Facts-In-Brief:
On 16.01.2016, Sharif found his flat situated at Baburail, Narayanganj, locked from the outside. Sharif phoned his wife Lamiya and sister-in-law Taslima, but to no avail. Then, with the help of his nephew Mahfuz, who procured a hacksaw-blade from his workplace, Sharif broke the lock and found the dead bodies of his wife, sister-in-law Taslima, nephew Shanto, niece Sumaiya, and brother-in-law Mosharrof. There were marks of injuries caused by a blunt weapon on the forehead and the back of the victims. The throats of the victims were tied with clothes. Post Mortem Report opined that there were multiple lacerated injuries and ecchymosis, ligature and strangulation marks on the victims’ bodies. The deaths were homicidal due to hemorrhage and shock. Victim Taslima’s husband Shafiqul lodged an FIR with Narayanganj Sadar Model Police Station and suspected one Nazma and her husband, Shahjahan, as culprits. Victim Taslima owed about twelve lakh taka to this usurer couple. Victim Mosharof owed several persons money. The usurers gave death threats to Nazma and Mosharraf to return the money. Shafiqul also framed his nephew Mahfuz as a suspect for his romantic advances towards victim Lamiya, who complained against Mahfuz to family members. According to the Prosecution, Mahfuz and two others were arrested on 18.01.2016, but the defence alleged that the arresting date of Mahfuz is 16.01.2016 which is also corroborated by PW-05 Md. Shahzada, a relative of the victims. The prosecution witnesses PW-5 and PW-7 deposed before the court that Mahfuz admitted his guilt before the DB Police on 18.01.2016. On 21.01.2016, the Magistrate recorded a confessional statement of Mahfuz which stated that he had extramarital affairs with victim Lamiya, but Lamiya complained against Mahfuz when family members sensed their illicit relationship.
Prosecution Case Against Md. Mahfuz:
The Prosecution tried to establish Mahfuz’s repeated sexual advances towards Lamiya as the murder motive. The flat key was retrieved and seized from the water tank at the showing of Mahfuz. A blunt weapon, patapota was recovered from the occurrence flat that was mentioned in the confessional statement.
The Defense Case:
In Bangladesh, marginalized accused do not get to afford legal counsel let alone defense witness. Moreover, the suggestion of defense witness is often denied due to colonial mindset of the judges and negligence of the state counsel. Trends of cross-examination show that there is no eye witness in this case, and the confessional statement was obtained during police remand, followed by illegal and unlawful detention of 48 hours.
Crux Issue: Whether The Confessional Statement Is Voluntary, True and Could Be Relied On.
The decision of the court to prove the charge against Mahfuz is solely based on the confessional statement. However, was the confessional statement recorded voluntarily, maintaining all legal requirements?
Illegal Detention of Mahfuz and the Consequent Involuntariness of the Confessional Statement
Md. Mahfuz was arrested on 16.01.2016 at night and was detained for two days illegally along with PW-5 Md. Shahzada [PW-5 in his deposition]. Md. Mahfuz admitted his guilt before the public in the custody of DB Police on 18.01.2016 as evidenced by PW-5 and PW-7 but he was shown arrested on 18.01.2016 so as to conceal the illegal detention of 48 hours past his arresting date and the non-compliance of the mandatory provision of section 61 of the Code of Criminal Procedure, 1898. It is unfathomable for any common man to see that the police arrested Mahfuz two days later of the lodginf of FIR dated 16.01.2016 where he was framed as one of the suspects. Mahfuz was there all along to cut the lock of the house and discover the dead bodies. So, what kept the investigation officer busy arresting Mahfuz two days earlier?
The High Court observed that the voluntariness of a confession may be proved by the evidence of a Magistrate who recorded it. However, in many cases, it is seen that the requirement of the guardian angel magistrate is not functioning well as a safeguard to the arrested person anymore. In Narayanganj, police coerced three individuals into confessing to the rape and murder of a girl. However, the supposed victim returned home unharmed after 54 days and thereby rendering the confessional statements of all three accused unsubstantiated and exposing the grave dangers of relying on the allegedly voluntary confessional statement recorded by the holy magistrate. The voluntariness of the confessional statement is imposed as it is recorded by the magistrate, not that it is free from inducement, threat or custodial torture in police remand. The High Court Division turned a blind eye to the defects of the confessional statement, which is tainted with illegal detention and custodial torture, but somehow satisfied the legal requirement.
The Manufactured Confessional Statement and the Imposed Iota of Truthfulness
The High Court Division heavily relied on the confessional statement of Mahfuz, believing it to be a truthful and voluntary account of how five murders were committed. It is submitted that the language and wording of the confessional statement of Mahfuz are highly improbable. The language used therein is inconsistent with that of an uneducated factory boy. For instance, the statement records: ‘সেই সুবাধে ছোট মামীর সাথে আমার ‘ঘনিষ্টতা’ হয়। …এবং তখন ছোট মামীর সাথে আমার ঘনিষ্টতা আরো বেড়ে যায় এবং ‘অনৈতিক সম্পর্ক’ গড়ে উঠে। (in that circumstance I became ‘intimate’ with my younger maternal aunt-in-law… and thereafter my intimacy increased further and an ‘illicit relationship’ developed.”)
