1980 PLP 892 (SCMR)

DORAB PATEL, J‑One Qazi Nur Ullah was murdered outside a mosque in Sialkot on 2‑1‑1973 at about 4‑00 p. m. The deceased was a pious man and had a hujra in the mosque. There was a telephone in this hujra and the prosecution case is that on the day of the occurrence, the appellant wanted to use this telephone. But, as the deceased would not permit him to do so, he got very angry with the deceased and went away after threatening him. He returned a couple of hours later and called for the deceased. As soon as the deceased game out of the mosque, he (the appellant) stabbed him repeatedly with a knife and killed him. In order to prove the occurrence, the prosecution examined two eyewitnesses; both of them fully supported the prosecution case. They also examined a witness by the name of Muhammad Alam, who gave evidence about the quarrel between the deceased and the appellant about the use of the telephone of the deceased in his hujra. Finally, as the appellant was wearing his blood‑stained clothes at the time of his arrest, the prosecution relied on the recovery of the blood‑stained clothes as well as of the crime weapon because it was produced by the appellant himself. The appellant did not deny the occurrence, but he said that he knew nothing about it and pleaded insanity. He also examined two doctors in support of his plea of insanity. Dr. Cheema was the Medical Officer in the District Jail, Sialkot from 1972 to 1974, and he stated in his evidence that he had examined the appellant, whilst he was in jail pending his trial and after keeping him for observation, for about one month, he had referred the appellant to Dr. Qureshi, the Medical Superintendent, Sialkot. As Dr. Qureshi was in Libya when the case against the appellant was started, Dr. Cheema produced and identified Dr. Qureshi's report about the appellant and Mr. Minto submitted that it fully supported the appellant's claim that he suffered from Schizophrenia. In any event, the evidence of Dr. Ejaz Hyder of the Mental Hospital, Lahore is sufficient to prove that the appellant suffered from schizophrenia, and, had been treated by Dr. Ejaz Hyder for this ailment in the Mental Hospital, Lahore from 10th of April, 1971, to the 13th.of May, 1971, and from 26‑6‑1973 to 9‑8‑1973. Now, although the appellant proved beyond doubt that he was a victim of Schizophrenia, the evidence produced by him proved that he had suffered from Schizophrenia about two years before the murder committed by him and that he had a relapse about five months after the murder, therefore, whilst be was an under‑trial prisoner, he was transferred from jail to the Mental Hospital, Lahore for about six weeks for treatment. But, despite this history of unsoundness of mind, the appellant did not examine any members of his family, to show that he was suffering from symptoms of Schizophrenia at or about the time of the murder committed by him. And, on the other hand, according to two of the prosecution witnesses, who claimed to have known the appellant, because they were his neighbours, the appellant's plea of insanity was absolutely false. The learned Additional Session Judge appears to have gone by the evidence of the prosecution witness therefore he rejected the appellant plea of insanity and convicted him for murder and sentenced him to death The appellant challenged his conviction in an appeal in the Lahore High Court, which was heard with the reference from the Sessions Court, and as in the trial Court, the appellant's principal defence appears to have been that he had killed the deceased, whilst he was of unsound mind, because of his Schizophrenia. But, as he did not examine any members of his family to give evidence about his mental condition at the time of the murder, the learned Judges rightly rejected (I say so with respect) the appellant's plea of Schizophrenia and dismissed the appeal and confirmed the sentence of death against him by their judgment dated 1‑3‑1976 The appellant filed a petition for leave in this Court against this judgment of the Lahore High Court and leave was granted to examine only two ques tions. The first was whether the appellant had murdered the deceased during one of his lapses into Schizophrenia as the disease was of a recurring nature. The second question for which leave was granted was whether the imposition of the death penalty was justified in the circumstances of the case as there was evidence to show that the appellant was mentally abnormal at the time of the murder. We have now heard Mr. Minto on behalf of the appellant and on behalf of the State on these two questions and taking first Mr. Bilal's submission, he submitted that Dr. Ejaz Hyder's evidence was itself sufficient to establish that the appellant was not in any way mentally disturbed at the of the murder. This was because, according to learned counsel, appellant had been in a mental hospital only in 1971, and then again in 1973, several months after the murder. And, Dr. Ejaz Hyder had said that although Schizophrenia was a recurring disease, he had further said‑ in 25 % of patient suffering from this diseases it appear again while in rest of the 25% they suffer an attack only once in their lifetime In view of the observation that a relapse of the disease may occur only once in a lifetime to many victims of the disease Mr. Bilal submitted that there was no evidence to show that the instant case was one