P L D 1962 Supreme Court 472 (PLP)

HAMOODUR RAHMAN, J.‑

The appellant Muhammad Shaft was charged with the murders of two minor sons of his younger brother and for the attempted murders of his own brother Saeed Ahmad, the latter's wife Anwar Bibi, another son and daughter of theirs and two of his own daughters Mst. Shaming and Mst. Nasim, at about mid‑night between the 14th and 15th of June, 1959 He was convicted and sentenced to death for the above murders and sentenced to transportation for life on the other count by the trial Court. On appeal the High Court of West Pakistan maintained his convictions but reduced the sentence of death to one of transportation for life. The appellant, who used to reside with his brothers in the same house, was on this night sleeping with other members of the family on the roof. At about mid‑night, however, on hearing a sudden hue and cry two of their neighbours Din Muhammad (P. W. 3) and Muhammad Siddiq (P. W. 4) were awakened and saw over the intervening walls the appellant armed with a tesha causing injuries to the members of his family whilst his brother Abdur Rahman was trying to disarm the appellant and take away the tesha from his hand. One of the injured sons of Saeed, named Daud, who was only 2J years old, was lying dead and the others were seriously injured. Din Muhammad (P. W. 5) reported the incident to the Station House Officer, Gujranwala City, at about 5 a.m. at the Sabzi Mandi, Police lost where he found the Police Officer during his rounds on patrol duty. The latter recorded his statement there and sent it to the Police station for formal registration. In this first information report Din Muhammad also stated that on enquiry from the immates of the house and other persons living in the Mohalla he had not been able to discover any motive for the crime and it appeared to him that the appellant, who was himself a pious person must have committed these crimes in a fit of excitement or unbalance of mind. The Police Officer returned with the informant immedi ately and arrested the appellant. According to the Police Officer the appellant was at that time in "normal mental health and was talking as a sane man." The other son of Saeed succumbed to his injuries in the hospital. The injuries found on the two deceased upon post mortem examination appeared to have been caused by a sharp edged weapon and were sufficient individually to cause death in the ordinary course of nature. The injuries on the others, who survived, were also grievous in nature. The ocular evidence against the appellant was furnished by his brother Saeed Ahmad (P. W. 5), the latter's wife Anwar Bibi (P. W. 6) and the two neighbours, Din Muhammad (P. W. 3) and Muhammad Siddiq (P. W. 4). The two last named were completely disinterested persons and had no kind of animosity or ill‑will against the appellant. Except for Anwar Bibi, the mother of the deceased children, all the other witnesses appeared to be sympathetic to the appellant and placed all the relevant facts concerning his case fairly before the Court. There could, upon their evidence, be no doubt that the injuries on the deceased and the others were caused at the hands of the appellant in the manner described by the prosecution. Indeed in the High Court learned counsel appearing for the appellant did not even attempt to challenge this evidence, but only raised the plea that at the time the appellant committed these assaults he was insane by reason of unsoundness of therefore, incapable of knowing either the or that what he was doing was either wrong or The prosecution witnesses, Din Muhammad, Muhammad Siddiq, Muhammad Akram (P. W. 8) and the appellant's brother Saeed Ahmad, had deposed to the effect that the appellant had, about 12 years back, whilst working in the factory of Muhammad Akram met with an accident in which the overhead shaft of the factory had broken. down and struck him on the head. As a result of this injury he was in hospital for about a month but even thereafter he could not resume his employment, as he used to have fits from time to time during which he would behave in a strange manner. The neighbours also confirmed that the appellant had good relations with his brothers and their children and was a loving uncle, but he was of a religious temperament and used to spend most of his time in saying prayers and would occasionally also suffer from fits of insanity during which he was in the habit of flourishing whatever he could lay his hands upon. On this fateful night also he appeared to be in one of such fits, for, he was waving even his empty hands. It was also said that the appellant used to tell people that Bhoots often visited him. Muhammad Akram (P. W. 8), who was his employer in the factory where he had met with the accident, did not, however, fully support the version of the above three prosecution wit nesses as to the alleged temporary insanity of the appellant. According to this witness about a year after the injury the appel lant returned to his work and continued there for about five years but stopped work only about a year before the date of the occurrence. Akram also mentioned that the appellant used to say his prayers regularly but could not confirm if he ever behaved in a strange manner. Mst. Anwar Bibi, the mother of the deceased boys, however, claimed that it was wrong to suggest that the appellant was ever insane, for, he never be haved like this in the past. She further maintained that since her husband was the youngest the appellant used to dominate over him and would insist that he was always in the right and his younger brother in the wrong and that the appellant's wife also used to backbite against her and her husband and thus create disputes within the family, which would often lead to altercations during which the appellant would even threaten to kill her and her children. In assessing this evidence the High Court made due allow ances for the understandable bitterness of Anwar Bibi, but even so came to the conclusion that the evidence did not make out a case of insanity and, therefore the plea raised on behalf of the appellant could not be accepted. Having regard to the circumstances of this case, however, the learned Judges of the High Court did not confirm the sentence of death and altered it to one of transportation for life. Leave was given in this case to consider whether the evidence disclosed that the appellant was subject to recurrence of maniacal depressive melancholia and whether during such fit of melancholia he was in a position to appreciate the nature and consequences of the acts done by him. When this matter first came up for hearing on the 14th of March, 1962 it was felt that although the evidence upon the record did not make out a case of insanity, it did lend some support to the contention of the defence that the appellant's brain had received some sort of a permanent injury in 1949 and that as a result of that injury he was subjected to recurring fits of this nature. Although the evidence on the record was to the effect that he had never before had any such violent fit, yet it was felt that in resolving this question it may be pertinent to know as to how the appellant had been behaving in Jail where he had been almost for two years since his arrest. A report was, accordingly, called for as to this behaviour during the period of his imprisonment. Two reports have now been furnished by the Superintendents of the Central Jail of Mianwali and the District Jail of Sialkot. Both the reports are to the effect that the appellant never complained of any mental trouble and that there was no entry in the records of either of the Jails to show that he had ever displayed any mental unbalance during his period of detention. In this view of the matter it is clear that the theory of recurring melancholia finds no support either from the evidence on the record or the subsequent behaviour of the appellant in Jail during these two years. There can be no doubt that the appellant was not free from abnormality, for, otherwise he would not have so grievously assaulted his own minor daughters without any rhyme or reason. The question, however, that arises for consideration is whether in law such abnormality can be treated as sufficient to exculpate the appellant for the heinous crimes committed by him, even though it falls short of legal insanity. 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 respon sibility 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 mania it is necessary to establish that the maniac was incapable of knowing what he was doing a that point of time. There is no such evidence in this case. The appellant never behaved in such a violent fashion before The only evidence of violence is that on occasions when he had such fits he used to flourish whatever he could lay his hands upon, but he never struck anybody. After his injury he had, according to his employer, worked for some 5 years as a normal worker at his factory. After this incident also he has displayed no signs of any abnormality. 1n these circumstances, we are unable to accept the contention that the appellant was on the night of the incident in such a state of unsoundness of mind that he was incapable of knowing what he was doing. The evidence is, by no means, sufficient to establish that he was incapable of realising the consequences of his own acts. Immediately after he was disarmed he again became normal, so far so that the Police Officer, when he arrived at the spot, found him in a perfectly normal condition and speaking like a sane man. In these circumstances we are of the opinion that the High Court has given the maximum benefit that could possibly be given to the appellant in this state of the evidence and rightly upheld his conviction. This appeal is, accordingly, dismissed. A. H. Appeal dismissed.