Friday, July 13, 2012

11 Jun 2012: Sayedee prosecution 'concoction' claim

After the defense placed its arguments in the morning alleging, though a detailed scrutiny of the 'registers of the safe house', that the investigation/prosecution agency had conducted a significant fraud on the court, the prosecution was asked to reply.

Haider Ali made the following comments
This is a review application of an Order which was passed in 29.03.2012. At first I have to submit our application in short which was submitted on 21st March before replying the review application. 
There is a list of 46 witnesses and they are divided into three categories. Regarding witnesses it is said that one of the witness Usha Rani Malakar is very sick, she lost her memory, Shuka Ranjon Bali has fled away, Ashis Kumar Mandol, Shamor Mistri and Sumoti Rani Mandol left for India in February 2012. And some others were threatened so that they restrained themselves from giving their testimony. Witnesses no. 6 to 19 was threatened. We filed our application under section 19(2) on 21.03.12 and Order was passed on 29.03.12.

But my learned defence counsels said with regard to Ahsis Kumar Mondol, Sumati Rani Mondol and Samor Mistri that they were never missing, they came to Dhaka and kept in witness house more than one month. My lord, on 28.03.12 when they submitted an application they said that witness secret hostel but now on their review application on 9. 05. 12 they are saying safe house. My question is how the witness secret is converted into Safe house and I also note that it is not a Thana so that it is not essential to maintain GD (general Diary). There is no rule like that which obliges me to maintain any register or any dairy.

According to rule 58 of the International Crimes Tribunal Rules of Procedure which is prescribed to us, the safe house has been maintained by us properly.

These documents never existed. This witness home is not a police station. There is no scope to maintain any GD book in that home. For maintaining a GD Book there must be an order of the Government. Where is that order? This witness home was created as per Rule 58A, not by any government order. So there is no scope to maintain any GD Book here.

Section 377 of the Bengal police regulation Act does not state that we should have maintained a GD Book – setting out what is eaten by the witness, what is worn by the witness and so on. So, it is not our duty to maintain all those things. These registers are concocted by some one who is expert in doing this. This is like fake currency. General people may not be able to identify. But it is fake.

And my lord, a document which has been given by the defence these are nothing but fraudulently prepared. They have created these registers within this one month time for filing this review petition. there was fraud – by you have to determine who have committed fraud

The defence prayer for discharge shows that these documents were concocted to substantiate this argument.

We have annexed a report in today’s reply which shows that these documents are concocted. 
Then he submitted two reports before the Tribunal member but not to the defence counsels.

Tajul Islam: My lord, where is our copy?

Proseuction: This report is a secret one. You are not entitled to look into it.

Defence: I have right to see this since you are using this against me.

Prosecution: No we will not give you this report.

Justice Zaheer: You have said that safe house is neither a Police investigation agency nor a Thana, then why there is a sign of I.G of Police? 

Haider Ali: My lord, in rules 51, it is clearly mentioned what should be the duty of the defence counsels to prove these registers. They should prove from where they collected them them, from whom there are collected. If they rely upon it, they should prove it. If there is any information then it should be presented with reference and according to the law. Credibility of document fully depends on law. Documents which they have submitted are not the documents of those places where our witness were kept before their testimony.
The Investigation Agency is not a party to this proceeding. They are created under law and the rules said that all their actions will be presumed to have been done in accordance to law. So you cannot proceed against them.

Another fact regarding the prosecution witness Usha Rani Malakar, the defence submitted a TV interview. It is not stated when this interview was taken. It must be disclosed. This interview could have been taken long ago before this case.

Regarding other prosecution witnesses in the TV interview, we are not finding them. How has the journalist could got the time? This proves that the people of the accused are approaching and threatening the PWs. These concocted registers of the safe House also shows that our PWs are being threatened.

And at the report of Diganta channel we have seen that there is office of chief investigator but in our investigation there is no such type of office now. It was before our investigation is started.

Justice Nizam: There was never such a name of post. It has used mistakenly.

Haider Ali: My lord, they want to manipulate the matter because the proceeding is going on. But, they are not entitled to do so and from this it is very clear that the wanted to threaten our witnesses.  My lord, I.O is in the dock, he could be cross-examined by them, and they could ask to the I.O whether it is safe home or witness home.

Justice Zahir: According to Section 377 of PRB, this GD Book needs to be kept in Form – 65. We can see that the GD Book of the Safe House is maintained in the correct form.

Prosecutor: Those who created it, they followed the correct form. This is not a Police Station. PRB is not applicable.

Jsutice Zahir: Today’s reply shows that it was given by a person holding a post of Inspector General. If PRB is not applicable why are the officers of the Investigation Agency is using the designations of police.

Defence: My lord, will we not get a copy that report?

Justice Nizam: Mr. Haider ali please give it to the defence counsels.

