The tribunal has given discretionary power under rule 44 to admit any evidence oral or documentary, print or electronic including books, reports and photographs published in news papers, periodical and magazines, films and tape recording and other materials as may be tendered before it and it may exclude any evidence which does not inspire any confidence in it. In exercise of discretionary power, the tribunal has discarded affidavits as having no reliability. Rule 51(2) provides that the defence shall prove the documents and materials to be produced by it in accordance with law. In order to prove any documentary evidence by the defence, it is required to prove the same in accordance with section 9(5) of the Act which provides that a list of witnesses for the defence, if any along with documents or copies thereof, which the defence intends to rely upon, shall be furnished to the tribunal at the time of the commencement of the trial. Salauddin Qader Chowdhury vs Chief Prosecutor, International Crimes Tribunal, Dhaka, Bangladesh, 67 DLR (AD) 295

International Crimes (Tribunals) Act, 1973
Section 3(2), 20(2), 20(3) r/w
The Rules of Procedure, 2012
Rule 46(2)
Ordered (Abdul Quader Mollah case)– That the accused Abdul Quader Molla son of late Sanaullah Molla of village Amirabad Police Station Sadarpur District –Faridpur at present Flat No . 8 /A, Green Valley Apartment, 493, Boro Moghbazar PS. Ramna, Dhaka is found guilty of the offences of ‘crimes against humanity’ enumerated in section 3(2) of the International Crimes (Tribunals) Act, 1973 as listed in charge no. s 1, 2, 3, 5 and 6 and he be convicted and condemned to a single sentence of ‘imprisonment for life’ for charge nos . 5 and 6 And also for the crimes as listed in charge no s . 1, 2 and 3 to a single sentence of ‘imprisonment for fifteen (15) years’ under section 20(2 ) of the Act of 1973. The accused Abdul Quader Molla is however found not guilty of offence of crimes against humanity as listed in charge no. 4 and he be acquitted there of.
However, as the convict Abdul Quader Molla is sentenced to ‘imprisonment for life’, the sentence of ‘imprisonment for 15 years’ will naturally get merged into the sentence of ‘imprisonment for life’. This sentence shall be carried out under section 20(3) of the Act of 1973. The sentence so awarded shall commence for thwith from the date of this judgment as required under Rule 46(2) of the Rules of Procedure, 2012(ROP) of the Tribunal- 2 (ICT-2) and the convict be sent to the prison with a conviction warrant to serve out the sentence accordingly. Let copy of the judgment be sent to the District Magistrate, Dhaka for information and causing necessary action. Let certified copy of the judgment be furnished to the prosecution and the convict at once. (A. H. M. Shamsuddin Choudhury, J) …Government of Bangladesh =VS= Abdul Quader Molla, [8 LM (AD) 375] ....View Full Judgment

There is no scope under the rules of evidence to infer contradiction of the statement of a witness with those stated to the investigation officer. The Rules provide that the cross-examination of a witness shall be strictly confined to the subject matter of the statement made in chief. The party, however, is at liberty to cross examine such witness on his credibility and to take contradiction of the evidence given by him. The credibility of the witness can be inferred and taken from the evidence in chief and not otherwise. Salauddin Qader Chowdhury vs Bangladesh, 67 DLR (AD) 295

The credibility of the witness can be inferred and taken from the evidence in Chief and not otherwise–
As regards police contradiction, Appellate Division held that in view of sub-rule (ii) of rule 53 of the Rules, there is no scope to infer any contradiction between the evidence of the witness and his earlier statement made before the police. Or in the alternative, a contradiction between the statements of a witness and his evidence cannot be taken or perceived in any manner. There is no scope under the rules of evidence to infer contradiction of the statement of a witness with those stated to the investigation officer. The Rules provide that the cross-examination of a witness shall be strictly confined to the subject matter of the statement made in chief. The party, however, is at liberty to cross examine such witness on his credibility and to take contradiction of the evidence given by him. That is, the credibility of the witness can be inferred and taken from the evidence in Chief and not otherwise. (Para-163); .....Salauddin Quader Chowdhury =VS= The Chief Prosecutor, ICT, Dhaka, (Criminal), 2017 (1)- [2 LM (AD) 511] ....View Full Judgment

