R v Maqsud Ali ; R v Ashiq Hussain
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE MARSHALL |
| Judgment Date | 09 April 1965 |
| Judgment citation (vLex) | [1965] EWCA Crim J0409-1 |
| Court | Court of Criminal Appeal |
| Docket Number | No. 2693/64 |
| Date | 09 April 1965 |
[1965] EWCA Crim J0409-1
Mr. Justice Marshall
Mr. Justice Lawton
and
Mr. Justice Roskill
No. 2693/64
No. 2694/64
IN THE COURT OF CRIMINAL APPEAL
Royal Courts of Justice
MR. R. LYONS, Q.C. and MR. J. COTTON appeared as Counsel for the appellant ALI.
MR. H. SCOTT, Q.C. and MR. G.H. HARTLEY appeared as Counsel for the Appellant HUSSAIN.
MR. J. COBB, Q.C. and MR. C. CHAPMAN appeared as Counsel for the Crown.
The two appellants in this case, Ashiq Hussain and Maqsud Ali, were convicted on the 20th November of last year before Mr. Justice Melford Stevenson at Leeds Assizes of the murder, between the 25th and the 27th April, of a Pakistani lady named Nasim Akhtar. They were sentenced to life imprisonment and deportation orders were made in respect of each of them.
The applications for leave to appeal were filed on the 26th November and the grounds set out in each case numbered seventeen but by leave of this Court Ashiq Hussain has added three new grounds and accordingly the position now is that the grounds in respect of Ashiq Hussain are twenty in all but in respect of Ali they remain at the original figure of seventeen.
Both appellants are natives of Pakistan. Ashiq came to this country in 1962 and had been employed as a weaver in the Bradford area. Maqsud, who arrived later, I think in 1963, was at the time when the alleged offence was committed a bus conductor and both of them were living in Bradford. They were cousins and the murdered Akhtar was the wife of Ashiq Hussain, and for the purposes of time the Court will refer to the appellants hereafter as Ashiq and Maqsud. They had one boy, Asif, who was between three and four years of age, and there was also a baby girl born six weeks before the death of Nasim. They lived at a house, 161 Tennyson Place in Bradford. That house was owned by Ashiq at the material time and Maqsud was living there as a paying guest. The sole occupants of the house at the time of the offence therefore were the two appellants, Nasim Akhtar, Ashiq's wife, and the two children. There was a large bedroom occupied by the Ashiq family and a small bedroom occupied by Maqsud. The living room, which was at street level, was used in common by all who resided in the house and the cellar was quite a large room and used as the kitchen of the household.
The house was one of a series of back to back houses and beside it there was a passageway used "by the occupants of this particular pair of "back to back houses of which 161 was one. There was also a back toilet for the joint use of this particular pair of houses. There was proved in evidence by photographs and by plans a clear indication visually of just what type of house this was.
On the 27th April, which was a Monday, at 2.15 in the afternoon the police were summoned by telephone to the house by Maqsud. In the cellar they discovered the body of Nasim Akhtar lying, as is seen in one of the photographs proved, with her throat cut from ear to ear, with an extremely deep cut where everything had been severed back to the spinal column. Death had been caused by the most profuse bleeding that sprang from this wound but in addition it was discovered that Nasim's private parts had been mutilated, both externally and internally, by cuts and by punctured wounds.
From the start, both accused denied strongly that they had any responsibility for the murder. Their clothes were scientifically tested and many other articles, amounting I think in all to 154, were scientifically tested for blood and other matters, and in addition nail scrapings taken from both of the appellants were analysed and it is quite clear that nothing that in any way incriminated either of these appellants with this particular murder was ever disclosed after such scientific examination. Both appellants apparently willingly had made statements, Ashiq's statements are exhibits 8, 9 and 12 in the papers and Maqsud's are exhibits 6, 7, 13 and 14. No knife has been found that can in any way be connected with the crime and inquiries carried out were both long and complicated and extensive and it was not until the 13th June that Ashiq was arrested and charged, and on the 15th June Maqsud was arrested and charged.
