28 May 2013: ICT-1 Daily Summary – Chowdhury Applications, Mubarak Hossain PW 2

Today the Tribunal heard matters in the following cases:

1. Chief Prosecutor vs. Salauddin Qader Chowdhury
2. Chief Prosecutor vs. Mubarak Hossain

In the Salauddin Qader Chowdhury case, the Tribunal heard three applications filed by Prosecution. The first one was for the acceptance of eight out-of-court Prosecution witness statements that were recorded by the Investigation Officer as evidence under section 19(2) of the ICT Act. The second application was a request for the admission of some additional documents under section 9(4) of the ICT Act . The third application requested correction of a clerical mistake in the Charge Framing Order. The Tribunal also heard two Defense applications. The first one requested the recall Order 17, which was passed on 13 March 2012. The second application requested that two Prosecution witnesses be recalled. recalling two Prosecution witnesses. Salauddin Qader Chowdhur was absent in the Tribunal when Tribunal heard the applications due to illness. He came to the Tribunal after the lunch break and stayed a few of minutes. The Tribunal adjourned the proceedings of the case for the day in consideration of his illness.

In the Mubarak Hossain case, Defense Counsel Ahsanul Huq Hena conducted the cross-examination of Prosecution witness 2, Khodaza Begum. Thereafter, Tribunal adjourned the proceedings of the case until 2 June, 2013

Chief Prosecutor vs Salauddin Qader Chowdhury
Prosecution Applications
The Prosecution argued that the Tribunal should accept the out-of-court statements of 8 witnesses under Section 19(2) of the ICT Act because the witnesses are now unavailable. They submitted that of the eight witnesses, three are now dead, one moved to India and the remaining four are untraceable. The Prosecution further submitted that General Diaries were filed at relevant police station regarding all of these witnesses. Regarding the untraceable witnesses, Defense submitted that the son of one witness informed them that he does not currently know where his mother, while another witness was said to have left his house due to domestic problems with his wife.

The Defense objected and noted that the police General Diaries were only filed this month, May 2013, which shows that the Prosecution has not made a good faith effort to find the witnesses in question. They argued that such a delay is negligent given the Tribunal began hearing testimony in this case in 2012. The Defense argued that the explanations given by the Prosecution for certain witnesses being “untraceable” were not practicable explanations. They argued that the Tribunal should not allow any of these statements as evidence because the witnesses did not sign the statements and they were not even recorded before a Magistrate Court. Therefore they are untrustworthy.

The Prosecution submitted as second application requesting permission to submit allow additional documents under section 9(4) of the ICT Act. They stated that they wished to submit a photograph taken on 23 March 2013. The Tribunal interrupted at one point to express dissatisfaction with the fact that the photo was taken two months ago but the Prosecution is only now submitting it before the Tribunal. The Defense stated that as the Tribunal is not satisfied they would not submit an additional reply.

The third Prosecution application requested the correction of a clerical mistake in the Charge Framing Order. Prosecution submitted that it is a clerical mistake made regarding charge no 5 wherin a name was mistakenly cited instead of another name. The Prosecution submitted that Formal charge is correct in this regard. The Defense replied that there is no provision for amendment of the Charge Framing Order in the ICT Act.

Defense Applications
Tribunal also heard two Defense applications. The first one requested the recall of Order 17, dated 13 March 2012. The second one requested that Prosecution witnesses 17 and 18 be recalled because at that time Salauddin Qader Chowdhury had cancelled his Defense counsel’s power of attorney. The Prosecution opposed both applications and argued that the Tribunal should reject them summarily.

Chief Prosecutor vs Mubarak Hossain
Cross Examination of PW 2
During examination-in-chief, Khodaza testified that she filed a case in the Brahmanbaria Judicial Magistrate Court regarding the killing of his father. The Defense began by asking numerous questions about the case she filed. She stated that she filed the case on 3 May 2009, accusing Mubarak Hossain and Jamshed of killing her father. She stated that the case was sent to the Police Station for investigation on the same day. She said that Sayed Tanvir Hossen was her lawyer. The Defense claimed that there were 11 witnesses in that case and asked who they were. The witness stated that she only provided the name of her uncle Abdul Ahad and brother Rofiqul Islam as witnesses. She further testified that Abdur Rauf and another member were also witnesses of the case. The Defense then asked the witness if Jamshem is present at the Tribunal. She answered that he is not but stated that he is still alive.

