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Petitioner: SHAHZAD MUMTAZ VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Abdul Hayee Qureshi, G.M Shah Title: SHAHZAD MUMTAZ vs THE STATE Case No.: Criminal Appeal No. 174 of 1977 Date of Judgment:1979-02-17 Reported As: 1979 P Cr. L J 336 Result: Appeal accepted
JUDGMENT
JUDGMENT G. M. SHAK J.---The appellant (21) was tried by the IV Additional Sessions Judge, Karachi, for the murder of Mst. Manzooran and her 4 (four) minor children, in their house. He was convicted and sentenced to death, by the judgment dated June 30th, 1977. There is also a reference under section 374, Cr. P. C. For confirmation of the sentence of death. The appellant, by this appeal, has impugned the judgment of his conviction and sentence. This judgment will dispose of both, the appeal and the reference. 2. The prosecution case, shortly stated is that Mst. Manzooran was living along with her 4 (four) minor children in a rented upper storey Quarter No. 3/116 Liaquatabad, belonging to Muhammad Umar (P. W. 5X Her husband Liaquat Hussain had gone to Abu Dhabi in connection with his service there. The names of her children were Muhammad Shafique aged 10 years. Wasim alias Guddoo aged 6 years, Iqbal aged 21 years, and a girl Shaista aged 8 years. The ground floor was occupied by the landlord Muhammad Umer and his family. Her husband used to send her expenses. Once he had sent for a cassette with a message recorded in his voice advising her to take special care of herself and the children. He had further asked her not to go out at all, even if some one told her that he had sent certain articles for her, from Abu Dhabi to be received at the Air Port. The cassette was delivered to her by one Aijaz. 3. On 19-10-1975 at about 9 p.m., Mst. Manzooran had disclosed to her elder sister, Mst. Khursheed (P. W. 1) that she apprehended danger. She was consoled and advised, by her sister, to lock the door of the quarter properly and go to sleep. 4. On 20-10-1975 at about 9-30 a.m. a boy Javed Ahmed, aged about 10 years, while going on the roof of the house of one Tahseen, for flying a kite noticed from the staircase, some bloodstains in
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the courtyard of the house of Mst. Manzooran. He returned to his house and informed his mother Mst. Badrunissa about it, who in turn, informed Mst. Aisha wife of the landlord Muhammad Umar, residing on the ground floor of the quarter of deceased Manzooran: Mst. Aisha also informed Mst. Khursheed residing adjacent to her house, who informed her brother, Jamal Ahmed. All of them proceeded to the house of the deceased and found the dead bodies of Mst. Manzooran and her four children lying inside the room. The door of the quarter was broken open. Clothes were found scattered all around inside the room. Jameel Ahmed went to the police station Liaquatabad and. Lodged the F. I. R. (Exh. 5) at about 10 am. Which was recorded by S. H. O. Aziz Ahmad. The police visited the place of occurrence and inspected the quarter from where some letters, photographs, cassette and bloodstained articles were secured by the police. While searching for a weapon of offence, the police went on the roof of the house and found a piece of paper (Exh. 3) wrapped in atta (flour) ball, which was recovered The paper bore a line in Urdu written in red pencil reading "Khooni Daranda". The police prepared the memo of inspection of the vardat Exh: 23. It is noteworthy that this mashirnama prepared on 20-(04975 at 10-30 a.m. Was also signed by the appellant, as one of the maihirs. Statements of witnesses Mst. Khursheed, Mst. Aisha, Mst. Kadira, Mst. Hafiza and Messrs Shaikh Ahmed, Muhammad Siddique, Muhammad Ashfaque as well as the appellant Shahzad were recorded on 20-10-1975 and of Javed, Aijazul Hassan, Shakir, Muhammad Umar, Barkat, Mumtaz Ali, Riasat and Mst. Bakhtari, were recorded on 21-10-1975. Thereafter Dy. S. P. Zaffar Iqbal (P. W. 17) verified the investigation, so far conducted by S. H. O. Aziz Ahmed and on 22- 10-1975 took over the investigation of the case himself. During his investigation, Liaquat Hussain, husband of Mst, Manzooran had also reached Karachi from Abu Dhabi. 5. On 26-10-1975, the appellant, his mother and father were called at the police station and on 27- 10-1975, the appellant was arrested. He led the police party to his house and produced, from a box, his blood-stained clothes (Bush-Shirt and a Pant). He also produced a `Toka' (heavy butcher's knife) from underneath a tin box. He had also pointed out an electric pole by which he had climbed the roof of quarter No. 3/1[7 from where he had reached the quarter No. 3/116 and entered the house of the deceased, Mst. Manzooran. 6. On 28-10-1975, the appellant was produced before a Magistrate who recorded his judicial confession and also obtained his specimen writings and signature. All the blood-stained articles were sent to the chemical Examiner. After completing the investigation, the charge-sheet was filed in the Magisterial Court, from where, the case was sent for trial to the Court of Session at Karachi. 