Wednesday, March 20, 2013

5 Dec 2012: Sayedee defense closing, day 13

Prosecutor Haider then continued with his response to the defence closing arguments relating to Sayedee, following on from the previous day (The summary of Sayedee defense closing arguments partly draws from defence lawyer's own notes of proceedings)

He said any offence which is done with intent to destroy whole or part of a group will be genocide. In that view forcefully converting someone from Hindu to Muslim may also come under Genocide. Even a torture with that intent may be genocide. The intention is important.

Chairman asked whether torture can come under Genocide? Is the definition of genocide extended in this way?

Prosecutor: if relevant intension is there then it can be. Charge 19 is for forcefully converting people from Hindu to Muslim under the ‘other inhuman act’ of Crime Against Humanity. You may convict the accused under genocide also if you find that he had relevant intension.

Chairman: can you give us any authority?

Prosecutor: we have three judges of Supreme Court of Bangladesh in our Tribunal. It has superior status than any other war crime tribunal in the whole world. You are not bound by any decision of any tribunal. I will end my reply now.
Mizanul Islam then told the tribunal that it had closed the defence summing up the previous day since the defence lawyers were not present due to the hartal and said that they were filing an application to allow them to continue defence summing up

Chairman mentioned that in the application the defence lawyers did not express regret and the defence lawyer agreed to add that line.

The tribunal passed the following order (summary)
After completion of argument by the prosecution the defence filed an application praying for a chance to submit their part of argument which they could not submit yesterday. Mr. Mizanul Islam the learned counsel appearing for the defence submitted that due to unavoidable circumstances they could not attend the Tribunal yesterday. As a result the Tribunal had to close the defence argument. Mr. Mizanul Islam submitted that a major part of their argument is yet to be submitted. The defence counsel felt sorry for their mistake. He also submitted that if the prayer is not allowed then the Accused-Petitioner will be highly prejudiced. We are inclined to allow Mr. Mizanul Islam to submit his remaining part of argument. He should commence the defence argument now and directed to complete his part of argument by today.
The defence lawyer asked whether the tribunal could change ‘today’ to the word ‘tomorrow’ as a major part of my argument is yet to be done. The chairman said that we will consider it later.

Mizanul Islam then made the following arguments
Charges 15, 12 and 14 (part) – the killing and destruction in Hoglabunia Hindu Village
- You have already said that charge 12 and 15 are the same and it’s a mistake. So we are discussing these two charges with part of charge 14 together. They are addressing one incident in Hoglabunia Village, Parerhat. Charge 12/15 involves the killing 14/15 Hindu civilians as genocide and charge 14 (part) is destruction in that village.

- The prosecution relied upon PWs 1, 3, 4, 5, 6, 9 and 12 to support these charges – but none of these PWs said anything about these charges.

- PW 23 is the only witness to support this charge – this may be considered as the best evidence the prosecution have to support this charge. But PW 23 did not allege anything against the Accused relating to these charges. There is nothing against the accused.

- Prosecution has relied upon the 19(2) statements of Usha Rani Malakar (Ex 263), Anil Chandra Mondon (259) and Ajit Kumar Sheel (264) and the defence have already argued about this

- Prosecution has also relied upon certain news paper reports (exhibits 9,10,11) to support these charges – you may note that none of these news paper reports describes these incidents.

- Prosecution has also relied upon Exhibit 35 and 37 which are sketch map and index of the place of occurrence. We have successfully in the cross examination of the Investigation Officer discredited these sketch map and index. You may note that none of these exhibits incriminate the Accused with these charges.

- Prosecution has also relied upon Material Exhibit XI (ETV news report) and XII (pictures of the places of occurrences) – there is nothing in these video files to incriminate the accused with these charges

- So the prosecution has failed to prove charges 12/15 and 14 (part) – the remaining part of charge 14 (rape of Shefali Ghorami) has already been dealt with.

Charge 13 – killing of Shaheb Ali in Nolbunia Village and torturing his mother
- This charge is connected with charge 8 and will be discussed at that time.

- No live witness.

- Only 19(2) statements. Already argued

- One additional point is that the prosecution alleges that Shaheb Ali and Siraj are two different persons. But from the 19(2) statement of Sitara Begum it is clear that the prosecution admits that Shaheb Ali and Siraj are same person. How can the prosecution take a self-contradictory stand.

Charge 19 – conversion of Hindus to Muslims - We have already submitted on law points to show that conversion does not come under CAH.

- PW 23 – credibility of this PW has already been dealt while discussing charge 14. He admitted in cross examination that he did not say anything about conversion to the investigation officer. Why did he say what he said in court? You may remember this PW was in the Prosecution custody for 18 days in the name of treatment. – not reliable.

