Sunday, February 26, 2012

15 Feb 2012: Azam bail application

Prior to the formal reading of the charge framing application by the prosecution, the defence counsel Abdur Razzak made four  applications - one relating to legible documents, another to do with seizure documents. another to do with accessing the original complaint. and finally a bail application.

Application about legible documents

Abdul Razzaq in his application argued that on 9 January 2012, theTribunal stated that a prima facie case had been established against the Accused-Petitioner and ordered that cognizance be taken under sections 3 (2), 4 (1) and 4 (2) of the International Crimes (Tribunals) Act 1973. He said,  that on 15th January 2012, the Defence Counsel engaged on behalf of the Accused Petitioner received 10 volumes of Prosecution Documents from the Registrar comprising of the following:
i. Petition of Formal Charge comprising of 191 pages.
ii. 2 Volumes of the History of Liberation War comprising of a total of 533 pages.
iii. 6 Volumes of documents titled ‘Seizure List and Documentary Evidence’ comprising of a total of 1565 pages.
iv. Witness Statements of 88 Prosecution Witnesses comprising of a total of 224 pages.

He said that the prosecution Documents received by the Defence Counsel comprises of a total of 2513 pages, but that upon receiving the 10 volumes of documents from the Prosecution, it transpired that 25 pages of the Prosecution Documents were illegible photocopies, which were impossible to read. He then set out what those were
Prosecutor (Saiful Islam) came up and told the chairman, my lord, not 25 pages only 5 pages are not legible to read.

Justice Nizamul Huq then told the prosecution to give the defence legible copies and cross-check the copies of defence. 'In fact, it is not necessary that every document should be legible; however, the document on which this case is relied should be legible. And I think it is not a big deal, lawyer from both sides can solve the matter easily. Even then I am passing an Order.' he said.

Order given by Justice Nizamul Huq:
‘This is an Order for directing the prosecution to supply legible copies to defence. Upon hearing both sides, we are allowing the petition and directing the prosecutor to supply legible copies to the defence within two days. ‘
Razzaq then told the court that the defence had also not received the copies of CDs, but the prosecution said that they had now submitted these copies of CDs to the Tribunal.

Application about undisclosed seizure list documents
The chairman asked what does 'undisclosed seizure list documents' mean?

The defence lawyer said some documents which were set out in the seizure list but have not been included in our documents provided by the prosecution.

The prosecution said that after scrutinizing the issues we will give them the list. The tribunal chairman asked them to do that.

Application for copy of original complaint.
Razzaq argued that the defence want a copy of original compliant. 'Original complaint was the heart of the case. Therefore, a copy of an original complaint should have been provided to us. Actually I want to say ‘this is the seed of banyan tree that set off thousands mile journey’ he said

Justice Nassim called prosecution for placing their argument.

Prosecution (Rana Das Gupta) replied in the following way:
'My lord, Code of Criminal Procedure, 1898 and Evidence Act 1972 are not applicable under this Act. Tribunal should be regulated according to its own rules and regulation.

He read out section 9(1) of the International Crimes (Tribunal) Acts, 1973, Rule 2(6) and Rule 5 of the International Crimes (Tribunal) Rules of Procedure, 2010 and claimed complaint is a part of the case diary. The defence maintains the case diary only to refresh its memory. It is not such a type of document upon which they rely in support of charges.

In section  9(3) of the International Crimes (Tribunal) Acts, 1973 prosecution are required to provide those documents upon which they rely in support of such charges. However, providing case diary to the defence is not mentioned here (complaint is the part of case diary). So it is not maintainable that original copy of complaint should be provided to the defence. '
Abdur Razzak: Sec 9 (3) of International Crimes (Tribunal) Acts, 1973 states that the chief prosecutor shall furnish to the Tribunal at least three weeks before the commencement of trial 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. So prosecution was expected to provide all documents to the defence upon which the case is relied. My lord, my question is whether the prosecution would rely upon the complaint or not?

