Tuesday, December 20, 2011

15 Dec 2011: Howlader cross-exam day 5

Prior to the fifth (and final) day of cross examination of the first witness, Mahbubul Alam Howlader, who was giving evidence against Delwar Hossain Sayedee, Tajul Islam, a defence lawyer mentioned that he had a small petition [concerning an inclusion of a comment made the previous day by the witness where he mentioned that many fake freedom fighters were put in the list during BNP’s regime which had not been recorded].

The tribunal chairman said that ‘this has been already taken up and rejected.’ Justice Zaheer added, ‘What’s the necessity of bringing political parties into this? He’s volunteered [the information]. But your petition will be recorded.’

The cross examination for the defence was done by Manzurul Ahsan Ansari. Below is an unofficial translation of the cross examination. (Notes and translation undertaken by Onchita Shadman. Every attempt has been made to ensure accuracy, but there may be some small omissions.)

Original statement of witness
Day one of cross examination
Day two of cross examination
Day three of cross examination
Day four of cross examination 
Defence: Shahidul Islam Selim’s house is in the village of Badura. It’s located at the western end of the village, close to the bridge across the eastern bank of the canal.

Witness: Not too close (to the bridge)

Defence: How far is his house from the eastern bank of the canal?

Witness: could be more than 100 feet.

Defence: Do you know his house?

Witness: yes

Defence: Do you know Abdus Salam Howlader, son of Ashraf Ali Howlader, from that house?

Witness: Yes. They live in Selim Khan’s old house.

Defence: Do you know Mizanur Rahman Howlader?

Witness: Yes.

Defence: Do you know Selim Khan’s paternal cousin Babul Khan?

Witness: Yes.

Defence: at north of Selim Khan’s house is Razzak Ukil’s house.

Witness: It’s known as Ukil house.

Defence: His son Abdul Jalil is alive and he studies in a Madrasa.

Witness: Yes

Defence: Do you know Mannan Ukil, son of late Kafiluddin Ukil?

Witness: I can’t remember. Defence: Do you know ex member Majid Talukder, son of late Nawab Ali Talukder, age 70 from Parerhat Bazaar?

Witness: yes

Defence: Late Abdur Rahman Khalifa had two sons, Mahbub Khalifa and Mohsin Khalifa. Do you know them?

Witness: Yes (Mahbub threatens me sometimes)

Defence: Do you know Narayan Master (Narayan Chandra Sheel), age 70 who was previously a teacher of Parerhat Rajlaxmi High School.

Witness: Yes

Defence: Abdus Salam Poshari, son of late Helaluddin Poshari used to have yarn trade at Parerhat Bazaar

Witness: yes. He is Manik Poshari’s first cousin

Defence: Matiur Rahman Howlader, son of late Forman Ali Howlader had store in Parerhat Bazaar during the war.

Witness: I know Matiur Rahman. He didn’t have any store there during the liberation war. It came about much later.

Defence: During liberation war, Matiur Rahman Howlader had two stores at Parerhat Bazaar. You’ve hidden that fact consciously in your statement.

Witness: Not true

Defence: Late Hasan Chairman and his son Shah Alam Chairman used to visit the Bazaar occasionally on business purpose.

Witness: They lived close by

Defence: Jahangir Alam Pasha, son of late Abdul Amin Howlader had rice trade in Parerhat Bazar.

Witness: don’t know him.

Defence: Altaf Hossain Khan, son of late Akhtaruddin Khan, age around 60. Do you know him?

Witness: Yes

Defence: Doctor Subhash Chandra Roy, age 57-58, son of late /doctor Satish Chandra Roy.

Witness: I know him.

Defence: His younger brother Dulal Kumar Roy is a banker.

Witness: I don’t know his younger brother’s name but know that he is a banker.

Defence: Dulal is the nick name of Dilip from Parerhat port.

Witness: Know him

Defence: Dilip’s age is 52-53

Witness: Could be

Defence: You have three sisters.

Witness: 1 step sister, 2 own sister

Defence: Fatema Begum is of your step sister?

Witness: Fatema

Defence: You own sisters are Matoara and Rokeya

Witness: yes

Defence: Matoara is a bit older than you?

Witness: Yes

Defence: Who did she marry?

Witness: My brother-in-law is Imdadul Haque

Defence: How much did Matoara study?