Defence: Mr. Haider Ali it is the rules of the bar council that you have to give a copy of your submission to the defence before submitting before the Tribunal.

Mizanul Islam: My lord, till today we did not submit anything before the Tribunal without giving them.

Justice Nizam: It is long practice if there is anything which can affect the investigation then these are kept secret like the report of investigation, but this document is nothing like that so please give it to the defence.

A copy is made and given to the defence

Justice Anwarul-Haq: After framing of charge there is no chance of discharge, you have been given either conviction or acquittal. Then why have you prayed for discharge?

Defence: this is mere terminology. If you think Acquittal is the right term then we can amend our prayer in the discharge application.

Justice Zaheer: Some witnesses have given their testimony before us so we should scrutinize their testimony. We can not reach any decision without scrutinizing them.

Prosecutor: My lord, deposition of the witness has already taken place. Prosecution is now at the last stage then how can they submit for discharge? My lord, in rule 2(9) it is clearly stated what is evidence and what is not and which will be given or which is not. According to rules 51 burdens of proof is upon them, since they have submitted this document they should prove that these are authenticated documents.

And my lord, preparing the documents of phone bills and the collecting the date of presence of S.I kalachan ghosh at the magistrate court, all these are done in very expert hand otherwise it was not possible to submit such a document.  And in case of telephone bill, there is only written “International Crimes Tribunal” other than this nothing is mentioned here.

Justice Zaheer: Are these numbers the telephone number of Investigation agency?

Haider Ali: Among these number, I know only one number - 7547804 of the witness home. I cannot confirm the other numbers.

Justice Zahir: can you read out the address in the telephone bill. This is the same address of the Safe House mentioned in the GD Book.

Proseuction: I need to check.

Justice Zaheer: You want to say your safe house is like “LILLA BOARDING” that you have no record of what they are eating, what they are doing nothing. Since it is a Government office it should have a maintenance diary or at least a list. Is there no record of Account. How can this be? You are spending government money and you do not keep any account.

Prosecution: I do not know how, but this is fact.

Justice Anwarul Haq: How is the witness home account audited without any record.

Prosecution: They need to take bulk amount of money without specification. The audit may be done later on. We must keep confidentiality about the witness home. This is why we do not keep any record.

Judge: All the officers and constables in your witness home are government employees. How can they do their duty in the witness Home without any register. Who maintains their joining report? Another thing is, they are appointed here either by deputation or by appointment then my question who maintains all those things? If any staff is sent to any place then who keep the record of that incident?

Prosecution: This is kept in the Head Office in Baily Road.

Justice Zahir: Justice Zaheer: After doing 8 hours duty at safe home by one employee then obviously he will be changed and another one comes on duty. Then who would maintain the duty register?

Haider ali: They will go on head office to collect C.C.

Justice Zahir: How? The staff’s duty is in Golap Bag. You are saying that the records and duty rosters are maintained in Head Office which is more than five miles from the witness home. Why register is maintained in the Head Office. Who will issue relevant order and maintain record if any officer is sent to another place. That means one employee will come from Gopal bagh to Baily road like 5 or 6 k.m to collect his CC. Then who will take the responsibility of that time which is needed to come from Gopal bagh to Baily road without C.C?

Prosecution: These are kept in the Head office.

Justice Zahir: you need to travel more than five miles to record every order. What will happen if any officer has any accident in his way to Head office? Where is the record that the Officer was going to the head office?

Tell me another thing, there must have armed police, then what did they do? They collect arms from razarbagh?

Proseuction: Yes, my lord.

Judge: Defence annexed some news report on the safe house long ago. Did the Investigation Agency publish any rejoinder against those reports, if they are flase.

Prosecution We do not believe news reports. So, no rejoinder is necessary.

Chairman: our order about the prosecution witnesses are very secret. How can this information be published

Proseuction: there is no authenticity of these new reprots.

Justice Zahir: But the dates mentioned in the news paper reports, GD Books and our Tribunal Records all match each other.

Proseuction: But you should note who is taking benefit of these documents. You may presume from this who may have created these documents.

Justice Nizam: In our order, it is clearly stated that, witness are kept at secret place. But defence has collected a report of their movement. In this case either the report is right or wrong. If the report is right then my question is how the investigation authority maintained our order?

Proseuction: My lord, there is nothing to rely upon that documents. Research, newspapers report all are published single news according to their will in their own style. We have seen a single piece of news has been published in 4 different newspapers in four different ways.

My lord, there is no scope of discharge. And my lord, investigation officer has brought the witness before the Tribunal. And whether the witness will give testimony or not it should be investigated by the I.O. Statement before the Investigation officer and statement before the Tribunal was the same. So, what is the problem if statement before the Investigation officer has been received by the Tribunal? Since this is the recording statement of Investigation officer so there is no chance of being prejudiced if statement is taken as evidence.

