Friday, July 6, 2012

3 June 2012: Sayedee witness order review 4

Abdur Razzak said that the defense is now serving its reply to the prosecution’s written objection on the defence’s 19(2) Review Application. This follows on from the prosecution's oral arguments on 23 May, and till then the prosecution had not put anything in writing.

The prosecution's written response had stated that there was no such register at the safe house - that a register had in fact never been kept

The defiance's written response is set out below
1. That on 9th May 2012 the Accused-Petitioner filed an application for Review of the Order dated 29th March 2012 (‘impugned order’) passed by this Hon’ble Tribunal receiving as evidence the alleged written statements of fifteen Prosecution Witnesses (‘PWs’) under section 19(2) of the International Crimes (Tribunal) Act 1973 as amended 2009 (hereinafter “IC(T)A”) (hereinafter “the Review Application”).

2. That it may be recalled that this order was passed following an application of the Prosecution where they argued that these Prosecution witnesses are not available for different reasons and cannot be produced before the Tribunal. Thereafter at the time of passing the impugned order dated 29th March 2012 this Hon’ble Tribunal was satisfied that these PWs could not be produced in this Tribunal and their attendance could not be procured without an amount to delay or expense. In the Review Application the Accused Petitioner stated that the Investigation Agency had practiced fraud upon this Hon’ble Tribunal and the prosecution had misled this Hon’ble Tribunal by falsely stating that the PWs were not available. In fact these PWs are in control of the Investigation Agency and are available to give evidence before the Tribunal. The Accused-Petitioner annexed a news report of Daily Amar Desh dated 12th April 2012 to support this claim (Annexure – X of the Review Application). It has been reported in the said news report that the Safe House General Diary, PWs’ Attendance Registrar and the Food Registrar of the Witness all maintained in the Safe House show that most of these PWs came to the Witness Safe House in Dhaka for giving evidence. But they were not produced before this Tribunal since they did not agree to give false evidence against the Accused Petitioner. About the PWs Ashish Kumar Mondol, Sumoti Rani Mondol and Somor Mistri, on 2nd February 2012 one of the prosecutors informed the tribunal that these witnesses left witness Safe House (hereinafter ‘Safe House’) on the previous day in the name of visiting their families and did not return back. But the PWs’ Attendance Register, General Diary and the Food Book of the Safe House show that these witness were in the Safe House in the control of the Prosecution until 16th March 2012.

3. On 23rd May 2012 this Hon’ble Tribunal heard the Defence Counsels on the Review Application when TV interview of some of the PWs played before the Tribunal showing that these PWs were not unavailable as claimed by the prosecution. Moreover these PWs denied giving any statement against the Accused-Petitioner to the Investigation Officer. In her TV interview PW Usha Rani Malakar was seen to be sane and physically fit to give evidence before this Tribunal. It may be recalled that this witness was claimed to be insane and very sick by the prosecution to show that she could not be produced before this Tribunal. Thereafter on 24th Mary 2012 the Prosecution argued against the Review Application when this Hon’ble Tribunal asked the Prosecution to file a written reply to the Review Application.

4. On 30th May 2012 the prosecution filed a Written Ojbection denying the allegations made in the Review Application of the Accused-Petitioner (hereinafter referred to as ‘the Written Objection’). It may be noted that in the Written Objection the Prosecution merely denied some of the allegations and failed to give any alternative accounts of events to the allegations raised in the Review Application. Moreover the claims of the Accused-Petitioner in Paragraph Nos 10, 17, 20, 21, 23, 24 and 34 of the Review Application are not at all denied by the Prosecution. It may be noted that the Prosecution did not deny in the Written Objection that PW Usha Rani Malakar is sane and physically fit to give evidence as claimed in Paragraph 10 of the Review Application. Though the Prosecution claimed the news report of the Daily Amar Desh dated 12th April 2012 to be false and baseless they failed to give any reason or alternative facts to support this claim. Moreover in the Written Objection the prosecution claimed the impugned order dated 29th March 2012 is not reviewable. But the Prosecution failed to develop a single legal argument as to why the impugned order is not reviewable.

5. With regard to the TV interviews of the PWs, exhibited as Annexure 1 and 2 in the Supplementary Statements to the Review Application, it may be noted that the Prosecution did not deny those TV Interviews where the PWs clearly claimed that they did not give any statement against the Accused-Petitioner. In its Written Objection the Prosecution merely said that these TV interviews were created with malafide intention and was recorded before filing of the case. It is submitted the Prosecution failed to show any valid reason to support this claim. Moreover this Hon’ble Tribunal should treat these TV interviews to be authentic and recent since they were telecasted on 11th and 15th May 2012 in the TV Channels, namely Digonto Television and Islamic Television.

6. It is submitted that a material fact which is not denied should be treated as admitted and in this view of the matter that facts in the Review Application and its Supplementary Statement dated 23rd May 2012 which are not denied by the Prosecution shall be treated as admitted.

7. With regard to the PWs’ Attendance Registrar, General Diary Book and the Food Book of the Witness Safe House the prosecution claimed in paragraph ‘Kha’ of Page 6 of the Written Objection that no such book is maintained in the Safe house. It is stated that these statements are not at all correct. In fact there were PWs’ Attendance Registrar, General Diary Book and the Food Book in the Witness Safe House as reported in the news report of the Daily Amar Desh dated 12th April 2012. The Prosecution is again misleading this Hon’ble Tribunal with untrue facts and hence perverting the course of justice. The copies of the PWs’ Attendance Registrar, General Diary Book and the Food Book maintained in the Safe House from 18.10.2011 to 30.03.2012 have been annexed herewith and Marked as Annexure ‘A’, ‘B’ and ‘C’ respectively.

