Today the Tribunal heard matters in the following case:
- Chief Prosecutor vs. Delwar Hossein Sayedee: Resubmission of Defense Closing Arguments (Accused was Present)
Mizanul Islam, Defense counsel for Sayedee, continued the resubmission of the Defense’s Closing Arguments for the 3rd consecutive day. The Defense began their closing arguments on January 20, 2013. On January 22, The Defense summed up arguments based on Charges 5, 14 and 16. Chairman A.T.M Fazle Kabir directed the Defense to complete their arguments within tomorrow’s session (January 23, 2013).
On January, 22, 2013 Mizanul Islam began the “summing up” portion of the Defense’s closing arguments. He discussed ‘Pach Tohobil’ (Fund of Five). The Tribunal warned Mizanul to keep his submission based on the charges against Sayedee and said the Fund of Five was not in any particular charge. In Reply Mizanul Islam said that Pach Tohobil is related to the allegations of looting and Charge 6.
The Defense stated that the allegation is that Sayedee gathered looted goods and sold them in order to form the “Fund of Five.” Prosecution witnesses 1 testified that the Fund of Five office was opened in Nogorboashi Shaha’s house, which was forcibly occupied. He further allegted that Sayedee was the secretary of the fund. Prosecution witness 2 alleged that the office was in Nogorbashi Shaha’s house and that the storage room was in Sultan Talkder’s shop. Prosecution witness 3 testified that Sayedee was the owner of the Fund of Five. Prosecution witness 12 said that Sayedee was the treasurer of the Fund of Five. However, the Defense noted that during cross-examination the Investigating Officer (prosecution witness 28) admitted that Sultan Talukder did not have a shop in Parerhat in 1971. The Defense therefore claimed that prosecution witness 2 must be lying.
The Defense also noted that the Chairman’s copy of PW 2 states that Nogorbashi Shaha’s house was the location of the Fund of Five Office. However, the copies of the other two tribunal judges and the copies given to the Defense list the name of Sultan Talukder in place of Nogorbashi Shah. The Defense challenged why these documents were different and stated that the Prosecution is under the obligation to provide the same copy to all parties. Mizanul Islam concluded that the prosecution’s case is contradictory and the witness statements in support of the charges of looting are inconsistent. They further stated that the documents had been fraudulently changed and that thie charges ae false allegations concoted by the Investigating Officer. Mizanul Islam claimed that Pach Tohobil did not exist and that Sultan Talukder only became the owner of the shop in 1973.
Charge 6: Allegation of Looting Modon Shaha’s house.
The Defense then addressed Charge 6, regarding the looting of the Modon Shaha’s house. First the Defense wanted to show some exhibits, claiming that the Investigating Officer had identified two different buildings (one a temporary structure, one a two storied building) as Modon Shaha’s house as evidence of discrepancies in the prosecution’s case. Justice Jahangir instructed Mizanul Islam to continue with his arguments and show the pictures at the end.
Mizanul Islam then began addressing prosecution witness 1’s testimony. Prosecution witness 1 had testified that Sayedee looted Modon Shaha’s house and that later he (the witness) and other freedom fighters recovered it and returned it to Modon Shaha. Statements by PWs 2,4,5,9 and 12 also supported this claim. However, the Defense noted that the Investigating Officer (PW-28) contradicted these claims when he testified that Modon Shaha went to India during Liberation War and did not come back. He asserted that this showed that the prosecution witnesses must be lying. .
Charge 5: Killing of 3 Government Officials – Magistrate Mizanur Rahman, SDPO Foysur Rahman and SDO Abdur Razzaq
The Defense then addressed Charge 5 regarding the killing of Mizanur Rahman, Foyjur Rahman and Abdur Razzaq. In support of this charge the Prosecution adduced Exhibits 8, 9, 10, and 11. The Defense noted that Saif Hafizur Rahman (PW-27), was the only live witness to testify and that his testimony was completely based on hearsay. PW 27 testified that he had first heard from some people in Norail and later from his sister-in-law-, that Mizanur Rahman was killed by Pakistani occupying forces. When he came to Pirojpur he was told by Khan Bahadur Afzal and other local people that someone named Delwar Shikder was involved in the killing of Mizanur. During cross-examination Hafizur admitted that it was 12-14 years later when he was told that this Delwar Shikder is Sayedee. The Defense noted that he failed to clarify from whom he got this information. Therefore they concluded his testimony has no value and the prosecution cannot link Sayedee to these killings.
