3 Jan 2013: Cross-Examination of PW 11 in Mujahid Case

Chief of Prosecution vs. Mujahid
The Defense conducted the cross examination of Mr Foyez Uddin Ahmad, Prosecution Witness 11. The 82 year old witness had previously testified against Mujahid, providing testimony supporting  Charge 2 for abetting and substantially contributing to the actual commission of offense of persecution as crime against humanity and genocide. He stated that Mujahid was the leader of Islami Chatra Sangha and subsequently became the head of Al-Badar Bahini. The witness alleged that Mujahid, accompanied by one Hammad Moulana, 8-10 non-Bengalees, and a Mr. Ishaque went along with the Pakistani Army and launched an attack directed against Hindu populated villages such as Baidyadangi, Majhidangi, and Baladangi. The charge further alleges that they killed 50 to 60 Hindus by gun fire and by setting fire to their houses, and that they carried out these actions with the intent to persecute and destroy the Hindu Community.

The Defense focused its cross-examination on questions designed to challenge the reliability of the identification evidence and undermine the credibility of the witness, leading to an inference that he could not have identified the accused to be connected with the alleged charges because he did not know him during the liberation war.

  • The witness was asked during his cross-examination about his school, Yasin Muslim Hight School, Tepakhola (presently named as Government Yasin College) and about the Head Masters / Principals thereof during different regimes.
  • The Defense asked about the presence of Razakaars in the witness’ locality during the liberation war. He commented that his areas of Dicrichor, Chor Horiram and Gazirtech had none.
  • The witness was asked about the number of areas in Faridpur city named “Komlapur”and answered that there were three, namely, Komlapur, Kuthibari Komlapur and Chorkomlapur.
  • He was asked about the character of Mr Maolana Abdul Ali, the father of the accused, and testified to the affirmative in regard to his piousness, being an Imam and Islamic scholar, and that he was released upon the instruction of Bangabandhu  Sheikh Mujibur Rahman following the arrest in the post-liberation period.
  • He stated that he was not aware about the number of children Maolana Ali had, their education details and that he did not personally know the accused Mr Mujahid at all. He remembers seeing him only once, in the local Sadar Hospital, but admitted that he saw him only from the back side.

3 January 2013: ICT 1 Details of Rejection of Retrial Application in Sayedee, Golam Azam and Nizami

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.

3 January 2013: Tribunal 2 Daily Summary

Cases heard during session:       
1. Qader Molla –  Hearing of Defense Application for Reconsideration of Denial of Right to Call Additional Witnesses
2. Ali Ahsan Mohammed Mujahid  – Cross-examination of Prosecution Witness #11
3. Muhammad Kamaruzzaman   – Hearing of Application for retrial

  • Qader Molla: Defense counsel requested a later hearing date for the review application filed earlier on behalf of Kader Mullah seeking reconsideration of the tribunal’s decision denying permission to produce additional defense witnesses. This request was immediately denied orally, along with a request for two hours of time to enable the Senior Counsel to appear. The Tribunal required the Defense to make its submissions instantaneously. The Tribunal then rejected the review application reasoning that the ICT rules of procedure contain no provision to allow additional witnesses. Only the Prosecution has the power to call additional witnesses. The Tribunal opined that the Defense’s application was the same as one that had been rejected earlier and that the Defense was attempting to cause delays in the proceeding. The rejection was accompanied by a sanction of 10,000 BDT imposed on the Defense for submitting repetitive applications.
  • Mujahid:  Prosecution witness PW-11, Mr Foyez Uddin Ahmad was cross examined by the defense counsel, whose core line of questioning was aimed at attacking the reliability and credibility of the witness’s testimony, suggesting that the testimony is fabricated upon the coaching by the Prosecution and that he neither knew the accused, nor was he capable of recognizing him.
  • Kamaruzzaman: The Court heard at length the application filed on behalf of Muhammad Kamaruzzam to recall the order taking cognizance of charges against him and for a full and complete retrial. The argument for retrial was based on the allegation that the Tribunal has the appearance of being biased due to the leak of the Skype and email conversations between the former Chairman of Tribunal 1 and an outside legal scholar, Dr. Ziauddin of Brussels. The Defense supported their argument that the appearance of bias is grounds for retrial by relying on international precedent.  The court denied the application and firmly stated that there was no such possibility of biasness. The Tribunal further condemned the content of the Skype and email conversations and passed an order suo moto  requiring Dr. Ziaduddin to explain, within 30 days from the receipt of this order, why contempt proceedings shall not be brought against him for his Skype conversations with the former chairman of ICT-1.  Prosecution witness PW-16 who was present expressed his inability to give testimony on that day due to his sudden illness.

