Today the Tribunal heard matters in the following cases:
- Chief Prosecutor vs. Salauddin Qader Chowdhury
- Chief Prosecutor vs. Mobarak Hossain
- Contempt Proceedgings against Defense counsel Fakhrul Islam
In the Salauddin Qader Chowdhury case, Defense Counsel placed the closing arguments for the fifth day. After hearing his submission Tribunal adjourned the proceedings of the case until tomorrow and asked Defense to conclude the closing arguments by tomorrow, 13 August 2013.
In the Mobarak Hossain case today was fixed for recording the testimony of Prosecution witness 7. However, Tribunal adjourned the proceedings of the case until 20 August 2013.
Regarding the hearing of the contempt charges against Fakhrul Islam, Defense counsel for Salauddin Qader Chowdhury, the Tribunal fixed 26 September 2013 for hearing the matter.
Chief Prosecutor vs. Salauddin Qader Chowdhury
The Defense argued that Salauddin Qader Chowdhury was not charged under section 3(2)(f) of the ICT Act 1973 and therefore international law is not applicable in the case. Though the ICT Act 1973 states that the Criminal Procedure Code 1898 and Evidence Act 1872 are not applicable, the Defense asserted that the provisions of both Acts had been followed. Regarding hearsay testimonies, the Defense cited a High Court division of Bangladesh case, holding that hearsay is only admissible when the person who heard the statement and the person from whom it was heard both testify before the court. Hearsay is not acceptable when the source does not confirm it. Referring 38 DLR, the Defense submitted that when there is a decision of HC of Bangladesh the decision of other courts will not be applied.
The Defense then began their arguments on Charges 1, 2, 4, 5, 7 and 8. Regarding Charge 1, the Defense noted that two witnesses gave statements to the Investigation Officer but did were not produced before the Tribunal. The only Prosecution witness who testified in support of this charge is Debabrata Sarkar, Prosecution witness 18, who claimed that he heard about the incidence from Shunil. The Defense claimed that Debabrata failed to provide information about Sunil, his home, or his treatment after the incident. Furthermore, the Defense asserted that Debabrata first testified that he was 7 years old at that time of alleged incident, but later contradicted himself saying that he was only 5 years old. Debabrata’s testimony was not collaborated by any other witness or documentary evidence. The Defense noted that the alleged incident was not even described in a book.
Regarding Charge 2, the Defense argued that one Promila also gave a statement to the Investigation Officer, but did not appear before the Tribunal. They submitted that Shubol, Prosecution witness 29, did not provide testimony incriminating Salauddin Qader Chowdhury and was not declared a hostile witness. The Defense discredited the testimony of Nirmal Chandra Sharma, Prosecution witness 6, stating that he is a beneficiary of the present government and was appointed by the present government as APP, a post that he continues to hold. During examination-in-chief, Nirmal testified that they took shelter in the house of Ali Chowdhury and with the help of Danu uncle crossed the Rangamati road. The Defense noted that the Investigation Officer did not interview Danu about the incident. During cross-examination Nirmal testified that Danu is now deceased. However, the Defense referred to an affidavit and the National ID card of Danu and claimed that Danu is still alive. In the affidavit Danu said that he found out about Nirmal Chandra Sharma’s testimony from media coverage. Danu denied Sharma’s version of events. Citing to an Indian High Court case the Defense submitted that Danu’s affidavit carries the same weight as that of witness testimony before the Tribunal.
They Defense argued that during cross-examination Nirmal testified that Bimol knew about the incident and that after Pakistani Army shot Nirmal’s brother Bimol came to the scene of the crime. However, the Defense noted that Bimol was not produced before the Tribunal to testify. During cross examination Nirmal testified that Bimol arrived at the scene 1 hour after the shooting. Shubol, prosecution witness 29, also testified that after 1 hour he arrived at the scene and found the corpses of Poncha Bala, Shunil, Dulal, Joti Lal, as well as Makhon Lal and Joyonta who were injured. The Defense questioned how both could have arrived at the same time without seeing each other. The Defense concluded that the testimony of Shubol, Prosecution witness 29, contradicted the testimony of Nirmal Chandra Sharma, Prosecution witness 6. The Defense also submitted that Sirajul Islam alias Siru Bengali, Prosecution witness 3, testified that he heard about the incident of Maddhya Gohira from Captain Karim, but never visited the alleged areas. Sirajul Islam alias Siru Bengali testified that Captain Karim died in the Liberation War. The Defense submitted that Prosecution failed to show any documents proving that Captain Karim was a real person who lived in 1971.
