P L D 1985 Lahore 625 (PLP)

Link 2 ( f ) Penal Code (XLV of 1860) -- S. 377-Sodomy-Defence evidence-Documentary evidence produced to prove enmity of father 'of accused with family of victim-Plea of accused basing on said documents found to .,be factually incorrect -Raising of plea of enmity on basis of documentary evidence regarding some civil matters, held, being a far fetched idea could not be taken into consideration. Link Malik Saeed Hassan for Petitioner. Khalil Ramday, Addl. A.-G. for the State. Date of hearing : 21st January, 1984. JUDGMENT The petitioner, Riazat Ali alias Gogi Sain, was tried by Mr. Muhammad Rafiq Gill Magistrate Section 30, Sialkot, on a charge under section 377, P. P. C. The petitioner was found guilty and accordingly, vide judgment, dated 21-8-1978, the learned Magistrate convicted and sentenced him to undergo R. I. for four years and to pay a fine of Rs. 500 or in default, to suffer further R. I. for a period of six months. Aggrieved by the aforesaid conviction, the petitioner took an appeal which was dismissed by the learned Additional Sessions Judge, Sialkot on 5-7-1984, Through this revision petition, the conviction has been assailed.

2. The prosecution case, in brief, is that on 2nd of June, 1977, Waseem Farooq son of Muhammad Farooq aged 8 years, was flying kite on the roof of his house. The petitioner, Riazat Ali, was also flying kite on the roof adjacent to the house of Waseem Farooq. It is alleged that the petitioner called Waseem Farooq and offered him to give flying kite cord (j,.1) Waseem Farooq through the roof of the house of one Muhammad Shafi, reached the roof where the petitioner was flying kites. The petitioner asked Waseem Farooq that ,the flying kite cord is lying in a room and he should accompany him to the said room. Allegedly, by descending the stairs, the petitioner took Waseem Farooq in a room where he was directed to put off his `Pajama', Waseem Farooq started weeping, but the petitioner lifted Waseem Farooq and made him lie on a cot and forcibly removed his `Pajama'. The petitioner after removing his own 'Pajama' started committing sodomy with Waseem Farooq. '-On account of pain, Waseem Farooq, started weeping loudly. The cries. of Waseem Farooq attracted Muhammad Farooq, father, Ashiq Hussain, maternal-uncle, and Billa elder brother of Wweem Farooq who at once reached the said room, whereupon, the petitioner, after seeing them managed to escape. While running, the petitioner left his 'chappal' in the said room. This incident in the terms stated above was reported to A. S.-I. Muhammad Tufail P. W. 4, Incharge Police Post Rangpur, who was on duty on the pakka road near Eidgah, who recorded the statement Exh. P. B. of the first informant'. Waseem Farooq and sent the same for the registration of the case to the Police Station City Sialkot on the basis of which the formal F.

1. R. EA.. P.B./I was drawn.

3. Waseem Farooq,-the victim of sodomy, was medically examined by Dr. Muhammad Aslam P. W. 6 on ?.-6-1977. The doctor found a contusion around anus swelling with tear at 12 O'clock place and from the said .tears, the blood was oozing out. The doctor took swabs from inside and outside the anus and sent the same for Chemical Examination. The blood-stained 'Pajama' of Waseem Farooq was also sent to the Chemical Examiner. Vide report Exh. P. G. of the Chemical Examiner, the swabs were found to be stained with semen and blood.

4. The petitioner was arrested on the same day and be was also got medically examined. The doctor opined that he was fit to commit sexual intercourse. Shalwar of the petitioner was also taken into possession and was sent for chemical examination and vide report Exh. P. F. of the Chemical Examiner, the Shalwar of the accused/petitioner was also found stained with semen. The Investigating Officer also took into possession the Chappal P 1 vide memo. Exh. P. A., which was left by the petitioner in the room while decamping.

5. At the trial, the prosecution produced Ashiq Hussain P. W. I, maternal-uncle of Waseem Farooq, Billa P. W. 2 elder brother of the victim and Muhammad Farooq P. W. 3 father of the victim. These witnesses furnished the ocular account of the incident. Waseem Farooq, victim of the sodomy, was examined under section 118 of the Evidence Act and the trial Court found him not capable of understanding so as to make him eligible to appear as a witness and accordingly he was. not examined.

