16 Jul 2012: Nizami prosecution opening statement

Chief Prosecutor has started reading out the opening Statement relating to the case of Motiur Rahman Nizami. His indictment was given on 28 May. It was subject to review (see here).

Below is a short summary of what was read out.

First he read out a section on the historical background of the formation of Bangladesh. It has been stated in the Opening Statement that according to the election mandate the present Government has formed the International Crimes Tribunal. After his part came to an end Mr. Altaf Uddin Ahmed started reading out the remaining portion of the Opening Statement, which consists of the historical background, the formation of the Rajakar, Al-Badar, Al-Shams, Peace Committee etc. 

The Tribunal Chairman has sometimes hurried him up to read out the selective portions. Then the Prosecutor has read out the short summary of the case. 

He has mentioned that the Investigation Officer Abdur Razzak has initiated the investigation report and submitted the necessary materials and the report to the Chief Prosecutor. Under section- 9(1) of the ICT Act- 1973 the Prosecution has submitted a formal charge against the accused. Afterwards by recognizing the Prima Facie case against the accused the Tribunal has taken the cognizance about the case. The Tribunal has framed charge on 16 counts against the accused under section- 3(2), 4(1), 4(2) of the ICT Act, which is punishable under section 20 of the same Act. 

Afterwards the Prosecutor has described the summary of identity of the accused. His name is Motiur Rahman Nizami, fathers name is: Late Lutfor Rahman, Mother’s name is- Momena Khatun. He was born in Sathia, Pabna on 31-3-1943. He has been admitted at the Islamic Studies department of the University of Dhaka as an outsider student at the graduation class, but he didn’t have completed his study. He was an ex- Parliamentarian. He was the head of Al-Badar Bahini. He has been arrested and afterwards being interrogated in the safe home. 

Then the Prosecutor urged for the causes of letting the accused be punished for the ground that the ICT Act has been promulgated for the trial and punishment of those associates and war criminals, the gravity of the offences are so high, to ensure Justice for the victims’ family.

After the completion of his reading, the Chairman has fixed the next Sunday for the Prosecution Witness and the Defence Document. After that Tajul Islam contended that the charges are not clear and the evidences have not been mentioned in the Opening Statement. And then he has asked for a copy of Opening Statement.

15 Jul 2012: Sayedee IO cross exam day 30

After dealing with the Golam Azam case in the morning, in the afternoon session the tribunal moved to continuing the cross-examination of Investigation Officer involved in the Sayedee case (previous day of cross examination can be found here)

Defence: What it is? (Indicating a picture)

Witness: It was Pakistan Army Camp. Now, it is known as Pirojpur High School.

Defence: Where was it situated?

Witness: It was situated in one corner of the House of District Commissioner.

Defence: In P.O 2: there were three pictures of the High School. Would you please tell us about others pictures?

Witness: One is the picture of Bus-stand and other 4 are the pictures of Masimpur Village that was situated behind the Bus-stand.

Defence: Masimpur is a populated area?

Witness: Yes.

Defence: Whether it was also populated in 1971?

Witness: Yes, but not like now.

Defence: When did you go Masimpur for the first time and how many times you have gone there?

Witness: I have gone there two times. At first I went on 20. 09. 10 and then on 6. 04.11.

Defence: Interrogations of how many persons have been taken by you?

Witness: I have asked 5 people for the first time. They are Asis Kumar Mondol, Sumati Rani Mondol, Samar Mistri, Suresh Chandra Mondol, Advocate Gopal Chandra Mondol.

Defence: Among them how many persons are from the victim’s family?

Witness: Only Suresh Chandra Mandol was from the victim’s family.

Defence: Do you have any sketch map and picture of the House of Suresh Chandra Mondol

Witness: No, but I have the picture of his brother’s house where his brother was killed.

Defence: My question is specifically whether you have taken the picture of the victim house or not?

Witness: I did not take picture of his house separately; I have taken the whole picture of that area.

Defence: In P.O (Place of Occurrence), there is no picture of the house of Suresh Chandra Mondol and others houses besides his house also.

Witness: No.

Defence: P.O 3 indicates which area?

Witness: It is Pirojpur and Masimpur area.

Defence: Did you get the existence of the any Pirojpur area during investigation?

Witness: I can not say as it is not in my note.

Defence: Would you please tell us about the picture no. 1 of the P.O 3?

Witness: It is the killing spot of Masimpur.

Defence: Do you have any note in this regard?

Witness: Yes.

Defence: Please show us.

Then I.O shows it from his document (from a book).

Defence: Please you should show us this note from the Case Diary not from your book.

Defence: 4 no. picture indicates what? The headlines of this P.O 4 it is written the name of “SDPO Faizur Rahman’s Ahamed”

Witness: Yes.

Defence: Is there any Video?

Witness: Yes.

Defence: What it is?

Witness: It is the SDPO office of BrahmanBaria.

Defence: Headlines of the P.O-16 is “Shefali Ghorami”?

Witness: Yes.

Defence: Would you please tell us who owned this plot?

Witness: Madhusudan Ghorami.

Defence: Did he live at this plot during the Liberation war?

Witness: No it was discarded plot before the liberation.

Defence: Who is the owner of that House? (Mizanul Islam asking question after looking at pictures and video from the multi-media show)

Witness: Sultan Miah.

Defence: Which one is the house of Subhan Miah?

Witness: It is not in my note.

Defence: Which one is the house of Shefali Ghorami?

Witness: It was not in my note.

Defence: But you have written the headlines as the house of Shefali Ghorami. Why?

Witness: Because Shafali Ghorami is the wife of Madhusudan Ghorami, so the discarded house of Madhusudan Ghorami will be considered as discarded house of Shefali Ghorami.
Defence: In P.O 16: there are 6 pictures.

Witness: Yes.

Defence: Did you edit this picture later on?

Witness: This picture is taken on video camera.

Defence: What is the name of Video file on P.O 17?

Witness: Azahari, Nalbunia.

Defence: Is Gowrango living at the same house now where he used to live in 1971.

Witness: No, he does not live the same house because his house where he lived in 1971 was washed away by the water in the river.

Defence: In which area did Gowrango live in 1971?

Witness: Parer Haat.

Defence: Who lived besides his house?

Witness: It is not in my note.

Defence: P.O 21, movie file no. 4, would you please tell us who the owner of that house is.

Witness: It is the house of Mr. Rawshan.

Defence: The bearded person of this picture is Rawshan Ali (indicating a picture)

Witness: Yes.

Defence: Who are the rest?

Witness: I do not know, as it is not in my note.

Defence: Did you meet with the brother of Mr. Rawshan?

Witness: Yes, I met with him but did not take his pictures.

Defence: Who is the owner of that house? (Referring to a picture)

Witness: Julfikar Ali.

Defence: Did you get any other brother of Rawshan Ali during the Investigation?

Witness: No, it is not in my note.

Defence: Owner of the house is not Julfikar Ali, basically this house was owned by Rawshan Ali.

Witness: It is not true.

Defence: Is this picture taken in presence of you?

Witness: No, I was not there.

Defence: Did you interrogate Rawshan Ali?

Witness: Yes.

Defence: Did you record his statement?

Witness: Yes.

Defence: He was not the witness of this case?

Witness: No.

Defence: From where you come you to know that Mr. Sayedee after the Liberation War hid himself at the house of Mr. Rawshan Ali in Baghar para?

Witness: on 24. 04.11, from my sources.

Defence: House of Rawshan ali situated under which Thana?

Witness: Baghar Para.

Thus the court was adjourned.

15 Jul 2012: Azam 2nd witness testimony

Tribunal one

The Tribunal has adjourned the process of Opening Statement in the case of Nizami as he can’t be produced before the Tribunal since he is in the Chittagong District Court for another case.

Before starting of the deposition of the prosecution witness, the Chairman asked Mr. Mizanul Islam how much time whe would like to take for completing the cross examination of the Investiation officer for Sayedee's case and then Mr.Mizanul submitted a document setting out the particular times required to complete different sections of his Cross examination.

He then moved onto the case of Golam Azam and told the prosecution that he expected the examination in chief of the second witness Mahbub Uddin Ahmed Bir Bikrom, to be completed by the end of the day. The last hearing for this case can be found here

Prosecutor: State your identity.

Witness: My name is Mahbub Uddin Ahmed, Bir Bikrom; Father- Late Altaf Uddin Ahmed; Aged- 67 years.

Prosecutor: How old were you during 1971?

Witness: 26 years old.

Prosecutor: What is your highest level of education?