8. That statements made in third paragraph of Paragraph No. ‘Kha’ of the Written Objection regarding that Abdul Lotif Hawlader, Anil Chondro Mondol, Ajit Kumar, Shahidul Islam Khan, Khalilur Rahman, Mokhles Poshari, Ayub Ali Talukder, Mukundo Chakrabarti, Manik Hawlader and Bazlur Rahman were never produced before the Tribunal are not correct and hence denied. In fact these PWs came to the Safe House on different dates and some of them were produced before the Tribunal for giving evidence. On 4th January 2012 Mr. Abdul Lotif Hawlader came to the Tribunal and the Prosecution filed his Hazira. But he left the Tribunal without giving evidence claiming that he was feeling sick. On the same day i.e. on 4th January 2012 the learned Prosecutor informed the Tribunal that PW Mokhles Poshari was in Dhaka in witness Safe House but he could not be brought before the Tribunal claiming him to be sick. On 8th January 2012 the Prosecution filed hazira for Ayub Ali Hawlader and informed the Tribunal that he was ready to give evidence before the Tribunal. On 12th January 2012 the learned Chief Prosecutor prayed for adjournment on the ground of PW Shahidul Islam Khan Selim claiming that he came to Dhaka Witness Safe House but became ill.

9. With regard to the Prosecution’s submission in paragraph ‘Gha’ in Page 7 of the Written Objection it is stated that there is no valid reason why the Review Application, Supplementary Statements dated 23rd May 2012 and their annexures shall be treated as contempt of court as alleged by the Prosecution or at all. It is submitted that this Hon’ble Tribunal is to ensure justice. In view of the statements and the documents and the videos annexed by the Accused-Petitioner it is clear that the Investigation Agency and the Prosecution has deliberately and repeatedly mislead this Hon’ble Tribunal and perverted the course of justice. The Investigation Officer in his report to the Tribunal dated 17.03.2012 and 19.03.2012 was clearly lying about the whereabouts of the PWs. As such appropriate proceeding should be brought against the Investigation Officer(s) for practicing fraud upon the Tribunal and perverting the course of justice.

10. The other statements in the Written Objection those are not specifically denied herein shall be treated as denied.
Abdur Razzak, the defence lawyer, told the tribunal that the reply is a 498 pages bundle containing the prosecution Witness attendence registrar, general diary book, and food book which is maintained by the Witness safe house in Dhaka. He said that the three annexures show the specific date and time when the prosecution Witnesses came to the safe house in Dhaka for giving evidence to the Tribunal and that the PWs who claimed to be unavailable by the prosecution were in fact taken to the tribunal on different dates. He claimed that hese documents support the facts raised in the defence application for review.

Justice Zaheer asked how the defence was able to get hold of this document, and Razack said that it was now in the public domain. They were available on you tube and that two news papers had already reported on these registars.

The chairman said that this was a huge document and the prosecution would need time to reply these documents, and Mr Haider for the prosecution said that they did.

Razzak said that the prosecution can certainly get time to reply to these documents. He then emphasised that the tribunal in its written response to the review application denied the existance of these register books and that this is the reason why they have submitted the photocopy of all the registers. He said that he wants to show through these documents that the Investigation Officer and the Prosecution have been lying about the whereabouts of the prosecution witnesses.

Haider Ali, the prosecutor, then said that the documents were fabricated.

The chairman then said that these documents contain details that others would not know.

The chairman asked what was the Address of this ‘Safe house’, and Razak replied that, the diaries say that it was in Gopalbag, Dhaka.

He read out an entry dated 18.10.11 describing the records which would be kept at safe house, and the address of the safe house being at 645, Atish Diponkar Road, Saydabaad, Gopalbagh, Jatrabari and that the Inspector name was Md, Amjad Hossain.

Justice Zaheer said that the defence had produced a large volume of documents recording the details of Witness house, obviously it is not a matter of joke, and it must have value because you did not produce it without any justification.

The chairman then asked for the investigation officer whether they have witness Safe House in Golapbag.

Haider Ali then said, that there is no safe house, but a ‘Witness home’.

The chairman then spoke to the investigation officer and said that he should give the address of the Witness rest house as well as give them the particulars of the names of the people who were responsible for the house.

He then passed an order:
An application was submitted by the defence counsel against the Order given on 29th march, 2012. It appears that in reply to the review application prosecution have submitted their reply and today defence come forward to give their written reply. A copy of the reply has been served to the prosecution also.

Upon the perusal of the reply we direct the person-in –charge of the safe house where the prosecution Witness are kept to and all others persons of the safe house to be produced before the Tribunal on 7 June 2012. The investigation officer is directed to inform and bring them to the Tribunal. No notice will be served for their appearing.
Haider Ali asked if the date could be delayed to 10 June, but the chairman refused

The chairman said that the investigation officer is responsible for those Witnesses. Therefore he will produce all persons of the safe house.

Justice Anwerul-Haque: Investigation officer has to do it as he is part of the Investigation agency.

The prosecution's written response to the defense application are set out here:
[To be posted shortly]

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