Justice Nizamul Huq said that the documents which are used in favour of charge should be provided to the defence. And the prosecution might not be relying upon the complaint or if they do, it will be forbidden for them to rely upon the complaint.

Order given by Justice Nizamul Huq:
‘Mr. Razzak submitted that the said complaint document is vital document which should be given to the defence and prosecution argue that the complaint is the part of case diary and legal provision prohibits furnishing case diary to the defence. Also argue that according to the sec 9(3) the prosecution should provide that document on which prosecution rely for supporting charges.

Upon hearing both sides, we are of the view that complaint is the part of the case diary and prosecution is not bound to give it to the defence.’
Application for bail
The bail petition was submitted by Imran Siddique (the full filed bail application is at the end of this posting)
Accused-petitioner Mr. Golam Azam has been admitted at Bangabandhu Sheikh Majibur Rahman Medical College hospital from12.02.12 as he has been suffering from various complications. There is no ground for rejecting bail petition as he is not getting proper medical treatment. There are several grounds for filing petition for bail.

In Para five: A medical board has been formed for giving treatment to Golam Azam. They have advised him (1) to take absolute bed rest and (2) to continue present treatment.

In Para six: He has been suffering from severe back pain as well as he is given physiotherapy treatment and as per doctor’s advice his movement is strictly limited.

In Para seven: Several complications have been found by the medical board.

In Para nine: Standard of food is unsuitable for Mr. Golam Azam. Wife of accused-petitioner submitted an application for providing home-cocked food but she was not allowed to provide food.

In Para ten: He has been suffering from hearing problem.

In Para Seventeenth: He has no connection with any activities outside the Bangladesh.

In Para twenty: He is a man of good character. So there is no ground for detaining him. If it is so, then it will be considered as arbitrary detention.

So court must not deny granting of bail as there is no ground for being prejudiced against public interest.
Then the defence counsel Imran Siddique placed Annexure A and Annexure B before the court:

Annexure A and B: Application has been submitted by the accused-petitioner wife to provide home-cocked food as he had fallen down in bathroom.

After that Mr. Abdur Razzak came to the dias and asked that the tribunal given attention to pages 31 of the petition application.
He said that  the news “Golam Azam may die of negligence by jail authority” has been published in Daily Ittefaq dated on 28th January 2012. My lord, he is getting weaker day by day, losing his weight as well. Any time a severe incident may occur. And 21st January, it has been published in another newspaper that “Authority should ensure the proper treatment of Golam Azam”.

So before the court my humble submission is that there is no prima facie case against Golam Azam. Bail can be enlarged even in non-bailable offence as per section 497(1) of code of criminal procedure 1898, if the person is
(1) Under the age of sixteen years
(2) A women
(3) Sick or infirm person.
As a reference I want to mention the case of (14 DLR SC page 321) where bail was granted upon reasonable ground. Therefore my lord, bail can be granted :
(a) If there is no reasonable ground to believe that he is guilty of offence.
(b) Or if he is an infirm person though there is reason to believe that he is guilty of offence.

So my lord, there is no ground for refusing bail as this case has been argued for two months and there is no reasonable ground to believe that accused-petitioner is involved in any atrocity.

And there is no question of public interest. In fact, accused-petitioner medical condition is deteriorating day by day, he had been afflicted with diarrhoea, now he is too weak to go toilet alone. In this critical situation presence of his wife beside him is very urgent. However, bail should not be denied merely because this case is sensational one.
Justice A T M Fazle Kabir: Learned counsel, have you ever submitted any report, record, document before the Tribunal for substantiating your claim regarding the physical condition of Mr. Golam Azam?

Abdur Razzak: We are not allowed to get such report as he was in jail.

Justice A T M Fazle Kabir: By submitting material have you tried to convince the Tribunal before, regarding this matter.

Abdur Razzak: My lord, it is proved that physical condition of accused petitioner is severe since he have been at the Banghabandhu Sheikh Mujibar Rahman Medical College hospital after the day of his arrest.

