Wednesday, February 1, 2012

10 Jan 2012: Awal cross exam day 1

After Mr AKMA Awal finished giving his evidence-in-chief, the defence were invited to start the cross examination. However, defence counsel Mizanul Islam requested the Tribunal to adjourn until 3 pm (1 hour later than usual time). It was just 12:15 pm then and the Tribubal said they could at best adjourn the hearing then i.e. 45 minutes before the usual time for lunch break, but not start late. Mr. Islam try to convince the Tribunal as the witness Mr AKMA Awal was he said a very important witness (he is the local MP from where Delwar Hossain had previously been the MP for two terms) but the judges did not change their mind.

The Tribunal Chairman Justice Nizamul Haque adjourned the court until 2 pm.

When the tribunal started again, the prosecution witness took oath., but before the cross examination coul dstarted, he wanted to bring the following matter before the Tribunal with their due permission.  He said that he was asked to sign the statement recorded by the Tribunal after the adjournment, and before signing he had read it out and found that there were the following 3 mistakes in the statement: - It has not been included that he was  a Member of the Parliament,
- It has been written there that he had told that the rajakar force was formed and the Pakistani army came to Parerhat at end of May. It should be ‘first of May’ instead of that.
- And in another line there is a word ‘probably’ which should be removed

However, although I did not want to sign it I was advised by the prosecution to sign it and therefore I signed it.

Tribunal Chairman Justice Nizamul Haque said that you have not told us that you are a Member of the Parliament, why is why it is not recorded In respect of the 2nd issue, he said that the tribunal would change. The defence however immediately objected saying that such a statement cannot be change. Tribunal Chairman Nizamul Haque then agreed not to change it but said that 'We shall keep the both and it would be written in bracket that the witness has told that later on.'

The Defence did not agree with such a suggestion and a dispute then erupted with the prosecution on this issue. Tribunal member Justice Zaheer stated: “I do not know about other members of this Tribunal, however, my opinion is to write it down at the end of the examination in chief not inside the examination in chief as it now closed already.”

Defence counsel Mizanul Islam then said “If it is correctly recorded then there is no scope in the law to change it. However, if it is not correctly recorded then definitely you can change it my Lord. And if you believe that it is mistakenly recorded then you have got the recorded audio and video, please check it.”

However, the Chief Prosecutor Golam Arif Tipu and prosecutor Haider Ali submitted that, “Witness has absolute right to change everything written as his statement.”

Defence counsel Tajul Islam opposing that argument said, “There is no scope to change that as one of the Tribunal members asked him repeatedly and witness said that the Pakistani army came and rajakar force was formed at the end of May. All of us heard that. If you have confusion, then play the recorded audio and video. There is no option to rectify it except re-examination by the prosecution.”

The Tribunal members appeared uncertain how to proceed and were discussing the issue with each other. And after that, Justice Kabir decided that there is no scope to correct apart from re-examination witness which the prosecution can do by applying orally or in writing after the cross examination by defence.

Tribunal Chairman Justice Nizamul Haque then said, “Our decision is that prosecution can correct it by way of re-examination only, as the majority decision prevails in this Tribunal.”

However, Justice AKM Zaheer then said, “Well, I am not in favour of correcting it by the way of re-examination. I was just against writing it inside the examination in chief.”

Prosecutor Haider Ali then said, “We will make an application to the Tribunal to include it in the examination in chief and start a hearing on this issue first.”

Justice Kabir then asked him, “Are you going to conduct the re-examination or not?”

Prosecutor Haider Ali replied, “I cannot say that right at this moment, I need to discuss with my fellow colleagues on this issue.”

Justice Kabir (angrily) asked him, “How long shall we wait for your decision, Mr Ali.”

Prosecutor Haider Ali said “The witness has said something correcting his opinion. If it is not recorded/written anywhere then it is going to be lost. And that cannot be happen for the ends of justice.”

Justice AKM Zaheer aging tried to resolve the matter. He wrote down the proposal alteration raised by the witness on a piece of paper and then read it out for the witness repeatedly. When the witness agreed that it has been written correctly after several corrections were made , then Justice Zaheer said he going to write it in his judgement as a ‘reasoned opinion’ as this must be written somewhere.

Then the judges discussed for a while among themselves and then Justice Kabir said that they are in an opinion that they will add it 'after the examination in chief.'

The witness AKMA Awal, MP then explained that he had been distracted with the argument between the defence and prosecution at the time of answering that particular question.

The defence counsel Tazul Islam replied, 'There was no argument while the witness answered the question.' He requested the Tribunal to check the audio and video record to confirm that.

In response to Tribunal’s decision to record it, he said, “The Tribunal can definitely change it during the examination in chief is taking place, but not after it is closed. Furthermore, the witness has already signed the statement although he is claiming that he raised objection before signing it and finally signed it as he was told to sign. We were in the court room then and we did not hear/see that he raised such objection. We believe, during the lunch break the prosecutors intentionally directed him to say the same.”

Tribunal Chairman Justice Nizamul Haque then said that they can definitely change that before the cross examination started.

Defence counsel Mizanul Islam then replied that if the statement was recorded correctly there is no scope to change it. And for this he again requested the Tribunal to play the recorded audio and video.

Tribunal Chairman Justice Nizamul Haque then replied, “Although there is mechanism in the courtroom for audio-visual recording and it has been recorded , however, from the beginning they have decided that they will not play it in the court room. It will only be submitted as record after the trial is over. I am unwilling to play it because if it is played once then a trend will be started and everyday either of the parties will ask us to play it for simple issues.”

