Changes likely in prosecution, probe teams

The government may bring a change in the prosecution and investigation teams dealing with war crimes as suggested by the Supreme Court after it found neglect and incompetence in handling the case against Delawar Hossain Sayedee.

“I have just got the 614-page copy of the Supreme Court judgement on Delawar Hossain Sayedee. I will read it and take necessary actions for complying with the apex court verdict regarding the prosecution and investigation teams,” Law Minister Anisul Huq told The Daily Star on yesterday.

The minister did not specifically say how much time he might take to read the apex court verdict that commuted death sentence of Jamaat-e-Islami leader Sayedee to imprisonment until his death for committing crimes against humanity in 1971.

In the judgement released on December 31, the Appellate Division observed, “We have noticed neglects and laches on the part of investigation officer in collecting legal evidence to prove the charge Nos. 6, 11, 14 and part of charge No. 8

“The investigation officer did not take any endeavour to ascertain whether or not Momtaz Begum lodged any FIR [first information report] over the killing of Ibrahim Kutti, and whether ext 'A' is the true copy of the same. Similarly, the prosecutor also did not take any step in this regard.

“He did not make any inquiry for ascertaining whether ext 'A' was genuine or forged; that he remained silent despite finding interpolations in it which can be detected with bare naked eyes,” reads the judgement delivered by three SC judges.

The judgement observed, “Similarly, in our view the prosecutor appears to be a novice law officer, who has no elementary knowledge in conducting a case on behalf of the prosecution and also the method of examination-in-chief of a witness. There are serious loopholes in the way the case has been conducted and he has not endeavoured to rectify those defects.”

The judges said the chief prosecutor also could not avoid the responsibility in this regard.

“If he cannot supervise the cases there is no reason for him to occupy the office,” the verdict said, adding, “The prosecution team should not gamble with the blood of martyrs.”

The verdict further says: “It is the duty of the prosecuting counsel to ask a witness questions carefully. He should keep in mind that a witness should not be questioned without an object or without being able to connect that object with the case. We are shocked by the manner in which the cases like this one are handled by them.

“It should be remembered that the persons involved in the process of trial of the offenders of Act of 1973 are getting extra financial and related benefits than the ones who are involved in normal trial. It is because the perpetrators of the offences under Act of 1973 have to be detected.

“They should not be allowed to hold any public office in future. Nowhere in the world history have such perpetrators been allowed to mix with the citizens in public affairs,” the judgement observes.

It adds, “Taking consideration of the public sentiments the government took the risk of holding their trial and gave the officers and others who are involved in the process risk benefits. It was the responsibility of the prosecution agency to collect legal evidence and discard those which are not relevant to prove a charge.

“The prosecutor has examined almost all the witnesses without comprehending which facts to be disclosed from their lips. The prosecution ought to have filed application for expunging ext A but in this case, we have noticed that the prosecutor took no positive step in this regard and allowed a forged document to remain with the record as evidence,” it says.

On the prosecution and investigation officials, the judgement says: “Apart from the above, the investigating agency failed to give protection and security to important witnesses. Such incompetent persons should not be entrusted with the task of investigation and prosecution of the cases involving offences of Crimes against Humanity and trials of such serious nature and they should be dropped immediately with a view to preventing similar types of damages to other cases.

“Otherwise, the offenders of heinous crimes like Crimes against Humanity, Genocide, War Crimes, etc would get the benefit for the misconducts and incompetency of such irresponsible investigators/prosecutors despite committing offences.

“There are no words to express our anguish and condemn the conduct adopted by the prosecution agency. More so, taking so much benefits from the state exchequer, they must have some sense of responsibility and should have been aware of the minimum requirements of law required to prove a charge and discard a forged document, and even if they have no knowledge, they could have consulted with any senior lawyers or senior law officers of the state,” the judgement adds.

Chief Justice Surendra Kumar Sinha has written this part of the judgement and former Chief Justice Md Muzammel Hossain, who headed the SC bench while hearing the case against Sayedee, and Justice Hasan Foez Siddiqe agreed with him [Justice Sinha].