Witness: I have passed MA of Economics from the University of Dhaka.

Prosecutor: Afterwards what have you done?

Witness: Afterwards being selected on the Pakistan Civil service examination I have joined at the Police Cadre.

Prosecutor: During March, 1971 where were you?

Witness: I was on a settlement training a Police Officer of Satkania District and I was the SDPO (Sub Divisional Police Officer) of Jheenaidoh District. To hear the Speech of Bangabandhu Sheikh Mujibur Rahman me along with many other friends have gone to Chittagong. But Radio did not transmit it, so we were unable to here the speech. Instantly my friends have taken the decision to return towards their work place, so we didn’t have return to the training Camp.

I have returned to Dhaka and stayed at the Police Control Room till 17th March, 1971. After getting informed about the present movement of the people of the East Pakistan, I have returned to my workplace Jheenaidoh on 18th May, 1971. After returning there I have contacted with the local political leaders and the local people and let them be introduced with the Ansar Training.

On 22nd June, 1971, my residence was at Wapda Rest House, Jheenaidoh. My friends the SDO of Meherpur- Dr. Toufik-I Elahi Chowdhury, SDO of Magura Waliul Islam, SDO of Rajbari- Shah Md. Farid and the SDO of Norail- Kamaluddin Siddiqui have gone to my residence. We have consulted about the overall condition of the State and we have decided that we will maintain our communications with each other and we will be at the side of the people.

On 25th March, 1971, at 11:30 P.M. we have got information from the Wireless Baseline of Rajarbag Police Line that the Pakistan Army has attacked the Rajarbag Police Line. One Police Constable has informed me about the matter. Instantly I have gone to the Police Station and called the local people and the politicians. The Government Officers of Jheenaidoh were also present there. We all have decided that we will fight against the attack of Pakistan Army. 400 three-zero-three rifles were there at the Jheenaidoh Armory. I have distributed those to the interested people and formed Mukti Bahini.

In the meantime a news has spread that Jessore contingent is moving towards Jheenaidoh by the Jessore-Jheenaidoh road. By receiving the news we have blacked out the whole city. By watching the black out, the Pakistan Army has preferred staying at 5 miles distant from the southern area of the city. We have understood that if we try to fight against the Pakistan Army with these three zero three rifles we all will be destroyed, so we all the armed people have went to the nearby sugar-cane farm to hide ourselves.

One Jeep with Pakistan Army had gone to the Police station and searched for us. Without getting the trace of anyone they have moved towards Kushtia. Instantly we have returned to Jheenaidoh and decided to block all the entrances of Jheenaidoh. Afterwards all the peoples of the area started cutting down the big trees to make the blockages on the roads. At that time they all have cut down the branches of the big trees beside the Jheenaidoh-Kushtia road, Jheenaidoh- Jessore road, Jheenaidoh- Chuadanga road and made obstacles over the roads. The local Wapda Engineers have made booby traps on the Garagonj Bridge which is 8 miles north from the Jheenaidoh district and Bishoykhali Culvert of 5 miles southern place. The freedom fighters were staying at the opposite side of the Booby trap by making trench.

In the meantime on 28th March, 1971 the EPR 8 No winging Commander Major Abu Osman Chowdhury of Chuadanga has communicated with me and called me to Chuadanga. There I have met my friend Dr. Toufik-E-Elahi again after 22nd March. Major Osman has given us the badge of Captain Rank for getting advantages at the war.

On 29th March, 1971 Awami League General Secretary JKMA Ajij has informed us that two guests have arrived from Dhaka, please come sharp. Afterwards we have met Mr. Taj Uddin Ahmed and Barrister Amirul Islam at approximately 11 A.M. They have requested me to help them crossing the border. I have consulted and visited my friend Toufik-E-Elahi and started towards Jheenaidoh at the afternoon and by passing Chuadanga and Chayngkhali we have handed them over to the Indian BSF. The BSF has moved them to Delhi with due respect.

The local people of Kushtia have taken the decision to attack the Pakistan Army of Kushtia by the leadership of the EPR 8 No winging Commander Major Abu Osman Chowdhury of Chuadanga. So, at the end of the night of 30th March, the people of Kushtia and the armed people sent over by us and a company of armed people sent over from Chuadanga have attacked the Kushtia- EPR. They have broken the silence of the night by the slogan of ‘Joy Bangla’ and ‘Joy Bangabandhu’. The Pakistan Army had taken shelter at the District School on being bewildered by the attacks of the people. The people have set fire by applying petrol throughout the surrounding area of the District School. Then the Pakistan Army has rushed towards Jheenaidoh to get back on the Cantonment. The frontline Jeeps have fallen down at the Garagonj Booby Trap and a lot of army officer have died instantly. The Armies who have moved to the rescue of the frontline Jeeps have been shot down by the bullets fired by the freedom fighters who were hiding themselves at the nearby trench. In these circumstances the Pakistan Armies fired over Jheenaidoh with cannon and the Guns. The army officer have scattered in some small groups and started hiding themselves in the nearby villages. The villagers have killed all of them in the morning and the villagers have collected all the bullets and arms and taken those towards the Police Station.

One Lieutenant Ataullah Shah has taken shelter in a closed building and started firing like mad. Me with other people have surrounded the building and directed him to stop firing and then he has stopped firing. We have arrested him as a POW and then he has been sent to India by Chuadanga. As far as I know he was the first POW. This is the destruction of the perilous 27 number SNT battalion. To rescue the other Army officers another troop has been sent over from Jessore Cantonment on 1st April. They have been fallen in trouble when they reached Bishoykhali Culvert. The freedom fighters have restrained them and they fled away.

In 2 days of war many of us have been injured and 6 have died. Among those 6 dead men there were 2 sons of the local MNA-- Mr. Anwarul Islam. We have captured a lot of automatic cocktail, automatic Machine Gun, Mortar, Light Machine Gun, 6 pieces 106 mm. deep mounting RCL Gun, 18 pounds Bombs, and millions of bullets from the Pakistan Army. So that, we became strong, and started planning to attack the Jessore Cantonment. By this battle the western part of Jamuna river consisting the Jessore Cantonment became liberated. We have discussed with our sector Commander Abu Osman Chowdhury and started moving towards Jessore Cantonment. We have stayed near 10 miles north, at a trench at the Barobazar Rail-line. The Jessore- Jheenaidoh road became closed for the Pakistan Army. This situation continues till 10th April. They have started a tripartite attack over us at the Goalondo- Isshordi- Jheenaidoh area. On 11th April, 1971 the Pakistam Army has moved out from the Jessore Cantonment and attacked ous. And we have fought back. By observing our hard position, they have bypassed us and stayed at the Baligonj area behind us. So that we were attacked from both the front and back side. It was not possible for us to stay there. We have withdrawn our position and moved back to Jheenaidoh.

After some time, the Pakistan Army has reached Jhenaidoh on 14th April. By declaring a general withdraw order at Jheenaidoh, I have started towards Chuadanga. We have drawn 4 crore, 40 lakhs taka and 20 KG gold from the then National Bank. Afterwards, on 20th May, 1971 we have deposited the amount to the vault of Bangladesh Government. The money receipt is now preserved at the National Museum. By starting on 14th April, 1971 we have reached to the Betai Camp of India via the road of Chuadanga and Meherpur. On 17th April, 1971 me and my friend Toufik with some soldiers have crossed the border and reached Boiddonathtola, Meherpur.

On that very morning we have got the news that- the first Government of Bangladesh is going to take oath at that place. The Government has been formed on 10th April, 1971 at Agortola. At 11.00/11.30 A.M. many of our elected leaders have come with some renowned journalists and reporters of BBC, VOA, Reuters, CBC etc. They have gathered with cameras. The oath taking ceremony has been took place on 12.00/12.30 P.M. The newly formed government has been given a guard of honor by my leadership.

I have given the short description of the south- western zone of the war field here. But for the whole nine months, I and our other companions have fought against the Pakistan Army at the Benapol, Kagojpukur area. On 28th May we have fought for 14 hours against the 9 number Panjab regiment and destroyed their troops at the Satkhira, Bhomra area. They were destroyed too badly that at last the Pakistan Government has withdrawn its troops. A number of their Major and Generals have been killed there and I have recovered a number of corpses from the place.