After the lunch break, the Defense submitted their arguments regarding Charge 4. They asserted that 12 witnesses gave statements to the Investigation Officer, however only three witnesses were produced before the Tribunal to testify. They argued that Aurunangso Bimol Chowdhury, Prosecution witness 12, could not remember whether the Investigation Officer asked him any questions during the investigation. The Defense noted that they declined to cross-examine this witness because he did not implicate Salauddin Qader Chowdhury in any way. They also noted that Asish Chowdhury, Prosecution witness 13, gave hearsay testimony. The Defense argued that Asish is interested in the outcome of the case because his employer Profullo Ranjon Singh is Prosecution witness 5. The Defense argued he is not credible because that he is not an independent witness. On cross-examination Asish testified that he heard about the incident from Aurunangso Bimol Chowdhury, Prosecution witness 12. However, the Defense again noted that Aurunangso did not incriminate Salauddin Qader Chowdhury and so Asish could not rely on him to provide incriminating information.The Defense also submitted that Dijoy Krishno Chowdhury, Prosecution witness 34, did not incriminate Salauddin Qader Chowdhury.
Regarding the out-of-court witness statement of Josna Bala, admitted under Section 19(2) of the ICT ACT, the Defense noted that on 16 April 2012 Josna Bala gave a statement before the Chief Judicial Magistrate of Chittagong under section 44 of the Criminal Procedure Code stating that the Investigation Officer for the ICT case asked her some questions but did not read her statement back to her to confirm its accuracy. She further said that she was threatened to give testimony.
Regarding charge 5, Defense submitted that Onil Boron Dhar, Prosecution witness 22, filed a case on 5 April 1972 (Exhibit 32/4) before the Rawzan police station in which Salauddin Qader Chowdhury was one of the 16 accused. The Defense submitted that after filing the case the complainant did not take any further steps. The case was not pursued and Onil did not file a ‘Naraji’ application. The Defense further submitted that Onil’s application was not collaborated by anyone. The Defense stated that they had already voiced their arguments regarding the testimony of Badol Biswas under 19(2).
Regarding Charge 7, Defense submitted that only Poritosh Kumar Palit, Prosecution witness 28, provided supporting testimony and his testimony was not collaborated by anyone. The Defense submitted that Poritosh claimed himself to be an eye witness but admitted that he had never seen Salauddin Qader Chowdhury before 1971. The Defense questioned how he is able to recognize Salauddin Qader Chowdhury now. Poritosh testified that when Salauddin Qader Chowdhury and the Pakistani Army came to their place he hid himself in a bush. During cross-examination he testified that that there were flowers in the bush which they used to worship in the temple. The Defense argued that Hindus do not use flowers from this bush to worship. The Defense also emphasized that Poritosh could not say in which language Salauddin Qader Chowdhury was speaking with Pakistani Army. They questioned how he could claim that he heard Salauddin Qader Chowdhury say ‘that person is dangerous, kill him.’ The Defense noted that in official documents it is alleged that Salauddin used the English word ‘dangerous,’ but made the rest of the statement in Bangla. The Defense questioned how the Pakistani Army would have understood the meaning of this statement.
Regarding Charge 8, the Defense submitted that Prosecution witness 20, Sheikh Morshed Anwar, claimed that the Pakistani Army had abducted his father and brother while they were returning from Raozan in front of Hathazari intersection which is beside the bazaar. He testified that he had heard that after checking the vehicle the Pakistani army was going to let them go but suddenly Salauddin Quader Chowdhury along with his associates arrived and took Anwar’s father and brother out of the car and took them to the nearby army camp. During cross-examination Anwar testified that the nearby Army camp was 150 /200 yards away from the main road on Rangamati road. The Defense submitted that Prosecution witness 35, Kamal Uddin, testified that Hathazari Army camp was in Maduna Ghat in 1971 which is about 80/ 90 kilometers away from the Hathhazari town. The Defense argued that it is evident from the testimony of Kamal that there was no army camp at the Hathazari intersection or in the adjacent area. The Defense submitted that during cross-examination, Prosecution witness 17 (who testified in-camera) testified that the car was a Toyota starlet. However the Defense referred to document showing that the Toyota starlet did not yet exist in 1973. The Defense submitted that the Prosecution witness testified that after the incident they took shelter in a relatives house and the mother and brother of Prosecution witness 17 went to Goods Hill seeking the release of Sheikh Mozaffar and Sheikh Alamgir. He claimed that while there they spoke with Fazlul Qader Chowdhury, father of Salauddin Qader Chowdhury. The Defense questioned why the mother and brother and relative of Prosecution witness 17 were not brought before the Tribunal to testify about their own experience.
Finally, the Defense noted that Prosecution witness 20, Sheikh Morshed Anwar, gave hearsay testimony. During his examination in chief the witness testified that his elder brother Jahangir wrote a book about the killing of their father Sheikh Mozaffar and brother Sheikh Alamgir. The witness exhibited all these materials before the Tribunal but the Prosecution did not produce Jahangir himself. The Defense argued that the reason for this was that Jahangir did not say anything in his writings about the presence of Prosecution witness 17.
The Bangladesh Trial Observer 