1969 PLP 344 (SCMR)

(a) Jan Muhammad's knowledge that Nausherwan had sworn to kill Nishanali Shah, (b) that although Jan Muhammad had seen Nausherwan at Padidan and later, yet he had not warned Nishanali Shah, (c) that Jan Muhammad after the murder assisted Nausherwan by washing his clothes, guiding him back to the railway line and not informing the police, and (d) that Jan Muhammad had a personal motive to desire to be rid of Nishanali Shah, and was on friendly terms with Nausherwan. They considered that Jan Muhammad's conduct after the murder could be explained as due to fear of Nausherwan, and his own precarious situation. In their opinion a motive had been proved although it was not compelling and they thought that failure to warn Nishanali Shah of Nausherwan's proximity was "not so easily explainable as due to feat of a scene or a careless feeling `why should I bother'?" The learned Judges next compared the confessions and con cluded that the result went in Jan Muhammad's favour. They noticed that both confessions were detailed and yet different in language and both in fact negatived conspiracy. Appreciating the difficulty of believing that Nausherwan followed the two men from place to place on his own, having discovered by himself in advance what their movements were likely to be on the day in question, they asked themselves "why Nausherwan should so steadily assume the whole responsibility for the murder"? and observed "that Nishanali Shah's character was vicious" and therefore Nausherwan's claim that he killed Nishanali Shah from a religious motive might well be true: They then proceeded to observe :‑ It is true that while Jan Muhammad, mentions that he sat (Knelt) on or between Nishan's feet, and placed his hands on them, Nausherwan omits this. But Nausherwan was occupied with the cutting of the throat. It may be argued that one man alone could not overpower the deceased, but the iron bar had blood and a doctor who could so mistimed the hour of death may have overlooked the injury due to the bar (which was blood‑stained) this blow may well have incapacitated the deceased, for it was sufficient to bring him to the ground. The injuries to Nausherwan's finger may well have been caused by slipping on the knife; as is not, infrequent and not to a struggle with the deceased. We thus consider it doubtful whether conspiracy had taken place." It is impossible to disagree with this conclusion of the learned Judges, or with the views expressed in the paragraph which immediately precedes it. In estimating the effect of Jan Muhammad's alleged failure to warn Nishanali Shah of Nausherwan's presence, the learned Judges have not taken into account two distinct possibilities viz. firstly, that he may have assumed that Nishanali Shah had recognised the voice himself, and secondly, that being in a lonely place, in complete darkness, safety may not have lain in immediate disclosure and perhaps flight, and, the attack following immediately after, there was no time to devise another plan of escape. It seems also that the learned Judges, is supposing that Nishanali Shah may have been stunned into quiescence by a blow on the head with the iron bar, may have overlooked the statement in Nausherwan's con fession that "Nishanali began to raise cries, but I closed his mouth by putting in mud lying by the side": There may well have been a struggle and the cut on the little finger of Nausherwan's hand may be the result of movement by the victim when his throat was being cut by Nausherwan who was riding over his chest. Another important point appearing from this confession appears, however, not to have attracted the attention of the learned Judges. After mentioning the first blow with the iron bar on Nishanali Shah's head, Nausherwan went on to say that as Nishanali Shah fell down Jan Muhammad tried to run away whereupon he (Nausherwan), told him that if he ran, he (Nausherwan) would leave Nishanali and kill him first, whereupon Jan Muhammad stopped. Thereafter the cutting of Nishanali's throat was mentioned, and that he died in consequence, and then the following statement was made :‑ "After that I pursued Jan Muhammad. He said, `for God's sake leave me'. I told him, `take oath that you will not disclose the fact to anybody'. He took oath. I told him to take me to Karachi. He agreed." It is on this point that a different statement appears in the confession of Jan Muhammad, in the following words :‑ "Nausherwan struck a blow with iron bar on Nishan on his head, on account of which he fell down. I tried to run away. On that Nausherwan said to me 'I am determined to lose my life and if you run away I shall also kill you. Come here'. He asked me to help him. I sat at the feet of Nishan and kept my hands on his feet. Nausherwan