The Evidence Act, 1872
Section-145 r/w
The International Crimes (Tribunal-1) Rules of Procedure, 2010
Rule 53(ii)
Contradiction statement made by the witnesses– It is assumed that contradiction of the statements of witnesses can be drawn in the manner provided under section 145 of the Evidence Act, it may best be said that the witnesses omitted to make some statements before the investigating officer as they were not asked properly, and those omissions cannot altogether be treated or termed contradiction within the meaning of sub-rule (ii) of Rule 53 of the Rules of the Evidence. The contradiction can only be drawn from statement made by the witnesses in course of their examination-in-chief. The defence practically has failed to bring any such contradiction which affects the prosecution case as a whole. The appellant failed to show any such vital contradiction. (Para-225); .....Ali Ahsan Muhammad Mujahid =VS= The Chief Prosecutor, ICT, Dhaka, [2 LM (AD) 1] ....View Full Judgment

The tribunal shall give due weight to the primary and secondary evidence and direct and circumstantial evidence of any fact since the peculiarity of the facts and circumstances of the case demand to consider the time and place of the occurrence. The tribunal gave due weight to the direct evidence and discarded the affidavits. The direct evidence prevails over inadmissible evidence. Salauddin Qader Chowdhury vs Bangladesh, 67 DLR (AD) 295.

