Proceedings of Tribunal on the First Day of Deposition (Examination in Chief of Prosecution Witness No.1)

14 Dec

ICT-BD Case No 01 of 2011

Chief Prosecutor

Versus

Allama Delwar Hossain Sayedee

Date: 07th December, 2011. Wednedsday.10:30 am

(The conversations are not accurate and cannot be quoted. These are brief summary of the conversations)

The Accused was produced before the Tribunal at 10.35 am. The Tribunal took their seat at 10.38 am.

10.38 am

The Tribunal member took their sits.

Prosecutor Haider Ali (HA) – My lord the prosecution is filing Hazira (appearance) of six prosecution witnesses.

Chairman (Ch) – Ok. Call up the list.

Bench Officer – called the case for recording of witnesses.

Defence Lawyer Tajul Islam (TI) – My lords we have three applications.

Ch – OK your application – Place your first application regarding Exculpatory Materials. But you cannot read out the application – place your oral submissions.

TI – I need to place all my submissions in the application and as such I will need to go through the application.

Ch – no you will have to contain oral argument.

10.41 am – Application for Exculpatory Materials.

TI made oral submission and went through some part of the Application.

10.58 am

Ch – your next application.

Application for disclosure of Seizure list documents and Investigation report

TI made oral submission and went through some part of the Application. When TI wanted to go though the list of 41 seizure list documents but Ch objected.

Ch – you do not need to go through the list – we got your list.

TI – I have to substantiate my application and need to show which of the documents are not submitted by the Prosecution.

Ch – If the prosecution did not give those documents then they cannot rely on them. If these are given during the trial then you will be given a copy at that time.

TI – the Accused is entitled to get those documents before the trial. Why can’t we get these documents at this stage? How can we prepare our defence without these documents?

TI went through the list of documents.

Member Justice Jahir Ahmed (JA) – prosecution you should take note of the list of the documents as stated by TI.

TI – We must get these documents before trial. We cannot prepare the defence without these documents. The trial cannot start before that.

One of the prosecutor Jiad Al Malum shouted from the prosecution side and said that the defence should behave themselves.

Ch became very angry to TI – you cannot say that ‘the trial cannot start without your getting documents’. You can at best say that the defence will be prejudiced. You cannot say that the Trial cannot start.

The prosecution bench was shouting to support Ch.

TI – towards the prosecution (very loudly) you should not interfere at the time of my submission.

JA got also angry to TI – why you shouted in this tribunal. Do you know that in Milesovic Trial he only said two words without permission and he was ousted from the Court room.

TI – I had to shout to stop the prosecution since you did not give me protection from what Prosecution’s aggressive behaviour towards me.

JA towards Prosecution – we warned you repeatedly to stop side talk, but you do not listen to us.

HA – my lord we apologize for that.

TI – my lord I also apologize for shouting.

11.16 am

Application for adjournment –

TI made oral submission and went through some part of the Application.

JA – the list of sizure list documents in your earlier application does not involve Sayedee. Why you need them?

TI – we do not know the contents of those documents – how we can be sure that they cannot be used against me. Moreover these documents may include exculpatory materials. According to rule 18 we are entitled to get these documents before commencement of trial and for preparation of defence.

TI continued the adjournment application and informed the Tribunal that how the defence team was harrassed during the Pirojpur visit for PO visit.

11.27 am – Reply of the Prosecution

H/A – There is no law to file the first two application at this stage. So the applications are not maintainable in law. After our serving these documents the defence filed application for ineligible documents. At that time this tribunal asked us to provide those documents. We provided clear copies of those documents. So the matter of serving document is already decided. There is no further scope to file the first two applications.

HA – the seizure list documents are seized materials and we are not supposed to give seized materials at this stage. The law does not allow them. These applications are only to delay the proceeding of the case.

HA – with regard to the adjournment application – defence lawyer are now saying that they did not get protection in Pirojpur. But we have information that the defence lawyers went to our prosecution witness and threatened them. They went their will procession of thousands people and had political meeting. We have information that the concerned person has filed a general diary in the relevant Police Station in Pirojpur against the defence counsels and we are considering filing application in this regard to the Tribunal. This matter should be referred to the Bar Council.

HA – all the Applications are illegal and must be rejected. The defence referred some decisions in their application. But this may not be relevant as we did not get chance to check them.

Ch – can we pass direction upon the law enforcing agencies for protection of the Defence counsel?

HA – the Defence Counsel can apply to the relevant authority and there is no provision under which the Tribunal can pass such an order.

11.45 am – TI’s Reply

TI – the prosecution is making false allegation of threat to PW agaisnt defence lawyer. We are in fear that they may file false case against the defence counsel. The Defence counsel should be allowed to work fearlessly. We are here to assist the tribunal. We need protection from Tribunal.