6. The petitioner, when examined under section 342, C. P. C. completely denied the charge and stated that he had been implicated falsely on account of the enmity between his parents and that of Waseem Farooq. He also offered to produce defence evidence and produced two witnesses, Khurshid Ali D. W. 1 and Lal Din D. W.

2. Both these defence witnesses stated that they were. residents of the same Mohallah where the occurrence had taken place and no such incident ever took place. The witnesses further deposed that the petitioner bore good conduct.

7. It may be stated here that in the trial, it was reported that the petitioner was insane and was suffering from mental disease. Accordingly, the learned trial Court got the petitioner examined from the Medical Superintendent Allama Iqbal Memorial Hospital, Sialkot and it was reported that the petitioner appears to be in a depressive condition and he may be referred to Neuro Psychiatrist Government Mental Hospital, Lahore for Expert opinion. On the receipt of this report clarification was sought as to the exact meaning of depressive condition. The learned trial Magistrate also asked the doctor to opine, whether depressive condition amounts to mental illness or imbalance. The learned trial Magistrate also observed whether it was essential for the physical and mental health of the petitioner, that he should be sent to mental hospital for treatment. On this reference, it was opined that depressive condition can be transitory as well as progressive and no definite opinion can be given, unless the Neuro Psychiatrist examines and submits a report, who is possessed of the specialized knowledge. It was further opined that it was not necessary that the petitioner should be admitted in the mental hospital.

8. The learned counsel for the petitioner on the basis of these reports contended, that the trial of the petitioner stands vitiated because of the non-observance of section 464, Cr. P. C.

9. I have his aspect of tire case and I find no force in the contention, inasmuch as, the plea of insanity was not specifically pleaded. The depression cannot be equated with insanity. The depression may occur on account of variety of reasons. As far as the? insanity is concerned, the law laid down on the subject is very clear. "That in order to get benefit of section 84, P. P. C. it must be established beyond all reasonable doubt that the accused was insane and unable to understand what was wrong or contrary to law on date of occurrence. To establish a defence on the ground of insanity it must be clearly proved that at the time of committing the act the accused was labouring under such a defect or reason from disease of the mind as not to know the nature and quality of the act he was doing or what he was doing was wrong. If the accused was conscious that the act was one which he ought not to do and if that act was at the' same time contrary to the law of the land he is punishable. The standard to be applied is' whether according to the ordinary standard adopted by reasonable men the act was right or wrong. Occasional looseness of head, unsoundness of mind or even partial derailment of brain will not entitle one to claim exemption froth criminal liability under section 84, P. P. C. Uncontrolable impulse co-existing with the full possession of the reasoning powers is no defence in law. Existence of delusions which indicate a defect of sanity will not be deemed sufficient to attract section

84. It is not mere eccentricity or singularity of manner that will suffice to establish the plea of insanity ; it must be shown that the prisoner had no competent use of his understanding so as to know that he was doing a wrong thing in the particular act in question. If there is evidence of premeditation and design the plea of insanity may be negatived. If the cognitive faculty is not impaired and the accused knows that what he is doing is either wrong or contrary to law, he is not insane. It is not necessary that in order to establish a plea of insanity, some scientific evidence must be adduced. If the existence of facts is such as to indicate an unsound state of mind, that is quite sufficient. In each case, the question shall be decided on its own facts, evidence and the surrounding circumstances. The rule of reasonable doubt `will not be inconsistent in such a case'. 1971 D L C

771. Ala Muhammad v. The State P L D 1960 (W. P.) Lab. 111, Muhammad Shafi v. State P L D 1962 S C 475, Aurangaeb v. State 1971 P Cr. L J 1285.

10. It is pertinent to mention here that the petitioner was represented by a defence counsel. He was examined under section 342, Cr. P C. in which he denied the charge and offered to produce the defence evidence D and accordingly, defence witnesses were also produced by the petitioner. The accumulative circumstance leads me to arrive at irresistible conclusion that the petitioner cannot take benefit of section 84; P. P. C.

11. The learned counsel further contended, that non-examination of the victim Waseem Farooq demolishes the prosecution case. According to the learned counsel, non-production of Waseem Farooq, disproves the F. I. R. as well.

