Tuesday, March 19, 2013

5 Nov 2012: Sayedee and Azam applications

Whilst the registrar was looking into the defense allegation that one of their witnesses had been abducted, the tribunal dealt with the following applications relating to Sayedee and Azam were considered by the tribunal

1. Laptop use application
The defense argued that they need to use laptops with internet access during the time of summing up of the Sayedee defense arguments as the the investigation officer referred to some websites during his evidence.

The chairman said that he would consider this at the time of defence summing up.

2. Application for witness summons
The defense had argued in its application in the Sayedee case, for the court to issue summons on (1) Chan Mia Poshari, (2) Sumati Rani Mondal and (3) Ashish Kumar Mondal so that they can testify as defence witnesses.

The written application stated:
2. That it is stated that at the time of commencement of trial the prosecution submitted a list of 68 prosecution witnesses. But during the trial the prosecution called just 20 PWs from the list as witnesses of fact. The prosecution called 8 other witnesses who are seizure list witnesses and the Investigation Officer. 
3. That it is stated that the prosecution did not call 48 of its list of 68 PWs during its case. 
4. On 20th March 2012 the prosecution filed an application under section 19(2) of the 1973 Act for the admission of the statements of the 46 witnesses alleged to have been recorded by the Investigation Officer. The prosecution claimed each of these witnesses was unavailable and that it was not possible to bring them before the Tribunal. On 29th March 2012 the application was allowed in respect of 15 witnesses, the Tribunal being satisfied that their attendance could not be secured without unreasonable delay and/or expense. The 15 witnesses included Sumati Rani Mondal and Ashish Kumar Mondal. 
5. It may be recalled that in respect of Sumati Rani Mondal and Ashish Kumar Mondal on 01st February 2012 the Prosecution filed their Hazira (Appearance) in the Tribunal. Thereafter on 2nd of 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 showed that these witnesses were in the Safe House in the control of the Prosecution until 16th March 2012. This was also reported on 12th April 2012 in the Daily Amardesh. 
6. That it is averred, contrary to prosecution suggestion, that the prosecution witnesses were in fact available and that the prosecution deliberately chose not to call them before the tribunal given their refusal to testify against the accused. Chan Mia Poshari, Sumati Rani Mondal and Ashish Kumar Mondal of the prosecution’s list of 68 witnesses are ready and willing to give evidence before the Tribunal. Since the prosecution did not to call them, the defence applies to call them on behalf of the accused. 
7. That it is stated that Chan Mia Poshari is brother of PW 6 Manik Poshari has direct knowledge of the alleged incidents of the case and more particularly charge No. 8. 
8. That it is submitted that (1) Chan Mia Poshari, (2) Sumati Rani Mondal and (3) Ashish Kumar Mondal are a material witnesses in the instant case. Their testimonies will assist the Hon’ble Tribunal to come to adjudicate on the Safe House Registers and many charges of the case. As such this Hon’ble Tribunal may kindly issue summon upon these witnesses so that they can give evidence as defence witnesses. Otherwise the Accused Petitioner will be highly prejudiced. 
9. In the above circumstances it is therefore submitted that for ends of justice it is necessary to issue summon upon (1) Chan Mia Poshari, (2) Sumati Rani Mondal and (3) Ashish Kumar Mondal so that they can give evidence as Defence Witnesses.
Mizanul Islam argued that these people had been prosecution witnesses but that they are now ready to become defense witnesses, and the defense would like the court to issue a summons.

The chairman said that they would will not issue summon. There is no scope to record any further defense witnesses as the tribunal has closed the defence case. The application is rejected.

3. Application for additional witnesses for Azam
Mizanul Islam argued that the defense should be allowed to bring at least one witness from each of 64 districts for the 61 counts of charges against Azam. He argued that the Prosecution has not faced any bar in presenting witnesses, no restriction has been imposed upon them. So we would like to pray before your lordship to allow us to bring witnesses from each district in the case of Professor Ghulam Azam.