Witness: Probably up to year five.

Defence: She was born in 19/7/1957.

Witness: not true at all

Defence: Was your father alive in 1971?

Witness: no

Defence: You elder brother Abdul Majid Howlader

Witness: He was alive

Defence: What did he do?

Witness: Farming

Defence: Back then your family had six bighas of land for farming.

Witness: Not true (we had more land)

Witness: These questions are being asked to demean me.

Nizamul Haque: We’ll omit any question we consider to be demeaning.

Defence: You’d said that your house was looted and items worth Tk 40,000 were destroyed. What were the loots?

Witness: I’ve heard that gold jewellery and furniture were looted. I wasn’t there at the time of the pillage. They had destroyed furniture and taken other items I’d mentioned.

Defence: Your brothers farmed the land. How many maunds of rice did you produce?

Witness: 7-8 palas were there. My brother knows better.

Defence: In 1971, one maundof rice cost Tk 15-20

Witness: Was about TK 15-30

Defence: Your family was dependent on farming. Hence it’s not true that you had Tk 20,000 in cash at your house during the loot.

Witness: Not true

Defence: At that time gold’s price was Tk 200-300 per bhori.

Witness: In my description of the looting, I had given value of the looted items at present market rate.

Defence: The value of those doesn’t match with current price. Did you file the case based on presumption?

Witness: I have estimated by looking at current and past prices.

Defence: At present gold costs Tk 60,000 per Bhori

Witness: I’ve heard

Defence: The value of your items doesn’t match with either 1971’s, or present price.

Witness: I have guessed

Defence: You have said in your statement that Khalilur Rahman had given you the news on 2/6/1971. His father’s name is Iman Ali and village is Togra.

Witness: yes

Defence: He was born 13 April, 1972

Witness: not true

Defence: Khalilur Rahman has a case against him. He’s been in hiding after the Supreme Court’s appeal division maintained the order.

Witness: I only know that there was a dispute around land.

Defence: None from your area has been witness to the loot at your house

Witness: not true

Defence: On 7th May , you came to know that Pakistani forces were coming to Parerhat. Who informed you?

Witness: Many people used the road in front of my house. I’d learnt from them.

Defence: Can you name a few of these people?

Witness: Motahar Ali Shareef, Altaf, Matin Howlader, Hemar Ali Sarder.

Defence: From where did they get their information?

Witness: We didn’t go into such details

Defence: What was the time when you learnt these?

Witness: Approximately 7am.

Defence: When did you reach Parerhat rickshaw stand?

Witness: around 9am.

Defence: Who’d accompanied you?

Witness: No one.

Defence: Did you meet any acquaintance at the rickshaw stand?
Witness: Haralal Karmakar, who was shot to death later.

Defence: How did you identify Captain Ejaz?Witness: In Pirojpur it was announced publicly that Captain Ejaz is leading the Pakistani army coming to Pirojpur. People would have to submit their arms. Hence, whoever was the leader that day was considered to be Captain Ejaz.

Defence: you didn’t know him personally?

Witness: no

Defence: What was the time when they reached Parerhat?

Witness: 10 am approximately

Defence: By what time did they set up camp at Rajlaxmi School?

Witness: 11:30 am approximately.

Defence: Did you know any of the rickshaw pullers of the 26 rickshaws carrying the Pakistani army?

Witness: I can’ remember

Defence: From whom did you hear that 30-35 shops at Parerhat Bazaar were looted?

Witness: from Motahar Ali Muhuri

Defence: At what time?

Witness: between 12 and 12:30

Defence: Who’d weighed the 22 seer of gold found underneath Makhan Saha’s shop.

Witness: The shop owner had said so. I wasn’t there at that time.

Defence: How did you come to know that Captain Ejaz had called Parerhat as ‘Sonar Parerhat’?

Witness: Heard from people

Defence: How did you know the figure of Tk 15 lakhs of gold jewellery being looted?Witness: The shopkeepers were big businessmen. I’ve heard it from people that they’ve said Tk 15 lakhs worth of gold jewellery was looted.

Defence: At what time was Madan Saha’s room pillaged?

Witness: That didn’t happen on 7th of May

Defence: When did that happen?

Witness: In the beginning of June. I don’t remember the exact date.

Defence: Were you home on that day (May 7)?

