Tuesday, February 19, 2013

3 Jan 2013: Molla witness further application

Following the last day of proceedings in the Mollah case, the tribunal heard a review application seeking a change to an order which had refused to change an earlier order that no additional defense witnesses (more than the 6 already called) should be heard.
1. That on 5th November 2012 this Hon’ble Tribunal passed an order fixing the numbers of Defence Witness to six and fixed 11th November as the date on which to begin deposition of those witnesses.

2. That on 11.11.2012 defence filed an Application for recalling Order dated 5th November 2012 limiting the Defence to 6 witnesses and substitute that order permitting the Defence to call 12 witnesses.

3. That after hearing this application on 12.12.2012 this Hon’ble Tribunal passed an order rejecting the application for recall the order dated 05.11.2012.

4. That on 26.11.2012 Defence filed an application to review Order no. 83 dated 05.11.2012 of this Tribunal regarding limiting numbers of Defence Witness to 6 but on 29.11.2012 after hearing the application this Hon’ble Tribunal was pleased to reject the application.

5. That on 13th December 2012 Defence again filed another application “for allowing more 6 Defence Witnesses” after completion of recording the deposition of 6 Defence Witnesses by this Hon’ble Tribunal.

6. That grounds of this application were as stated below:
a. At the time of Hearing the application for recalling the order dated 05.11.2012, learned Senior Counsel Abdur Razzaq submitted on 12.12.2012 before the Tribunal not close the Door of examining more Defence Witnesses after adducing 6 witnesses.
b. At that time Hon’ble Chairman of the Trubunal-2 replied if they think necessary after completion of the recording the deposition of 6 Defence Witness they will consider to give permission for some more Defence Witness.
c. That there were some names of material witnesses who are very essential for establishing the defence case on the point of alibi and some other points.

7. That on 26 December 2012 this Hon’ble Tribunal was pleased to pass an order rejecting this application.

8. That in the order of rejection dated 26.12.2012, this Hon’ble Tribunal raised those points as stated below:
a. There has no provision to permit the defence for tendering additional witness.
b. The defence is to prove nothing and the burden squarely lies upon the prosecution to prove the charges beyond reasonable doubt.
c. In exercise of power given under section 22 we have regulated the number of defence witnesses, even in absence of any explicit provision either in the Act or in the ROP.

9. That it is stated that filing this application defence did not seek permission for tendering additional witness.

10. That the intention of this application was for recording deposition of more 6 Defence witness from the list submitted by the defence on 15th July 2012 under section 9 (5) of International Crimes (Tribunal) Act, 1973.

11. That specifying number of Defence Witness under section 22 of the Act without any explicit provision either in the Act or in the ROP is undue process of law.

12. It is submitted that this provision sets out the starting point that it is for the Accused and not the Prosecution or the Tribunal to decide what evidence he presents and that he must be able to present that evidence by way of witnesses of his choosing.

13. That the natural result of this limitation is a severe curtailment of the Defence’s scope for disproving the Prosecution case and making submissions based on oral evidence in the latter stages of the trial.

14. That at the time of prosecution case defence took some plea.

15. That it is stated that though the burden of prove is upon the prosecution but the Defence have to established the plea properly which has been taken by them.

16. That because of specification of number of Defence Witness the Defence could not produced some materials witness stated in the list submitted by them on 15.07.2012 as like as the relatives from Dhola mia pir, from Baish-Roshi bazaar, from keranigong and some other from Faridpur.

17. That because of this order though defence could not produced materials witness for establishing the plea which has been taken by them, that’s why they would be highly prejudiced.

18. That it is humbly submitted that only 6 defence witnesses ( among them one is the accused himself, another one was P.W.) as permitted by this tribunal is a very small number for defence and defence will be highly prejudiced if the number is not increased.

