody, so the misc. case has been arose out of that.

Haidar Ali: This sorts of cases has been filed in Police Station then arrived at the Tribunal, there are lots of precedents like that. So, the law is not limited on that point.

Justice Nizamul Huq: He is an accused person and investigation is going on, if we found him culpable under section- 3(2) of the Act, then we will think in a different way.

He then called Advocate Shahjahan, the defence lawyer

Advocate Shajahan [Defence]: I am feeling uncertain as a lawyer of this case. Because from 4-6-2012 to 15-7-2012 already 1 month and 11 days have been passed away. So that I have come to your Lordship for a proper remedy. A man under no trial or proceeding cannot be detained in custody. The Investigation agency may investigate any time. By the custody warrant, the accused was in Brahmonbaria prison. There has not yet been any formal charge been framed. No person can be detained in this manner without any trial process.

Justice AKM Zaheer: Before this time the accused was under bail from the High Court Division.

Justice Nizamul Huq passed the following order (summary below)

This misc. case has been arisen out of an application for bail of accused Md. Mobarak Hossain of village Noyadi, Police Station- Akhaura, Dist.- Brahmonbaria, who is in prison in connection with a case of Brahmonbaria Police Station case no.- 245 of 2009. The case has been transferred to this tribunal and it is pending and records are lying under the investigation agency. It has been submitted by the Prosecution that the Investigation has been started on 15-7-2012.

The facts of the case is in short as following-

One Khodeja Begum of Dist. Brahmonbaria has filed a complaint case under the Chief Judicial Magistrate under the section- 120(B), 364, 302, and 34 of the Penal Code. The complaint petition has been sent to the Police Station to lodge FIR, afterwards Fir was lodged. The petitioner after getting the information has surrendered to the Police Station. Afterwards under misc. case no- 9722 of 2009 he was enlarged on bail for 6 months. On 24-7-2011 the accused has been directed to surrender within 3 months. On 19-12-2011 he has surrendered to the Police Station, since then he is in custody. The records of the case have been transferred to this tribunal when it was pending before the Magistrate’s Court. The whole records have been transferred to the investigation agency. Mr. Shajahan, the counsel for the petitioner has submitted that the petition of the accused is such that he could not go to the concerned magistrate or to the High Court Division; then he has come to the tribunal to get a proper remedy. He has filed a petition for bail.

We have heard Mr. Shajahan. He has submitted that the accused is a law abiding citizen if he has any bad intention in his mind then he would not have surrendered. Mr. Zeaad Al Malum has submitted that when the investigation has started, now at this moment there is no option to enlarge him on bail. And the ICT Act does not allow anyone to enlarge on bail if the Tribunal doesn’t apply its own conscience. According to him the accused is not sick or old that he could claim such types of bail. In case of Mr. Abdul Alim the Tribunal has enlarged him on bail just because for his illness and age. Although the present accused is in custody since 19-10-2011, but he can’t be enlarged on bail.

We have considered both parties. It is a fact that the investigation has started against the accused yesterday and the ICT Act does not allow anyone to enlarge on bail, but we have to see the fact behind the case. The case was filed under complaint registrar case and the Magistrate has sent the case to this Tribunal. Till today the case is pending. The investigation agency should take proper steps for the investigation. And a person should not suffer for another person’s cause.

We are inclined to enlarge him on bail with some conditions. Let the accused be enlarged on an interim bail of being miscellaneous case- 07 of 2012 for a period of 2 months that is up to 16th September, 2012. He is to be present before the Tribunal on the following date. In the meantime the investigation agency ought to submit the report.

11 Jul 2012: Mobarek Hossain bail application

In the afternoon, following the cross examination in the Chowdhury case, the tribunal considered the case involving a man called Mobarek Hossain - accused in a case which has been transferred from the magistrate court to the International Crimes Tribunal. The accused is a resident of Brahmanbaria, and a case has been filed against him for the murder of a freedom fighter during the Liberation war. This case was filed in the Brahmanbaria magistrate court at a time when the Tribunal was yet to be established. Then when it was found that this case was related to war crimes it was transferred to the ICT by the Magistrate Court.

The previous hearing on this matter was on 4 June

Mr Hossain was represented by the lawyer SM Shahjahan

Prosecutor: My lord, there are total 640 cases has been filed all over the country among them on the basis of priority there are four cases now in the hands of investigation agency.

Chairman: Did you assign investigation Officer?

Prosecutor: Investigation officer will be assigned on Sunday.

Chairman: Let us to consider the merit of the case. There is a complaint petition, we have to see whether ICT is applied here or not and Mr. Shahjahan please (defence counsels) read out from page 4 of the petition.

Defence: During the Liberation War Mubbarak Hossain along with the Paksitan army abducted Abdul Khalek a freedom fighter and detained him in an Army camp. After that on the bank of Titash River he was fired on and killed.

Chairman: Now, you will say whether this case falls under the crimes of Genocide or Crimes against humanity or not?

Defence: No, it does not come under the purview of genocide and crime against humanity. This is basically simple murder. My lord, I have already surrendered to the High court Division and they granted me bail.

Chairman: Please read out section 3 of the ICT and tell us whether it falls under the scope of crime against humanity or not?

Then the defence counsels S.M Shahjahan read out section 3.

Chairman: Now answer please, the person who has been killed was the civilian or not?

Defence: Yes, he was the civilian.

Chairman: Whether it is the violation of domestic law or not, it does not matter. So, it comes under the purview of 3(2) (a).