Justice Zaheer: They can say they are prejudiced, since there is no oath of the witness and there is no chance of cross-examination.

Proseuction: My Lord, investigation officer is here so you can cross-examine him. Therefore, review of the Order should not be allowed here.

Justice Zaheer: Prosecution said in their application that Usha Rani Malarkar is unable to talk, unable to move. But defence submission is if so then where is their medical report and it is also shown by them that witnesses is able to talk and able to move. Even no summon has been served upon them. Is not it Mr. Abdur razzak?

Defence: Yes, my lord.

Justice Nizam: In section 19(2) “whose attendance cannot be procured without any amount of delay or expence”. In supporting the word “delay”, you have submitted that they are sick, traceless, lost their memory and so on.

Proseuction: Yes, my lord.

Justice Zaheer: Defence want review at that point where we have said that we have received the document.

Prosecution: My lord, I think in your Order there is a reflection on the part of the judges. So, how can it be prejudiced?

Justice Zaheer: They want to submit that for fraudulent practice it is unfair to receive the testimony of the witness as evidence.

Prosecution: My lord, defence has said that Usha Rani Malakaar was not so ill as we have said. But my question is when the interview of the witness was taken because the office of chief investigator has been shown in this TV report but this office was in our Tribunal from the beginning of the Tribunal where our investigation was not also started.

Justice Zaheer: It is like the movie file of Delwer hossain saydee where speech of Matiur Rahman Nizami was included and here the term “chief investigator” is included.

Proseuction: Please play the TV interview of PW Usha Rani Malakar submitted by defence. I will show how things are concocted.

DTV News report played.

Chairman: see what is the question asked to the leady? How a journalist can ask a prosecution witness whether he give evidence against the Accused? We should look into this matter.

Tajul Islam (defense): you should look into what this witness is saying. This witness is clearly denying giving any evidence to the invstigation officer. She denied giving any evidence against Sayedee.

Chairman – (very angry) – we know what we should see? you sit down. This video merely shows that these PWs deny giving evidence. They do not claim that they are available. This is not supporting the defence case. How the defence can say that they are now available to give evidence.

Prosecution: yes. Moreover, you can consider all these documents and videos at the time of your final judgment. No need to review the 19(2) order  My lord, I want to submit that this review application has no merit.

One of the defence counsels Abdur Razzak came to the Dais to give his reply against the submission of the prosecution:
If the onus of proving these registers of the safe house is on us, we have proved it by (1) the telephone bills. HA has already admitted at least one of these phone numbers are of thier witness home. (2) Kalachand’s giving evidence in a case before metropolitan Magistrate, Dhaka which is also recorded in the GD Book and (3) by the contents of the Registers itself. They are so detail that it cannot be ignored that these documents exists.

My lord, How can it is possible for me to know that the night guard has been changed.

My lord, Kala chan wrote in the register that “I, kala chan has reached to the safe house” so my lord, there is a prima facie evidence that the documents are correct.

Now the onus has been shifted on the prosecution to disprove this documents. It is accpeted rules of evidence.
Chairman: We do not follow the rules of evidence here.

Defence: but you must follow ensure justice.
Rule 51(2) does not apply. Even if it applies, we have complied with it
Prosecutor claims that there is no government order for opening this GD Book. But Page 40 of Annexure B (GD Book) refers to the government order for opening this book.

After your order the Prosecutor has given us copy of the report they submitted today before you. This report also proves that these registers of the safe house are correct. If you check the constable numbers mentioned in today’s report and the constable numbers in the GD Book you will find that they are same people . [Razzaq then showed this]

Prosecution submitted that no record is maintained in the Safe House. How can this be true? How can an important place line witness home run without any record?

If you are not convinced by these registers of the Safe House – call Kala chan and other concerned officers of the safe house – we will cross examine them in open court.

If these register exist then there is no scope to reject our review application

The fraud of the investigation officer has been revealed – so the accused should be acquited.

Chairman said that the order on this review application will be reserved

Razaq said that pending disposal of the review application cross of IO should be stayed.
Justice Zaheer: Cross-examination of I.O has no relation with this application. Therefore, investigation of the I.O will be continued

Chairman: No – the law will take its own course.

Razaq: How IO can be cross examined pending disposal of this review petition.

Justice Zahir IO cross may continue on the other matters.

Then Tajul islam again brought up the issue of “Bangladesh Protidin” it is published that ‘Ghulam Azam is recognised criminal” (see morning session)

Justice Nizam: We are just tired of this. I am saying repeatedly to the journalist please be careful when you are reporting.

Tajul Islam: My lord, it is contempt of the court if a witness is called “a liar” but in this case my client is called “a recognised criminal” but it is not contempt of the court!

Justice Nizam: I have said we are just tired of these things

Then the court is adjourned.

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