Proceedings of the Hearing on How Investigation agency committed Fraud on Tribunal Re: Prosecution Witnesses on Allama Delwar Hossain Saydee’s Case (Details of Documentary Evidence included)

15 Jun

ICT-BD. Dhaka. Case No 01 of 2011

Chief Prosecutor

Versus

Allama Delwar Hossain Sayedee

Date: 11th June, Monday. 10:30 am

Sub: For Witness (Cross examination of PW 28, Mr. Helal Uddin) and Application

All members of the Tribunal took their seats at 10:32 am. The Accused was produced before the Tribunal at 10.30.

There were One Items in the Cause list.

  1. 1.    ICT-BD-CASE NO 01 of 2011

For witness

 

Chief Prosecutor        VersusDelawar Hossain Sayedee

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

10.36 am

Item – 1 – Application hearing – Application for Review of the 19(2) order.

Defence Counsel Abdur Razzaq (AR) – made the following submissions:

Þ  We have submitted the General Diary (“GD”) Book, Prosecution Witness (“PW”) Attendance Registrar and the Food Registrar of the Safe House which shows that PWs namely, Ashish Kumar Mondol, Somor Mistri, Sumoti Rani, Abdul Latif Hawlader, Shahidul Islam Khan Selim, Khalilur Rahman, Ayub Ali Talukder, Anil Chondro Mondol, Bozlur Rahman, Mukundo Chakrabarty, Manik Hawlader, Mokhles Poshari came to the Safe House on Different dates. But the prosecution and the Investigation Officer (IO) is claiming that they are not available to give evidence before this Tribunal. Food Registrar of the Safe House shows that these witnesses regularly took foods in the Safe House. The GD Book of the Safe House contains detail entries regarding movement of these PWs which shows that most of these witnesses were brought to the Prosecution Office. But these PWs were not produced before the Tribunal as they were not ready to give false evidence against Mr. Sayedee.

Þ  Prosecution is now claiming that these three Registers of the Safe House are concocted. I will prove that it is impossible to concoct these documents. (AR went on to show the different entries in the said registers about PW1 Mahbub Alam Hawlader, PW 2 Ruhul Amin Nobin, PW 5 Mahtab Uddin Hawlader, PW 23 Modhu Shudon Ghorami) These PWs came to the Tribunal for giving evidence on different dates. These dates are also recorded in the GD Book. If you check the dates in the Tribunal records and the GD book you will find that they mach.

Þ  Please see how meticulously the GD Book was maintained. It contains hourly record of the Safe house from 18th October 2011 to 31st March 2012. It is impossible to create this document by a third party.

Þ  Regarding PWs Ashish Kumar Mondol, Somor Mistri, and Sumoti Rani on 2nd February 2012 one of the prosecution informed the Tribunal that they were unable to come to the Tribunal as they left the Safe House on the previous evening in the name of their families and never returned back. Prosecutor misled the tribunal. The above three registrars of the Safe House that these witnesses were in the Safe House at that time and they stayed there for 46 days until 16th March 2012.

11.15 am

Chairman, Mr Justice Nizamul Huq (“Ch”) – AR, you do not need to go in detail of these registers of the Safe House. If these documents are found to be true then what is your submission?

AR – Ok, I will not go that detail. That may take more than a day. But I should show you that there is no scope for any other person to create these documents. The prosecution is claiming that we have created these documents.

Þ  Entry No. 115, 116, 117 dated 8.12.2011; entry no 120 dated 09.12.2012 of the GD Book shows that PW1 received threats from different phone calls and GD Nos. 490, 491, 492, 516, 534 were filed to Jatrabari Police Station on those dates. You may check the records of the Jatrabari Police Station. How we could know these information. It is impossible for us to create these documents.

Þ  Entry No. 59 dated 22.10.2011 shows that they purchased furniture, cookeries in the Safe House. It contained a list of those things. How anyone other than the concerned officers of the Safe House can keep such detail notes.