Additionally the Defense asserted that PW 27’s credibility is questionable as he was a member of parliament for the ruling party (Awami League) for two terms. Furthermore he admitted that he did not file any complaint about the killing of his brother. The Defense also noted that PW 27 had claimed that Mizanur Rahman was abducted in the presence of his wife. However, the wife was not made a prosecution witness. Additionally, PW 27 did not claim that Mizanur’s wife had named Sayedee as the abductor. Finally, the Defense said that PW 27 claimed to have learned about the killing from Afzal, who was the Chairman of the Peace Committee. He claimed that his 20-22year old sister was present with him when he learned the news. The Defense questioned whether it was believable that he would have taken his sister with him to collect this information when she was being targeted by peace committe members at that time.
At this point the Chairman interjected and told Mizanul Islam that he should hurry as the Tribunal would not provide extra time and would need to complete the arguments the next day. He said the Defense should only submit on law points and should not sum up the facts. The Chairman said that they had the evidence and would examine it before passing judgment. Mizanul Islam said that if the Tribunal wished to stop him it could do so but that he needed to sum up the facts in order to show that adequate evidence had not been presented to convict the accused.
Mizanul Islam then noted that the prosecution had submitted a video of an interview (Exhibit 11) of Ali Haider Khan, son-in-law of Foyjur Rahman. In the interview Khan does not incriminate or name Delwar Hossain Sayedee as a responsable party. Mizanur Islam alleged that the Prosecution filed an application under section 19(2) of the ICT Act 1973 stating that Ali Haider Khan could not be produced in court as a live witness but that his statement to the Investigating Officer should be accepted. The Defense claimed that the Prosecution could easily have called Ali Haider Khan, who is a practicing Advocate of Supreme Court, to testify, but did not do so. The Defense also questioned why the Prosecution did not call Ayesha, the wife of Foyjur Rahman, or Jafor Iqbal, son of Fayjur Rahman. The Defense further noted that Jafor Iqbal’s statements to the Investigating Officer were accepted into evidence under 19(2) of the ICT Act 1973, but that Jafor Iqbal denied receiving any summons to testify. The Defense thereby implied that the Defense was disingenuous in claiming that Iqbal was unavailable and sought to undermine the credibility of his statements to the IO. They cited the Daily Janata dated 24 April 2012.
Mizanul Islam then stated that the Defense had shown that the Investigating Officer and the Prosecution committed fraud in conjunction with their efforts to submit statements from section 19(2) witnesses. He provided another example relating to Charge 11. The Prosecution relied upon Exhibit 269, an out-of-court statement made by Makundo to the IO and admitted under section 19(2). In the 19(2) application dated 8 August 2012, the prosecution claimed that Mukundo died on 21 April 2012. But Ex-38 and 39, which are sketch maps and an index of Charge 10, prepared by the IO on 20 Auguest 2010 recorded Moken Thakur as being dead at that time. If Mukundo was dead on 20 August 2010 then how can the prosecution say that he died on 21 April 2012 and pray to admit his alleged statement under 19(2). This proves another fraud of the IO. How you can believe this IO. It is clear that Mukundo was dead at the time of IO’s Investigation. Despite that he submitted a written statement in his name. It is clear that Exhibit 269 was concocted by IO.
Justice Anwarul Haq (AH) interjected and said that the names of the witnesses are different. Exhibit 269 is 19(2) statement of Mukundo. But Exhibit 39 is about Moken Thakur. They must be different persons. Mizanul Islam stated that the IO has admitted in cross examination that Moken Thakur’s also went by the name Mukundo. He claimed that the IO’s statements cannot be trusted because he alleged that he recorded Mukundo as saying that his house and Moken Thakur’s house were also burnt in the arson attack on 25 homes. However these two individuals are in fact one person, and the IO does not have a clear understanding of the facts.
The Chairman then again interrupted and said that the Tribunal could not hear such lengthy arguments and that the Defense could submitt a written arguments. Mizanul Islam countered that there are 20 charges, 28 prosecution witnesses, 16 out-of-court statements allowed in under section 19(2), and 17 defense witnesses. He said it was unreasonable to expect the Defense to complete their arguments in 3 days and that the tribunal should allow reasonable time. Submitting a 10 page written brief is not possible. The Chairman then said that they lifted the page limitation on the written submission.
