Proceedings of Final Day of Defence’s Cross Examination on Prosecution Witness No.1

18 Dec

ICT-BD.Dhaka. Case No 01 of 2011

Chief Prosecutor

Versus

Allama Delwar Hossain Sayedee

Date: 15th December, 2011. Thursday, 10:30 am

Sub:    Recording of Evidence (Cross examination of PW 1 finished)

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

The Accused was produced before the Tribunal at 10.30 am. The Tribunal members, including the Chairman took their seats at 10.37 am.

 

10: 37 am

TI (Tajul Islam-Defense Counsel) – yesterday we wanted to question Prosecution Witness (PW1) about the 62000 fake free fighters that the Tribunal did not allow to ask. We thereafter filed a short application to allow the defence counsel to ask this question to the PW-1. We have not yet received any order on that application.

Member Justice Fazle Kabir (FK) – there is no need to pass any written order on that application. We have orally rejected your application.

TI – we are entitled to get a written order.

FK – you will not get any written order.

10.40 am

PW1 took oath for cross examination.

Cross examination taken by Defense Counsel Mr. Monjur Ahmed Ansari (MA).

12.40 pm

MA wanted to ask a question to the PW1 to show that some of his present allegations were not made against Saydee in his earlier FIR (First Information Report) in 2009 that he filed before the Pirojpur magistrate court which arises out of the murder of the same victim.

Haider Ali (HA) for the Prosecutor objected – the Defence cannot ask question on the FIR since it is not exhibited.

Chairman (Ch) – to MA – you cannot ask question on FIR of 2009.

MA – But I need to show the contradiction between his present statement and the previous FIR filed by him in 2009.

Ch – FIR is not a statement of PW1. It was a mere application before the Magistrate court. That FIR has not been exhibited before this Tribunal. An application cannot be subject matter for cross examination. It does not fall under the category of Previous Inconsistent Statement (PIS).

Mijanul Islam (MI) – another Defence Counsel – It is our right to show the contradiction between his present statement and previous statement.

Ch – You can only ask question on the contradictions with the statements made before this Tribunal. Moreover the FIR is not before this tribunal.

MI – We have filed this FIR as defence document. PW1 is maker of the statement in the FIR. We have the right to question on the contradiction. The PW1 has stated about this FIR in his complaint petition before this tribunal. Moreover at the time of his examination in chief he also made statement about this FIR. We will be seriously prejudiced if you do not allow us to ask question on the FIR. We should be allowed to put the contradictions in the FIR and his present complaint to the PW1.

Ch – a previous statement can only used as PIC if that is made before an authority.

MI – PW1 made the statements in the FIR as a complaint before the Magistrate of Pirojpur. The magistrate later on directed the relevant police station to treat this complaint as an FIR. So this statement was made to a competent authority.

Ch – the allegations in the FIR is regarding War crime and the magistrate is not competent authority receive such complaint. This tribunal and its investigation agency are the only authority to receive such complaint.

MI – but when the FIR was lodged there was no War Crime Tribunal.

Ch – we cannot consider the allegation in the FIR as ‘statement’. It was a mere application.

HA (prosecutor) – any previous statements that is made before this tribunal can be used to show contradiction. This tribunal is to run by its own rules and regulation. There is no provision in the Act or the Rules of Procedure to allow this types of statements (he meant the FIR) to show contradiction. He read out section 19(1) of the Act and argued that a statement made before a Magistrate under this provision may be used to show contradiction. Since the FIR was not lodged before competent authority it cannot be used to show contradiction.

MI – section 19(1) has no relevance in the present issue. Prosecution’s argument on this section is totally misconceived. Our present purpose is to put his earlier version to him to show contradiction from his present account.

Ch – section 19(1) may not be relevant. But you should see Rule 24(1)- (read out) – you can only take contradiction with the previous statement made before this Tribunal or to the Investigation Officer.

Member Judge Jahir Ahmed (JA) – I think we are missing a point here. The term should not be ‘contradiction’. The defence wanted to show that the PW 1 made some statement in the present which was never made by him earlier. MI you should think on this matter and we will discuss this after recess.

1.05 pm – Adjourned for recess.

 

2.10 pm – proceeding commenced after recess:

MI – before the recess the objection on PIS was made by the prosecution.

FK – no it is our objection, not from the prosecution.

MI – before filing any complaint the PW1 lodged this FIR in 2009 against the Accused. PW1 in his complaint before this tribunal and at the time of examination in chief has already mentioned about this FIR. We have now every right to question him on contradictions between his present complaint and the previous FIR. The prosecution and the tribunal referred section 19(1) of the Act and section 24 of the Rules of procedure to argue that the we cannot question on the FIR. But none of these provisions are relevant in the present issue. In our regular courts we are always allowed to ask question on any previous inconsistent statement made by the accused.

Ch – We have to forget and wash our brain about Cr. P.C (Code of Criminal Procedure) and Evidence Act. These are not applicable in the present proceeding. We are governed by our rules and procedure. There is no provision in our Rules to allow asking question on PIS which was not made before the Tribunal.