Þ  Entry No. 249 dated 16.01.2011 shows that PW 13 – Gourango Chondro Shaha was given gift by the police officers for giving evidence against Sayedee. It is recorded that he was treated with sweets. You can check your records that PW 13 gave evidence on that day.

11.30 am

Member Judge Zahir Ahmed (ZA) – You purpose is to argue on you application for review of the 19(2) order. So you want to show that the 15 PWs were in fact available to give evidence.

AR – We will go beyond that. I will show that the IO has committed fraud with this Tribunal. He has perverted the course of Justice. The Prosecution is now claiming that we have created these registers. I will show proves that these are genuine documents.

Þ  Entry no 75 dated 06.02.2012 and Entry No. 175 dated 23.02.2012 of the GD Books shows payment of telephone bills of the Safe Houses telephone numbers being 7547810, 7547807 and 7547804 to BTCL. I will show you the original record of the BTCL showing that those telephone bills were paid on those dates. These are the original bills.

Þ  Entry No. 175 dated 12.01.2012 shows that on that day the Sub-Inspector of the Safe House, Kala Chad Ghosh, went to give evidence in Chawkbazar P.S. Case No. 41(03)10 in Metropolitan Magistrate Court No. 31, Dhaka. We have collected the copy of that case which shows that SI Kala Chand Ghosh gave evidence in that case on that day. This is the document.

Þ  These supporting documents conclusively prove the genuineness of these three Registers of the Safe House.

Þ  This GD book mention that it was maintained as per section 377 of the Police Regulation of Bengal (PRB).

11.56 am

Ch – How you got these Registrars? It appears that the defence team are very expert in collecting and steeling secret documents?

AR – before you ask this, I want to show you some decisions

Þ  48 DLR (1996) 108, Para – 11 – you should not look into how I collect a document. The test is relevance. If the document is relevant then you should consider them.

Þ  ALLER (1995) Vol-1 236 (P.C) – Even if we steel a document, if it is relevant you have to consider them.

Ch – we do not dispute these legal position. But it is criminal offence to steel any document.

AR – Why don’t you ask the IO and the Prosecutor as to why they are denying these documents. Isn’t it fraud with this tribunal? We are assisting this Tribunal.

Ch – do you have any decision on concoction of evidence

AR – yes – two cases of ICC

Þ  Prosecutor v Lubanga – relevant paragraph is 483 – we are giving you the link http://www.icc-cpi.int/iccdocs/doc/doc1379838.pdf at paragraph 483

Þ  Mbarushimana (DRC case). The relevant paragraph is at 51, Link:  http://www.icc-cpi.int/iccdocs/doc/doc1286409.pdf

Þ  In  Prosecutor v Lubanga it was suggested that proceeding should be drawn against the person who forced the witnesses to change their statements. IO did the same thing here in this case

12.10 pm

Ch – Even if we find that this Registers of the Safe House exist, how we can find that IO has forced the witnesses to tell lies?

AR – certainly you can. It can reasonably be presumed. Why the IO and the Prosecution are denying these documents? About PWs Ashish Kumar, Sumoti Rani and Somor Mistri the prosecution claimed that they left safe house on certain dates. But we could show you that they were in the Safe House at that time. If the PWs were here, why they were not produced before this Tribunal?

Ch – But you are arguing on your 19(2) review application.

AR – we wanted to file an application for discharge and drawing up proceeding under section 11(4) against the IO. You told us not to file and hold the application. We want to file it now.

Ch – Ok, file it now.

12.28 pm

AR – So my final submissions are –

Þ  the foundation of this case is based on fraud. So this case should be discharged. The accused should be acquitted.

Þ  The prosecution failed to perform their sacred duty. They are supposed to bring the truth before the Tribunal so that the Tribunal can do justice. In stead, the Prosecutors and has taken recourse to unlawful means against Mr. Sayedee. Their only intention is to secure conviction for Mr. Sayedee by any means at any cost.