Witness: In the early morning I was. Then I started out towards the bazaar on a boat.

Defence: Were you at home when Selim Khan and Manik Poshari’s houses on the eastern end of the canal were burnt down?

Witness: I wasn’t there in person.

Defence: From where did you hear of the pillage at Nagarbashi Saha, Tarak Saha and Beni Madhab Saha’s stores?

Witness: I’ve heard from others and later on went there and observed myself.
Defence: You’ve said Bisha Bali was sick. But he wasn’t.

Witness: Not true.
Defence: He wasn’t tied to the coconut tree in front of his house and beaten or killed to death

Witness: not true

Defence: Bisha Bali was captured by Pakistani army who killed him at the bedi of Baleshwar River.

Witness: not true that he was killed at Baleshwar River’s bedi. At that time there was an embankment. (After the river had moved, bedi was created)

Defence: Allama Delwar Hossain Sayedee was not present and not associated with arson attack and pillage of Chittaranjan Talukder, Bisha Bali, Aneel Mondol, Jagat Talukder and Sukha Bali’s house.

Witness: not true

Defence: Allama Delwar Hossain Sayedee was not associated with pillage of Makhan Saha’s shop; pillage of Madan Saha’s shop and damage of his house; pillage of 30-35 shops including Nagarbashi Saha, Tarak Saha and Beni Madhab Saha’s stores; looting of items worth Tk 15 lakhs from different shops of Parerhat Bazaar; creation of ‘Panch Tahbil’.

Witness: not true

Defence: Allama Delwar Hossain Sayedee had not been present in Parerhat during the incidences he’s (witness) mentioned

Witness: not true.

Defence: Allama Delwar Hossain Sayedee was not involved in the looting and arson attack of Selim Khan and Manik Poshari’s house.

Witness: not true

Defence: Allama Delwar Hossain Sayedee had not been present in Parerhat during looting and arson attack of Selim Khan and Manik Poshari’s house

Witness: not true

Defence: During loot of your and Bisha Bali’s house, and Bisha Bali’s murder, Allama Delwar Hossain Sayedee had not been present in Parerhat

Witness: not true

Defence: You’ve made false accusation of Allama Delwar Hossain Sayedee’s involvement in incidences (crimes) that had happened in Parerhat, Tengrakhali, Chitalia, Badura, Umedpur and other areas.

Witness: not true

Defence: You haven’t mentioned Bangabondhu’s speech in the case you’d filed at Pirojpur Court on 31/8/2009.

Witness: It wasn’t written exactly in the same way.
There then proceeded to be quite a long legal argument relating to whether the defence could ask questions to show what defence lawyers said were ‘contradiction’ betweens the allegations the witness first made in his First Information Report (FIR) which he had filed in 2009 before the Pirojpur magistrate court, and what he was stating now. Below is a summary of the arguments but is not word for word.

The prosecution argued that the defence could not ask any questions since the FIR had not yet been exhibited. The chairman seemed to agree with this.

The defence lawyers responded by saying that they needed to show the contradiction between the two statement, but the chairman said that it was an ‘early petition filed with another authority’ and that such an application filed elsewhere than the tribunal ‘was not relevant to it’. The defence counsel pointed out that it was their right to show the contradiction between his present statement and previous statement. “He has filed a FIR after 40 years, the record of which has been passed from court to the police station. An investigation was taken based on that record. It is our right to bring the war crime case, that PW1 had filed previously, into record”

The tribunal pointed out that the defence could only ask questions on the contradictions in statements made before this Tribunal and the FIR is not before this tribunal. ‘“There are ways to exhibit your evidence before the court. It’s your skill as a lawyer to do this,” he said.

The defence lawyer pointed out that the FIR had been filed as a defence document, that the witness was a maker of the FIR statement and he was the right person to question on the contradiction. He said that witness had mentioned the FIR in his complaint petition before this tribunal and also in his statement to the tribunal.

The tribunal then pointed out that a previous statement could only used as ‘Previously Inconsistent statement’ if that is made before an ‘authority’. The defence argued that the statement had been made to an authority – in an FIR before the Magistrate of Pirojpur who then passed it on to the police.

The tribunal then argued that the allegations in the FIR concerned war crimes and that the maginstrate did have jurisdiction to try these cases. This tribunal and its investigation agency are the only authority to receive such complaint.

