The Tribunal read out its order rejecting the application for retrial in the case of Golam Azam. It stated that the order also applied to the cases of Sayedee and Nizami as the facts and legal points of the applications were the same.
The Tribunal began by noting that it had not yet been determined who hacked and illegally recorded the alleged skype and e-mails conversations, or when and in which country the recording took place. It said that these relevant questions must be resolved first, before taking the substance of the conversations into account. The order further stated that hacking is a crime committed with a malafide intention and that the court cannot rely on evidence that is the product of hacking.
The order further stated that the the Tribunal has taken evidence through public and transparent procedure. The court stated that evidence adduced in the cases is to be evaluated and is the sole basis for arriving at a decision in a given case. The key matter is how far the prosecution has been able to establish its charges. In the process of such evaluation of evidence the alleged skype conversations and e-mail will not prejudice either party.
The order said that there is no express provision to hold re-trial or re-call any order of Tribunal under ICT Act 1973. The order stated that there is a settled principle of law that the inherent power of a court cannot be invoked where there is an express provision in the Act giving a remedy and here they find express provision under section 6(6) of the ICT Act 1973. This provision allows for the bench to be reconstituted as necessary and for a newly seated judge to pass a decision based on the record
The tribunal found no reason to exercise its inherent power under 46(a) of the ICT Act. They stated that all the orders in these cases have been passed by three judges, not by the chairman alone, and that the majority view has prevailed and is insulated from any possible bias that the Chairman might have held. Tribunal said in its order that the Defence did not produce any document to show that hacked documents are admissible in evidence. The Tribunal said that they learnt from the opinion of an IT expert that skype conversations can be manipulated and therefore concluded that it could not rely on the alleged conversations. Tribunal stated in its order no reliance can be placed upon such hacked documents which are inadmissible in evidence, therefore, the prayer for recalling the Charge Framing Order is rejected and the application for retrial denied.
Tribunal Will Rehear Closing Arguments in the Sayedee Case
The Tribunal did state that uniquely in the Sayedee case it would listen to closing arguments by both the Defense and the Prosecution as the former Chairman had resigned after these arguments and therefore the current Chairman did not hear these arguments. It scheduled the prosecution’s closing arguments for January 13-14 and the Defense for January 15-17.