7. The autopsy was performed on 20-10-1975 at the Civil Hospital Karachi by Dr. Preetam Lila Ram who found the following injuries on 4 (four) dead bodies; sent to him by the police. All the injuries were anti-mortem to nature and were caused by a sharp cutting heavy weapon like a heavy knife. Churra or an axe. On external examination, of the dead body of Mst. Manzooran wife of Liaquat Hussain aged about 25 to 30 years the Doctor found 6 (six) injuries on her body. They were as under :- "(1) Incised wound right upper part of neck 1----- below the level of right fear lobule, horizontal in direction extending from below the chin running backwards measuring 5--- x 1----- x bone deep, cutting the skin, soft tissue, muscles, external cartoid blood vessels and bone under neath. (2) Incised wound right side of neck middle part, ----- below external injury No. 1, horizontal in direction extending from the point ----- on the left side middle line of neck running to right side and backwards, measuring 5----- x 2" bone deep cutting the skin, soft tissue, muscles, the thyroid cartilage in mid-line skin, soft tissue, muscles, carotid blood vessels, and bones on right side. (3) Incised wound on right side neck lower part 1--- below external injury No. 2. Running horizontal in direction, starting about ----- away midline neck, running outward measuring 2--- x 1" x bone deep cutting the skin, soft tissue, muscles, blood vessels and bones under neath.
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(4) Incised wounds three in. Number on the back of midline phalanges of the left index, middle end ring fingers, each measuring ----- x ----- x muscles deep. (5) Incised wound dorsum of left foot measuring 1--- x ----- x muscles deep. (6) Incised wound on the left big too, left 2nd toe and the left 3rd toe, cutting with amputation of upper digit of left 2nd toe, (terminal with removal of a piece of skin, ----- x ----- on under surface of big toe, and incised wound terminal phalanx of 3rd toe, into bone deep." On internal examination, of her body the abdomen was found containing slight yellowish thick fluid and small intestine was empty. No marks of injury are noticed on thighs or external genitalia, vagina Eatulous. Line albicants were present on thighs and abdomen. She was wearing white cotton 'Kurta' and yellow silken shalwar. The Kurts was blood-stained more than the shalwar. The cause of death, in the opinion of the Medical Officer, was severe haemorrhage and shock, as a result of homicidal injuries inflicted on the dead body. The Doctor then examined the dead body of II. Tahseen Hussain son of Liaquat Hussain, aged about 11 to 12 years, and found the following 9 (nine) external injuries "(1) Incised wound left side of head and neck, oblique in direction extending from temporal region behind upper part left ear, running backwards and downwards measuring 6--- x ----- bone deep, cutting skin soft, tissues, muscles, and slicing away portion of left mastoid process and separating left external ear from its attachment. (2) Incised wound left side face horizont in direction, below the level of left angle of jaw measuring 2--- x 1--- x bone deep, cutting skin, soft tissues, muscles and bone underneath and causing cut mark over nose. "(3) Incised wound left side neck horizontal in direction, below the level of left angle of jaw measuring 2--- x ----- bone deep, cutting skin, soft tissues muscles and bone neath. (4) Incised wound ----- below the level of injury No. 3 transverse in direction starting from the midline of neck, running backwards, horizontal in direction measuring ----- x 1" bone deep, cutting skin soft tissues, muscles and bone the left side. (5) Incised wound left side neck ----- below injury No. 4 horizontal in direction, starting midline running backwards measuring 3" x 3----- bone deep cutting skin, soft tissues, bone underneath. (6) Incised wound left side chin horizontal in direction measuring 2" x 1" x bone deep cutting soft tissues, skin and bone underneath. (7) Incised wound right side front and inner side wrist horizontal in direction measuring 1----- x 1--- bone deep cutting skin, soft tissues and bone under neath. (8) Incised wound back of right hand oblique in direction measuring 2----- x 1--- x bone cutting skin, soft tissues tendon and head of 4th metacarpate. (9) Incised wound back of left hand causing amputation of terminal phalanges of left middle and ring fingers with incised wound on the back of index finger. III. The dead body of Wasim Hussain son of Liaquat Hussain aged about 4 (four) years was examined having 6 (six) external injuries: (1) Incised wound back of left neck and occipital area 1--- below left ear, measuring 5" x 1----- into bone deep cutting skin, soft tissues blood vessel, muscles and bone, extending from below left ear running backward and downward until middle of neck back. The injury was horizontal, in direction. (2) Incised wound right side face and neck (upper part) extending from ----- below right side ear and running backwards and down ards horizontal in direction, measuring 2" x 1" x muscles cutting skin, soft tissues and muscles. (3) Incised wound right side back of shoulder 2" below tip of shoulder measuring 2" x 1" muscles deep.