There is no reason to believe from the fact presented by the prosecution that accused –petitioner is guilty of offence. Therefore, there is no ground for refusing bail.

Chief Prosecutor (Ghulam Arieff Tipoo) then placed his arguments:
I would like to begin with International Crimes Tribunal Act-1973, where law of the land ( CrPc, Evidence Act etc) is not applicable. In old age, there may arise different types of complications. Therefore, fallen down in bathroom is an act of God. So, his wife’s plea to provide home-cocked food, seek assistance of the wife to go bathroom as he never allowed to any other one for assistance to go bathroom, fallen down in bathroom are not sufficient ground for enlarging him on bail.

My lord, hospital authority is trying their possible best to give proper treatment and medicine. In fact, accused-petitioner is a man of mastermind and one of the top leaders of Jamaat-i-islam. He was involved in different atrocity during the Liberation war. And there creates no extra-ordinary situation of granting bail.
The tribunal asked the prosecution whether they wanted to submit counter arguments against cases cited by Abdur Razzak

The Chief Prosecutor replied, 'No, my lord, because this Tribunal absolutely stands on different footing, so different case law and other statutes are not applicable here. And gravity of this case is far more than the different citing of defence counsel which they have referred.''

The chairman said that the order regarding bail  will be passed on 23 Feb 2012.

Thus court was adjourned till 2pm.

The tribunal members took their seats; prosecution was ready there was no defence counsel except a junior associate of a defence counsel.

Full Bail application

1. On 9th January 2012, the Tribunal was pleased to take cognizance of offences allegedly committed by the Applicant under section 3(2) of the Act, and directed the Applicant’s counsel to produce him before the Tribunal on 11th January 2012. On 11th January 2012, this Hon’ble Tribunal was pleased to reject the application for bail filed on behalf of the Applicant. Thereafter, the Applicant was taken into custody.

2. That there are no reasonable grounds for believing that the Applicant has committed the offences in which he has been implicated. Although, the Hon’ble Tribunal has taken cognizance of offences allegedly committed by the Applicant under section 3(2) of the Act, the Applicant has not been formally charged of any crimes by the Prosecuting Authority and as such no proceedings have commenced under Section 9 of the Act. Without a formal charge, there can be no reasonable grounds for believing that the Applicant committed any crimes under the Act and as such, he may not be detained in custody.

3. That the Applicant is 89 years old and suffers from a number of old age complications and ailments. The Applicant suffers from Hypertension and Diabetes mellitus. He also suffers from Back Pain and Pain in neck and Knee Joints. The Applicant also suffers from Electrolytes Imbalance, Loss of Vision (in the right eye), Osteo Arthiritis (both knee joints) and Cervical and Lumbar Spondylosis with radiculopathy. The Applicant has an enlarged Prostrate and experiences pain in his thighs and legs when walking.

4. That on 5th November 2011, a Medical Board was constituted comprising of (1) Professor Tofayel Ahmed, MBBS, FCPS, FCCP, MRCP, FRCP (Professor of Medicine and Cardiology and former Principal, Dhaka Medical College); (2) Dr. M Shaheed Uddin Ahmed, MBBS, FCPS (Consultant, Cardiologist and Physician) and (3) Dr. Md. Iqbal Hossain Chowdhury, MBBS, FCPS, FRCS, Orthopedic and Trauma Surgeon, to conduct diagnosis of the Applicant’s medical condition. The Medical Board, after examining the Applicant, advised the following:
(i) Absolute bed rest.
(ii) Continue present treatment with continuation of physiotherapy and restrictions of physical activities.
(iii) Use of lumber corset and walking elbow sticks.

5. It is apparent from the above recommendations of the Medical Board that the Applicant suffers from a number of old-age complications and is required to take complete bed rest. Furthermore, there are restrictions on his physical activity and the Applicant is required to take regular physiotherapy. It is specifically stated that the Applicant, who is 89 years old, is incapable of moving around freely and needs the assistance of an attendant in order to move from one place to another. Prior to being taken into custody, the Applicant’s movements were strictly limited to going to the adjacent mosque to perform his daily prayers, and that too with the assistance of an attendant.

