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Criminal Appeal No. 18 of 1952, decided on 2nd February 1953.
(On appeal from the judgment and order of the Sind Chief Court, dated the 31st January 1952, in Confirmation Case No. 34 of 1951/Criminal Appeals Nos. 297‑298 of 1951).
Ss. 94 & 302‑Duress cannot be pleaded in avoidance of malice on charge either of murder or treasonable offence punishable with death.
Ss. 34 & 302-‑A jointly charged with B for murder‑Doubt whether any assistance at any stage of preparation for or accomplishment of crime was afforded to or required by 13 actually guilty of killing deceased‑Benefit of doubt given to A.
Manzur Qadir, Senior Advocate Federal Court (M. Anwar, Advocate Federal Court with him) instructed by Nazir‑ud‑Din, Attorney for Appellant.
Jamil Hussain Rizvi, Advocate Federal Court instructed by S. Zahir Abbas, Attorney for Respondent.
Date of hearing: 2nd February 1953.
.‑This is an appeal by one Jan Muhammad, who is described as a college student of Karachi, and calls in question a judgment of a Division Bench of the Sind Chief Court, whereby Jan Muhammad's conviction under section 302/34, P. P. C. for the murder of one Nishanali Shah, was confirmed, but the sentence of death was reduced to transportation for life.
The facts of the case are simple. Jan Muhammad appears :o have fallen into low company in Karachi and the chain of events which led to his admitted presence at the place where the deceased Nishanali Shah was killed by the appellant's co‑accused Nausherwan begins with the development of intimacy between Jan Muhammad and the wife of the aforesaid Nishanali Shah, at a place called the Diamond Jubilee Hotel in Karachi. It seems that Nishanali Shah was sufficiently depraved to act as a procurer for his own wife, and it was thus that the connection was established. Nausherwan was an employee in this hotel, and it appears that the woman complained to him that her husband was forcing her to immorality for the sake of the earnings. Nusherwan was deeply shocked by this discovery, and immediately declared that he was determined to free the woman from her husband. He accordingly bought a big knife, and was on the look‑out for an opportunity to kill Nishanali Shah in Karachi.
In the meantime, about a week before the murder, Nishanali Shah and his wife went to live at the house of his uncle Juma Khan where Jan Muhammad also accompanied them. Nausherwan gave up his service at the hotel but it does not seem that he moved in with Juma Khan like the others. Jan Muhammad and Nishanali Shah decided to commence business, to consist apparently of making purchases of goods in the interior of Sind for sale in Karachi. In pursuance of this design on the 25th December 1950, these two persons took train from Karachi in, the morning and detrained at Padidan, from where they returned to a small station called Bandhi at which the first train had not stopped. They intended to go to a village at some distance from Bandhi station in order to make purchases. Jan Muhammad had seen Nausherwan at Padidan Station, but not at Bandhi. When he and Nishanali Shah set out for the village from Bandhi Station it was already night.
The murder was committed at a distance of some 200 yards from the station, and broadly stated as they appear from the direct evidence on the point consisting of judicial confessions by both Nausherwan and Jan Muhammad, the facts are that when the two men had covered some distance from the station they saw a man following them whose head was covered with a chaddar, and Nishanali Shah asked him who he was but got no reply. When they had gone a little further they looked back and saw the same man again following them and again Nishanali asked him who he was and received by way of answer only some inarticulate sounds such as a dumb person might make. Jan Muhammad made out from the sound that the man was. Nausherwan. He, however, said nothing and proceeded along the way with Nishanali, but they had gone only a little further when he heard the sound of feet from behind and immediately. Nausherwan coming up, struck a blow with an iron bar on Nishanali Shah's head, knocking him down. Thereafter, Nausherwan cut Nishanali Shah's throat with his knife.
Before this, Jan Muhammad had attempted to run away and. had been prevented by a threat from Nausherwan to the effect that he was determined to lose his own life and would kill him (Jan Muhammad) as well if he ran away. At this point there is a variation between the confessions which must be considered in detail later but certain matters which are not in doubt may be stated viz. that the knife was left on the spot by the dead body, the iron bar was buried somewhere in the vicinity and the two men, after Nausherwan's blood‑stained clothes had been washed by Jan Muhammad, walked to another railway station and took train to Padidan. The subsequent events viz. the manner of the discovery of the murder, the material recoveries etc. are of no interest in the present appeal. It is desirable, however, to point out that according to Nausherwan's confession, his discovery that Jan Muhammad and Nishanali Shah intended to go into the interior of Sind for the purposes of trade, the date on which they were to go and the train by which they were to travel etc. were discovered by him alone by his own unaided efforts without the assistance of Jan Muhammad.
Jan Muhammad was arrested on the 31st December 1950, at Bandhi Railway Station in the company of the aforesaid Juma Khan and one Musa Khan, and Jan Muhammad's confession was recorded on the following day, when also a statement under section 164, P. P. C. was obtained from Juma Khan in which he deposed that Jan Muhammad had admitted to him that he and Nausherwan had plotted among themselves to kill Nishanali Shah. At the trial, and before that, in the enquiry, Juma Khan repudiated this statement saying that he had made it on account of police pressure. Nausherwan was arrested on the 5th January 1951, at Karachi, and his confession was recorded on the following day.
The charges against Nausherwan and Jan Muhammad were of conspiracy to murder and of murder and the learned trial Judge found them guilty on both counts and sentenced each one of them to death under each charge. They appealed in the Chief Court of Sind, to which also the death sentences were referred for confirmation. Nausherwan adhered at the trial and again in the appeal to the statement which he had made on the 6th January and pleaded that in killing Nishanali Shah, an immoral man who was abusing his wife by forcing her to prostitution, he had performed a meritorious act. The learned Judges declined to accept the plea in mitigation of his sentence. They, however, upon examining the case of Jan Muhammad, came to the conclusion that the charge of conspiracy had not been made out. Accordingly Nausherwan's conviction and sentence of death under section 302, P. P. C. were alone confirmed.
In order to appreciate the view taken by the learned Judges in regard to Jan Muhammad, it is necessary to reproduce certain short passages from the judgment of the learned Judges. They observed that the trial Judge's conclusion of conspiracy was based upon the following points, viz. :‑
(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 fear 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 mistime 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, in 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 stopped 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 Nishanah 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, Nausherwan 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.
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