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(4) Abrasions tolx of right shoulder total six in number largest size measuring 5" x 4" and smallest size measuring 1----- x ----- covering an area of 5--- x 4---. (5) Incised wound back of right hand near wrist middle part measuring an area of 1" x ----- x bone deep. (6) Incised wound right side middle and ring finger in area of 2--- x ----- bone deep with partial separation at metacarpal phalangel joints. IV. Thereafter the dead body of Iqbal Hussain son of Liaquat Hussain a young child aged 2 to 3 years was examined having only one external injury : - "(1) Incised wound right side neck horizontal in direction, extending ----- from V from the middle of the neck running backwards and downwards about 2----- below the ear in an area of 3" x 1----- x bone deep cutting skin, soft tissues, muscles, common caroted vessels, and bones.". V. On the same day (20-10-1975) Dr. Abdul Hadi Khan held the autopsy on the dead body of Mst. Shaista daughter of Liaquat Hussain, a young girl aged about 7 years, having 3 incised wounds as under :- "(1) Incised wound right side of head and upper part neck started from middle of the ear running backward and. Downwards measuring 6" x 1" x bone deep cutting the cartilage of right ear skin soft tissues muscles and slicing away the portion of the right mastoid bone process. (2) Incised wound right side upper part of neck joining the external injuries No. 1 in its posterior part starting near the right side of chin horizontal in direction measuring 6" x 2" x bone deep cutting skin soft tissues muscles blood vessels and the bones on the right side of neck. (3) Incised wound upper part of right scapular region horizontal in direction extending from near the midline to the right shoulder measuring 5--- x 1" x bone deep cutting the skin soft tissues muscles and the acromain process underneath." In addition to the Medical evidence, there is ample evidence of several witnesses Mst. Khursheed, Jameel Ahmed, Mst. Aisha and the police officers that all the deceased were killed in their quarter, which fact, has not been disputed even orb behalf of the appellant. 8. In his statement, in the trial Court, the appellant had denied his involvement in the murder of the deceased persons. He had further denied having led the police to his house and voluntarily producing his clothes and 'Toka', all blood-stained, and having written the 'Ruka' Exh. 3 in red pencil, and throwing it on the top of the house of deceased Mst. Manzooran. He had admitted having made a judicial confession; but explained that it was false, as he was tortured and tutored by the police, to make it. Though the appellant had led no defence; but his version, was that the deceased persons were his neighbours. He further stated that he used to call Mst. Manzooran as his 'Khalla' and her husband as Khallu. He also asserted that his mother was called at the police station in order to coerce him, to make a confession, failing which, they threatened to undress her. As regards the witnesses, be stated that they were maltreated and were set up by the police, to falsely implicate him. 9. We have heard the learned counsel Khwaja Naveed Ahmed for the appellant and Mr. Murtaza Hussain on behalf of the State. The evidence in the case has been assailed by Mr. Naveed Ahmed on the following grounds :- "(i) That there is no direct motive for commission of such heinous and cold blood murders. On the contrary, the relationship between the appellant and Mst. Manzooran was very affectionate. (it) That the recovery .Of, 'Ruka' Exh. 3 is suspicious as it could not possibly be wrapped in dry atta and thrown on the roof of the deceased, and if so, with what purpose. (iii) That the clothes produced by the appellant show tiny marks of blood on, them, which creates a doubt. When a person commits 5 (five) murders and the injuries are on the neck cutting vital arteries which must have resulted in the splashing of the blood on the clothes of the assailants. (iv) That the production of the Toka, by the appellant is doubtful.