The defence lawyer said that when the FIR was lodged there was no War Crime Tribunal, but the tribunal said we cannot consider the allegation in the FIR as a ‘statement’. It was simply an application.

Haider Ali for the prosecution then stated that only previous statements made before this tribunal itself can be used to show contradictions. This tribunal is to run by its own rules and regulation. There is no provision in the Act or the Rules of Procedure to allow the use of statements like FIRs to show contradiction.

He read out section 19(1) of the Act – which states a 'Tribunal shall not be bound by technical rules of evidence; and it shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and may admit any evidence, including reports and photographs published in newspapers, periodicals and magazines, films and tape-recordings and other materials as may be tendered before it, which it deems to have probative value.’ He argued that a statement made before a Magistrate under this provision may be used to show contradiction, but since the FIR was not lodged before competent authority it cannot be used in this way.

The defence lawyer argued that section 19(1) was not relevant to the present issue. ‘Our present purpose is to put his earlier version to him to show contradiction from his present account,’ he said.

The tribunal then pointed to rule 24(1) which states that ‘Any Judicial Magistrate of the first class shall record the confession of an accused and the statement, if any, of a witness as and when he is required to do so by an order of the Tribunal’. The chairman then said to the defence lawyer, ‘If a witness gives his statement before a magistrate, you can show contradiction in the statement before the magistrate. You want to use statement from a case which witness had already filed. You can bring it into record but cannot show contradiction of that process”

Proceedings adjourned for lunch.  On resumption, the defence lawyer argued that in the regular courts the defence was always allowed to ask questions on any previous inconsistent statement made by the accused.

The tribunal chairman said that one has to forget about the Criminal Procedural Code and the Evidence Act which are not applicable in the present proceedings. He said that the tribunal was governed by its own rules and procedure.

The defence lawyer then read out rule 54 and 56 of the tribunal rules of procedure. Rule 54 says: ‘The prosecution may prove a document by the person who was the author of such document or who knows the handwriting or signature of such author, and when any of such persons is dead or not available, the person from whom it was collected or who knows from whose possession it was collected.’ Section 56 (1) states that the ‘Tribunal shall give due weight to the primary and secondary evidence and direct and circumstantial evidence of any fact as the peculiar facts and circumstances of the case demand having regard to the time and place of the occurrence.’

He said that these sections shows that the tribunal has wide power to consider this FIR as primary, secondary, direct or circumstantial evidence. There is no restriction or bar in the Act or the Rules to to allow a question on a previously inconsistent statement.

The prosecutor then read out a number of rules to show what can be used as evidence before this tribunal including rule 2(9) which stated that, “evidence” means all statements which the Tribunal permits or requires to be made before it by witnesses, and it includes all other materials, collected during investigation, placed before the Tribunal in relation to matters of fact.’ And rule 56(3) which states that, ‘Any statement made to the investigation officer or to the prosecutor in investigation by the accused is not admissible in evidence except that part of the statement which leads to discovery of any incriminating material.”

He then read out rule 44. ‘The Tribunal shall be at liberty to admit any evidence oral or documentary, print or electronic including books, reports and photographs published in news papers, periodicals, and magazines, films and tape recoding and other materials as may be tendered before it and it may exclude any evidence which does not inspire any confidence in it, and admission or non-admission of evidence by the Tribunal is final and cannot be challenged.’ He then stated that the FIR is not included as a document in the Rule.

He said that fair trail means to act in accordance to law and our laws of the Tribunal doest not provide any provision allowing to ask question on a document which was not made before this tribunal. He said that the defence may bring this FIR through their own witness and it can be exhibited at that time. But before that they cannot ask any question on the FIR.

Justice Zahir then said, ‘The witness has already said in cross-examination that he has corrected some of his mistakes on his previous statements. In this case why you need to cross him on the statement which he himself has said to have corrected it in the present case. You can ask question about the FIR to the Investigation Officer under Rules 40 and 55. The Investigator officer of that particular FIR is also a Prosecution witnesses. You may ask question to that IO also. Why you need to ask question to this PW1 about this FIR?’