12. I have examined this contention in the light of section 118 of the Evidence Act The victim is hardly 8 years of age and it was for the trial Court to judge his mental faculty to hold him as a competent witness. The record reveals that the learned trial Court after taking pains arrived at the conclusion that the victim being a child witness, was unable tog understand and to appear as a witness. The F. I. R. in a case is not substantial piece of evidence, it can only be used to contradict its maker. The F. I. R. leads to the commencement of the investigation under the Criminal Procedure Code. Therefore, the contention raised by the learned counsel has no force. In this case, three eye-witnesses have appeared, who unanimously deposed about the commission of the offence by the petitioner, their relationship with the victim, is no ground to discard their testimony. The prosecution has also produced ample evidence to corroborate the ocular testimony. The recovery of 'chappal' P-1, of the petitioner from they spot, the report of the Chemical Examiner with regard to the Shalwar of the petitioner and the medical evidence clearly establishes that the prosecution version is true. The witnesses had no motive to falsely implicate the petitioner in this case nor it can be accepted that they would level such F allegation by planting a young boy of their family. I? am, therefore,convinced, that the prosecution has proved its case beyond any reasonable doubt,

13. Adverting to the defence evidence, the petitioner in addition to the production of the defence witnesses, has also produced documents to establish that one Wajid Ali had instituted a civil suit against they maternal-uncle of Waseem Farooq, the victim of sodomy, wherein, Karamat Ali, father of the petitioner, was one of the Arbitrators who had given an award against the maternal-uncle of the victim. The perusal of the documentary evidence reveals that Karamat Ali, father of the petitioner, was one of the trustees and not an Arbitrator. To raise a plea of enmity on the basis of this documentary evidence, is a farfetched idea and cannot be taken into consideration. After anxious consideration, I have come to the conclusion that this revision petition has no substance and is hereby dismissed. H. A. K.????????? Revision dismissed. ( f ) Penal Code (XLV of 1860) -- S. 377-Sodomy-Defence evidence-Documentary evidence produced to prove enmity of father 'of accused with family of victim-Plea of accused basing on said documents found to .,be factually incorrect -Raising of plea of enmity on basis of documentary evidence regarding some civil matters, held, being a far fetched idea could not be taken into consideration. Link Malik Saeed Hassan for Petitioner. Khalil Ramday, Addl. A.-G. for the State. Date of hearing : 21st January, 1984. JUDGMENT The petitioner, Riazat Ali alias Gogi Sain, was tried by Mr. Muhammad Rafiq Gill Magistrate Section 30, Sialkot, on a charge under section 377, P. P. C. The petitioner was found guilty and accordingly, vide judgment, dated 21-8-1978, the learned Magistrate convicted and sentenced him to undergo R. I. for four years and to pay a fine of Rs. 500 or in default, to suffer further R. I. for a period of six months. Aggrieved by the aforesaid conviction, the petitioner took an appeal which was dismissed by the learned Additional Sessions Judge, Sialkot on 5-7-1984, Through this revision petition, the conviction has been assailed.

2. The prosecution case, in brief, is that on 2nd of June, 1977, Waseem Farooq son of Muhammad Farooq aged 8 years, was flying kite on the roof of his house. The petitioner, Riazat Ali, was also flying kite on the roof adjacent to the house of Waseem Farooq. It is alleged that the petitioner called Waseem Farooq and offered him to give flying kite cord (j,.1) Waseem Farooq through the roof of the house of one Muhammad Shafi, reached the roof where the petitioner was flying kites. The petitioner asked Waseem Farooq that ,the flying kite cord is lying in a room and he should accompany him to the said room. Allegedly, by descending the stairs, the petitioner took Waseem Farooq in a room where he was directed to put off his `Pajama', Waseem Farooq started weeping, but the petitioner lifted Waseem Farooq and made him lie on a cot and forcibly removed his `Pajama'. The petitioner after removing his own 'Pajama' started committing sodomy with Waseem Farooq. '-On account of pain, Waseem Farooq, started weeping loudly. The cries. of Waseem Farooq attracted Muhammad Farooq, father, Ashiq Hussain, maternal-uncle, and Billa elder brother of Wweem Farooq who at once reached the said room, whereupon, the petitioner, after seeing them managed to escape. While running, the petitioner left his 'chappal' in the said room. This incident in the terms stated above was reported to A. S.-I. Muhammad Tufail P. W. 4, Incharge Police Post Rangpur, who was on duty on the pakka road near Eidgah, who recorded the statement Exh. P. B. of the first informant'. Waseem Farooq and sent the same for the registration of the case to the Police Station City Sialkot on the basis of which the formal F.