19. For the reasons mentioned above it is submitted that this Hon’ble Tribunal would be please to pass an order for review of the Order No. 119 dated 26.12.2012 regarding the 3rd Application.
The tribunal passed the following order
Today we have heard the application seeking review filed on behalf of the accused Abdul Quader Molla. Now we are going to give our decision on the matter. [Decision on application seeking review of order no.119 dated 26.12. 2012J

1.This has been an application dated 02 january 2013 seeking review of order no. 119 dated 26.12.2012 so far it relates to the application seeking permission to adduce six additional defence witnesses, filed on behalf of the accused Abdul Quader Molla, on the grounds stated therein. Defence Submission

2. Mr. Farid Uddin, the leamed counsel for the defence has mainly submitted that disallowing to adduce and examine additional six defence witness is likely to cause the right of defence to disprove prosecution's case; that the defence is needed to prove plea taken by them properly and as such it needs to examine additional witnesses as listed; that disallowing the defence in examining additional six witnesses has curtailed defence's scope to disprove the submissions made by the prosecution based on oral evidence in the later stage of trial.

Submission by the Prosecutor 3. Conversely, Mr. Mohammad Ali, the learned Prosecutor objecting the application has submitted that the application is not tenable as there has been no provision of adducing and examining additional witnesses by the defence, particularly at this stage. There has been no scope to examine additional witnesses to refute or disprove submissions made by the prosecution based on oral evidence. Already the defence has been permitted to examine six witnesses in support of the plea of alibi.

Discussion and decision 
4. We have seen and perused the application and the case record. First, there has been no provision to permit the defence for tendering additional witnesses. Section 9(4) provides provisions of permitting only the prosecution for tendering additional witnesses, at any stage of trial.

5. Next, It appears from the record that the defence filed an application seeking re-call of the order dated 05 November 2012 with prayer to adduce and examine 06 more witnesses. The Tribunal, on hearing both sides, rejected the application stating reasons by its order dated 12 November 2012.

6. Thereafter, the defence brought a delayed application seeking review of order dated 05 November 2012 almost on similar grounds raised in its earlier application seeking re-call. However, the Tribunal rejected the review application by its reasoned order passed on 26November 2012. Subsequently, the Tribunal, on its own motion reviewed its order dated 05 November relaxing the condition of adducing DWs from the 'list of witnesses' submitted under section 9(5) of the Act of 1973.

7. Now the instant application seeking permission for examining additional six witnesses by reviewing the order no.l19 dated,26.12.2012, as it reveals, is based on the ground that now the defence needs to disprove submission of prosecution (summing up of case) based on oral evidence as adduced by the prosecution.

8. Admittedly the defence has come up with the present application for fourthtime, though in different form, seeking same relief. It is to be borne in mind that defence is not obliged to disprove prosecution's case and further there has been no jurisprudential norm and practice even of allowing the defence for adducing and examining witnesses for disproving or countering prosecution's summing up (argument) based on oral evidence, particularly when the case awaits for summing up of defence case.

9. We reiterate further, excepting the plea of alibi no specific defence case could have been well extracted from the trend of cross-examination of prosecution witnesses and the plea of alibi does not constitute a defence in its proper sense. An alibi, however, is nothing more than the denial of the accused's presence during the commission of a criminal act.

10. we do not find any ground and material for consideration of the prayer. It appears from the case record that the defence initiated several applications on the self same matter including application of review and praying re-call of order limiting defence witnesses. Despite our several considered and reasoned orders on the matter the instant application has been brought when the case awaits for summing up of defence case of 07 January 2013. The effort of the defence rather seems to obstruct expeditious disposal of the case and it gives rise to reasonable inference that it is aimed to cause hindrance to the normal course of justice which we are obliged to dispense with in accordance with law.

11. Therefore, having regard to submissions and in view of above reasons we do not find any new ground to permit the defence to adduce and examine additional witnesses. We consider, it would be appropriate to dispose of the application with a nominal fine. Thus the application is herby rejected with a fine of Taka 10,000/00 (Ten thousand). The defence is asked to pay the amount of fineso imposed to the 'Anjuman-e-Mofidul Islam, Kakrail, Dhaka Office' for its welfare on proper payment receipt and to submit copy thereof before this Tribunal on or before 07 January 2013 for keeping the same with the record.

Let copy of this order be communicated to the Registrar of the Tribunal for information

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