S.M shahjahan: But, my lord till today I am not the accused of the case and I have submitted my bail application on 4.06.12 but Investigation has not been started yet. If I had an ulterior motive then I would never surrendered to the court and there is no progress of the case.

My lord, onus (burden of proof) lies upon the prosecution also to justify the case. So, onus not only lies upon me but also the prosecution. My lord, why they also have filed this case after the 38 years later? During the liberation War, he was only 15 years old. There is no such thing which restrained me to submit bail petition.

Justice Zaheer: Now, the accused is in custody. But the investigation has not been started yet. If this person has not been accused under the Tribunal then how can the tribunal detain him!

Prosecutor: Among the 640 cases there are four cases now at the investigation agency on the basis of priority. These cases are either CR or GR case and all these are related to the loot, arson, confinement, murder etc. And Tribunal has no authority to transfer the case to magistrate court.

Justice Zaheer: In this case complaint has been made under sec. 200 of the CrPc; FIR has been filed under section 154 of the CrPc, investigation has been done under section 173 of the CrPc, all these are relating to the CrPc not to the ICT. Mr. Malum just tells us, under what authority we will detain him. He is not accused under the ICT.

Chairman: Is there any serial number that has been given by the Investigation agency. We have told you to give serial number of the register. Rules have been framed on 2010 and this case has been transferred on 31.10.11 at the hand of deputy register to give it to the investigation agency and then why the serial number is not given? Mr. Malum just say whether he is under our custody or not?

Prosecutor: Yes, he is impliedly under our custody.

Chairman: If we grant bail please tell us under what case we will do it. Without a miscellaneous case number there is no case before us, we cannot grant bail in regards to the case filed as CR or GR case.

Justice Anwer-ul-Haq: Until or unless cognizance has been taken by tribunal, we cannot delete section 302 of the Penal Code.

Chairman: If we grant bail - in which ground or case we will grant it and who will give us the security bond?

S.M shahjahan: My lord, his lawyer will give the security bond.

Chairman: In which court.

Defence: My lord, before you.

Justice Anwerul-haque: In case of High Court Division, we are giving bail on miscellaneous case by saying that miscellaneous case no. 2 or 3 or whatever, it is out of GR or CR case no.

Prosecutor: It will not be fair to grant bail in such a stage of the Tribunal. Investigation officer will be assigned on Sunday.

Justice Zaheer: Okay then tell me under what authority or custody he will be in jail from today to next Sunday? And another thing is the investigation agency at any stage of the investigation if found nothing have the authority to reject the case.

Chairman: Will you give a number of complaint register on Sunday.

Prosecutor: Yes My lord, I will.

Chairman: Okay, then it will be easier for us to give any Order by referring the case number in the Order Sheet. I want to write it safely so that we have the Jurisdiction.

Then the Court was adjourned on this matter to Tuesday

19 Jun 2012: Mobarek bail application

After the cross examination of the Chowdhury witness, the tribunal considered a case transferred from the Magistrate court to the tribunal. The acccused name is Mobarekk Hossain, and his advocate Md. Shahjahan came before the Tribunal to submit a bail petition of his client.

Then Zead-al-malum came to the dais and said that my lord, ‘many case has been started to be filed in different police station throughout our country. Till 14. 06.2012 there are nearly 600 cases that have been filed.

Justice Nizam: Can you tell me please among these cases how many case fulfilled the criteria of section 3(2) of the Act. We know it very well that there is no jail in the world from where accused cannot get any remedy.

There are no rules in the ICT Act that allow a case can be transferred from magistrate court to this Tribunal and even this Tribunal has no jurisdiction to transfer the case to the magistrate court.

Justice Anwarul Haque: Every accused has a right to seek for bail if he is in custody but in this case where will he will go now? He should be given a right to seek remedy.

Zead-al-malum: Yes, My lord he has no access of Justice.

Justice Anwraul Haque: Among these 600 hundred cases how many accused are in jail now.

Zead-al-malum: My lords, 16 persons from the 600 cases are in jail otherwise everyone has bail.

Justice Nizam: Please next Tuesday submit before us those cases along with the report explaining why the accused is in jail custody.

Justice Zaheer: We have no right to direct the investigation agency to start investigation even we have no jurisdiction to transfer the case to the Magistrate court. Then where this person will go?

Justice Nizam: We should observe the position of the case first, so please submit before us all those things within 7 days. For ends of justice we can pass any order.

4 June 2012: Mobarek bail application

At first, Advocate SM Shajahan appeared before the court on behalf of Mr. Mobarak Hossain who has applied for a bail petition, who is right now in Jail Custody.

Justice Nizamul Huq passed the following order (summary)

Mr. SM Shajahan appearing for Mr. Mobarak Hossain has filed this application for the matter of bail petition. It appears that a case has been filed against the petitioner at Brahmonbaria- holding GR case No- 345 of 2005. The same Mobarak Hossain is in now jail custody. It further appears that before he surrenders the GR Case has been transferred to the Magistrate Court. It further appears that- the case has been transferred to this tribunal afterwards by an order dated- 19-10-2011 by cancelling his bail petition. Mr. Zead Al Malum has submitted that- many cases have been transferred by the Magistrates as they mentioned it involves International Crimes, which are right now pending.

In the first instance we can call for the records from the investigation agency. As such the Chief Prosecutor is directed to collect the reports and records from the Investigation Agency to submit that before the tribunal. This report and record are to be submitted to be within 12-6-2012. On perusal of the report we will pass an order. And this is recorded to be a misc. case.