1. R. EA.. P.B./I was drawn.

3. Waseem Farooq,-the victim of sodomy, was medically examined by Dr. Muhammad Aslam P. W. 6 on ?.-6-1977. The doctor found a contusion around anus swelling with tear at 12 O'clock place and from the said .tears, the blood was oozing out. The doctor took swabs from inside and outside the anus and sent the same for Chemical Examination. The blood-stained 'Pajama' of Waseem Farooq was also sent to the Chemical Examiner. Vide report Exh. P. G. of the Chemical Examiner, the swabs were found to be stained with semen and blood.

4. The petitioner was arrested on the same day and be was also got medically examined. The doctor opined that he was fit to commit sexual intercourse. Shalwar of the petitioner was also taken into possession and was sent for chemical examination and vide report Exh. P. F. of the Chemical Examiner, the Shalwar of the accused/petitioner was also found stained with semen. The Investigating Officer also took into possession the Chappal P 1 vide memo. Exh. P. A., which was left by the petitioner in the room while decamping.

5. At the trial, the prosecution produced Ashiq Hussain P. W. I, maternal-uncle of Waseem Farooq, Billa P. W. 2 elder brother of the victim and Muhammad Farooq P. W. 3 father of the victim. These witnesses furnished the ocular account of the incident. Waseem Farooq, victim of the sodomy, was examined under section 118 of the Evidence Act and the trial Court found him not capable of understanding so as to make him eligible to appear as a witness and accordingly he was. not examined.

6. The petitioner, when examined under section 342, C. P. C. completely denied the charge and stated that he had been implicated falsely on account of the enmity between his parents and that of Waseem Farooq. He also offered to produce defence evidence and produced two witnesses, Khurshid Ali D. W. 1 and Lal Din D. W.

2. Both these defence witnesses stated that they were. residents of the same Mohallah where the occurrence had taken place and no such incident ever took place. The witnesses further deposed that the petitioner bore good conduct.

7. It may be stated here that in the trial, it was reported that the petitioner was insane and was suffering from mental disease. Accordingly, the learned trial Court got the petitioner examined from the Medical Superintendent Allama Iqbal Memorial Hospital, Sialkot and it was reported that the petitioner appears to be in a depressive condition and he may be referred to Neuro Psychiatrist Government Mental Hospital, Lahore for Expert opinion. On the receipt of this report clarification was sought as to the exact meaning of depressive condition. The learned trial Magistrate also asked the doctor to opine, whether depressive condition amounts to mental illness or imbalance. The learned trial Magistrate also observed whether it was essential for the physical and mental health of the petitioner, that he should be sent to mental hospital for treatment. On this reference, it was opined that depressive condition can be transitory as well as progressive and no definite opinion can be given, unless the Neuro Psychiatrist examines and submits a report, who is possessed of the specialized knowledge. It was further opined that it was not necessary that the petitioner should be admitted in the mental hospital.

8. The learned counsel for the petitioner on the basis of these reports contended, that the trial of the petitioner stands vitiated because of the non-observance of section 464, Cr. P. C.

9. I have his aspect of tire case and I find no force in the contention, inasmuch as, the plea of insanity was not specifically pleaded. The depression cannot be equated with insanity. The depression may occur on account of variety of reasons. As far as the? insanity is concerned, the law laid down on the subject is very clear. "That in order to get benefit of section 84, P. P. C. it must be established beyond all reasonable doubt that the accused was insane and unable to understand what was wrong or contrary to law on date of occurrence. To establish a defence on the ground of insanity it must be clearly proved that at the time of committing the act the accused was labouring under such a defect or reason from disease of the mind as not to know the nature and quality of the act he was doing or what he was doing was wrong. If the accused was conscious that the act was one which he ought not to do and if that act was at the' same time contrary to the law of the land he is punishable. The standard to be applied is' whether according to the ordinary standard adopted by reasonable men the act was right or wrong. Occasional looseness of head, unsoundness of mind or even partial derailment of brain will not entitle one to claim exemption froth criminal liability under section 84, P. P. C. Uncontrolable impulse co-existing with the full possession of the reasoning powers is no defence in law. Existence of delusions which indicate a defect of sanity will not be deemed sufficient to attract section