The defence laywer said that it was not correct that the witness had said in the cross examination that he has corrected his statement, only that he had corrected the name of the accused in the present Complaint. He said that if you are allowing us to question the Investigation Officers about this FIR then why not the person who made the statements in the FIR

We have every right to question him on his previously inconsistent statement. He then pointed to section 10(h) of the Act which states that: ‘the Tribunal may, in order to discover or obtain proof of relevant facts, ask any witness any question it pleases, in any form and at any time about any fact; and may order production of any document or thing or summon any witness, and neither the prosecution nor the defence shall be entitled either to make any objection to any such question or order or, without the leave of the Tribunal, to cross-examine any witness upon any answer given inreply to any such question.’ He said that in that context why he could not ask the question about FIR to the maker of the FIR.

The tribunal then stated that it could not go beyond the law and the the defence could bring the FIR to the knowledge of the court through their own witnesses.

The defence lawyer said that even though there is no authority, there is no prohibition in the law These types of small matters need not be expressed in the law. For the ends of justice we should be allowed to ask question on this FIR to show contradiction in the PW1’s statements.

The chairman finally said, ‘The document is there. You know how to bring it to court. You are waisting time.'

The defence lawyer then said that he disagreed and asked the tribunal to pass a written order, and the chairman said that for that to happen they had to file a written application.

Cross examination then restarted.
Defence: You haven’t mentioned elsewhere the section of the statement regarding ‘war in 1971 up until formation of Razakar force’ except for the complaint made in this court.

Witness: I can’t remember

Defence: You haven’t mentioned elsewhere section of the statement on ‘Madan Saha’s house was looted, kept in Sayedee’s in-law’s place and returned to him by the freedom fighters’ except for in the complaint made in this tribunal.

Witness: I can’t remember

Defence: Subsector commander of sector 9 had appointed you as informer. You haven’t mentioned that in any previous statement.

Witness: I can’t remember

Defence: You haven’t mentioned before what you’d stated in the witness statement regarding collection of information for Sundarban by travelling all across the district.

Witness: I think I mentioned that.

Defence: The written complaint given to the chief investigating officer on 20/7.2009 didn’t include that you were at home on June 2, 1971 and on learning of being listed by the Peace Committee you’d taken other pro-independence people to safety.

Witness: not true

Defence: The complaint doesn’t include that Bisha Bali was sick and captured.

Witness: not true
The prosecution objected to this question and said that the defence cannot ask a question on the exhibited document since it is already exhibited and proved.

The tribunal chairman said that the court has already said that they can ask a question on any exhibited document.  
Defence: Complaint doesn’t include that during Bisha Bali’s attack you’d taken shelter in the jungle with Mahtab, Altaf and Latif Howlader.

Witness: it’s there

Defence: Complaint doesn’t include that the present government had announced trial of war criminals

Witness: I can’t remember

Defence: Complaint doesn’t include that Delwar Hossain Sayedee pointed out shops of Hindus and pro-independence people to the Pakistani military and 22 seer of gold dug out from underneath Makhan Saha’s shop

Witness: It’s there in my complaint, but didn’t mention before.

Defence: You haven’t mentioned that Delwar Hossain Sayedee was expelled from Madrasa anywhere before making this complaint

Witness: didn’t mention

Defence: Complaint doesn’t include that at Delwar Hossain Sayedee’s command the loots from 30-35 shops were divided.

Witness: not true

Defence: After the liberation, did you inform Major Ziauddin of these complaints?

Witness: I’ve informed him about the main issues of complaint.

Defence: Have you heard of Tetulbuniabad or Tetulbaria?

Witness: yes, my in-laws place

Defence: You haven’t filed case against Captain Ejaz?

Witness: I have accusations against him, but didn’t include him as accused.

Defence: Do you know what operation searchlight is?

Witness: Sudden attack
The chairman then started making comments about the need for the defence to finish its cross examination that day since they had been cross examining this witness for five days. The defence lawyers said that they did not have many more questions and would finish today.
Defence: You were made a witness under instruction from the government.

Witness: not true

Defence: Sayedee was not in Pirojpur or Parerhat in the period between the war had started up until mid July of 1971.

Witness: he was there.

Defence: He lived in Pirojpur from mid July to much later after the liberation.

Witness: not true

Defence: Since you know that investigation is going on to find fake freedom fighters, you, with the intension to keep your name on the list, have made false accusation against Sayedee at Government’s and your local MP Auwal’s command

Witness: not true.
Hearing was adjourned for the day

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