With a bit of luck, the confessional statement accommodates enough room for irrational, strange, bizarre and absurd happenings to take place. The narrative is so unbelievable that it seems the High Court Division was forced to uphold the death penalty with a dazed and confused awareness. This preposterous confessional statement offers us a bizarre scene where Mahfuz was searching for clothes to strangulate Lamiya after striking her twice with a pata-pota (pestle). Then, victim Lamiya, with her severe head injury, strangely managed to throw pata-pota at Mahfuz which instead struck victim Sumaiya. Shockingly enough, Mahfuz chose not to respond and diverted his attention from Lamiya to strangulate Sumaiya, relocated Taslima’s body from one room to another, pushed Shanto to the wall and strangulated him, and after that, strangulated Lamiya with a cloth.
A closer look at the confessional statement reveals that it bears all the signs of a drafted story which is the brainchild of the persons involved with the investigation, not the spontaneous words of an uneducated juvenile laborer. First, the structure of the confession itself is suspiciously arranged and decorated. The confessional statement begins with a motive, sets out the time and place of the occurrence, narrates the murders in sequence, and ends with concealing evidence. This reads more like an investigation case summary than a frightened boy’s voluntary statement. It mirrors the suspicions and allegations raised by Shafiqul and Sharif, the sibling duo who were supposed to be present at the place of occurrence but were absent (perhaps intentionally) on the fateful night. The manner of the murders as described in the confession is an apparent repetition of what was already visible from the inquest reports: injuries, positions of the bodies, and the way they were tied. This strongly suggests the confession was manufactured from already gathered information.
Moreover, the fact that Mahfuz chose to help break open the locked flat and did not flee after committing the murders undermines the theory that he was the one who committed the murders. Yet the High Court Division never felt any empathy for this unfortunate boy. It is humbly submitted that the learned Judges of the High Court Division failed to dispense their duty by failing to presume the existence of certain facts under section 114 of the Evidence Act, 1872. Furthermore, Informant and PW1 Shafiqul Islam’s own conduct raises reasonable suspicions: he admitted that he visited the flat every Thursday and left for Dhaka every Saturday. Why then was he absent at the time of the occurrence? Neither the trial court nor the High Court Division was willing to examine this glitch as our judiciary has a habit of treating the charge-sheet as a divinely inspired scripture.
The High Court Division’s reliance on such a confessional statement is not just problematic; it exposes the routine readiness of our numb judiciary to uphold capital punishment on the basis of a confessional statement manufactured by police and signed by the magistracy.
Inconsistencies in the Procecution Case and the Biasness of the High Court Division towards Procecution
First, the Court acknowledged that no eye-witness existed yet treated the confession as fully corroborated despite visible contradictions. For example, Mahfuz confessed that he struck Taslima on the back of her head when she was pushing a door but the post-mortem found injuries on the front of her head, a material mismatch that the Court brushed aside as irrelevant. These inconsistencies undermine the supposed truthfulness of the confession, but the judgment resolved them by speculation rather than evidence. Second, the murder weapon pata-pota was allegedly recovered at Mahfuz’s showing. Yet, PW-23, the IO admitted in cross-examination that no blood-stains were found on it. Instead of treating this as fatal to the prosecution’s case, the Court excused it by claiming blood ‘might have been removed’ in four days. This speculative reasoning replaced the forensic burden of proof and shifted the standard away from reasonable doubt. Third, the involvement of other suspects was quietly dropped by the Investigation Officer of the Case. The FIR mentioned Nazma and Shahjahan, creditors of Taslima, as suspects. They were arrested initially but later discharged without trial. The judgment never interrogated whether the financial motive might have been stronger than the alleged romantic advance attributed to Mahfuz. By ignoring alternative hypotheses, the Court narrowed its reasoning prematurely. Fourth, the Court emphasized that the defense did not cross-examine witnesses on several points, i.e. allegations of harassment of Lamiya. The High Court Division found comfort in forgetting the fact that the convict-appellant Mahfuz was too poor to hire a counsel of his own, and a state counsel was appointed. The condition of state counsel is well known. Moreover, the stance of the High Court Division overlooks the fact that the burden of proof lies with the prosecution. Conviction cannot be justified merely on the absence of cross-examination if the evidence itself is contradictory or weak.
THE HUMBLE SUBMISSION
My heart bleeds for this unfortunate young man. I find it shocking as I could have been born, raised and compelled to earn bread like him at a very young age and face this misery of fate. Primary education was a luxury for Mahfuz and this unjust and discriminatory criminal legal system is living hell. The judgement rendered by the High Court Division is liable to be set aside as it miserably failed to unearth the fact that the Convict-appellant Mahfuz was arrested on 16.01.2016 and he was forwarded before the magistrate after the illegal detention of three days i.e. on 19.01.2016. The High Court Division failed to appreciate that the confessional statement of the Convict-appellant is no confession at all in the eye of the law as the Convict-appellant was produced before the concerned magistrate after 24 hours of his arrest as opposed to the mandatory requirement of 24 hours. The High Court Division also failed to appreciate that the confessional statement made by the accused-appellant Md. Mahfuz is no confession at all, as the same is tainted with illegal police custody and torture which renders such a confessional statement to be involuntary and illegal, as witnessed and deposed before the trial court by the PW-5 Md. Shahjada. If the confessional statement is vitiated by the precondition of voluntariness, the prosecution got nothing against Mahfuz. Besides, the lacunae lie in the overreliance on confessional statement without addressing contradictions, the absence of forensic corroboration and the failure to analyze alternative motives or suspects and as such the Judgment and Order dated 06.12.2023 passed by a Division Bench of the High Court Division in Criminal Appeal No. 8440 of 2023 dismissing the appeal and accepting the Death Reference and confirming the sentence of death is liable to be set aside for ends of justice.