84. It is not mere eccentricity or singularity of manner that will suffice to establish the plea of insanity ; it must be shown that the prisoner had no competent use of his understanding so as to know that he was doing a wrong thing in the particular act in question. If there is evidence of premeditation and design the plea of insanity may be negatived. If the cognitive faculty is not impaired and the accused knows that what he is doing is either wrong or contrary to law, he is not insane. It is not necessary that in order to establish a plea of insanity, some scientific evidence must be adduced. If the existence of facts is such as to indicate an unsound state of mind, that is quite sufficient. In each case, the question shall be decided on its own facts, evidence and the surrounding circumstances. The rule of reasonable doubt `will not be inconsistent in such a case'. 1971 D L C

771. Ala Muhammad v. The State P L D 1960 (W. P.) Lab. 111, Muhammad Shafi v. State P L D 1962 S C 475, Aurangaeb v. State 1971 P Cr. L J 1285.

10. It is pertinent to mention here that the petitioner was represented by a defence counsel. He was examined under section 342, Cr. P C. in which he denied the charge and offered to produce the defence evidence D and accordingly, defence witnesses were also produced by the petitioner. The accumulative circumstance leads me to arrive at irresistible conclusion that the petitioner cannot take benefit of section 84; P. P. C.

11. The learned counsel further contended, that non-examination of the victim Waseem Farooq demolishes the prosecution case. According to the learned counsel, non-production of Waseem Farooq, disproves the F. I. R. as well.

12. I have examined this contention in the light of section 118 of the Evidence Act The victim is hardly 8 years of age and it was for the trial Court to judge his mental faculty to hold him as a competent witness. The record reveals that the learned trial Court after taking pains arrived at the conclusion that the victim being a child witness, was unable tog understand and to appear as a witness. The F. I. R. in a case is not substantial piece of evidence, it can only be used to contradict its maker. The F. I. R. leads to the commencement of the investigation under the Criminal Procedure Code. Therefore, the contention raised by the learned counsel has no force. In this case, three eye-witnesses have appeared, who unanimously deposed about the commission of the offence by the petitioner, their relationship with the victim, is no ground to discard their testimony. The prosecution has also produced ample evidence to corroborate the ocular testimony. The recovery of 'chappal' P-1, of the petitioner from they spot, the report of the Chemical Examiner with regard to the Shalwar of the petitioner and the medical evidence clearly establishes that the prosecution version is true. The witnesses had no motive to falsely implicate the petitioner in this case nor it can be accepted that they would level such F allegation by planting a young boy of their family. I? am, therefore,convinced, that the prosecution has proved its case beyond any reasonable doubt,

13. Adverting to the defence evidence, the petitioner in addition to the production of the defence witnesses, has also produced documents to establish that one Wajid Ali had instituted a civil suit against they maternal-uncle of Waseem Farooq, the victim of sodomy, wherein, Karamat Ali, father of the petitioner, was one of the Arbitrators who had given an award against the maternal-uncle of the victim. The perusal of the documentary evidence reveals that Karamat Ali, father of the petitioner, was one of the trustees and not an Arbitrator. To raise a plea of enmity on the basis of this documentary evidence, is a farfetched idea and cannot be taken into consideration. After anxious consideration, I have come to the conclusion that this revision petition has no substance and is hereby dismissed. H. A. K.????????? Revision dismissed. ( f ) Penal Code (XLV of 1860) -- S. 377-Sodomy-Defence evidence-Documentary evidence produced to prove enmity of father 'of accused with family of victim-Plea of accused basing on said documents found to .,be factually incorrect -Raising of plea of enmity on basis of documentary evidence regarding some civil matters, held, being a far fetched idea could not be taken into consideration. Malik Saeed Hassan for Petitioner. Khalil Ramday, Addl. A.-G. for the State. Date of hearing : 21st January, 1984. JUDGMENT The petitioner, Riazat Ali alias Gogi Sain, was tried by Mr. Muhammad Rafiq Gill Magistrate Section 30, Sialkot, on a charge under section 377, P. P. C. The petitioner was found guilty and accordingly, vide judgment, dated 21-8-1978, the learned Magistrate convicted and sentenced him to undergo R. I. for four years and to pay a fine of Rs. 500 or in default, to suffer further R. I. for a period of six months. Aggrieved by the aforesaid conviction, the petitioner took an appeal which was dismissed by the learned Additional Sessions Judge, Sialkot on 5-7-1984, Through this revision petition, the conviction has been assailed.

