Sunday, February 26, 2012

26 Jan 2012: Nizami cognisance

The day was fixed for two matters – taking cognisance in the matter of Matiur Rahman Nizami hearing further witnesses in the case of Delwar Hossain Sayedee.

Prosecutor adjournment request
The judges took their seat and prosecutor Ziad-al-Malum came to the dais and asked that in respect of Sayedee case, he was seeking an adjournment until 2 pm as the witness has not arrived yet.

Tribunal Chairman Nizamul Huq said, “I have a question- it has become a common phenomenon; you are failing to produce the witnesses timely, why it is so?

Prosecutor Ziad-al-Malum replied, “For today it was gap of communication. We have informed the local authority to send the witnesses to Dhaka, however, they failed to communicate it with the witnesses in due time. They are on the way now and we shall produce them before the tribunal at 2 pm. There shall be 4 witnesses altogether. Here is list to be submitted before your Lordship.”

Provision of witness statements
Defence counsel Barrister Abdur Razzak came to the dais at this stage for making his submission in respect of some issues regarding witnesses and submitted as follows referring- to section 9 (3) of the ICT Act 1973 and what has happened previously in failing to supply a witness list to the defence.

Section 9(3) states: ‘The Chief Prosecutor shall, at least three weeks before the commencement of the trial, furnish to the Tribunal 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.

Razzaq stated:
 “As per section 9 (3) of the ICT Act 1973, we are entitled to have notice regarding witnesses 3 weeks before their examination. We have got first list of witnesses and the second list of witness containing names of original 36 witnesses and 70 seizure list witnesses. And finally we have got an additional list containing the list of 68 witnesses. We do not have the details/statements of seizure list witnesses. Now, can you please clarify us what is meant by ‘notice’ under section 9 (3) of the ICT Act 1973. Is it the mere list or is it the statement of all witnesses including the seizure list witnesses?”
In response, Tribunal Chairman Justice Nizamul Huq replied in the following manner
“Mr. Razzak, we have already heard this from your friends’ yesterday afternoon. The last witnesses were regular witnesses, thus, there should not be any question about this issue at this stage and it has been taken properly. Now, in future, if any witness is produced out of the list or any seizure list witness say anything extra apart from their relevance with the matter/witness statement of the original witness, we shall not allow any statement apart from the seizure list witness. If they have any other witness and if we have to allow them, in that case surely you shall get the 3 weeks’ proper notice as required by law. I am confirming you that this Tribunal is competent enough to deal with these sorts of matters. However, from the day one I am saying one thing to all of you. This tribunal is a new one, judges are new, prosecutors are new, defence counsel are new representing in this kind of cases and this case is the first case we are dealing now. There are some mistakes which we should overlook.”
Defence counsel Barrister Abdur Razzak then sought clarification: “If there is no disposition earlier, or any witnesses says or want to say anything outside of the seizure list, then we need at least 3 weeks’ notice.”

Agreeing with that Justice Nassim confirmed, “Surely you will get that.”

However, Justice Zaheer asked for a clarification to the prosecution team on the following issue and in his words- “Can anyone from the prosecution explain me why have you submitted the additional (third) list of witnesses whereas the first 2 books you submitted to us contained all the names of the witnesses?”

Prosecutor Ziad-al-Malum came to the dais to explain that they were directed to supply this.
Defence cousel Tazul Islam then said:
 “My Lord, you were pleased to make on order in the open court to the prosecution to supply us all 15 lists of witnesses. However, they have supplied the list of only 10 witnesses. (he showed that). Further, under section 9 (3) of the ICT Act 1973, we are entitled to get (i) lists of witnesses to be proceeded and (ii) statement of the witnesses. Now, if it is ignored or overlooked by the Tribunal on the ground that the prosecution is new dealing such matter, then the defence will be prejudiced and I believe you shall agree with me that if prosecution is prejudiced then it is not a big deal however, defence cannot be prejudiced anyway as it is the accused who will get death sentence (or capital punishment)

Furthermore, section 9(4) of the ICT Act 1973 - which states that 'The submission of a list of witnesses and documents under subsection (3) shall not preclude the prosecution from calling, with the permission of the Tribunal, additional witnesses or tendering any further evidence at any stage of the trial - is similar to section 550 of the Code of Criminal Procedure 1898 and as per section 550, normally the original witnesses are examined first then the seizure list witnesses are examined. Although there is no bar in the law to do something different, it would be outside the practice to examine the seizure list witnesses in between i.e. before examining last original witness. '

”And finally, the prosecution has produced the list of names of 4 witnesses before your Lordship but they have not given us the list yet. In that case, how shall we cross examine the witness without taking any preparation?”
Justice Zaheer then asked the prosecution, “You have given us the list of 4 witnesses. Who will be the first to be examined among them?”

One of the prosecutors replied, “We shall follow the list, my Lord. Thus, Mr. Rabiul who is in the top of the list will be examined first.”

Defence counsel Tazul urged, “May we have the ‘list of attendance of witnesses’”?

Justice Zaheer then ordered, “Can please provide the ‘list of attendance of witnesses’ to the defence so that they shall have knowledge of the fact who are going to be examined next?”

The prosecution agreed and then the Tribunal Chairman fixed that the examination in chief of the next prosecution witness will be started at 2 pm. However, the defence requested the Tribunal to fix it on Sunday 10:30 am as they have just come to know the name of the witness and they do not have any preparation for the cross examination.

Justice Zaheer however stated that, “Let the prosecution start their part; if we consider that the defence would require time to cross examine the witness then we shall allow you time surely.”

Nizami's cognisance
Tribunal Chaiman Justice Nassim then asked for the matter of Nizami’s cognisance be taken. He then passed the following order:
“Today is fixed for passing order for cognizance. We have perused the formal charge, supporting documents, statements of the witnesses and other documents. Having considered the documents, we are in the view that there is a prima facie case under sections 3 (2), 4 (1) and 4 (2) of the ICT Act 1973 available against the accused and trial should be initiated. 
The prosecution is directed to submit the documents for service to the accused person within 31.01.2012 and defence is directed to collect those from this office with in 02.02.12. From 23.02.12 for hearing charge matter.”
Matiur Rahman Nizami’s counsel Munshi Ahsan Kabir then came to the dais and brought before the matter to the attention of the Tribunal that he has already come to know the decision from the media. The learned prosecutors have already informed the decision of the Tribunal before it has even passed its order.

Tribunal Chairman Justice Nassim then criticised the media that has now more powerful than anyone. He also said that the prosecution need to be extra cautious while speaking to media.

Gholam Azam's documents
Defence counsel then brought another matter to the attention of the Tribunal in respect to Golam Azam’s case. He submitted that the oral order that had previously been passed ordering the prosecution to put page marks in the documents supplied to the defence has yet to be done. Tribunal Chairman was surprised to know that and then invited both the prosecution and defence to name one person form the each party to do this task and then ordered them to finish it by that day.

Proceedings were adjourned

Some notes are missing relating to this session, however this report from bdnews provides details

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