Þ  The Investigation Officer has committed fraud upon the court and perverted the course of justice. This is why proceeding under Section 11(4) of the ICTA 1973 should be brought against the Investigation Officer.

Þ  The fraud of the IO proves that the whole proceeding is tainted with malafide intention to prosecute Mr. Sayedee for political reason. So Mr. Sayedee should be acquitted immediately.

Ch – We do not have power to discharge the case at this stage.

AR – You have inherent power for ends of justice. It will be a sad day if you proceed against Mr. Sayedee even if the fraud of the prosecution and the IO has revealed. It will be a black chapter in our judicial system.

Ch – We may investigate this matter.

AR – If you appoint any investigator to investigate this matter then it will go to the cold house. We all know how the investigation happens in BD. We know the fate of investigation on the killing of Saudi Official Khalaf, Journalist couple Sagor & Runi, abduction of Ilias.

Ch – You are arguing on your Review Application. It may be fully or partly allowed or dismissed. We have no other alternative. We cannot discharge the case while at the time of disposing this review application.

ZA – We have already examined 16 PWs on fact. How we can discharge the case without scanning those evidence. That can be done in the judgment only.

AR – If you allow our 19(2) review application then you must rely our submission of the fraud of the Investigation Officer. Fraud vitiates everything. The basis of this case has gone. These 16 PWs are brought by this IO. How you can rely upon them. You may ask for fresh investigation, if you wish.

12.40 pm

ZA – we must scan these 16 PWs of facts and pass judgment on them.

Ch – we can discuss these issue of fraud in our final judgment. Why we should discharge the whole case now?

Member Judge Anwarul Haq (AH) – How we can discharge this case on your review application.

AR – This is why we have filed a fresh application. The IO and the Prosecution has already lost their credibility.

12.55 pm

Ch – we will hear HA at 2.00 after recess.

HA – I want to reply tomorrow.

Ch – We want to finish these side track matters. HA – you will reply at 2.00 pm.

AR – This has now become main track. If Cr.PC was applicable, I could have filed an application for quashment of this proceeding under section 561A before the High Court Division.

AH – Under the Act and the Rule we cannot discharge the case at this stage. We could have discharged at the time of framing of charge.

AR – you can do this for the ends of justice. You cannot ignore these registers of the Safe House.

1.00 pm – adjourned for recess.

2.02 pm – resume after recess.

HA’s Reply

Þ  In our 19(2) application we applied for 46 PW. These are under four categories – sickness, threat, unavailability and old ages. But you admitted only 15. This order is no longer review-able. You can consider the defence arguments at the time of final judgment.

Þ  Defence filed a reply against our 19(2) application where they mentioned ‘witness secret hostel’. After more than a month of your 19(2) order they now file a review application claiming it to the ‘Safe House’. They have created these registers within this one month time for filing this review petition.

Þ  there was fraud – by you have to determine who have committed fraud.

Þ  defence want to impress upon you by correlating one of these Registers with another register. But these documents never existed. This witness home is not a police station. There is no scope to maintain any GD book in that home. For maintaining a GD Book there must be an order of the Government. Where is that order? This witness home was created as per Rule 58A, not by any government order. So there is no scope to maintain any GD Book here.

Þ  There is a witness home for PWs. It is not called ‘Safe House’. You pass orders for attendance of PWs in that home. No one knows about that order. Even we do not know. How some one else could know this.

Þ  There is no scope to maintain any GD Book in the witness home under section 377 PRB. These registers are concocted by some one who is expert in doing this. This is like fake currency. General people may not be able to identify. But it is fake.

Þ  the defence prayer for discharge shows that these documents were concocted to substantiate this argument.

2.20 pm

Þ  We have annexed a report in today’s reply which shows that these documents are concocted.

Defence Advocate Tajul Isla, (“TI”) – we were given copy of the reply. But it does not have copy of any report.

HA – This report is a secret one. You are not entitled to look into it.

TI – I have right to see this since you are using this against me.

HA – No we will not give you this report.