in which a relapse was likely to be frequent. I am not able to accept this argument, because the very fact that the first relapse occurred within two years of the appellant's discharge from the mental hospital after prolonged treatment is enough to indicate that he was one of these unfortunate victims of the deceased, who was likely to suffer from frequent relapses of the disease, the more so, as it was stated that he had relapses after his conviction also. Mr. Bilal then stressed the fact that the appellant had not produced an members of his family to give evidence about his mental condition at the rim of the murder and I would agree with learned counsel that the failure to produce this evidence leads to an adverse inference against the appellant' plea of insanity. In this background, Mr. Bilal referred us to the evidence of two eye‑witnesses, Qaisar and Khurshid Alam. Both of them claim to be the neighbours of the deceased and to know him well, and they were emphatic that the appellant had never suffered from insanity. Mr. Bilal wanted us to accept this evidence, because according to him, these witness were disinterested witnesses. But, even disinterested witnesses may resort falsehood, when they are carried away by emotion or prejudice, and another eye‑witness Muhammad Akram, though a young boy, had admitted that he Khurshid Alam and Qaisar were murids of the deceased. Now, this young boy had refrained from making any comment about the appellant's condition. And, on the other hand, Dr. Ejaz Hyder's evidence proves doubt that the appellant had been treated twice by him in hospital for Schizophrenia, therefore, it is obvious that Qaisar and Khurshid Alam, who were murids of the deceased, had made false statements when they said that the appellant had never been insane. This is unfortunate and it does not improve the prosecution case, because the precise manner in which the murder was committed is relevant at least to the second question for which leave was granted, if not, to the plea of insanity. Mr. Minto, therefore, submitted that as the appellant had no motive to kill the deceased, in the background of his relapses to Schizophrenia, the murder was so senseless that it led to the inference that it had been committed whilst the appellant was not of sound mind. Now, the motive for the crime, according to the prosecution, was that the appellant was angry with the deceased, because the deceased had not allowed him to use his telephone. To say the least, this motive was very flimsy, but whatever be the position if the matter had stood here, Muhammad Akram's evidence shows that the appellant's conduct after the murder was abnormal. And, on the other hand, the medical evidence proves that it was a ghastly and But, no normal human‑being would kill any man, much less an man, in such a ghastly manner unless he was motivated violent feeling of anger or hatred. But, that is not the prosecution evidence itself shows that he was not mentally normal at the time of murder. The question of the effect of the mental abnormality of an accused was examined by this Court in Muhammad Shafi v The State (P L D 1962 S C 472), and Hamoodur Rehman, J. (as he then was, later the Chief Justice) whilst upholding the appellant's conviction for murder observed: ‑ "Unfortunately the law in this country does not recognise such lesser forms; of mental abnormality, and, apart from unsoundness of mind which renders a person incapable of knowing either the nature of the act or that what he is doing is wrong or contrary to law, the plea of a diminished responsibility is not available as a defence in a criminal prosecution as in England now under the English Homicide Act of 1957. Under the existing law even in a case of impulsive insanity or melancholic homicidal menial it is necessary to establish that the maniac was incapable of knowing what he was doing at that point of time." I respectfully agree with this dictum and as the appellant has failed to prove that he was incapable of knowing that he had killed the deceased, I have no hesitation in dismissing his appeal against his conviction. But, at the same time, although in Muhammad Shafi's case, this Court dismissed Muhammad Shafi's appeal against his conviction for murder, this Court upheld the imposition of the lesser sentence on the appellant, because the evidence proved that he was mentally abnormal. Similarly, in Ballo v The State (P L D 1956 Kar. 579), another case to which Mr. Minto, referred us, the circumstances proved that the appellant had committed u murder whilst he was in a disturbed condition. Therefore, although the Court upheld his conviction for murder, as he had failed to prove his plea of unsoundness of mind, the learned Judges of tile High Court held that the appellant was entitled to the benefit of the lesser sentence. The same view was taken in Chando v. The State (P L D 1963 Kar. 1034), and in several, other cases to which Mr. Minto refused us. Thus the trend of authority is clear and depending on the facts of the case, abnormality of mind on the part of the accused can be a mitigating circumstance under section 302, P. P. C. Therefore, having given anxious thought to the facts of the case, I would dismiss the appellants appeal again' his conviction, but reduce the sentence against him to life imprisonment. Subject to this modification of the sentence, I would dismiss ass the appeal. Appeal dismissed.