Wednesday, November 28, 2012

23 Aug 2012: Sayedee trial adjournment rejected

This is an out of sequence post relating to 23 August 2012

The tribunal only sat in the afternoon to hear a number of applications.

Tajul Islam, the defense lawyer said that although on 14 August 2012, the defense were directed to file a list of 20 defence witnesses on this day in the case of Delwar Hossain Sayedee, it was not possible for them to do so.

He then mentioned the two applications which had been filed: one sought postponement of submission of defence witness list, adjournment of the start of the case until the accused is medically fit and a six week adjournment to obtain an update from independent specialist medical practitioner as to the Accused-Petitioner’s health. The second application sought an independent medical certificate.

The prosecutor responded to the applications by saying that the tribunal had already agreed that the trial could take place without the presence of the accused; that no extra time is required to get the 20 witnesses as they are part of the 48 witnesses originally listed; that a lawyer should always be prepared after bring instructed by a client; and that the defense witnesses should come on 28 August. [copies of these application are not available at present]

The chairman then said that the two applications are rejected and that the order will be given later on. He said that the defense should come on 28 August 2012.

The full order taken from the original is set out below:
The two applications have been filed by the accused, one praying for postponement of the submission of defence witness list for adjournment of the trial fixed on 28.08.2012 and for hearing whther the accused is fit for the trial and the second application for calling an immediate independent medical report of the health condition of the accused petitioner. It appears that the 3rd prayer of the first application and the second application relates to similar submission. Mr Tanvir Islam the learned counsel for the accused petitioner submitted that on 14.08.2012 the tribunal has directed them to submit list of 20 witnesses along with the particular of the points and/or the charges on which the witnesses will adduce their evidence by today but they will pray for review of the said order. At the initial stay they submit list of 48 witnesses but that has been limited to 20 witnesses . They have applied for certified copy of the order dates 14.08.2012 but they have not received it as yet and as such they cannot file review application and for end of justice, the direction upon the defence to submit witness list may be postponed all hearing of the review matter. And for that reason an adjournment of the recording of the evidence of defence witnesses on 28.08.2012 may also be allowed. Mr Tajul Islam further submitted that the accused petition is sick for a long time and excepting 08.08.2012 he has not been produced in this tribunal, ends of justice required that the trial should proceed in presence of the accused and as such his health condition may be ascertained by the Tribunal by an independent specialist medical practitioner to decide whether the trial should proceed in presence of the accused other the accused shall be prejudiced.

Mr Syed Haider Ali the learned prosecution opposing the prayer submitted that today is fixed for submission of witness list along with particular and the date is fixed for recording defence witness statement on 28.08.2012 and he is waiting to receive the list of defence witness along with the particulars of their statements. The defence being not doing their functions properly has come with this type of applications just to delay the proceedings and as such the application should out rightly be rejected.

We have heard the learned counsel for the petitioner and the learned prosecutor and given our anxious though over the matter. On 13.08.2012, the prosecution completed their examination of witnesses. On that date, Mr Mizanul Islam the learned counsel for the defense frankly admitted to the tribunal that for preparation and for other reasons the next date should be from 14.08.2012 to 26.08.2012, having considered his submissions this tribunal fixed 28.08 for commencement of the trial under section 9(5) of the Act. In Tribunal Rules it has been incorporated that along with the list of witness the particular of the charges and or the points on which the witness proposed to give evidence are to be furnished. As it has been inserted in the rules we did not force the defence to supply the particular earlier and by order dated 14.08.2012 we asked them to supply the particulars and also asked them to submit list of 20 witnesses which we allowed to be examined on behalf of the defence. That order has not yet been complied with rather they have come with this application with a purpose to delay the proceedings in the name of filing review application. It appears that in the Act there is no provision for review application only to correct mistakes and to give a chance to either parties we introduced review in the rules framed by us. It now appears that this has become a frank stain and is being used for the prayed for adjournment and delay the trial which cannot be done. We do not find any reason to consider the review application if filed as such for preferring review application we are not included to allow any adjournment. The defence is to submit their witness list positively by today and the adjournment prayer stands rejected. In our rules, Rule 43(a) shows that if an accused cannot be brought before the Tribunal due to his long ailment, the tribunal shall have the authority to proceed with the proceedings in presence of his counsel or pass any order which it deems fit and proper. This is clear that due to illness if the accused is not produced in this tribunal the tribunal can proceed with the case in his absence and the accused Delwar Husain Sayedee being sick and cannot be produced in this Tribunal them the Tribunal is authorized to proceed with the case. Further more prayed for independent medical certificate by an independent specialist medical practitioner is not at all called for. There is no merit in this application and as such those stand rejected.

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