Each day I have fought as the number-7 sector commander of Satkhira area. On 19th September, 1971 we have lost so many soldiers at Baliadanga, in our attempt to attack the Kakdanga BOP. And I have been injured and was admitted for four weeks at the Barakpur Military Hospital. On 16 October, 1971 I have returned at the sub sector again. We have continued our attack against the Pakistan Army at the Satkhira- Kolaroa area. On 8th December Satkhira became freed from the Pakistan Army. I along with our troops have stayed at the Jessore Monirampur School. On 16th December, 1971 we have got the news that- Bangladesh has got the victory.

Prosecutor: When you were in the leadership, what have you observed?

Witness: During the liberation war many of Rajakar- Al-Badar- Al-Shams have been caught by our team members. We have gathered the information from them and the newspapers and the radio that Awami League has got the majority vote in 1970 election, the political parties which were against were Jamaat-e-Islami, Muslim League, PDP etc. The defeated teams have met General Tikka Khan at the onset of April, 1971 and supported the Operation search light movement of Pakistan and planned to form Peace Committee for the assistance of Pakistan Army.

Prosecutor: Who has met Tikka Khan?

Witness: Mr. Gholam Azam, KHaja KHoyer Uddin and Nurul Amin were there among the people who have met. After the liberation I have watched the photograph of their meetings at the newspaper. Islamic Chatro Sango was the student wings of the Jamat-e-Islami. I have heard that- Mr. Gholam Azam has met Yahya Khan to make the Al-Badar and Rejakar as armed forces. To give a legal framework to these groups, the Ansar Bahini has been restructured as the Rajakar Bahini. And among the people of Rajakar- Al-Badar- Al-Shams- Peace Committee, who were interested they have been designed as armed group and given salary.

Prosecutor: What was the duty of these Rajakar- Al-Badar- Al-Shams?

Witness: These troops moved with the Pakistan Armies in our sector- 8 and directed Pakistan Armies to the pathways to the places where the freedom fighters used to stay. They were involved with abduction, killing and to send the beautiful girls of the area to the Pakistan Army Camp. In the Chuknogor Area they have conducted a mass genocide. These sorts of genocide have been committed in the overall areas of Bangladesh, I have heard that. These occurrences have been committed by the Rajakar- Al- Badar- Al- Shams who were known as the associates of Pakistan Armies. At last on 14th December, 1971 they have killed a lot of intellectuals of this land. These sorts of occurrences have been led by Jamaat-e-Islami and the Islamic Chatro Sangha. Mr. Gholam Azam and his associates who were in the commanding position of the groups have committed these sorts of crimes against humanity. Mr. Gholam Azam was the main leader of these teams.

Zeyad Al Malum: Whether he is present in this court?

Witness: Yes, he is present. After the liberation war I have joined the Home Ministry as the Deputy Secretary.

Zeyad Al Malum: Did the Investigation Officer interview you?

Witness: Yes.

12 Jul 2012: Sayedee IO cross exam day 29

After the tribunal read out the order relating to 19(2), cross-examination of Investigation Officer in the Sayedee case continued, conducted by the defence lawyer Mizanul Islam. This continued from this day.

Defence: What is the name of the present Chairman of Umedpur?

Witness: It in not in my note.

Defence: Whose house is situated in the east side of the “A” mark house?

Witness: Whether there is any house or not, I cannot say.

Defence: How far a distance is between the houses of Anil Chandra Mondol and Harekrisno Mondol?

Witness: It is not in my note, so I cannot tell it.

Defence: Whether there is any house at the south side of the house of Anil Mondol?

Witness: Yes, there are some houses but the number of houses I cannot say.

Defence: How long a distance by road was from the house of Anil Chandra Mondol?

Witness: I cannot say as it is not in my sketch.

Defence: What is situated just opposite of the west side of the road from the A to H marked houses?

Witness: At the west side of the road, there was house of Kashem Hawlader is situated.

Defence: Did you have any idea whether there is any other houses or not?

Witness: No.

Defence: What is situated in north side of the place marked as “A”?

Witness: There is Umedpur Canel.

Defence: Whether this side is under the possession of Umedpru Hindu area or not?

Witness: I do not know.

Defence: Bimol Bala daughter of Satis Bala is the resident of “F” marked house. Would you please tell us about his profession?

Witness: I have no idea about his profession.

Defence: Did you meet with him during the investigation?

Witness: I cannot say it as it is not in my record.

Defence: Did you go to his house?

Witness: I cannot say as it is not in my note.

Defence: Since you did not go to his house, so it not possible for you to say whether his mother is alive or not?

Witness: No, his mother is alive.

Defence: Did you give any notice to Bimal Bala , his mother and his father to give their deposition in presence of you?

Witness: No.

Defence: “G” marked house owned by the Jibon son of Johor Talukder was not the witness of this case.

Witness: No.

Defence: Whether his mother is alive or not?

Witness: Yes, his mother is alive.

Defence: Did you issue any notice to them for giving deposition.

Witness: No, I did not but informed them about being present in front of me.

Defence: Did you give any notice towards the people of Umedpur Hindu area to give their deposition who knows about facts of the Liberation war

Witness: I did not do it but I requested all of the persons having knowledge of liberation war to be present.

Defence: You have requested all through whom?

Witness: Through Sukhranjan Bali and Mahbubul Hawlader.

Defence: When did you go to the Umedpur for the first time.

Witness: On 20. 08. 2010.

Defence: Did you inform it to the Sukharanjan Bali and Mahbuul Alam the day when you had gone or before that?

Witness: I have said it to the Mahbubul Hawlader before that date.

Defence: When?

Witness: On 15. 08. 2010. I have told him over phone. Then after going to Umedpur on 20.08.2010, I have said it the Sukharanjan Bali to call upon all those persons who are acquainting with the facts of the Liberation war.

Defence: When did you reach there?

Witness: At 10:30am.

Defence: How long you were there?

Witness: Till 12:30pm.

Defence: Where did you stay during the investigation?

Witness: Basically, I did not stay anywhere specifically. Firstly I had gone to the house of Sukhranjan Bali and then visited each and every house of Hindu area to takes notes and sketch map.

Defence: Where did you make the sketch map?

Witness: I took the rough notes and then prepared finally at my office.

Defence: Where was the temporary office of the Investigation agency?

Witness: It was in the circuit house.

Defence: Statement of how many persons has been recorded by you at that very day?

Witness: I have asked them preliminary question and nothing had been recorded there. Basically their statement was not recorded at Umedpur village; their statement has been recorded on Tengrakgli village at that day,

Defence: How many people’s statement has been recorded at Tengrakhali Village?

Witness: Statement of Sukharanjan Bali and Mukunda Chakrabarti alias Mukim Thakur.

Defence: Where was the house of Anil Chandra Mondol situated?

Witness: At Umedpur Village.

Defence: Where did you record the statement of Anil Chandra Mondol?

Witness: On 19.08.2010 in Rajlokkhi High School.

Defence: You have exhibited on exhibit number 259 the statement of Anil Chandra Mondol which was recorded on 20. 08.12. (date has been shown after taking the document from the Tribunal chair)

There is variance of recording date of the statement of Anil Chandra Mondol between the documents in the hands of the investigation officer and the documents before the judges. Then Tribunal member said it is nothing but a mistake but defence counsels Mizanul Islam said “yes my lord, it is our duty to identify these faults”

Witness: Yes.

Defence: Your signature is exhibited on exhibit number 259/1 and the date is 20. 08.10.

Witness: Yes.

Defence: When did you reach Tengrakhali Village and how long you have stayed there?

Witness: I have stayed there from 12:45 to 16:45pm.

Defence: Did you go to any other places?

Witness: I went to different places like Parerhaat Police camp, Parer Haat Bazar.

Defence: Did you go Tengrakhali Village before 20. 08. 10.

Witness: Yes, on 19. 08. 10 I went there at 13:45pm.

Defence: How long have you stayed there?

Witness: I was there till 15:00pm.

Defence: Then where did you go?

Witness: Then I came to Razlokkho High School and I was there from 15:30 to 21:00.

Defence: In the Index no. 39 (b), Mukim Thakur father of Shekhor was indicated as death person and there is also a signature of yours.

Witness: Yes.

Defence: Did you meet with the owner “H” marked house Harekrishno?

Witness: It is not in my note.

Defence: Did you meet with the wife of Shudangshu Talukder?

Witness: It is not in my note.

Defence: House of Anil Chandra Shorma is exhibited on Exhibit number 259, please tell us whether the house of Anil Chandra Mondol included among these 25 houses which were looted and burnt?

Witness: Yes.

Defence: Is there any thing which is stated by Anil Chandra that his house is looted or burnt during the Liberation War?

Witness: No, but he said that house of the Hindu People were looted.