The Evidence Act, 1872
Section-32, 33 r/w
International Crimes Tribunals Act, 1973
Section 19(1) r/w
The International Crimes (Tribunal-1) Rules of Procedure, 2010
Rule 56(2)
Hearsay evidence–
Mr. Shajahan repeatedly complained that the Tribunal below erred in admitting hearsay evidence.
Without any insinuation I only wish to express my surprise as to how Mr. Shajahan could be oblivious of the express provision in the Act which stipulates that the tribunal shall not be bound by technical rules of evidence and may admit any evidence which is deemed to have probative value, and of the express provision in Rule 56 (2) which confers discretion on the Tribunals to accord due consideration to hearsay evidence
Again, it is not only our Act, hearsay evidences were admissible in the IMT in Nuremberg and Tokyo Tribunal as well as by other national tribunals such as US Military Tribunal in Nuremberg and Soviet Tribunals and the British Tribunal that tried war criminals before as well after the hostility ended in 1945.
Statutes of modern UN sponsored tribunals such as ICTY, ICTR, SCSL, STL and even that of International Criminal Court (ICC) do not proscribe hearsay evidence for very cogent reasons. The very nature of the crimes concerned and the manner of their commission are such that credible hearsay evidence are indispensable.
Although there is no rule governing the admissibility of hearsay evidence before the ICTY, ICTR and SCSL, the Trial Chambers of all these tribunals have refrained from adopting a practice to exclude all hearsay evidence. There is no rule declaring hearsay rule per se inadmissible. General scheme for admissibility of evidence set out in Rule 89 for ICTY, ICTR and SCSL has guided the chambers in their deliberation on hearsay evidence.
In Prosecutor-v-Galic, the Appeals Chamber of ICTY defined the scope of admissibility of hearsay evidence pursuant to Rule 89(1) saying that the said Rule “permits the admission of hearsay evidence in order to prove the truth of such statements rather than merely the fact that they were made. According to that decision a hearsay evidence may be oral i.e. where someone else had told him something out of Court or in black and white, for example when an official report, written by someone who is not called as a witness, is tendered in evidence. The Appeal Chamber expressed that Rule 89(c) clearly encompasses both these forms of hearsay evidence” (Decision on Interlocutory Appeal, June 7, 2002). The Trial Chamber of ICTY expressed in Prosecutor –v-Tadic on a defence motion on hearsay (5th August 1996), “out of Court statement that are relevant and found to have probative value are admissible”.
The same position was taken by the Trial Chamber of ICTY in Prosecutor-v-Blaskic, while deciding on the standing objection of the defence to the admission of hearsay evidence with no inquiry as to its reliability. (January 21, 1998).
It was held that hearsay evidence must have indicia of reliability in order to be admissible: reliability is not merely a matter of going to the weight of the evidence.
Similar view was also expressed in Prosecutor-v-Natelic and Martionovic, ICTY Appeal judgment, May 3, 2006, para 217 and 516, Prosecutor-v- Aleksovski, decision on prosecutor’s appeal on admission of Evidence, 16th February 1999, para 15, Prosecutor-v-Milosevic, decision on testimony of defence witness, Dragan Jasovic, April 15, 2005, page – 4, Prosecutor-v-Mihitino Vic, decision denying prosecution Second Motion for admission of evidence pursuant to Rule 92, (13th September 2006, para 5,)? Prosecutor-v-Prlic, decision on appeals against decision admitting transcript of Jadranko Prlics questioning into evidence, (23rd November, 2007, para-52).
It has been held by all these tribunals that hearsay evidence can be admitted to prove the truth of its contents, and the fact that it is hearsay does not necessarily deprive the evidence of its probative value and that the chamber must be satisfied of its reliability given the context and character of the evidence for it to be admitted (Prosecutor –V- Aleksovski- ICTY, decision on Prosecutor’s appeal on admissibility of evidence, 16th February 1999, para – 15, Prosecutor-v-Semanza, decision on the defence motion for exclusion of evidence on the basis of violations of the rules of evidence, Res Gestae Hearsay and violation of the Statute and Rules of the Tribunals, 23rd August 2000.
In the case of notorious Milosevic, though the Appeal Chamber of ICTY held that hearsay evidence will usually be given less weight than that given to the testimony of a witness who has given it under a form of oath and who has been cross examined, it nevertheless also stated, “it depends upon infinitely variable circumstances of the particular case …..”. (Prosecutor –V – Milosevic, decision on admissibility of Prosecution Investigator’s evidence, 30th September 2002, para 18.
ICTY Chamber also made it abundantly clear that the right to cross examination incorporated as part of the fair trial provisions of Article 21(4)(e) Statute and Article 20(4)(e) of ICTR statute “applies to the witness testifying before the Trial Chamber and not to the initial declarant whose statement has been transmitted to this Trial Chamber by the witness” (Prosecutor –v- Blaskic, decision on standing objection of the defence to the admission of hearsay with no inquiry as to its reliability, 21st January 1998, para 29).
The SCSL in Prosecutor-v-Brima (decision on joint defence evidence to exclude all evidence from witness, 24th May 2005, para 12) observed “it is now well settled in the practice of international tribunals that hearsay evidence is admissible”. It went on to say, “the probative value of hearsay evidence is something to be considered by the Trial Chamber at the end of the trial when weighing and evaluating the evidence as a whole, in light of context and nature of the evidence itself, including the credibility and reliability of the relevant witness”.
The Appeal Chamber in Prosecutor-v-Norman, (Fofana appeal against bail refusal, 11th March 2005, para 22) held that the relevant rule has conferred a broad discretion upon the tribunals to admit hearsay evidence.
Even the East Timore’s Special Panel for serious Crimes held hearsay evidence to be admissible, though hearsay upon hearsay will deserve little weight (Prosecutor-v-Marques, 11th December 2001).
The ICC in Prosecutor-v-Katanga of Ngudjolo (decision on the confirmation of charges, 30th September 2008, ICC-01/04-01/07-717, para 137) held that though any challenge on hearsay evidence may affect its probative value, it may not affect its admissibility. ICC further stated in that case that hearsay is admissible even if the source of the evidence is anonymous.
Whilst relying on ECHR jurisprudence propounded in Kostovski-v-The Netherlands, judgment delivered on 20th November 1989, the pre-trial Chamber of ICC, in Prosecutor-v-Katanga of Ngudjolo, supra, reiterated previous finding of the Pre-Trial Chamber in Prosecutor –v-Labanga that there is nothing in the statute or the Rules which expressly provides that the evidence which can be considered hearsay from anonymous sources is inadmissible per se. In addition, the Appeals Chamber has accepted that, for the purposes of the confirmation hearing it is possible to use items of evidence which may contain anonymous hearsay, such as redacted versions of witness statement. (Prosecutor-v-Labanga ICC-01/04-01/06-803, para 101). The Pre-Trial Chamber further stated that the probative value of anonymous hearsay evidence will be determined in the “light of other evidence”.
The International Military Tribunal in Nuremberg allowed the use of hearsay evidence through affidavits, but it also required that any such affiant to be available for cross examination.
Its charter, developed under the Moscowc Declaration 1943, provided for a criminal procedure that was closer to civil law than to common law with wide allowance for hearsay evidence.
The London Charter enunciated simple evidentiary rule repeatedly propounded in the US internal position papers, reading; “The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and non-technical procedure and shall admit any evidence which it deems to have probative value” which stands virtually reproduced in Section 19(1) of the Act. (our provisions are not dissimilar) (Paras:713-731); .....Allama Delwar Hossain Sayedee =VS= Government of Bangladesh, (Criminal), 2017 (1)- [2 LM (AD) 76] ....View Full Judgment