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(v) That the judicial confession is neither true, nor voluntary, as the appellant was associated in the investigation of the case from the very beginning, on 20-1-1975 and was himself a witness of the documents prepared by the police, viz. All the Inquest Reports Exh. 12, 11/A to 12/C dated 20-10-1975 which show that dead bodies were identified by the appellant and Mst. Khursheed (P. W. 1) sister of the deceased. Mst. Manzooran. Likewise Exh. 23, the memo of site inspection dated 20-10-1975 also bears the signature of the appellant, as a witness, along with other witnesses. He was therefore not suspected by the relatives of deceased, as well as, the police officers, who had conducted the initial investigation, till the 26th of October, when the mother and the father of the appellant were called at the police station and were disgraced. Afterwards the appellant was tortured and tutored to make the confession. (vi) That Liaquat Hussain, husband of deceased Mst. Manzooran was working in an Agency for sending Pakistanis abroad to other countries on payment of huge sums of money. He used to arrange pass--ports for them. When those persons were not sent abroad, they demanded their passports and money back, which was not paid by Liaquat Hussain and in retaliation, his wife and children, were murdered. (vii) That the case against the appellant is not free from doubt." As regards the first contention it was argued that the house of the appellant is adjacent to that of Mst. Khursheed, sister of deceased Manzooran and is separated by only a wall. He is known to the family of the deceased Manzooran since his birth. Mst. Khursheed was on visiting terms with him. His mother Tasawar is very well known to her. Mst. Khursheed had made Tasawar as her sister and had exchanged 'Dopalias' as a token of friendship. The appellant used to call deceased Manzooran as 'Khala' and her husband Liaquat Hussain as 'Khalu'. The relations between the family of the appellant 'and deceased Manzooran were cordial. When deceased Manzooran had received the Cassette from her husband, she went to Mst. Aisha the next day and requested her for arranging a radio--cum cassette player to listen to the cassetes sent by her husband. Aisha could not arrange. The appellant who was present, was then requested by the deceased Manzooran to arrange and he did bring one, on which the cassete was played and heard by the deceased and others, who were present there. Such an attitude of the appellant towards the deceased Manzooran, clearly indicated that she could never have apprehended the kind of danger from the appellant, about which she had spoken to her sister Khursheed on the previous night of her murder. Her husband Liaquat had also advised Mst. Manzooran in has message on the tape, to be careful and had warned her not to go out of the house: He had also instructed her not to allow the children to go down from the house, which fact was admitted by Mst. Aisha in her committal Court statement. On the day when the cassette was received, deceased Manzooran was not well and her sister Mst. Khursheed and P. W. Mst. Aisha had gone to the doctor for her medicine. Mst. Manzooran had told them that she was worried, on which her sister Mst. Khursheed consoled her not to, and asked her to bolt the door from inside and go to sleep. None of the relatives of the deceased Manzooran, namely Mst. Khursheed (sister), Jameel Ahmed (brother) or close neighbours Mst. Aisha and her husband Muhammad Umar, the I landlord, staying on the ground floor, had, alleged that the appellant had, at any time, any evil eye on the deceased Manzooran, who also never made any such a grievance or complained to any of them, about such a behaviour of the appellant towards her. In fact, there is not a word in the entire evidence suggesting any such overtures made by the appellant towards the deceased Manzooran or ever extorting money froth her by threats. We are therefore of the confirmed view on the basis of evidence on the record that lust for sex or demand for money by the appellant could not be the motive for committing the murder of Mst. Manzooran by him. The injuries on the person of the deceased Manzooran also do not suggest any sexual assault. The injuries on her children, as well on Mst. Manzooran appeared to have been caused by a sharp edged and a heavy weapon, when they all were fast asleep, resulting in their instant death.