Defence: During 1971 whether there were any Hindu areas other than Umedpur Hindu area?

Witness: Yes, other than Umedpur Hindu area, there are other areas also.

Defence: It is exhibited in exhibit no. 25 that after looting the house of Hindu area Mr. Sayedee had taken away these looted things in his in laws house.

Witness: Yes.

Defence: In the statement of Anil Chandra Mondol, he never pronounced the name of village “Umedpur”

Witness: He said that “My home town” and it is very much clear that his permanent address is Umedpur.

Defence: Whether he pronounced any thing in his statement that “My house was looted and set on fire during the liberation war”

Witness: No.

Defence: You have stated about 19 persons in Umedpur. Would you please tell us whether the house of these 19 persons were looted or set on fire or not?

Witness: No, specifically no ones name is mentioned.

Then the defence counsels ask some questions from the multi-media video show “Ekusher Chokh” programme.

Defence: Please tell us, whether the interview of Raghunath has been taken in Ragunath’s house or not?

Witness: Basically, his interview has been taken in Manikposhari’s house. (This statement has been recorded with the objection of prosecution counsels).

Then the court was adjourned.

12 Jul 2012: Sayedee witness absence order

Justice Nizamul Huq first read out the order in response to the review application of an order under section 19(2) of the ICT Act-1973 allowing the prosecution to introduce written statements of the investigation officer as evidence . The text is directly taken from the original.

This is an application filed by the accused Delwar Hossain Sayeedi under Rule 26(3) of the Rules of Procedure for review of the order dated 29.03.2012 allowing an application filed by the prosecution under section 19(2) of the International Crimes (tribunals) Act, 1973, by which this Tribunal allowed the prayer to receive in evidence the statements of 15 witnesses recorded by the investigation officer.

On 20th March, 2012 the prosecution filed an application praying for receiving in evidence the statements made by 46 witnesses recorded by the investigation officer on the ground that their attendance cannot be procured without an amount of delay. In the petition it was stated that P.W [prosecution witness] Usha Rani Malaker was too ill and lost her memory and was unable to travel to the tribunal at Dhaka. P.W Sukharanjon Bali has left the house about 4(four) months earlier and since then he is traceless. P.Ws Ashish Kumar Mondal, Sumoti Rani Mondal and Samar Mistri are traceless since 1st week of February, 2012 and it is told that they have secretly left for India. P.Ws Suresh Chandra Mondal, Gonesh Chandra Shaha, Shahidul Islam Khan Salim, Md. Ayub Ali Howlader, Gopal Krishna Mondal Bazlur Rahman, sitara Bcgrrm, ltani Begum, Md. Mustofa, Abdul Latif l{owlader, onil Chandra Mondal, ojit Kumar Shill, Khalilur Rahman Sheikh and Eshaque Ali Khan have been given threatening by the arms cadre of Pirojpur who are supporters of the accused, as a result of which the witnesses have become terrorized and went in hiding and their whereabouts cannot be traced out and the said witnesses are all eye witnesses. P.Ws Syed Sorafat Ali, Kadir Bepari, Ruhul Amin Howlader, Bankim shaha Talukder, Manik Howlader, Chan Mia poshati, Bimol chandra Howlader, Abdul Halim, Goiam Hossain Talukder, Ram Gopal shaha Talukder, Tojammel Hossain, Md. sador uddin, Jafor Iqbal, Sufia Haider, Afuoza Parvin, Mukunda chakrabarti, Major Zia uddin, Sosra Biswas, Pulok Chowdhury, Ali Haider I(han, Fosiul Islam Bacchu, A.K.M Joglul Haider Afrik, Juel Aich, Shahriar Kabir, Muklesh Poshari, Khandoker Shahidullah and Ayub Ali Howlader are not eye witnesses but the recorded statements of them by the investigation officer are very much essential for the case. And as such their statements are to be received in evidence under section 19(2) of the Act as their attendance cannot be procured without an amount of unreasonable delay.

The accused contested the petition by filing a reply on 28.03.2012 contending inter-alia that the application if allowed will seriously hinder a fair trial, and the criminal legal system both domestic and international. The statements were concocted by the investigation officer in the names of P.Ws with a malafide intention. It was also stated therein that prosecution by the time has recorded statements of 27(twenty seven) witnesses but when they failed to bring the remaining witness as the witnesses are not ready to give false evidence against the accused, they were taking time after time and when last of all, the Tribunal cautioned that they will pass appropriate order in case of failure of the prosecution to bring witnesses, the instant petition was filed. They have also annexed some reports of Daily Sangram dated 24.03.2012, Daily Amer Desh dated 24.o3.2012 and Daily Naya Diganta dated 27.03.2012 in support of their claim that the prosecution is unable to bring witnesses and the witnesses are not ready to support the statements which were prepared in their names. With respect to witness Usha Rani Malaker it was stated that no supporting document has been placed to show that this witness has lost her memory and it has not also been stated as to when this statement was recorded before or after her mental disorder. Regarding Sukharanjan Bali it was stated that if he was really missing then at least general diaries would have been filed. As regards witness Ashish Kumar Mondal, Sumoti Rani Mondal and Samor Mistri the defence denied that they were ever missing. It was stated that these witnesses were brought to Dhaka in January, 2012 and kept in witness hostel for more then one month. And when they denied to glve false evidence in the Tribunal they went out and became missing. On 2nd February, 2012 the prosecution informed the Tribunal that these witnesses left witness hostel to visit their families and did not return back. As regards the witnesses for whom the prosecution claimed that they were threatened by armed terrorist group of pirojpur in favour of the accused and as such they arc in fear and had concealed themselves, it was stated that there was no document placed in support of such claim and that it is not possible to give threats as the administration is keeping sharp eyes on the P.Ws. It was stated therein that P.W Gopal Krishna Mondal named in this group is an advocate and regularly attend Pirojpur court. The report submitted by the concerned police station in support of the missing of these witnesses does not contain names of Gopal Krishna Mondal, Khalilur Rahman Shiekh, Bazlur Rahman and Eshaque Ali Khan. With regard to other witnesses, prosecution failed to give any reason as to their failure to bring them in the Tribunal and as such the petition is liable to be rejected.

The Tribunal by its order dated 29.o3.2o12 allowed the application in part. It was ordered that out of 46(forty six) witnesses the statements made by l5 (fifteen) witnesses and recorded by the investigation officer is received in evidence under section 19(2) of the Act. In passing the order this Tribunal observed the following

'We are cautious about the matter that these witnesses are not being brought and produced before the Tribunal and cross examined by the defence and no oath is there for consideration of them as evidence. The law will take its own course. These statements will be treated in evidence considering all these aspects.” Regarding the statements available in the news papers clippings, this Tribunal observed.

‘We have also perused the newspaper clippings annexed with written objection filed by the accused side specially the newspaper named Daily Naya Diganta has made detail reports about the discussion of the journalist and some of the witness. We wonder how a journalist can talk with a witness on a sub Judice matter and reproduce it in the newspaper, and make comment involving merit of the matter. This is not accepted and highly contemptuous. First we wanted to issue notice upon the reporter and the newspaper, but on rethinking, we refrain ourselves from issuing notice. Moreover Mr. Razzaq, the leamed counsel also submitted before the Tribunal that this type of occurrence will not occur in future and everybody will be careful in future in writing or reporting regarding a pending proceeding in the Tribunal. On the submissions or Mr. Abdur Razzaq we refrained ourselves from taking further action in this matter, but we caution the writer of this report to be more careful in future in writing regarding pending proceeding in future. We also observe here that this report satisfied ourselves that the allegation of the prosecution that the people in support of the accused are going to the prosecution witnesses and threatening them from coming to this Tribunal are true."

The accused then filed the instant review application against the order dated 29.03.2012 under Rule 26(3) of the Rules contending inter-alia that the basis of the order was the report of the investigation officer which is not sustainable in law. In absence of an independent evidence verifying the reasons submitted by the investigation officer, the order was passed wrongly and it was also placed to be considered. The statements made in the reply filed by the accused were re-iterated in the review application. Moreover, some reports of Dainik Janata, Amer Desh were annexed. It may be re-called here that in the reply filed by the accused, the news clipping from the Sangram, the Naya Digonta and the Amer Desh were annexed, and those were considered by the Tribunal.