Chairman: No the number of witnesses has already been fixed so it is rejected.

4. Application for attendance of son of Azam
Application for allowing Abdullah Hel Azam into the Tribunal who is the son of Mr. Ghulam Azam.

The chairman granted his application on condition that he will be the defence witness-1.

Zead Al Malum, prosecutor, said that Azam's son was present in the trial since the deposition of first witness to the 16th witness. It is not mentioned anywhere in the application of the defence that this person is a defence witness but they have asked for the permission for his presence at theTribunal.

5. Application for presence of two foreign witnesses for Azam
Miznaul Islam argued that the ICT Act says that a Summons would only not be issued on the ground of delay. But there was no intention of making any delay from the defence side as the petition has been submitted before the completion of the Prosecution witness.

6. Application for statement of Sayedee
An application was made to allow the accused petitioner to explain the charges under section 17(1) of ICTA 1973 read with rule 43(6) of the rules of procedure

Abdur Razzaq argued that according to section 17(1) of the 1973 Act, the accused has right to give an explanation about the charges. You may note that section 342 of the criminal procedure code provides a similar right in traditional trials. He said that the first part of section 342 is produced word for word in section 11(2) of ICTA. The second part of section 342 is covered by section 17(1) of ICTA. He argued that there have been many decisions of the High Court quashing convictions when the accused was not given the right under section 342. He said that he had brought to the court all these decisions.

The chairman said that we do not need to see those decisions as there is no scope to apply the Criminal Procedure Code in this tribunal. He said that section 10 of ICTA is about procedure of trial and there is no scope allow the accused to explain on the evidence.

Razzak then said that the tribunal did not ask the accused to explain the allegations against him as required in section 17(1). The chairman then said that the court gave him this chance at the time of framing charge.

Razzaq then said that at the time of framing charge you only asked the accused to enter his plea of ‘not guilty’ and you said that he would be given a chance to talk later on. Then, when the prosecution case closed we applied to allow the accused to give explanation at that point, but at that time you said that you would allow the accused to explain after close of the defence case. Now you are not allowing him to explain the charges.

The chairman said that it may have said that, but there is no scope under the Act and the Rules for this.

Judge Anwarul Haq said that the procedure of trial is stated in section 10. There is no scope to allow the accused to give explanation on evidence in section 10. All the procedures of sections 10 and 11 have been complied with.

Barrister Moudud Ahmed then appeared for defense and said that even if the right is not included in section 10 of ICTA, for the sake of fairness you should allow the accused to give explanation against the charges. 'You cannot pass judgment without hearing the explanation of the Accused,' he said.

The lawyer Khandaker Mahbub Uddin Ahmed appearing for the defense said that the tribunal should interpret section 10 of the Act to accommodate section 17(1). The word ‘charge’ should be interpreted to include summary of evidence.

Haider Ali, the prosecutor, stated that at the time of framing charges the accused was asked to enter plea, so section 17(1) has been complied with. Section 23 of the 1973 Act has excluded application of the criminal procedure code, so the court should not consider section 342. Section 17(1) provides a right for explanation of charges and it was complied with at the time of framing of charge. It is not a right to explain the evidence.

The chairman then asked Haider Ali that if this tribunal thinks that for the ends of justice the accused may be asked for an explanation, can we do this? Haider Ali said that under rule 46A the tribunal has that power, but it is not necessary at this stage of trial.

The tribunal said that they will pass the order later.

After the lunch break, the defense counsel were not present as they boycotted proceedings due to the alleged witness abduction.

The chairman rejected the application relating to section 17(1).

7. Application re recall of order
Another application concerning the recall of an order dated 23th October 2012 was rejected. (Not clear what that was)

8. Application to allow Noman and Bali to testify at the tribunal
An application to allow Mr. Oliullah Noman and Mr. Shukharanjan Bali to testify as Defence Witnesses before commencement of Argument was rejected.

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