6. That on 11th January 2012, upon the rejection of his bail application, the Applicant was taken to Dhaka Central Jail. Thereafter, upon an application by his son, the Applicant was admitted to Bangabandhu Sheikh Mujib Medical University (BSMMU) Hospital for medical treatment. Upon being admitted to BSMMU Hospital, on 13th January 2012, a Medical Board comprising of (1) Professor ABM Abdullah, Dean, Department of Medicine (2) Professor Shajal Krishna Banerjee, Cardiologist, and (3) Professor Nokul Kumar Datta (Orthopaedics) was constituted with a view to monitoring the medical condition of Professor Ghulam Azam.

7. Thereafter the Hospital authorities conducted an X-Ray of the Accused Petitioner, which revealed several complications with his bones as a result of his old age. On 14th January 2012, an Ultrasonogram revealed that there were numerous stones in the Petitioner’s gall-bladder.

8. It is stated that the Applicant, being a very elderly person requires special care and attention which is not possible to be given to the Applicant in the Prison Cell in BSMMU. The Applicant has a special dietary requirement which is required to be followed strictly at all times in order to ensure that the Applicant’s health condition remains stable. Any deviation from these special dietary needs of the Applicant is seriously detrimental to the medical condition of the Applicant, which is aggravated by his Applicant’s old age. Furthermore, the standard of food being provided to the Applicant at BSMMU is unsuitable for an 89 year old and as such, the Applicant has not been able to have all the food items supplied to him at BSMMU. This has resulted in the Applicant losing weight, and has seriously aggravated his health condition. Furthermore, as a result of the poor quality of the food supplied by the hospital authorities, the Applicant suffered from diarrhoea for several days and now experiences considerable general weakness.

9. It is stated that the Petitioner suffers from back pain, sciatica and pain in his waist, knees and thighs. Since being admitted to BSMMU on 11th January 2012, the Applicant has not been provided physiotherapy regularly, which has resulted in the pain in his joints being aggravated. Furthermore, the Applicant has been suffering from impaired vision and hearing problems, which have been aggravated during his stay in the hospital. It is further stated that the Applicant has not been provided hot water in the mornings to perform him ablution and as such, he has been compelled to use cold water, which is seriously detrimental to the health condition of an 89 year old.

10. Furthermore, as an 89 year old, the Applicant requires the constant assistance of an attendant. However, such facilities are not available in custody. It is stated that on 25th January 2012, while taking a bath, the Applicant, due to his physical weakness, slipped and almost fell down on the bathroom floor. In such situation, the Applicant sat on the bathroom floor and thereafter made repeated attempts (for over a period of 30 months) to stand by leaning on the basin and toilet, but failed to do so. Thereafter, the Applicant had to call the security guard, who helped him to his feet. As a result of the accident in the bathroom, the Applicant’s knees had been badly bruised. It is stated that the abrasions in the Petitioner’s knees are taking time to heal because of his old-age complications.

11. That on 12th January 2012, an application was made to the Deputy Commissioner for granting division facilities to the Applicant while in jail custody. By a letter dated 24th January 2012, the Additional District Magistrate, Dhaka rejected the application under Rule 910 of the Jail Code. No reasons were assigned for refusal to grant division facilities to the Applicant, although the Applicant had on two previous occasions, been granted division facilities while in jail custody. (A copy of the said letter dated 24.1.2012 is annexed herewith and marked as Annexure)

12. It is stated that although the Applicant is a highly educated individual who is accustomed to a superior mode of living, he is not being granted division facilities by the relevant authorities in blatant violation of the provisions of the Jail Code. It is also specifically stated that on two prior occasions when the Petitioner was arrested in 1964 and 1992, he was granted division facilities by the relevant authorities. It is stated that upon completion of his medical treatment, if the Applicant is sent from the BSMMU hospital to jail custody, he will not be granted division and will be treated like an ordinary criminal, thereby causing him serious hardship, which is likely to be aggravated by his old-age complications.