The defence further filed a supplementary statement on 22.05.2012 to the review application contending inter-alia that two reports were aired by Diganto Television on 11.05.2012 and Islamic Television on 15.05.2012 regarding some statements of prosecution witnesses Usha Rani Malaker, Sukharanjan Bali, Ghanesh Chandra Shaha and Chan Mia Poshari and those two television transcripts were annexed. The said reports clearly show that these prosecution witnesses did not give any statement against the accused and these are contrary to the statements tendered into evidence by the prosecution in the name of the prosecution witness.

The prosecution filed a reply to the application for review and supplementary statement in favour of the review contending inter-alia that the order passed by the Tribunal receiving in evidence of the statements of the 15(fifteen) witnesses made before the investigation officer under section 19(2) of the Act is legal and proper and the review application on the same statements as stated in the reply to the petition cannot be entertained. It was further contended that the information of missing of Sukharanjan Bali was informed to the police station on 25.02.2072 and it was recorded as G.D.E No.7/73 and that the news clippings annexed with the application for review are not true and the Tribunal after hearing both the sides and considering the materials on record have allowed the prayer in part and as such the order cannot be reviewed. The accused then filed a reply on 03.06.2012 where in the photocopies of the registrar and other books allegedly kept with the office of the witness house were annexed in support of the case of the defence that those witnesses were in the witness home at the relevant time. Then the prosecution filed another reply to the written objection dated 03.06.2012 filed by the accused person wherein the documents produced by the accused person were denied as being forged. A supplementary statement to the reply of the accused dated 03.06.2012 were also filed by the accused on 09.06.2072. Last of all, two applications were filed by the defence on 07.06.2012 one for call for the record to confirm the mobile numbers and badge numbers in the witness house and the authenticity of the information recorded in the diary notes of the general dairy book of the witness safe house and for drawing up proceedings under section 11(4) of the Act against the investigation officer and for discharge of the accused and a direction for fresh investigation. All the papers are now before the Tribunal for consideration.

Before going into the merit of the review case we want to mention here that after the passing of the order allowing the prayer of the prosecution to receive in evidence the statements of 15 witnesses recorded by the investigation officer, we have noticed that many people including lawyers in support of the defence claim gave statements in the press which have been published in the newspapers that the Tribunal has acted illegally in passing the said order. Some people went beyond their scope to comment that by allowing this prayer the Tribunal has proved it to be politically bias and for that, in the matter we had to issue notice upon two journalists and some lawyers under section 11(4) of the Act for committing contempt of the Tribunal and the two journalists were found guilty and they were convicted and sentenced. We have also swallowed many statements from inside and outside the country that no where in the world the statement of witnesses who has not been produced in the Tribunal is allowed to be accepted as evidence.

In this respect, we want to mention here that in many Tribunals, this provision is available. Reference may be made about Special Court of Seara Leon (SCSL),International Criminal Tribunal of Rwanda (ICTR) and Lebanon Tribunal.

In Special court for Seara Leon (SCSL), Rule 92 Quarter may be mentioned which allows the evidence of a person if unable to testify orally may be admitted in evidence. It states as follows:

Rule: 92 Quarter of SCSL: Unavailable persons: (a) The evidence of a person in the form of a written statement or transcript who have subsequently died or who can no longer with reasonable diligence be traced or who is by reason of bodily or mental condition unable to testify orally may be admitted, whether or not the written statement is in the form prescribed by Rule 92 BIS, if the trial chamber: (i) is satisfied of the persons availability as setout above; and (ii) finds from the circumstances in which the statement was made and recorded that it is reliable; Similarly Rule 158 of Lebanon Tribunal also allows, which shows the following

Rule: 158. Unavailable person: (a) Evidence in the form o[ a written statement, any other reliable record of what a person has said. written or otherwise expressed or transcript of a statement by a person who has died, who can no longer with reasonable diligence by traced, or who is for good reason otherwise unavailable to testify, orally may be admitted, whether or not the written statement is in the form prescribed by Rules 93, 123,155,1,56,157 if the trial chamber (i) is satisfied of the person unavailability and (ii) finds that the statement, the record or the transcript is taking into account how it was made and maintained.

Moreover Rule 92 BIS of International Criminal Tribunals of Rwanda also speaks the similar provision.

Upon perusal of this two Rules of SCSL and Lebanon Tribunals, it is clear that the statement of witnesses recorded by an investigation officer can be received into evidence when the maker is not produced in the Tribunal for different reasons. Section 19(s) of our Act (ICT) was enacted in 1973, much more earlier than the above mentioned Tribunals and other Tribunals now functioning throughout the world. This provision was taken by us in the Act and the foreign tribunals specially the three mentioned above have taken it in the Rules, signaling that our framers of the said Act were more advance and developing in framing the laws. The persons who have made statements that no where in ,the world this provision is available only expressed their ignorance of law and this Tribunal only feels pity for them. We have even marked that some senior counsels of our country have also made similar statements supporting the persons who was opposing the view of the Tribunal in this respect and section 19(2) of the Act. This Tribunal while allowed the prayed and passed the order, stated clearly that we are conscious about the fact that the persons of whom the statements, made to the investigation officer are being received in evidence have not been produced in the Tribunal for cross examination and none of them have administered oath while they made statement before the investigation officer and it was recorded. This Tribunal is very conscious that this statements have got a lesser value for consideration but even then when the Act permits the same, the tribunal cannot go beyond the Act and have to receive the statements in evidence. It is only after the evidence recorded by the parties, the Tribunal will consider everything and arrived at the finding that whether the requirement of 19(s) of the Act has been complied with by the investigation officer and only after that if everything goes positive in favour of the prosecution then only the statements may be accepted in evidence that too with lesser probative value. In this respect we want to mention here that even our code of criminal procedure allows this type of acceptance in evidence. Section 509A of Code of Criminal Procedure states that where in any inquiry, trial or other proceedings under this Code the report of a post mortem examination required to be used as evidence and the civil surgeo or other medical officer who made the report is dead or is incapable of giving evidence of is beyond the limits of Bangladesh and his attendance cannot be procured without an amount of delay, expense or inconvenient which, under the circumstances of the case, would be unreasonable, such may be used as evidence.

In section 510 the Code of Criminal Procedure the report of Chemical Examiner, Serologist, handwriting expert, finger print expert or fire arm expert may without calling him as a witness be used as evidence in any inquiry trial or other proceedings under this Code.

This makes clear that without being present the report prepared by a proper person may be admitted in evidence. There may be some condition in accepting these documents that that does not bring the submission that every witness is to be present in court to give evidence and he must be placed for cross examination and the evidence must be on oath otherwise the material prepared by him cannot be accepted in evidence. Although we have hold in our order that in case of accepting in evidence, we shall consider that the absent witness was not produced for cross examination and he has not stated them on oath. But this observation of us was not at all considered or stated by the persons who stated against the passing of the order. These observations we made considering our consciousness about the trial process and fair trial but was not required to be made because our Act does nor prescribe so. The tribunal expects that everybody will be cautious in passing statements regarding the instant law, Rules of procedure and the orders passed by this tribunal in future.

Now coming to the merit of the case the petition was filed under section 19(2) of the Act for accepting the statement of 46 witnesses recorded by the investigation officer to receive in evidence and this tribunal after due consideration of the fact and position of law allowed the prayer for only 15 witnesses. On finding that with respect to these 15 witnesses, the prosecution has successfully satisfied the requirement of section 19(2) of the Act.