cut the neck of Nishan with a big knife and murdered him." The learned Judges have observed that Nausherwan "omits" to mention what Jan Muhammad says regarding the holding of Nishanali's feet when his throat was being cut, but it seems to us that there is here no mere omission but a positive contradic tion. For, if there had been submission by Jan Muhammad to the first threat to such an extent that Jan Muhammad actually co‑operated in the killing by holding the victim's feet, there would certainly have been no need for Nausherwan to pursue Jan Muhammad after he had accomplished the killing. Nausherwan merely says that in response to the first threat Jan Muhammad sopped running and not that he came back to where Nishanali Shah was lying. We feel no doubt that if the learned Judges had appreciated the fact that on this point, the confession of Jan Muhammad which he subsequently retracted, was contradicted by the only other piece of direct evidence on the point, namely, the confession of Nausherwan, they would not have proceeded, as they have done, to ask themselves the question :‑ "Does Jan Muhammad's action in holding the deceased's feet amount either to abetment of murder or according to section 34 to murder?" It is impossible to avoid the observation that the assumption contained in this question that Jan Muhammad held the deceased's feet, is inconsistent with the observations immediately preceding the question, where the learned Judges have stated a number of grounds supporting Nausherwan's statement that Jan Muhammad did not physically assist in this manner, against Jan Muhammad's own contrary statement. It is true that those grounds are stated with reference to the point of conspiracy prior to the murder, but it is undeniable that they are equally, if not in higher degree, valid to sustain the inference that there was no actual co‑operation between the two men for the killing of Nishanali Shah. A little earlier, the learned Judges had observed with reference to Nausherwan's repeated claim to "the character of a Ghazi", for ridding the world of a "vicious character", that :‑ "A fanatic might well decide to kill him without aid or prompting from any other person. " It is thus clear that the learned Judges were not treating Jan Muhammad's confession as conclusive proof even against himself, but were following the correct course of treating it as a piece of evidence, whose value, for determining the issues arising in the case, fell to be appraised after due consideration of all the other evidence, and, in particular, the confession of the co‑accused Nausherwan. Although it appears that in making the assumption underlying the question which has been reproduced above from their judgment, they have overlooked this cardinal necessity, they have nevertheless indicated their views concerning the probability of Nausherwan having acted throughout on his own initiative, and without aid from any outside source, with sufficient clarity to enable us to predicate that they would not have made this assumption, if the need for basing it upon consideration of both confessions, and not only that of Jan Muhammad, had been present to their minds. Proceeding on the basis of the aforesaid assumption, the learned Judges have held as follows :‑ "Jan Muhammad knowingly participated in that unity of criminal behaviour which constituted the murder of Nishanali Shah : he knew that his actions were calculated to carry into effect the intention of murder." This finding clearly brings the case of Jan Muhammad within section 34, and the learned Judges thought that, as a necessary consequence, the case was taken outside the exception provided by section 94 of the Pakistan Penal Code. The correctness of the consequential inference is not, in our opinion, open to doubt, for' upon the plain terms of section 94, duress cannot be pleaded in avoidance of malice, on a charge of either murder or a treasonable offence punishable with death. But it seems to us to be equally plain that the finding of fact on which this inference rests is one which cannot be supported. The learned Judges have themselves employed expression from which the only inference that can reasonably be drawn is that they were in a state of doubt whether any assistance was afforded to, or was required by, Nausherwanle at any stage of the preparation for, or the accomplishment of the crime. The doubt, in view particularly of the clear conflict in the direct evidence on the point, was an eminently reasonable one. Justice required that the benefit thereof should be given to Jan Muhammad. In these circumstances, the conviction of Jan Muhammad cannot be allowed to stand. We accordingly allow this appeal, and direct that he be acquitted. He will be released forthwith. Appeal accepted.