Þ  According Rule 51(2) the onus of proving these registers of the Safe House is on the Defence.

Þ  The Investigation Agency is not a party to this proceeding. They are created under law and the rules said that all their actions will be presumed to have been done in accordance to law. So you cannot proceed against them.

Þ  Regarding PW – Usha Rani Malakar – the defence submitted a TV interview. It is not stated when this interview was taken. It must be disclosed. This interview could have been taken long ago before this case.

Þ  Regarding other PWs in the TV interview, we are not getting them. How the journalist could get time? This proves that the people of the Accused are approaching and threatening the PWs. These concocted registers of the Safe House also shows that our PWs are being threatened.

Ch – So you are saying that the Defence has onus of proving these registers of the Safe House.

HA – Yes, the onus is on the defence.

2.40 pm

ZA – According to Section 377 of PRB – this GD Book need to be kept in Form – 65. We can see that the GD Book of the Safe House is maintained in the correct form.

HA – Those how created it they followed the correct form. This is not a Police Station. PRB is not applicable.

ZA – You today’s report in the reply shows that it was given by a person holding post of Inspector General. If PRB is not applicable why the officers of the Investigation Agency is using the designations of police.

AR – we are not given copy of this report.

HA – this is a secret report. The defence cannot get a copy.

AR – My friend is violating the Bar Counsel Rules. He must give us copy of all documents which is submitted before the Tribunal. We always give copy of everything to the Prosecution before submitting them to the Tribunal.

Ch – this is not a secret report. HA, you should given defence copy.

HA – Ok, we will give copy later on.

AR – No, you should give us copy now and then submit.

Ch – HA, give them copy now.

HA – We do not have copy now.

Ch – you take sit, copy it and then submit.

2.50 pm

AH – to AR – there is no scope to discharge after framing of charge. We can only acquit or punish.

AR – these are mere terminology. If you think Acquittal is the right term then we can amend our prayer in the discharge application.

2.55 pm

HA – According Section 9(5) the burden of proving these registers of the Safe House is on the Defence.

ZA – How section 9(5) can be applicable here? These registers may come under Section 19(4).

HA – there is no scope to pass any order depending upon this documents at this stage.

3.00 pm

HA – this GD is part of conspiracy. This is like fake currency. This is created by expert hands.

ZA – Look at the telephone bills submitted by the defence (Annexure – D). Do you admit that these are telephones of your witness home?

HA – At least one number I can admit. This is 7547804 of the witness home. I cannot confirm the other numbers.

ZA – can you read out the address in the telephone bill. This is the same address of the Safe House mentioned in the GD Book.

HA – I need to check.

ZA – you are saying that there is no record in your witness home. No record of Account. How can this be?  You are spending government money and you do not keep any account.

HA – I do not know how, but this is fact.

AH – How the witness home account is audited without any record.

HA – They need to take bulk amount without specification. The audit may be done later on. We must keep confidentiality about the witness home. This is why we do not keep any record.

3.15 pm

ZA – all the offciers and contables in your witness home are government employee. How they can do their duty in the Witness Home without any register. If any staff is sent to any place then who keep the record of that incident.

HA – This is kept in the Head Office in Baily Road.

ZA – who maintain duty roster of the Safe House?

HA – It is maintained in the Safe House. Sometimes the same is maitained in the Head Office.

ZA – How? The staff’s duty is in Golap Bag. You are saying that the records and duty rosters are maintained in Head Office which is more than five miles from the witness home. Why register is maintained in the Head Office. Who will issue relevant order and maintain record if any officer is sent to another place.

HA – These are kept in the Head office.

ZA – you need to go for more than five miles to record every order. What will happen if any officer has any accident in his way to Head office? Where is the record that the Officer was going to the head office?

HA – (silent)

3.20 pm

ZA – Defence annexed some news report on the safe house long ago. Did the Investigation Agency publish any rejoinder against those reports, if they are flase.

HA – We do not believe news reports. So, no rejoinder is necessary.