Regarding witness Usha Rani Malakar it was stared that the Investigation officer found her sick for old age ailment and her son and the neighbors informed that she cannot move because her old age and she continues her natural call in her bed, if she is taken to Dhaka her life may be endanger. Whereas the defence has stated that no proof of such illness has been given by an independent medical authority and in fact Usha Rani Malakat is not sick and no summons was issued to Usha Rani Malakar. Moreover she stated in a television interview that she has not stated anything involving Sayeedi in the killing of her husband. Regarding witness Sukharanjan Bali it is stated that he could not be traced in his house and his wife, his daughter informed that he left the house in Ograhayon and did not come back and has become untraceable. The neighbors also stated that he has become untraceable since that time. The defence stated that the prosecution could not file any document in support of this statement and they did not file any G.D. entry in the local police station. The Naya Diganta on 27.03.2012 reported that this Sukharanjan Bali is not ready to give any false evidence, and for that he is not being produced in the Tribunal. Regarding witnesses Ashish Kumar Mandol, Sumoti Rani Mandol and Samor Mirtry the prosecution stated that after 31.01.2012 they went for village from Dhaka and then they have become traceless. People say that probably they have gone to India. Then the local police officer was requested to send them to the Tribunal and he informed that they are not available in their home. They might have left for India as such their presence is not possible. while the defence stated that on 2nd February, 2012 the prosecutor informed the Tribunal that these witnesses have left the witness safe house on the previous day in the name of visiting their families and did not return back. The defence further stated that on 17.03.2012 the daily Naya Digonta reported that the close relative of those 3(three) persons said that in fact these witnesses denied to give false evidence and that is why they were not produced in the Tribunal. Further on 14.04.2012, the daily Amar Desh reported that the official books which are maintained for the witnesses of the tribunal in the safe house shows that they were in the control of the prosecution till 16.03.2012 and as such the statement of the prosecution is false. As regards the remaining witnesses it was stated by the prosecution that the investigation officer went to their house and found only witness Setara Begum sick in her house and others could not be found, it was also stated by the prosecution that during his investigation the investigation officer found that local arms cadres gave threatening to those witnesses and due to fear of their life the witnesses have kept themselves in secret place so that they cannot be produced in the Tribunal. It was also stated that the terrorist group are man of the accused. Wherin the defence stated that these are false statements and has not been substantiated having no factual basis, that witness Shahidur Islam Khan Salim was brought on 10.01.2012 in the witness home and he was there till 12.01.2012 but was not produced in the Tribunal because they were not ready to support the false case and this was reported in the Amar Desh on 12.04.2012. Regarding witness Ayub Ali Howlader the same report of the Amar Desh stated that he was present in the safe house from 07.01.2072 to 10.01.2012. Regarding Setara Begum defence sated that no medical certificate was produced in support of sickness of Setara Begum and the allegation of threatening is false, in the report of daily Naya Digonta dated 27.03.2012 it was stated that she is not ready to support the false statement of the prosecution. With regard to witness Rani Begum and Md. Mostafa the Naya Digonta on 27.03.2012 reported that Md. Mostafa denied any threat from any people of the accused, to his mother Sitara Begum and his sister Rani Begum. They are staying in their house. With regard to PW Abdul Latif Howlader the defence stated that he was never missing, he came to the Tribunal on 02.o4.2012, and the Amar Desh report on 12.04.2012 shows that he was taken to the prosecution room 4(four) times. Before that also he was in Dhaka and brought to the safe house on 16th November and stayed there until 22nd November,2012. Then on 31st December he was again brought there and he stayed there till 5th January but he was not produced any time in the Tribunal. He was sent back to his house. Regarding witness Onil Chandra Mandol on 12.04.2012 Amar Desh reported that he was brought on 12.01. 2012 and stayed in the safe house till 16.01.2012 as he was not ready to give false evidence as such he was sent back. PW Ajit Kumar shill was brought on 10.02.2012 and kept their until 13.02.2012 as reported by same Amar Desh and he was sent back because he did not agree to give false evidence. The defence in support of the news report of daiiy Amar Desh dated 12.04.2072 stated in the review application to the effect that the witnesses were brought to Dhaka and kept in the witness safe house and claims of the prosecution in support of the petition filed under section 19(2) of the Act is nor true.

The alleged photocopies of the PWs attendance register, safe house general dairy book and food book, all allegedly maintained in the safe house has been annexed as annexure A, B and c respectively by the defence. But it is found that those annexed are named as witness and guests register, General Dairy book and food register of witness and guests. Moreover the two television interviews which have been mentioned by the defence have also been exhibited as annexure 1 and 2 as supplementary application to the review, which was telecast in Islamic Television on 15.05.2012 and Diganto Television on 11.05.2012 respectively. The prosecution on the other hand has denied the existence of those attendance register, general dairy book and the food book maintained in the safe house as not genuine. They have stated that no such register and books are maintained in the witness safe house.

We have already observed that under section 19(2) of the Act if the Tribunal is of the opinion that the attendance of a witness cannot be procured without an amount of delay or expertise which the Tribunal considers unreasonable, then the Tribunal may receive in evidence any statement of the witness recorded by the Investigation officer. Upon consideration of the fact as stated in our order dated 29.03.2072 we allowed the statements of 15 witnesses out of 46 witnesses to be received in evidence which was recorded by the Investigation officer. At the time we considered the petition filed by the prosecution and the reply of the defence to that application. Regarding the annexure of some newspaper clippings of the sangram dated24.03.2012, Naya Digonta dated 27.03.2012 and Amar Desh dated 25.03.2012 which were annexed with the reply of the defence. This Tribunal took a serious view of some matters stated in those reports which includes interviewing some witnesses and publishing and placing those before the Tribunal after annexing them with the reply while the matter was in seisine of the Tribunal and order has not yet been passed. This was clearly interfering the justice process. Then we wanted to issue notice upon the newspaper concern for interference with the due process of the Tribunal, Mr Abdur Razzak the learned counsel stood up and expressed regret for the same and he openly submitted that those newspapers will be cautious in future and will not do the same mistake again. Only on that submission, we refrained ourselves from passing the appropriate order with respect to this and did not consider those newspaper clippings in the order. But in the instant review application also, the same statement available in the said newspapers have been stated upon giving reference to them with respect to witnesses Sukahranjan Bali, Ashish Kumar Mandol, Sumoti Rani Mandol, Samor Mistry, setara Begum, Rani Begum and Md. Mostafa. This is regretted.

We do not know how after the exoneration of the 3(three) newspapers for reporting of a subjudice matter and praying for exoneration on submission that those will not occur in future, how one of the said newspapers namely the .{mar Desh has again pubrished a report on 12.04.2012 mentioning witness Ayub Ari Howlader, Abdul Latif Howlader, Onil Chandra Monrial, Ojit Kumar Shill and stating similar statements in the Report. There is no reference as to the fact that how the witnesses stated in the newspaper the Amar Desh that they did not agree to give false evidence against the accused and as such they were sent back. The defence has produced photocopies of documents allegedly of witness safe house, witness and guests register, general dairy book and the food book and annexed as annexure A, B and c respectively. It has not been stated how they have collected these documents when the very existence of those documents are challenged by the prosecution and on that challenged in a camera proceedings in presence of two counsel from the defence and two prosecutors we have examined the persons in charge of the witness safe house and they also denied the existence of the documents. Moreover when the prosecution has denied the existence of the documents, the defence is to prove the same, as they had produced the alleged photocopies of the same.

The defence has stated and annexed a news report of daily Amar Desh dated 12.04.2012 to support the claim that those 3 (three) documents are maintained in the safe house which show that most of the witnesses came to the witness safe house for giving evidence. But they are not produced before this Tribunal since they did not agree to glve false evidence against the accused petitioner. The defence has not stated from where they have got this photocopies but it appears that in the news report dated 12.04.2012 the materials have been stated. Now defence is to disclose from where they have collected the said photocopies in order to get any benefit out of those documents. However in disposing of this review application we do not want to go further into the question of genuineness of those documents and leave it to the parties to do the needful. We are of the view that on the finding of the genuineness of the claims of the parties, we can finally decide on evidence whether the witness statements received in evidence shall be considered by us or not. But if we get on evidence that either of the party or somebody belonging of them, is responsible for misleading the Tribunal or for forgery then proper action will be taken against the responsible persons for misleading this Tribunal or for committing forgery. But for consideration of the matter in issue, we will not consider the statements available in the newspaper clippings on 12.04.2012 in the daily Amar Desh, the original 3(three) newspaper clippings report and the television interview for the same reason as we did not consider in our earlier order. And also for the reason that when they were taken, whether any inducement and threat were there and source of information is to be clearly stated.

In consideration of the application under section l9(2) of the Act, its reply by the defence, our impugned order and the review application, we get that the questioa of acceptance of the statement of Usha Rani Malakar, Sukharanian Bali, Ashish Kumar Mandol, Sumoti Rani Mandol and Samor Mistry finding to the effect that Usha Rani Malakar is sick and she cannot move because her old age and she continues her natural call in her bed if she is taken to Dhaka, her life may be endanger cannot be disproved by the defence at this stage. Regarding Sukharanian Bali, the fact that he could not be traced out and he has left the house and did not come back and he has become untraceable also could not be disproved. With regards to Ashish Kumar Mandol, Sumoti Rani Mandol and Samor Mistry the prosecution stated that from February, 2072 they are missing and the defence claim that they on 31.01.2012 were brought in the Tribunal and the prosecution informed the Tribunal that they have gone to the house of their relation and has not come back could not disprove the fact that from after 37.01.2012 they are missing. May be they have gone to India or they are hiding that also prima facie establish the case that upon threat of the terrorist, they are hiding themselves and as such without any evidence as to the fact that after 31.01. 2012 they were available, the finding of the Tribunal in the impugned order could not be unproved. The statement available in the so-called register, general dairy and food book that these 3(three) witnesses were in the safe house until 16.03.2072is a matter to be established by evidence. If it is proved that this statement in the so-called documents are true then their evidence will not be considered but at this stage we do not get any materials to review our order with regards to them. With respect to other 10 (ten) witnesses, although if it is found that the writing in the so-called documents regarding the witnesses are true then their case will not be considered. But at this stage we do not get anything to disprove that and to review our order regarding them

We have already found and observed that the statements of the 15(fifteen) witnesses have only been received in evidence if it is found that the facts and circumstances of the case established that the witnesses may be some of them or all cannot be considered for this matter then appropriate measures mav be taken in course of time- But at this stage we do not find anything to deviate our findings passed in the impugned order and as such there is no merit in the review application and it stands rejected.