Defense then asked the witness about the Complaint petition and the First Information Report (FIR) of the case. The Defense claimed that the witness did not mentioned in her complaint petition that her father came to visit  their home after hearing the news of her mother and grandmother’s illness. At this point the Chairman interjected and said that the FIR of that case and Complaint petition are not documents in this case and that the Tribunal will only look into the Formal Charge of this case as submitted by the Prosecution. The Tribunal questioned why the Defense is highlighting contradictions between these documents when those from the Magistrate Court are not before the Tribunal. The Defense argued that these documents form the basis of the current case. The Tribunal told the Defense if they wish to question the witness regarding those documents they would first have to submit them into evidence as exhibits.

After the lunch break the Defense asked the witness where her father had fought during the Liberation War and whether she had any documents to show that he was a freedom fighter. The witness answered that she heard from others that her father fought in Akaura, Ranidia, Shorail and other areas and that she had documents to show that her father was a freedom fighter. Defense asked whether she had provided those documents to the Investigation Officer. She stated that she only provided him the gazette number. The Defense asked him about the date of gazette, which the witness was unable to recall. She claimed that she did not know because she lacks education. The Defense asked her ihow she learned that the name of the document is gazette if she is so lacking in education. Witness answered that she heard from others that the document is called a gazette. The Defense claimed that the witness’s father worked with the Brahmanbaria Razakar commander Abul Kalam Chowdhury, which she denied. The Defense also claimed that the witness was only 5 or 6 years old during the Liberation War, which the witness also denied.

The Defense then questioned the witness about her personal life and her two marriages. They alleged that her first husband Ismail gave her divorce and her second husband Hasim died. She replied that she does not know whether her first husband gave her divorce because she was too young but admitted that Hasim died. The Defense asked her if her first husband is still living. She responded that she does not know.

The Defense asked how many people gathered after the alleged incident. She said there was a large group, all of whom are now dead. Defense asked the witness numerous questions about the alleged place of incident, about their neighborhood, the identity of the Chairman of the Union Council, as well as the identities of members from her village of Tangrapara . She said she did not know how many people resided in Tangrapara or how many houses were in Tangrapara in 1971. She stated that Ful Mia was a member from Tangrapara but could not recall the name of the Union Council Chairman. The witness stated that in addition to her father, Shamser Ali, Siddiq Mia, Abdul Hakim and Ahad Mia were the freedom fighters from the area. Defense asked the witness where Ahad Mia fought during Liberation War. Witness answered that she heard from others that Ahad Mia fought with her father.

The Defense then alleged that the witness was lying regarding the incident. They asked whether the witness’ family had any conflict with Mubarak Hossain regarding property before the Liberation War. She said they had no conflict with Mubarak Hossain and did not even know him.

During examination-in-chief the witness had testified that her grandmother and mother talked with Abdur Rauf in the camp of Razakar and Army. The Defense asked about him ad the witness said that she first met him two or two and half years after the Liberation War. She stated that he was a Razakar. Defense again asked the witness about the date of the alleged incident and details about the alleged place of incident. They suggested that at the time of alleged incident there must have been farmers working in the paddy fields on the both side of the road. The witness stated that no one was in the fields as they all had fled out of fear. The Defense also claimed that in 1971 there was a busy bazaar at Bakhail Ghat and that many boats would have been around the Ghat (port) area. The witness also denied this. The Defense claimed that in 1972, 1973 and 1974 many Razakars were punished and hung. The witness said she did not know about this. The Defense asked the witness how many Razakars and Army memers she had seen in the Shohilpur Union Council on the alleged date of incident. She answered that she saw around 15 or 20 Razakars and added she had also seen Pakistan Army there.

Defense claimed the witness could not have identified the young Mubarak as not having a beard because at that time he did in fact have a beard because he was also afraid of Pakistani Army. The Defense also claimed that Mubarak Ali was not the Razakar commander in 1971. The Defense noted that when the witness identified the Accused in the dock he was the only person sitting there, which she admitted. She denied that she is providing testimony because she has been influenced and given financial benefit in exchange for her false testimony.

Administrative Issues
The witness did not always answer the Defense’s questions directly. At times she answered loudly or asked counter-questions. Defense Counsel appeared irritated with her demeanor at times. The Tribunal asked the Defense Counsel not to lose their temper as the witness is an uneducated woman.