13. By letters dated 14th January 2012, the Applicant’s wife requested the Director, BSMMU and Vice-Chancellor, BSMMU and the Superintendent, Dhaka Central Jail to allow home-cooked food to be supplied to the Accused Petitioner in order to ensure his physical well-being. However, such facilities have not been made available to the Petitioner. (Copies of the said letters dated 14.1.2012 are annexed herewith and marked as Annexures)

14. Furthermore, by a letter dated 26th January 2012, the Applicant’s wife informed the Superintendent, Dhaka Central Jail that the BSMMU authorities are not providing food to the Applicant, which is not included in the approved menu of the hospital authorities, and that this has resulted in a reduced food intake and consequent physical weakness of the Accused Petitioner. By the said letter dated 26th January 2012, the Applicant’s wife once again sought permission to provide home-cooked food to the Applicant. However, the said application of the Applicant’s wife has not been allowed. (A copy of the said letter dated 26.01.2012 is annexed herewith and marked as Annexure)

15. That the news of the deterioration of the Accused Petitioner’s health was widely reported in a number of daily newspapers. Furthermore, the accident suffered by the Accused Petitioner in the hospital bathroom on 25th January 2012 in the absence of an attendant was also reported in several daily newspapers. (Copies of the said news reports dated ….. and … are annexed herewith and marked as Annexures)

16. It is stated that the Applicant is a Bangladeshi citizen and has been living here with his family. He has no place of residence outside Bangladesh.

17. Taking into consideration the Applicant’s age and ill-health, it is respectfully submitted that the Applicant is unlikely to abscond and as such, may be granted bail by this Hon’ble Tribunal.

18. It is submitted that there are no reasonable grounds for believing that the Applicant will be convicted in this case. The Applicant is the former leader of a major political party. The present ruling party has a bitter relationship with the Applicant and as such, false allegations of war crimes, crimes against humanity and genocide have been made against him to harass him politically. The prosecution has miserably failed to produce any evidence against the Applicant. In the premises, the Applicant may be granted bail by this Hon’ble Tribunal.

19. The Applicant has no previous convictions.

20. The Applicant, due to his age and ill-health, is highly unlikely to commit any crime.

21. It is respectfully submitted that the Hon’ble Tribunal takes into consideration the Applicant’s character when exercising its judicial discretion to grant bail.

22. It is stated that there is no allegation that the Applicant has ever tampered with any witness or created any obstacle in the process of investigation. Furthermore, the investigation having already been completed and the Investigation Report having been submitted by the Investigation Agency, there cannot possibly be any apprehension of the Applicant tampering with any witness or evidence.

23. The Applicant is an elderly person and suffers from a number of ailments including Diabetes Mellitus, severe Back Pain and spondylosis as set out in the aforesaid paragraphs.

24. In the above circumstances, it is respectfully submitted that the Applicant cannot and will not get proper medical treatment in the custody of the jail authorities and as such this Hon’ble Tribunal may exercise its judicial discretion to grant bail to the Applicant.

25. It is respectfully submitted that taking into consideration the arguments made in this application, the Hon’ble Tribunal grants conditional bail to the Applicant on the condition that he:

i. Surrenders his passports before the competent authorities;
ii. does not apply for any travel documents without the prior permission from the Hon’ble Tribunal;
iii. resides at the address stated above;
iv. reports to the Hon’ble Tribunal as and when directed to do so;
v. does not travel to any crime scene without prior permission from the Hon’ble Tribunal;
vi. does not contact any of the Prosecution witnesses;

26. It is further submitted that Mr. Abdullahil Amaan Azmi, son of Professor Ghulam Azam of 119/2, Elephant Lane, Boro Moghbazaar is willing to provide surety of an agreed amount as a condition for bail.

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