MI – Rule 24(1) – (read out) – not applicable

    Rule – 54, 56 – (read out) – relevant for this issue – the tribunal has wide power to consider this FIR as Primary, secondary, direct or circumstantial evidence. There is no restriction or bar in the Act or the Rules to not to allow question on a PIS.

    The Act and the Rules provides that the Tribunal should ensure fair justice. We are only here to assist the tribunal to do justice. PW1 has already said during his deposition and admitted in cross-examination about the FIR. It is also referred in the Complaint that the PW1 made before this Tribunal. The PW1 has admitted this. This FIR is certainly a document and there are contradictory statement between the FIR and his present complaint and testimony. The investigation officer of that FIR is also a Prosecution Witness in this case. For the fairness of this trial we should be allowed to ask question to the PW1 on this FIR to show contradiction. PW1 is maker of the statement and no one else can give evidence on this FIR. If we are not allowed to ask question on this FIR then how we can show contradiction of the statements of the PW1. This tribunal is to ensure justice. If we are not allowed to ask question to PW1 on this FIR we will be seriously prejudiced. It will stop the tribunal to find out truth.

HA – (prosecution) I want to show what can be used as evidence before this tribunal –

    Rules 2(9), 51, 56(3) of the Rules of Procedure – (read out)

    Rule 44 – (read out) – the FIR is not included as a document in the Rule 44.

    Section 19 – (read out)

    Fair trail means to act in accordance to law and our laws of the Tribunal doest not provide any provision allowing to ask question on a document which was not made before this tribunal.

    The Defence may bring this FIR through their own witness and it can be exhibited at that time. But before that they cannot ask any question on the FIR.

    This tribunal may consider this FIR as a matter of common knowledge and there is no need to ask question on that.

JA – MI you are talking about cross-examination, not about evidence. The PW1 has already said in cross-examination that he has corrected some of his mistakes on his previous statements. In this case why you need to cross him on the statement which he himself has said to have corrected in the present case. You can ask question to the Investigation Officer under Rules 40 and 55 about this FIR. The Investigator officer of that particular FIR is also a Prosecution witnesses. You may ask question to that IO also. Why you need to ask question to this PW1 about this FIR.

MI – It is not correct that the PW1 has said that he has corrected his Statement in the present complaint. He never said that he corrected the whole FIR. He merely said that he has corrected the name of the Accused in the present Complaint.

    If you are allowing us to question to the Investigation Officers about this FIR then why not to the person who made the statements in the FIR, i.e. PW1. We have every right to question him on his PIS. Read out Rule 53(2) and Section 10(h) – and argued – why I cannot question this PW1 about the FIR since he is maker of the FIR.

    This tribunal is to find out the truth and do justice.

Ch – we cannot go beyond law. Our law does not provide to allow you to ask question on FIR which is not made before the Tribunal. If you want you may bring this FIR to the knowledge through your own witnesses.

MI – But there is no prohibition in the Act or the Rules in this regard. These types of small matter need not be expressed in the law. For the ends of justice we should be allowed to ask question on this FIR to show contradiction in the PW1’s statements.

JA – if your purpose is to show that the PW1 has said something in the present case which was not said in the FIR, you may rephrase the question by asking whether those statements were made in any early occasion without referring to the FIR.

MI – but PW1 has already said about this FIR in his deposition. So we are entitled to ask question on this FIR.

Ch – you are wasting our time.

MI – Please pass a written order.

Ch – you have to file a written application for a written order.

2.45 pm

PW1 cross examination resumed.

3.05 pm

MA asked a question on the Complaint of the PW1 which is already exhibited.

HA (prosecution) – objected – Defence cannot ask on the exhibited document. It is already exhibited and proved and the defence cannot cross on its contents.

Ch – no we have already said that they can ask question on any exhibited document.

3.45 pm

Ch – you have to finish it today. You cannot make such a long cross examination. It is too much to cross this PW1 for five days. There are time limits on cross examination in other international tribunal. We may put this type of restriction.

TI – but you have said that this is domestic tribunal and you would not follow the other international tribunal. You cannot only consider those rules of other tribunals which are detrimental for the defence.

MA – We will finish today. I have only few question to ask. Then MA have some final questions to put the defence case to PW1.

Ch – we cannot allow you that much time. We have a program to attend and we must finish in few minutes. This witness will not continue for another day.

MA and MI – we will finish it today.

3.55 pm

MI started to ask final questions.

HA – objected. No further question should be allowed.

Ch was very angry to defence and despite that he allowed defence to ask a few last questions.

4.00 pm

MA asked a question to PW1 that from beginning of 1971 to middle of July 1971 the Accused was not in Pirojpur. The PW1 replied – he was not. The Prosecutor shouted and said that he was there. Then the PW1 corrected and said that the accused was in Pirojpur during that period. Defence counsel made strong objection and prayed to the Tribunal to record the first statement of the PW1 or to record both. But the Tribunal recorded the corrected answer of the PW1.

4.02 pm

Cross examination of PW1 finished.

Adjourned for Sunday

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