Ch – our order about the PWs are very sectet. How these can be published if these news reports are correct?

HA – there is no authenticity of these new reprots.

ZA – But the dates mentioned in the news paper reports, GD Books and our Tribunal Records all mach each other.

HA – But you should note who is taking benefit of these documents. You may presume from this who may have created these documents.

3.25 pm

HA – IO bring PWs in the Safe HOme secretly. How the defence can say that PWs did not agree to give evidence? This proves manipulation. There is no malafide on the part of IO. No proceeding should be drawn against him.

3.30 pm

HA – the accused is not prejudiced by the 19(2) order. You merely received those 15 PW statements as evidence.

ZA – but you have exhibited those documents through your IO. This is now part of the record and will be used against the accused.

HA – but you may reject these statements at the time of your judgment even if they are admitted under 19(2). Regarding PW Usha Rani Malakar’s TV interview there is no proof that this is a recent interview.

ZA – but the defence is claiming that she is not sick as you claimed. You did not file any supporting medical evidence of her sickness.

HA – But she is of old age. Review of this order is not necessary.

ZA – But defence came up with specific grounds of faud. They are claiming that due to that the statements of these 15 PWs should not be received as evidence.

HA – but you should assess these registers at the time of judgment. Please play the TV interview of PW Usha Rani Malakar submitted by defence. I will show how things are concocted.

3.50

DTV News report played.

Ch – see what is the question asked to the leady? How a journalist can ask a PW whether he give evidence against the Accused? we should look into this matter.

TI – you should look into what this PW is saying. This PW is clearly denying giving any evidence to the IO. She denied giving any evidence against Sayedee.

Ch – (very angry) – we know what we should see? you sit down.

3.55 pm

Ch – this video merely shows that these PWs denies giving evidence. They do not claim that they are available. This is not supporting the defence case. How the defence can say that they are now available to give evidence.

HA – yes. Moreover, you can consider all these documents and videos at the time of your final judgment. No need to review the 19(2) order.

4.00 pm

AR – I will reply tomorrow.

Ch – no – we want to finish this today. we do not want to drag it. If you have any reply – give it now.

AR – Reply to HA’s Reply

Þ  If the onus of proving these registers of the safe house is on us, we have proved it by (1) the telephone bills. HA has already admitted at least one of these phone numbers are of thier witness home. (2) Kalachand’s giving evidence in a case before metropolitan Magistrate, Dhaka which is also recorded in the GD Book and (3) by the contents of the Registers itself. They are so detail that it cannot be ignored that these documents exists. Now the onus has been shifted on the prosecution to disprove this documents. It is accpeted rules of evidence.

Ch – We do not follow the rules of evidence here.

AR – but you must follow ensure justice.

Þ  Rule 51(2) does not apply. Even if it applies, we have complied with this.

Þ  HA claims that there is no government order for opening this GD Book. But Page 40 of Annexure B (GD Book) referes the government order for opening this book.

Þ  After your order the Porsecutor has given us copy of the report they submitted today before you. This report also proves that these registers of the safe house are correct. If you check the constable numbers mentioned in today’s report and the constable numbers of the same persons mentioned in the GD Book you will find that they are same (AR showed these one by one).

Þ  HA submitted that no record is maintained in the Safe House. How can this be true? How can an important place line witness home run without any record?

Þ  If you are not convinced by these registers of the Safe House – call these concerned officers of the safe house – we will cross examine them in open court.

Þ  If these register exist then there is no scope to reject our review application

Þ  The fraud of the IO has been revealed – so the accused should be acquited.

4.18 pm

Ch – the order on this review application will be CAV (reserved)

AR – pending disposal of the review application cross of IO should be stayed.

Ch – No – the law will take its own course.

AR – How IO can be cross examined pending disposal of this review petition.

ZA – IO cross may continue on the other matters.

Ch – IO cross will continue tomorrow at 10.30 am.

Case adjourned for the day.

4.25 pm

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