Charge 14, rape of Shefali Ghorami and attack on Hoglabunia
The Defense then addressed Charge 14, regarding the alleged rape of Shefali Gharami and attack on Hoglabunia. Mizanul Islam noted that the Prosecution relied on testimony from prosecution witnesses 1, 2, 3, 4, 5, 12 and 23. However, the Defense noted that none of them claimed that Shefali was raped except for PW-23. Modhushudon Gharami (PW-23), is the husband of victim Shefali Ghorami. In his testimony said that his wife told him that she was raped by the person who forced him to convert to Islam. He further stated that Delwar Shikder forced him to convert to Islam. Mizanul Islam alleged that Modhushudon did not make it clear how his wife could have identified Delwar Shikder, as he accepted that Delwar Shikder had came to his house only once and that his wife did not know any of the Razakars or Peace Committee members. Additionally PW 23 admitted on cross examination that Delwar Shikder, son of Rosul Shikder, may have been killed after the Liberation War.
The Defense also questioned the reliability of PW 23’s testimony. They said that he gave evidence from his “sick bed”, but that they doubted that he was truly sick. By the time of cross examination the witness appeared in court looking perfectly healthy. He came to the tribunal in a wheelchair but left after recording his evidence walking. The Investigating Officer admitted that after recording the evidence of PW 23, the witness did not go back to the hospital.
The Defense also noted that PW 23 only stated the Accused’s name after several leading questions from the prosecution. They further alleged that he was kept for 18-20 days while being questioned and that within that time he never voluntarily named the Accused as the responsible party for the rape of his. wife. They also noted that PW 23 and his current family began receiving government benefits in 2012 and claimed that these facts pointed to possible bias in his testimony.
The Defense again attacked the Investigating Officer’s integrity, noting that he had stated that he only learned of the rape of Ghorami from her husband. However, he also stated that he went to meet with PW 23 to collect information about the rape of his wife. The Defense stated that this contradiction illustrated that the IO was fabricating stories.
Additionally, the Defense noted that the Prosecution alleged that Shefali gave birth to a child conceived during the rape 4 to 5 months after the alleged attack. Mizanul Islam questioned how it was possible to give birth to a child 4 to 5 months after conception.
Charge 16, rape of Mohamaya, Anno Rani, and Komol Ranni
The Defense then addressed Charge 16, regarding the rape of Mohamaya, Anno Rani and Komol Rani. The Prosecution used the testimony of prosecution witnesses 1, 3, 4, 5, 6 and 13 to support this charge. Mizanul Islam alleged that none of these witnesses were able to provide specific allegations regarding the events, and only PW 2 was a neighbor to the victims – and he did not make any statement regarding this charge. Only PW 13, Gourango, made a specific allegation. He is the brother of the alleged victims but the Defense claimed he is unreliable. As per his National ID Card, his birthdate is July 8, 1863. This would mean he was only 7 years old in 1971, whereas in his testimony he claimed he was 27 years old in 1971. Additionally Gourango Shaha testified that his sisters were younger than him. The Defense alleged that this raised questions about the ages of the sisters (the alleged rape victims) at the time of the crime.
The Defense also noted that Gourango had testified that he could not recall any Razakars except Sayedee. The Defense questioned whether it was realistic that he would only remember one name. Mizanul Islam then noted that documents from the witness Safe House show that after giving testimony before the Tribunal Gourango had indicated that he wanted to eat sweets and receive gifts. The Defense challengded Gourango’s intentions, asking whether the brother of rape victims would want eat sweets and get gifts for giving testimony about the rapes of his three sisters.
The Defense then stated that they would submit their arguments regarding Charges 6, 7, 8, 10, 11 and 13 together. Mizanul Islam alleged that there are two cases pending in Pirojpur (Exhibit-F, dated 20.08.2009 and Exhibit-W, dated 12.08.2009) regarding the same subject matter. He further submitted that Mahbub Alam Hawlader (PW-1) and Manik Proshari (PW-6) filed these cases against Sayedee, as was admitted by PW-1 and PW-28 (Exhibit-1). He argued that following Rule 11 of the Rules of Procedure, Tribunal cannot continue with the case where in the same subject matter another case is pending in another Court. Furthermore, under the traditional Code of Criminal Procedure (CrPC) if two cases are investigating the same offences then the investigation of both cases must be completed before the commencement of the trial.
Justice Anwarul Hoq said there is not problem as the CrPC does not apply here. Mizanul Islam counterred that you need not consider the CrPC as Rule 11 of the Rules of Procedure for the ICT is sufficient and protects against double jeopardy which is also protected against by the 35th amendment of the constitution.
The Defense alleged that the harm in continuing while these other cases were pending is the possibility of grave prejudice to the Accused. They stated that on 26 April 2012 the Defense filed an application raising the above issue and praying to exclude charges 6, 8, 10, 11 and 13 from this case. That application was disposed of with observation that it would be considered at the time of passing judgment.
The Tribunal then adjourned for the day. The Chairman instructed Mizanul Islam that he should have senior Defense counsel Abdur Razzaq appear tomorrow.