After the order was read out, the following interchanges took place in the tribunal

Mr. Abdur Razzak: My Lord, you three were present when presenting the review petition but today you two are passing the order.

Justice Nizamul Huq: the other judge is sick today.

Mr. Abdur Razzak: Then you could wait for his recovery and presence.

Justice Nizamul Huq: The order has been passed by the Tribunal not by two of the members. So you can’t challenge that we are not unanimous.

Mr. Abdur Razzak: The presence of the three members was very much necessary.

In the meantime Mr. Tajul Islam has started saying some words which had annoyed the Tribunal and the Chairman urged Mr. Tajul not to try to mislead or misinterpret anything.

Tajul Islam: I am not doing so, but we are prejudiced.

Justice Nizamul Huq: Mr. Razzak, you have submitted some documents regarding the safe home, we have left it for you to prove by evidence. You are the defence lawyer, you know how to prove your case.

Mr. Abdur Razzak: We have already submitted some documents in favor of this, now what else left to prove.

Tajul Islam again interfered.

Justice Nizamul Huq: Mr. Tajul, I repeat don’t do it.

Mr. Abdur Razzak: The presence of all the members was expected and needed but I’m feeling prejudiced for this. It will not sound as reasonable.

Justice Nizamul Huq: It is the Order of the Tribunal.

Haidar Ali: My Lord, who are they to decide, what is reasonable or not. The Tribunal will decide that.

Tajul Islam: Yes, all will go in your favor. [Saying towards the Prosecutor.]

Justice Nizamul Huq: Mr. Tajul, you are crossing your mark. You must control your tongue. We are giving you warning for the last time. You are practicing for nearly about 15 years, these are not expected behaviors from you. You must be more careful.

Tajul Islam: Whatever I have seen in the very first stage of my practice is not found today, I feel disappointed for that.

Mizanul Islam: My Lord, I have a query, if you two could pass order after hearing the matter by the presence of three members; then how can three of you pass the order after hearing today’s matter, when one member is absent.

Justice Nizamul Huq: The other member is sick today.

Mr. Abdur Razzak: My Lord, we would like to receive today’s order immediately in our hand.

Justice Nizamul Huq: In easy Bangla, we hereby state that you have to prove all the things which you have produced.

Mr. Abdur Razzak: Much obliged My Lord.

Abduction of defense witness outside tribunal

Shukharanjan Bali

This is the first of a number of blogs about the alleged abduction of an International Crimes Tribunal (ICT) defense witness, Shukharanjan Bali, on 5 November 2012.
[See also:
- 'Defence lawyers inform tribunal about alleged abduction, 5 Nov 2012)
- 'Tribunal response to abduction allegation';
- 'Tribunal prosecution and Registrar Denial';
- 'Habeas Corpus Application in the High Court'
- 'Habeas Corpus Application; Rejected as not pressed'
- 'Exclusive: wife of abducted defense witness speaks out'
- 'Evidence of Abduction? Look at the tribunal CCTV cameras'

I have interviewed three members of the ICT defense legal team who were in the car from which the witness is said to have been taken by law enforcement officials

I have also interviewed two journalists (both of whom work for the Daily Sangram, a pro-Islamic/pro-Jamaat national paper) who were eye witnesses to the abduction.

Although there remains at present no entirely independent witness to this abduction, this allegation is credible in light of the background circumstances to this incident, the detailed corroborating accounts provided, and the photographs taken of the police vehicle in which the Bali is said to have been taken.

(To read about the response by the tribunal to this incident, click here)

Background to Shukharanjan Bali at the tribunal

Prosecution witness: Shukharanjan Bali's name was on the list of 68 prosecution witnesses who were supposed to testify on behalf of the prosecution against Delwar Hossain Sayedee. In the end, however, the prosecution only presented 20 of these witnesses to the tribunal.

In March 2012, the prosecution filed an application asking that the tribunal accept as evidence the unsigned statements of 46 of these witnesses who had not given oral evidence at the tribunal.
These statements are said to have been made by the witnesses to the investigation officer. They were given to the tribunal (and the defense) at the time of charge-framing.

Bali was ones of these 46 witnesses. He had not given oral evidence, and the tribunal wanted his statement to the investigation officer to be admitted as evidence. In the statement, he appears to be a strong witness against Sayedee. The statement reads:

‘On 2 June, 1971 at about 10 am, we saw under the leadership of Delwar Hossain Sayedee alias Delu, the peace committee, armed Rajaker force ….. guiding Pakistan soldiers to our Hindu block. …. To see what they will do, we followed them from behind. Entering into the village, they looted the 25 houses. ... They set fire on each and every house and burnt them to the ground.’

The statement goes on:

‘Armed Rajakers captured my brother Bisha Bali and after tying him to a coconut tire they started to flog him. Then according to the order of Delwar Hossain Sayedee alias Delu, a Rajaker shot and killed my brother. I saw the killing of my elder brother with my own eyes and became very frightened.’

In Bangladesh, generally statements made to an investigation officer are not entitled to be accepted as evidence - only testimony of witnesses given in court. However, section 19(2) of the International Crimes Tribunal Act 1973 allows statements to be admitted as evidence if the witness:

'at the time of the trial, is dead or whose attendance cannot be procured without an amount of delay or expense which the Tribunal considers unreasonable."

In relation to Bali, the prosecution in its application stated that he was 'missing for about last 4 months after he went out of his house' and therefore his statement should be admitted.

Although the defense argued that the criteria set out in section 19(2) had not been met in relation to any of these witnesses, the tribunal on 29 March passed an order allowing 15 of the witness statements to be admitted. 

The fifteen included the statement of Bali.

In late May/early June, the tribunal heard a review application of the order that had been lodged by the defense. As part of that, the defense showed to the tribunal a short news piece that was broadcast on Diganta TV which included a short interview of Bali where he stated: '“They wanted me as a witness but I have said that I did not want to give any false witness. Just I have to tell the truth what I know.” The news piece contained the statements of three other witnesses which suggested either that they were available to give testimony (in conflict with the prosecution claim) or that the statements that the court had admitted as evidence did not reflect what the witnesses had said to the investigation officer.

The defense argued that Bali was available to give evidence to the tribunal - but that the prosecution did not want to call him as he would not provide evidence that supported its case.

From prosecution to defence Witness: The defense had provided the tribunal with a list of 48 witnesses that it intended to call. Bali's name was not on that list.

On 14 August the tribunal passed an order stating that it would only allow the defense to bring 20 witnesses - the same number of witnesses that the prosecution had called. In early September the defense started to bring its witnesses

On 21 October, the defense filed an application asking the tribunal to issue a summons requiring Bali to come to the tribunal as a defense witness. This stated:

.... Shukharanjan Bali has direct knowledge of the alleged incidents of the case. He is the brother of the late Bishabali who was allegedly killed at the instruction of the accused as per charge 10 of the instant case. As such it is necessary to issue summons upon Shukharanjan Bali so that he can give evidence as Defence Witness.

This application was heard on the 23 October, and the tribunal ruled that it would not issue a summons, but that the defense could bring any witness that it wanted.

Two days later the tribunal ordered the defense to close its case and fixed 5 November 2012 for the prosecution to sum up its case. On 31 October, the defense made another application asking the tribunal to allow it to bring Bali (and another witness) to testify prior to the beginning of the prosecution summing up. The tribunal said that it would hear the application on 4 November.  According to the defence lawyers, Bali was brought to the tribunal on that day, spending the whole day in the defense room. However the tribunal did not hear the application.