The Prosecution case proved by the witnesses that they called, and which of course this Court does not intend to go into in great detail, disclosed this case against the two appellants. First of all that the course of the marriage between Ashiq and Nasim had not run altogether smoothly. There had been quarrels mostly over money matters, there had been a treat by Ashiq to turn Nasim out of the house, that Ashiq had on one occasion given her a black eye, and the most recent of all the quarrels proved was a quarrel arising over the purchase of a perambulator which had been paid for by money advanced by another Pakistani who had lived with the Ashiq family prior to Maqsud's arrival. There is some doubt on the evidence as to exactly when this particular quarrel took place, whether a fortnight before or on the very Saturday before the discovery of the- crime, but it is fair to say that the evidence thus given was a slender thing upon which to build up a motive for a savage murder of this kind, but motive is not something which the Prosecution are under an obligation to prove to establish guilt.
The second line established by these witnesses was that Nasim was last seen alive somewhere between 9 and 9.30p.m. on Sunday the 26th April, that at that time relations between Ashiq and her appeared to be perfectly normal. The two accused, after these witnesses who had visited the house had left, were in fact left behind in the house with Nasim and that is the last time that any witnesses that the Prosecution were in a position to call saw Nasim alive.
There was then a witness, a Mrs. Sugden who occupied a neighbouring back to back house, who gave evidence that between 1 and 2 o' clock on the morning of the 27th April she heard first of all foot-steps of a person going up the alleyway towards the toilet at the back, Then she heard the sound of someone reaching to be sick, then a second set of footsteps going towards the toilet, and lastly two sets of footsteps returning down towards the front of number 161. Now it is clear that at 4.15 the next morning, that is the 27th, Maqsud got on to a staff bus to go to work. At 5.30 that morning a witness a Mrs. Riley, a cleaner, proceeding to her work saw no light in the bedroom occupied by the Ashiq family, although one had been visible on every morning since Nasim and the baby had returned from hospital. At 6.45 a.m. Ashiq was seen by a Mrs. Piacek at the bus stop at the corner of Tennyson Place and Otley Road and he was later seen at work in the mill where he was employed and described by a fellow worker as silent, not normal, and sitting with his head resting on his right hand. At 8.30 that morning Asif, the young boy, who apparently was able to open the door from the inside, the door having a Yale lock, by climbing on to a chair, was seen by a witness Mrs, Sippavac outside on the steps of 161, At 9.45 a Mrs. Morton, another witness, saw Asif crying at an upstairs window in the house. At 10.30 a Mrs. Turner, a very important witness, a kind friend of the family and an elderly crippled lady, arrived at number 161 and found Asif on the door step crying, wearing no shoes or stockings, with the door locked behind him. She did her best to get someone within the house to hear but she was unable to get any response from behind the locked door and she accordingly, with the child, waited. At 12.45 Maqsud returned from work. He first called at a shop owned by a Pakistani named Bashir some 20 yards from Tennyson Place, and then he joined Mrs, Turner and Asif and it would be about 1 o'clock that Maqsud, who had one of the three keys of the house, opened the door and the three went in.
Mrs. Turner's evidence was that Maqsud went down through the cellar door into the cellar, that when he came up again his clothes and shoulders at the back were covered in whitewash, and whitewash plainly was the covering of the cellar wall. He had a shocked look on his face but he said nothing to Mrs. Turner as to what was in the cellar but he did say he was going to fetch Ashiq from work. This he did and somewhere between 1 and 2 o'clock Ashiq and Muqsud returned. Ashiq never went down into the cellar, according to Mrs. Turner, he sat on the settee with his head in his hands, asked for a glass of water and never even looked at the distressed Asif.
It was then, at about 1.45 p.m. Maqsud went to Bashir's shop and told Bashir that Nasim had been murdered and between them the police were telephoned and arrived as I have already indicated before.
The evidence also established that the three keys to the house were in the possession of the two accused and Nasim herself. There was no sign of forcible entry into the house and there was no sign of resistance by Nasim, no sign of a struggle and it was the Prosecution theory advanced by them that in all probability she was the victim of a surprise attack by some person or persons whose presence in the cellar was no surprise to her, someone who had a right to be there without raising any alarm or surprise on Nasim's part.
The position on the evidence was that a very important part of that evidence was made up by a tape recording taken in circumstances that I must now indicate. Before doing so, let me say that the first four grounds of the appeal in respect of each of these appellants are in fact matters raised in connection with the use in evidence of this tape recording. The three new grounds added, by leave, by Mr. Scott on behalf of Ashiq...
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