2 January 2013: Tribunal 1 Daily Summary – Court Adjourned

Tribunal 1 was adjourned for the day as the judges considered the applications for retrial submitted by Defendants Sayedee, Nizami and Golam Azam. The court stated on January 1, 2013 that they would issue their order on the matter by January 3, 2013.

2 January 2013: Tribunal 2 Daily Summary – Alim, Kamaruzzaman

The Tribunal heard arguments in two matters:

1. Chief Prosecutor vs. Abdul Alim – Cross-examination of Prosecution Witness #8
2. Contempt Proceedings Against Suranjit Sengupta – a government minister

The cross-examination of Beauty Khanam, eighth prosecution witness in the case against Abdul Alim, was completed. The case wa then adjourned until January 15th. Out of court, Defense Counsel for Kamaruzzaman submitted an application for retrial to the Registrar.

Cross Examination of Prosecution Witness #8 Completed in the Case of Abdul Alim
Ahsanul Haq Hena and AEM Khalilur Rahman, Alim’s counsels, cross-examined Beauty, daughter of a martyr subeder major. She testified that the Shanti [Peace] Committee and members of the Razakars had acted upon Abdul Alim’s order and had killed her father in Joypurhat because he was fighting against the Pakistani army.

Beauty had already been cross-examined briefly on several other days, but not for long on each occasion. At one stage of yesterday’s cross-examination, the witness expressed discontent over Hena when he repeated the same questions he and his colleagues had asked her earlier.

The tribunal requested the Defence to decide among themselves who would ask what questions.

Contempt Proceedings Against Suranjit Sengupta
Upon his request, The tribunal then extended time  for Suranjit Sengupta, a minister without portfolio, until January 14 to explain his comments regarding the date verdicts in the cases pending with the tribunal could be expected.

On December 24, the tribunal on its own motion issued the show-cause notice on Suranjit following a report in a Bangla daily. Suranjit was quoted in the report as saying, “Verdict of 14 identified war criminals has already been finalised. Trial of these 14 war criminals would be completed anytime within 2013.”

Defense Counsel files Application for Retrial on behalf of Kamaruzzaman
The Defense filed an application on behalf of Accused Muhammad Kamaruzzaman for a retrial based on Skype and email communications between the former Chairman of Tribunal 1 and foreign legal expert Dr. Ahmed Ziauddin that allegedly show collusion between the prosecution and the judges as well as pressure from the executive branch of the government to provide verdicts before December 17 of last year.

The case against Kamaruzzaman is in ongoing and the Prosecution is presenting its case-in-chief. Fifteen prosecution witnesses have so far testified in the case against Kamaruzzaman. The Defense told the media that they are preparing  retrial petitions in the cases of the three other accused: Ali Ahsan Mohammad Mojaheed, Abdul Quader Mollah and Abdul Alim, all of which are pending in Tribunal 2. The Defense asserted that the Skype and email conversations show that the formal charges of the first eight cases pending with the two tribunals were prepared by Dr. Ahmed Ziauddin and his associates and came from Brussels.

The Defense told the media that they were not alleging any direct involvement in the controversy on the part of the judges of tribunal 2, however they claim that the appearance of bias prejudices their clients cases and so they see fit to file the petition.

The Defense cited the authority of the Tribunal under §46 (A) of ICT  rules of procedure to pass orders in the furtherance of “the ends of justice or to prevent abuse of the process.”