The next day: the abduction
Whilst in Dhaka, Bali stayed at the house of a relative of his and on the morning of monday the 5th October, he was brought from that house to the defense lawyers legal office in Purana Palton. This office is situated in the same building that another main defense lawyer, Mizanul Islam, was also living.

Bali was then taken to the tribunal in Mizanul Islam's white microbus. Mizanul Islam, who has to use a wheelchair, was in the front passenger seat. In the back was Bali with two lawyers on either side. One was was Md Hasanul Banna Sohag (a junior to Mizanul Islam), and another was Advocate Ansari. In addition, a person who helped Mizanul Islam was sitting in the seat behind. The car arrived at the gate at about ten minutes past ten in the morning.

When the microbus arrived at the entrance of the tribunal at around 10 minutes past ten (see diagram below) - this is about twenty minutes before the start of the tribunal - it found that (unusually) the tribunal gate was closed, and there with lots of police officers. (The registrar explained later to the Tribunal that the reason for this was there was a Jamaat  national day of protest and the tribunal had therefore increased its security.) On a normal tribunal day, not many journalists arrive by ten past ten - and it appears that this was also the case this day.

The car was stopped and the police said that everyone other other than Mizanul Islam and the driver, should leave the vehicle. The three lawyers and Bali then got out of the vehicle which then went into the court grounds.

Sohag, the defense lawyer, explains what happened:

"I was in the back of car. I was on left, beside me was Bali and on the right was Monjur Ahmed Ansari and behind me was Ashrafuzzaman, the helper of Mizanul Islam. When I got down from the car, when they saw Bali, four men came forward and asked him what was his name. He replied, 'My name is Shukharanjan Bali'. One of the men said, 'We have to talk to you, please come to us in front of the main gate in the police control room'. They slowly took Bali to their destination. I requesting them to please stop. I said, 'I am the appointed lawyer of Bali. He is our defence witness now, you cannot take him outside of the court.' I asked [the man] what was his identify. He said, 'we are DB [detective branch] personel. We have to talk with this man, please let us ask him some questions'. I requested him, 'Please whatever you ask you should ask before me, in front of me, in this place. Not outside the court, not outside these premises.' They did not take heed upon my request.  

My senior, Ansari said that 'I am going to collect your passes'. He went on foot [into the tribunal premises]. He went to collect the passes as without the passes they would not allow us to enter. It was due to out simplicity that they snatched him.  

One guy held Bali’s left arm, one guy held his right arm, and the third man was pushing him saying ‘hurray up, hurray up’. They were in so much hurry to take him there.  

I saw Golam Azam a journalist from Dainik Sangram as he was entering from the road. I asked him to come he with me. He was with me [walking down the pavement].  I was walking behind him. One of the drivers was in front of him. I walked all along with him [past the police post and down the pavement outside the tribunal] until he was put into the police van. [Whilst walking] I saw the DB man phone and ask the vehicle to come. The car came from that place [inside the tribunal]. It was in this direction [of the road]. 

At this time, Shahidul Islam [Sangram reporter] was passing on the road on a bike and I asked him to stop. Bali was taken around to the front of the car and the right door was opened and he was put in. Two police men were in the car, the driver and three DB policemen. Seven in all. My driver took photos using his mobile."

Diagram of area where alleged abduction took place.
Distances are not  proportionate 

Of those sitting in the car that took the witness to court, Sohag was the only one who was present right  the time when the three men took Bali until the moment he was put in a police vehicle and driven off. There were however three other witnesses

Golam Azam: Azam is a trainee journalist for the national newspaper, the Daily Sangram who has been working for the newspaper at the tribunal for about a month. He says he obtained his graduation and masters in Law from Rajshahi university. He got his job with Sangram paper though a friend of his father. He says that his father, and family, are Jamaat supporters, but that he has no political affiliation and he is not involved in politics. He says that he was not involved in student politics whilst at Rajshahi university. He said that he worked at Sangram as he needed a job, but that this does not mean he was a Jamaat supporter.

He came to the tribunal first by bus to the press club and then on foot to the tribunal. As he entered the High Court premises at mark 'X' on the diagram above, he says that he saw the lawyer, Sohag whom he knew from Rajshahi University days.

"I had just entered from the road and saw Sohag and he said that 'DB is taking away our witness'. Then I saw the men taking the witness, and kind of dragging him. They were wearing civil dress, while collar or check. There were three men, two on the side and one on the back. I followed them.  

I called my senior reporter, Shahidul Islam but he was not receiving a call.  I learnt later that this was because he was on his bike. As they walked down the pavement. I went to ask one of the men in civilian dress and asked him 'What was going on?', and the man asked for my identity I said I was a reporter. He said, 'Don’t make a big deal out of it, we are just taking him for interrogation.’ I enquired more what is the interrogation about. And then the man said 'Please don’t ask any more questions it is just standard procedure.'
I followed and then saw a white police car coming from inside the tribunal. It looked quite new. The the man whom I came to know was Bali was  put in a seat behind the driver.
Just before the man was put in the car, Shahidul Islam who was driving his bike down the road [adjacent to the pavement] saw me and stopped and asked what I was doing and I said, 'They are taking the witness away.' Then he brought his bike back to where the white car was. He did not say anything but just watched."

When he was shown a picture of Bali, he identified him as the man that he saw being taken into the vehicle.

The man in the foreground of picture number 1 (see below, taken by Ujjog) is said to be that of the journalist Golam Azam.

Shahidul Islam: He is a senior correspondent for the same newspaper that Azam worked for, the Daily Sangram.

"I was coming from my house by motorcycle, when I was came past I saw the incident. I saw one of the lawyers, and he said that, 'This is Bali and he is going to be arrested'. The vehicle came up from inside the tribunal. One man was holding Bali on the left side and another on the right. He came into the car on the right hand side, and he was taken away."

He has confirmed that he picture taken of a man on a red bike (see below, picture 3) is him on his bike at the scene of the incident.

Md Nurruzzaman Ujjol: He is a driver who is employed by the Jamaat-e-Islami. According to Advocate Sohag, Ujjol had already parked his car outside the tribunal (he was not the driver of the white microbus) and Sohag asked him to come with him. I have not yet been able to interview Ujjol, but he is the person who took three photographs on his his mobile phone.

1. White vehicle coming parked outside one of the tribunal
gates. The journalist Golam Azam is said to be the person
in the foreground. At this point, Bali is said to have already
been put in the car.

2. Close up of vehicle. Man on outside is claimed to be from
 detective branch. The unclear figure in the car is said to
be that of Bali who was wearing a white shirt on the day.
The face on the other side of the car, outside, is said to be
that of Advocate Sohag

3. Police vehicle leaving the tribunal with Bali inside. The man in the foreground of the picture
is said to be that of  the journalist Shahidul Islam 

Credibility of the allegation
The only witnesses available at present are the members of the defense team, one of their drivers, and two journalists of a newspaper sympathetic to the objectives of the defense team. Despite the lack of independent testimony, there is good reason to conclude that the defence witness Shukharanjan Bali was indeed kidnapped by the police outside the International Crimes Tribunal.

The photographs are particularly important. (a) In picture 1, the tree in the picture matches with the actual tree outside the gate from which the witnesses said Bali was taken; (b) in both pictures 1 and 2, the police vehicle is pointing in the direction of the road as though it has just come from the Tribunal, as the witnesses testify; (c) there are also two pictures that appear to show that both the two journalists witnesses, Shahidul Islam and Golam Azam, were at the scene of the abduction - an important piece of corroboration.

Without independent testimony, there is perhaps no conclusive proof that such an abduction has taken place. It is also of course notable that the only two journalists present at the time were from the Sangram paper. However the detailed testimony, along with the pictures do suggest that the defense witness was abducted by law enforcement personal outside the tribunal gate.

Corrections/Amendments
10 November 2012:
- The spellings of the names of Md Hasanul Banna Sohag and that of Shahidul Islam was corrected 
- The text was also corrected to make clear that Shahidul Islam confirmed that he was the person on the bike in picture 3, and that this was the picture of his bike. 
- It was clarified that the time of the alleged abduction was about 10:10 am, and also the following line was added: 'On a normal tribunal day, not many journalists arrive by ten past ten - and it appears that this was also the case this day.'
11 November 2012
- the following line was added the section on the journalist, Golam Azam: 'When he was shown a picture of Bali, he identified him as the man that he saw.'
12 November 2012
The original post said that Tajul Islam had said that the witness stayed at the house of Masud Sayedee, the son of Delwar Hossain Sayedee. Whist that was what Islam had said to me, this is apparently not what happened. In fact he stayed at the house of a relative.