- PW 13 – credibility of this PW was discussed in Charge – 16. No need to repeat. Not reliable. He admitted that he did not know any other rajakar than the accused, cannot remember the names of the Imam and Muajjin of the mosque where he claimed to have been converted. His age is disputed. The document shows that he was of only 9 years in 1971, but he claimed to be of 27 at that time. The Safe House documents showed that he was asking for sweet and new clothes from the Investigation officer after giving evidence before this Tribunal. How we can rely upon this person?

- PW 2 also could not remember the names of the Imam and Muajjin where the victims were converted. This PW has already been discredited while discussing in other charges and no need to repeat. – not reliable

- Prosecution failed to prove the charge.

Charge 6 - Looting of the houses of Awami League supporters and Hindues in Parerhat Bazar
- The prosecution failed to produce any evidence about which of the Awami League Supporters’ houses were looted. Only one Hindu victim is named (Makhon Lal Shaha). No mention of names of other victims. The alleged facts are not proved.

- PW 1 admitted in cross examination that his evidence was hearsay. He also admitted that he did not complain about this incident in his case filed on 2009 in Pirojpur (Exhibit – F). Though PW 1 filed this case after 40 years alleging the atrocities committed by the Accused in 1971, why he did not mention this incident in that case. Credibility of PW 1 has been discussed in great detail in other places. He is unreliable.

- PW 2’s credibility has already been destroyed earlier. He is claiming (P-28) that the Rajakar Camp in Parerhat was established on 5th May 1971 – but all the government documents and other publications show that Rajarkar force informally started from 17th May 1971 and formalized on 2nd August 1971. Claimed that he gave statement to IO in March 2010 – but IO was appointed in July 2010 – and this proves that the IO started investigation long before he was appointed. Claimed he saw the incidents when he came to parerhat bazaar from long distance of sundarban camp to collect rations for several camps and only collected 25/30 kg ration and the market was open – unrealistic. Claimed complained to a peace committee member (Nur Kha) about their alleged leader Sayedee – not realistic. Admitted that looting was hearsay. Not reliable.

- PW 3 – made no allegation about this charge. Admitted that he was staying in a Rajarhat, Pirojpur town until 15/16 May while this incident alleged to have been taken place in Parerhat on 5th May 1971. Admitted that went to IO office for first time on 20.01.2011. Other hand PW 1 claimed that he was taken to the IO office by PW 3 on 20.07.2010 to lodged the complaint against the Accused. So PW 1 was lying.

- PW 4 – already discredited as being convicted person in banana thief case and trawler thief case. Claimed that saw the atrocities of the Army on the relevant day – not realistic – he was not from Parerhat. Not realistic that any civilian in war time situation would go to see the atrocities of Army due to curiosity. Claimed that gave statement to IO in PW 6’s house, but the IO said that his statement it was recorded in Rajlakhi School camp. Admitted hearsay. Admitted that did not say about this incident to IO – why?

- PW – 6 – no mention of this charge.

- PW 8 – he is the only prosecution witness of Parerhat Bazar and did not mention about the looting of Makhon Lal Shaha’s shop. Claimed that Rajakar was formed in parerhat before May 1971 – is it reliable? Claimed to have seen uniform of the Rajakars at that time, clearly telling lies as there was no chance for rajakars to have uniform at that time. He claimed to have remember the fact of 40 years ago with specific date, but when we asked him what was the previous day he could not say. This witness was clearly concocted and tutored.

- PW 9 claimed to have seen accused arms with rajakars – can it be relied upon.

- PW 12 – no mention of this event.

- PW 28 – gave 4 version of this event but which one is correct –

Sayedee as member of Auxillary force - As per Exhibit 252 (Rajakar Ordinance) the Rajakar force was formed on 2nd August 1971 and thereafter on September 1971 it was declared to be auxiliary force of Pakistani Army. So there was no scope for anyone to be member of Auxiliary force in May, June and July 1971 as alleged by the prosecution against the accused.
Before the court adjourned, the prosecutor, Haider Ali then made application under section 19(4) for taking judicial record of certain records of ownership of lands of the Accused’s forefather in Sauthkhali area. These documents will show that the Accused was from Shikder family and that he was not Sayedee.

The defence said that they would give reply to this application, but the prosecution said that there was nothing to reply. These are government documents.

Chairman said that an order would be given the next day and the fence may file their reply.

Defence lawyer said that the prosecution have submit documents of 46 pages. We need to see these documents and check them and then can reply. We may need to call Defence witness to controvert these documents. I cannot reply tomorrow.

Tribunal passed the following order (summary):
The prosecution filed an application under section 19(4) of the ICTA 1973 for taking judicial notice of certain documents submitted with the application. It appears that the prosecution has submitted certified copies of some government documents. Mr. Mizanul Islam, the learned counsel appearing for the defence submitted that they would file reply to this application. Let this application kept in record for consideration in judgment. Defence may file reply by next Tuesday and that should also be kept in record. The defence is directed to complete their argument by tomorrow.

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