Tuesday, October 1, 2013

Quader Molla appeal, day 24: Attorney General arguments

The AG went to the dais and submitted as follows:

“Your lordships has asked me to explain a issue yesterday which is a question of law. Now, I am going to make my submission on that issue.”

Chowdhury J. added, “yes, the issue before was whether either of the party can re-examine a witness of other party. There was an application of re-examination of P.W.-3 by the defence at the ICT.”

The AG submitted, “I have got 2 points in this regard- section 10 (e) and 10 (f) of the ICT Act 1973. s. 10 (e) says, ‘the witnesses for the prosecution shall be examined, the defence may cross-examine such witness and prosecution may re-examine them’.

On the other hand s. 10 (f) says, ‘the witnesses for the defence, if any, shall be examined, the prosecution may cross-examine such witnesses and the defencemay re-examine them.’ 

These are the governing laws in this regard and thus there is no scope under the law to re-examine a prosecution witness by defence. Re-examination of a witnesses is possible in the case of own witnesses; not in the case of other side witnesses. Tribunal has also decided the same in his order.” Chowdhury J. added, yes, section 137 of the Evidence Act has got exactly same provision.” 

The AG further submitted, “On 11/11/2012, Tribunal rejected the petition. It is at page 475.” The AG then read out the order before the court. Upon completion of reading out the order by the AG, Sinha J. added, “In the case of prosecution witness, re-examination is the right of prosecution and the right of the defence is cross-examination.” 

The AG agreed saying, “Yes, my lord.” Chowdhury J. added, “Well, the tribunal (but not the parties) can re-examine any witnesses at any time.” The agreed with him as well and said, “yes, my lord. And the tribunal has rightly decided in this regard.”

He then moved to part-4, page-1441 i.e. cross-examination of P.W.-3 Momena dated 18/07/2012. He moved to the relevant page 1443 where it was asked by the defence to her, “You have not deposed to I.O. the followings- (1) your father rushed to your house and shouted to open the door, (2) Abdul Quader Molla and Akter Goonda asked to open the door and threatened to throw bomb otherwise (spoke in Urdu), (3) Quader Mollah held your father’s shirt’s collar and your father requested him to leave him alone and (4) you did not found anyone at your house and Jamal, who used to make to tea, told you that Quader Mollah had killed your father.”

The AG then submitted, “Section 162 of the Code of Criminal Procedure and section 145 of the Evidence Act has got this option but the CrPC and the Evidence Act is not applicable in this matter. That is why the tribunal did not allow the counsel Ekramul Haque to re-examine the witness already cross-examined by the counsel Sobhan Tarafder.

He then moved the cross-examination of the P.W.-11 (I.O. Monwara Begum) to part-2, page- 695 and submitted, “she worked as an investigation officer in this matter and took the testimony of the said P.W.-3 Momena whom defence wanted to re-examine. Her cross-examination was done by the defece counsel Abdus Sobhan Tarafder was started on 07.10.2012 which can be found at page 440 of part-2. It was taken over the 3 days in total. The testimony taken other 2 days can be found at page 445 and the page 447 resepectively.”

The AG then moved to page 612, 11th line from the bottom (P.W.-11) where it is stated that P.W.-3 received cheque from Father of the Nation. He moved to page 613, 4th line from the top where the P.W.-3 deposed during the contradiction that “it is not true that she is not the daughter of Hazrat Alia and it is not true that she is not the wife of.” Wahan J. said, “Plea is not correct. At least they could ask I.O. to verify those. The lawyer Sobhan Tarafder (who cross-examined P.W.-3 Momena) did not cross-examine the I.O.” 

Chowdhury J. added, “So there is no substance on defence submission that they were not allowed to re-examine P.W.-3.” AG agreed and said, “Thus regarding P.W.-3 Momena, defence arguments is not based on good reason. Even they had not made the application before P.W. 11’s deposition! They made the application after the cross-examination P.W.-12.”

The AG said, “On the next day I shall make submission on the customary international law it will take few more minutes.”

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