TI – we are entitled to get the exculpatory evidence, seizure list documents and the Investigation Report. TI read out rules 18, 29, 35 and argued that since these documents are considered by the tribunal at the time of taking cognizance, framing of charge and will be used during trial against the Accused Petitioner, he is entitled to these papers and documents for preparation of defence.

TI – We must visit the places of occurrences to be able to cross the PWs. So the matter should be adjourned and the defence counsel should be allowed to visit the places with police protection.

11.55 am – Order of the Tribunal: (Chairman)

The Defence filed three applications.

  1. Disclosure for exculpatory materials;
  2. Disclosure of seizure list documents and Investigation Reprot;
  3. Application praying 3 relieves –
    1. Protection of Defence team for Pirojpur Visit
    2. Adjournment
    3. Fixing another date for submitting list of defence witnesses and documents

We have heard TI and HA and parused the application, rules and the Act. We have repeatedly said that this tribunal must follow the Act. Section 9 (3) provides “—-entire section—-“. Section 16(2) of the Act provides “—–entire section——“.

 

Upon perusal of the sections of the Act it is clear that what document is to be supplied and how long time the defence will get for preparation of defence. We found that the prosecution did submit all the documents and the Accused could not make out a case for the first two applications and as such they stand rejected.

For the 3rd application it was stated that the defence counsel did not get protection from proper authority during their Pirojpur visit. All the citizens of the country are entitled to get protection. The Superintendent of Police upon the prayer is to decide what protection to be given. Regarding the prayer for time to submit list of defence witnesses and documents though they were given sufficient time for that but they failed submit that until now. We allow some more time to the accused to submit the witness list and documents within one week on 14th December 2011 as last chance.

Call the prosecution witnesses.

TI – since this Tribunal allowed one week for defence to submit documents and witness list the PW recording should start from that day. We still do not know the mode of recording.

Ch – the Prosecution Witness (PW) should start now. Regarding mode of recording you can see that there are monitor in defence and prosecution table and near the judges. The testimoney will be typed by court officer and that will appear in those screens. You may object for incorrect recording. We are trying to audio record the depositions but the facilities are not prepared today. We hope that it can be prepared tomorrow. For the purpose of witness protection the PW will only say their name and will not disclose their father’s name and address.

TI – we should get type copy of the Statements at the end of each day.

Ch – you should make application for certified copies at the end of each day and will get it hand to hand.

12.10 pm – PW-1 Mahbub Alam Hawlader entered the witness doc.

Chair was arranged for him.

12.14 pm

PW-1 took oath

Prosecution S. Rahman (SR) took the chief (Please see the attached file)

1.10 pm the proceeding was adjourned for lunch until 2.00 pm.

 

2.05 pm – Proceeding restarted

HA – there are three people in the court room namely (1) Naser Mollik (one possible defence witness and Sayedee’s nephew), (2) Mr. Saleh (Sayedee’s Nephew), (3) Mostofa Sayedee (Sayedee’s younger brother). Our PW’s are in fear to talk in front of these persons. They should be removed from the court room.

Ch – called those three persons who stood up. Do you have permission to enter the tribunal.

3 persons – yes we got entry pass from the office of the tribunal.

Ch called the Deputy registrar to check that who replied that he had no knowledge about how and who issue entry pass.

Ch – the PWs are in fear to talk in front of you. Can you all 3 please leave the court room.

3 person left the court room.

Sayedee – I want to talk something. These are my relatives. Why they cannot stay during the court proceeding.

Ch – PWs are in fear of them.

Sayedee – if PW’s are telling the truth then why should be fear of anybody.

2.15 pm – PW-1 entered the doc and continued until 3.30 pm. (his statements are attached)

3.30 pm

Examination in chief ended and defence was asked to cross.

TI – Since we have no knowledge of the places of occurrences as stated by this PW we are not in a position to cross him. The proceeding may adjourn for today and we should be allowed police protection during this weak end on Friday and Saturday for visit of Places of occurrences and we may cross this PW on Sunday.

Ch after discussing with his members – we may allow you for cross of this PW on Sunday. But we will have to start examination in chief of PW-2 now. We cannot sit ideal for rest of the day and tomorrow.

HA – the defence should be asked to Cross this witness now.

Ch – can we take examination in chief of PW-2 and continue for tomorrow. We can take the chief of PW-3 tomorrow and allow the defence to cross them on Sunday.

HA – OK.

Ch – Call PW-2

3.40 pm – PW-2 Ruhul Amin Nobin entered the doc

PW-2 took oath. (his examination in chief will be given later on)

3.55pm

The proceeding Adjourn for tomorrow.

TI – We need type copy of today’s recording. Here is our application.

Ch – you can get it tomorrow.

TI – but you said that we would get that at the end of the day.

Ch – today is first day of recording of witnesses and so take it tomorrow.

TI – but we need them today.

Ch – don’t worry, you will get it tomorrow.

TI – Can you please pass a formal order regarding protection of the prosecution witnesses.

Ch – Ok we will pass this.

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