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The manner, in which all the five members of the family were murdered, indicated that the assailant had prelanned the assault to take vengeance on account of something which is a mystery. It is true that in criminal cases, motive more often than not, remains shronded in uncertainty. In the statement of P. W. 1 Mst. Khursheed there is an indirect reference that the appellant had committed the theft and her son had reported the theft matters at the police station. Even if that be true, the appellant should have had the grudge, against either her son or Mst. Khursheed. No such motive or suspicion, relating to the theft, was mentioned in the F.I.R. Lodged by her brother Jameel Ahmed. There was no reason why should the appellant have picked on the deceased Manzooran and her children and killed them all. In the instant case there is no clear indication of any motive against the appellant for committing such an unwanton and ghastly murders. The motive was only within the knowledge of the killer and is for us, a matter for speculation. The motive disclosed in the judicial confession speaks of a desire for sex, which finds no support from the evidence, on the record. We are, under the circumstances, in agreement with the learned counsel for the appellant that the evidence does not directly suggest any motive against the appellant. 11. In regard to the second contention, it was stressed by the learned counsel that recovery of the 'Ruka' Exh. 3 creates a suspicion and it reflects adversely on .The entire evidence, making the whole case doubtful, against the appellant. In support of this piece of evidence, no consistent theory is advanced in the prosecution case. What was the compelling necessity, which persuaded the appellant to write such a 'Ruka' for demanding money or killing the whole family. He had no enmity with either Mst. Manzooran, her children or her husband Liaquat Hussain. He had no revenge to take from any of them. The wording of the 'Ruka' written in Urdu reads : The verbatim English translation would more or less be Bloody killer beast. I have only now started murdering. One who would not pay me. I will drink the blood of all the members of his entire family. Proclamation of the blood killer beast. From the wording of the 'Ruka', it leaves no doubt in. Our mind that the writer had meant to kill, if he was not paid the money. Such a motive is not even mentioned in the judicial confession, made by the appellant. As discussed above, when the appellant had no apparent motive or either sex or money, to kill any of the deceased, why would he class himself as killer and write such a 'Ruka'. The next question that arises is why would he throw the 'Ruka' on the roof of the house, where no one had access, particularly deceased Manzooran, who could never go up on the roof. Even if it be accepted that the 'Ruka' was meant to be thrown towards the gallary, but it fell on the roof of deceased Manzooran; it is not known, whether she was educated at all in Urdu to read it. Finally we observe that the 'Ruka' was wrapped in dry 'atta' as is mentioned in the confession Exh..18/A and was thrown towards the gallary of the house of deceased Manzooran, but instead it fell. On the roof of her quarter. It is rather difficult to believe that the dry 'atta' would hold the paper to make it possible, to be thrown on the roof of a quarter on the first floor and then remain there, unaffected by blowing of the wind, till it was recovered on 20-10-1975, by S. H. O. Police P. W. Aziz Ahmed. Apart from this fact, this 'Ruka' had no useful purpose in the case, till the appellant was officially arrested on 27-10-1975. We find that the 'Ruka' itself does not bear signatures of any of the mashirs of its recovery. Whereas the Mashirnama Exh. 23 relates to the recovery of the 'Ruka' which is signed by the appellant and the two mashirs, one of whom Qari Shaikh Ahmed was examined who stated that he bad not gone on the roof of the house. The Ruka was shown to him by the police officer in the house of deceased Manzooran and the mashirnama relating to the recovery. Of the 'Ruka' was not read out to him. It is therefore a doubtful piece of evidence to be considered, as of an
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incriminating nature, against the appellant, particularly when it is not the case of the prosecution that the appellant wanted, to black mail and/or extort money from deceased Manzooran. 12. The next two pieces of evidence attacked, by the learned counsel are (iii) and (iv), which we wish to discuss together as they are about the production of blood-stained clothes (bush-shirt. Pant) and 'Toka' by the appellant, before Dy. Superintendent Zaffar Iqbal, on 27-10-1975. The clothes were taken out from inside a box and the 'Toka' from the bottom of a Tin Box in presence of Mashirs Mohammed Umar and Barkat Ali under mashirnama Exh: 9. There were other clothes in the box, from where the appellant had produced these two clothes. 13. Mashir Barkat Ali (P. W. 4) in his statement in the Committal Court bad admitted that he was standing on the staircase and the police had gone inside the quarter of the appellant. He could not have, therefore witnessed, from where, the clothes and the 'Toka' were taken out and produced before the police. However in his examination-in-chief before the trial Court, be had stated that the "accused produced a Churra and blood-stained clothes from his possession to the police". He further stated that the bush shirt and pant were produced by the accused from a bag, kept in the corner of the house. His statement contradicts the mashirnama, which mentions that the clothes were produced from inside a box. Thus, it proves that the clothes and the "Toka" were not produced in presence of this witness. From his statement at the trial, we find that the appellant had shouted at them, meaning the witnesses and said that "what strength, -they had to murder these persons". This happened on 26-10-1975, when as per the statement of this witness, the appellant was arrested and handcuffed. The witnesses, who were present at the police station; were allowed to go home, including Barkat Ali. At about 9-30 or 10 p.m. On the same day, the articles are stated, by him, to have been…
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