Justice Kabir then argued, “If you would have started the cross before the break even with one question, then it could be said that the examination in chief is closed. Now the situation is neither the cross examination started nor the examination in chief is over.”

Tribunal Chairman Justice Nizamul Haque then again confirmed the Tribunal’s decision in this regard in following words, “We will take it as a note in between the examination in chief and cross examination.”

Defence counsel Tazul Islam then argued that the Tribunal has already taken their decision in this regard that it can be only included by way of re-examination.

Tribunal Chairman Justice Nizamul Haque then replied, “We have reviewed our decision.”

Defence counsel Tazul Islam replied (surprisingly),“You have not said that you have reviewed your previous decision which you took in our favour.”

Tribunal Chairman Justice Nizamul Haque explained that they have changed their decision which automatically means that they have changed their mind.

Defence counsel Mizanul Islam then submitted as under, “My Lord, in which form will it be noted? As examination in chief or as cross examination or as re-examination? The witness is a law maker i.e. Member of the Parliament. He is a conscious and responsible person. Why did he sign it if he had objection against that? Why did not the prosecution bring the matter before the knowledge of the Tribunal members as soon as possible? They could have made an application anytime during the last 2 (two) hours of lunch break before the hearing started. Therefore, it is clear that it has been done intentionally by the prosecution itself. And finally no witness has right to say that he has mistakenly said that.”

Tribunal Chairman Justice Nizamul Haque then said we have heard your argument and we have right to accept it or reject it. Thus, rejecting your argument, we are including the following note in between the examination in chief and cross examination-
“After the lunch break when the Tribunal sat again, the witness on his own motion told to the tribunal that- “While giving my statement before this Tribunal, it has been recorded that Pakistani force came to Parer Hat at the end of the May. Basically, I was distracted due to the argument between the counsels of the both parties and might have said ‘at the end of the May’. However, Pakistani army came to Parer Hat at the first of the May and formed peace committee. While signing my statement I noticed it, however, I was told to sign the same that is why I had signed it. Now I have brought before the matter to the knowledge of the Tribunal.” It has been recorded with the objection from the defence.”
Defence counsel Tazul Islam suggested the Tribunal to put the word ‘severe’ before the word ‘objection’ and the Tribunal included the word ‘severe’ in their note. Thus the note has been recorded with ‘severe objection’ from the defence.

At this stage, defence counsel Mizanul Islam requested the Tribunal to adjourn the hearing for that day as he was feeling too tired. Justice AKM Zaheer said if you are tired then his fellow lawyers can do the cross-examiantion for you. You should at least start cross examination but you may go slowly. Defence counsel Mizanul Islam then unwillingly started the cross examination at 3:35 pm.
Defence: When did you go to the Jiuda village of Morolgonj of Bagerhat?

Witness: I cannot remember the date.

Defence: On which month?

Witness: In May. May be on 1st or 2nd May.

Defence: When did you go to the Sundarbans for the first time from the Jiuda village?

Witness: After 8/10 days I guess.
Defence counsel Mizanul Islam again requested for the adjournment. Justice Zaheer once again replied, “Senior! The official time for hearing is until 4:30 pm. We cannot just adjourn it at 3:30 pm.
Defence: How long did you stay at Juida village?

Witness: I was not continuously staying at Jiuda. I went to Tetulbaria, Rampal, Shonakhali, Ghoshiakhali, Shoronkhola and Mongla frequently to organize the freedom fighters.

Defence: When did you start for India?

Witness: We started in the 2nd week of July and reached there in the 3rd week.

Defence: When did the training started?

Witness: We took leadership training basically. The training started in the last week of July and we came back in the first week of August.

Defence: Did you come back at the Sundarbans after the training?

Witness: No. We went to Morolgonj first after the training and attacked the Pakistani force and rajakars. Being successful we went back to the Sundarbans.

Defence: When did you attack them?

Witness: On 14 August 1971.

Defence: You said, “The camp grew large in number of freedom fighters and we got really great successes in the fights. Thus, the camp had designated as a sub-sector under Sector No. 4.” Now can you please tell us when it the camp designated as ‘sub-sector’?

Witness: Sometime in September.

Defence: When did you become the HQ in-charge after the camp designated as a sub-sector HQ?

Witness: Form the very beginning.

Defence: Who was the in-charge for intelligence wing?

Witness: Sub-sector commander Major Zia Uddin himself.

Defence: Did you ever go to Pirojpur during the war?

Witness: I went to Mothbaria, Tushkhali, Bhandaria and Indurkani of Pirojpur during the war.

Defence: Did you go to Pirojpur town during the war?

Witness: No.

Defence: What about Nesarabad?

Witness: I did not go to Shorupkathi (Nesarabad) during the war.

Defence: Which of the upazillas of the (present) Barisal district you went during the war?

Witness: Barisal was out of our jurisdiction; therefore, I did not go there during the war.

Defence: What about Potuakhali and Jhalakathi?

Witness: I did not go to Jhalakathi during the war. However, I went to Bamna and Pathor Ghata of Potuakhali.

Defence: Can you please tell us under which district Morolgonj was in 1971?

Witness: It was under Bagerhat sub-division of Khulna district.

Defence: How many police stations were under Bagerhat sub-division then in 1971?

Witness: I cannot remember at this moment.

Defence: What did you use for transport then?

Witness: Boats. However, most of the times we used to work.

Defence: How long it would take to go to Tetulbunia village from Juida village by walking and by biat?

Witness: I never went there by boat. It was a one and half hours walk to go there.

Defence: You have stated the name of AKM Yunus of Khulna. Since when you know his name?

Witness: From my student life.
The Tribunal Chairman Justice Nizamul Haque adjourned the hearing until next day.

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