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WAR CRIME TRIAL ‘Missing’ witnesses staying home safe Special Correspondent
Friday, 25 May 2012
In a sensational move the defence lawyers of Maulana Delwar Hossain Sayeedi at the International Crime Tribunal (ICT) last week charged the prosecution for misleading the court by ‘telling lies’ and producing ‘false information’ to justify its failure to bring 46 witnesses in the dock for making depositions against the accused.
The chief defence lawyer Barrister Abdur Razzak told the tribunal that the prosecution has secured an order under which the court accepted the depositions of 15 witnesses out of 46 in the case docket on the ground that they were unable to physically appear before the ICT on valid grounds.
The prosecution said some of the witnesses are sick, some of them are absconding because of threats from the accused, some of them are missing and yet some others may have fled to India.
Barrister Razzak said the Investigating Officer (IO) has in fact ‘betrayed’ the court and influenced it by giving ‘false and baseless’ information to secure a court order to accept their ‘claimed’ depositions to the IO as evidence in the case without requiring their physical presence and facing cross-examination in the dock by the defence lawyers.      
The chief defence lawyer demanded that the court to rescind its March 19 order in which it allowed the witnesses to stay out of the court after accepting their depositions to the IO as a standard case document.
“This is contrary to fair justice,” Barrister Moudud Ahmed and other senior lawyers told the court last week saying it violates the basic judicial law to the fact that the witness must stand for verification and cross-examination by defence lawyers before the court.
Barrister Razzak produced the video- interviews of three witnesses out of the 15 in a projector before the court to show they are well and living normal life.  He produced the documentary made by two TV channels in the defence’s bid to prove that these witnesses are available; they are not sick, nor missing or absconding.
He also told the court naming each of the 15 witnesses where do they live now and what they are doing. He said they are within the reach of the court. Referring to the register of the ‘safe house’ that the prosecution has set up in the capital to give safe custody to the witnesses; he said three of them had even stayed there for 46 days and brought to the prosecutors’ office around the tribunal for several times.
Some others are living at home and working in the fields. The fact is that they are not agreeable to make false deposition, since they did not make any statement to the IO in the first place and therefore they are resisting the government pressure to appear before the court, the defence lawyer said.
Barrister Razzak said since they did not make any statement to the IO, the statements are not having their signature. The IO presented statements of the witnesses are photo copies of a single statement where different names and addresses of the witnesses have been posted.
These witnesses need to be examined and verified before the court to ensure whether they have made any deposition. The court can’t ensure a fair justice without producing them to the defence for verification.
The court at that point said it can accept the IO’s statement in the case where physical presence of the witnesses becomes difficult by circumstances, or if it becomes time consuming and highly expensive. If the court believes that there is a genuine ground, then it can accept IO’s statement as valid witness.
But the defence said the rule has two parts. If the first part is valid that they have made the deposition to the IO, then the second part can be invoked. But documentary evidence showed the witnesses have not made any deposition to the IO, so the justification to invoke the second part of the rule to give exemption from physical presence before the court does not arise, the chief defence lawyer said. 
He said the witnesses have said they did not make any disposition against Sayeedi, so how the IO’s statement can be accepted by the court as valid witness. Pointing to the TV documentary which was showed in the court room by a projector, Barrister Razzak said the prosecutor’s claim that Usharani Malakar, one of the 15 witnesses is terminally sick, has no memory and stands to risk her life if she travels to Dhaka appears baseless from the video.
She spoke before the TV camera, she said she did not know Sayeedi and denied time and again that she had made any deposition against the accused. She was chewing bettlenuts and looked healthy while speaking to the media.
Gonesh Chandra, another witness, said he did not know Sayeedi. He said his mother was abused by the Pakistan Army and some people were cashing in on the issue. 
Shukhranjan Bali, another witness of the 15 witnesses, similarly claimed he did not know Sayeedi and also declined to have made any deposition to the investigating officer in the case.
Barrister Razzak refuted the claim of the prosecution that witnesses Ashis Kumar, Sumati Rani and Samar Mistri have fled to India. He said the safe house register dairy showed they stayed here for 46 days ending on March 16.
The defence further refuted the claim of the prosecution saying five witnesses whom the prosecution has claimed to have been absconding fearing reprisal of Sayeedi supporters are in fact living at their village home. Some of them have even stayed in the safe home and were taken to the prosecution office, he said.
The problem has arisen, he said, because they did not agree to give false deposition and went home from the safe house.
They are not missing
Two national Bengali dailies, Amar Desh and Noya Diganta, reported on their whereabouts quoting the safe house dairy on April 12 and March 27, Razzak said pointing to the source of his claim, besides the TV recordings.
Moreover, reports in the Bengali daily Janata on March 22 quoted one of the leaders of the campaigners for War Crime Trial, journalist Shahriar Kabir, as saying he did not know whether he is a witness to the case. The prosecution has not contacted him, he claimed.
Similarly, noted magician Jewel Aich said he did not know whether he is a witness to the case although his name is very much on the witness list, the sources said. So also Jafar Iqbal is reportedly on the witness list and quoted as missing to exempt him from appearing before the court.
Sources said, Maulana Sayeedi is the victim of a political vendetta of the ruling party and he is in fact facing the replacement trial of a real Razakar named Delwar Hossain Sikder who was killed by freedom fighters after the Liberation War for his brutalities as an auxiliary force to the Pakistan Occupation Army.
Many witnesses have cleared the contradiction but it is up to the court how the trial will end. The court may give order on the review petition this week, the sources said.