2. The prosecution case, in brief, is that on 2nd of June, 1977, Waseem Farooq son of Muhammad Farooq aged 8 years, was flying kite on the roof of his house. The petitioner, Riazat Ali, was also flying kite on the roof adjacent to the house of Waseem Farooq. It is alleged that the petitioner called Waseem Farooq and offered him to give flying kite cord (j,.1) Waseem Farooq through the roof of the house of one Muhammad Shafi, reached the roof where the petitioner was flying kites. The petitioner asked Waseem Farooq that ,the flying kite cord is lying in a room and he should accompany him to the said room. Allegedly, by descending the stairs, the petitioner took Waseem Farooq in a room where he was directed to put off his `Pajama', Waseem Farooq started weeping, but the petitioner lifted Waseem Farooq and made him lie on a cot and forcibly removed his `Pajama'. The petitioner after removing his own 'Pajama' started committing sodomy with Waseem Farooq. '-On account of pain, Waseem Farooq, started weeping loudly. The cries. of Waseem Farooq attracted Muhammad Farooq, father, Ashiq Hussain, maternal-uncle, and Billa elder brother of Wweem Farooq who at once reached the said room, whereupon, the petitioner, after seeing them managed to escape. While running, the petitioner left his 'chappal' in the said room. This incident in the terms stated above was reported to A. S.-I. Muhammad Tufail P. W. 4, Incharge Police Post Rangpur, who was on duty on the pakka road near Eidgah, who recorded the statement Exh. P. B. of the first informant'. Waseem Farooq and sent the same for the registration of the case to the Police Station City Sialkot on the basis of which the formal F.

1. R. EA.. P.B./I was drawn.

3. Waseem Farooq,-the victim of sodomy, was medically examined by Dr. Muhammad Aslam P. W. 6 on ?.-6-1977. The doctor found a contusion around anus swelling with tear at 12 O'clock place and from the said .tears, the blood was oozing out. The doctor took swabs from inside and outside the anus and sent the same for Chemical Examination. The blood-stained 'Pajama' of Waseem Farooq was also sent to the Chemical Examiner. Vide report Exh. P. G. of the Chemical Examiner, the swabs were found to be stained with semen and blood.

4. The petitioner was arrested on the same day and be was also got medically examined. The doctor opined that he was fit to commit sexual intercourse. Shalwar of the petitioner was also taken into possession and was sent for chemical examination and vide report Exh. P. F. of the Chemical Examiner, the Shalwar of the accused/petitioner was also found stained with semen. The Investigating Officer also took into possession the Chappal P 1 vide memo. Exh. P. A., which was left by the petitioner in the room while decamping.

5. At the trial, the prosecution produced Ashiq Hussain P. W. I, maternal-uncle of Waseem Farooq, Billa P. W. 2 elder brother of the victim and Muhammad Farooq P. W. 3 father of the victim. These witnesses furnished the ocular account of the incident. Waseem Farooq, victim of the sodomy, was examined under section 118 of the Evidence Act and the trial Court found him not capable of understanding so as to make him eligible to appear as a witness and accordingly he was. not examined.

6. The petitioner, when examined under section 342, C. P. C. completely denied the charge and stated that he had been implicated falsely on account of the enmity between his parents and that of Waseem Farooq. He also offered to produce defence evidence and produced two witnesses, Khurshid Ali D. W. 1 and Lal Din D. W.

2. Both these defence witnesses stated that they were. residents of the same Mohallah where the occurrence had taken place and no such incident ever took place. The witnesses further deposed that the petitioner bore good conduct.

7. It may be stated here that in the trial, it was reported that the petitioner was insane and was suffering from mental disease. Accordingly, the learned trial Court got the petitioner examined from the Medical Superintendent Allama Iqbal Memorial Hospital, Sialkot and it was reported that the petitioner appears to be in a depressive condition and he may be referred to Neuro Psychiatrist Government Mental Hospital, Lahore for Expert opinion. On the receipt of this report clarification was sought as to the exact meaning of depressive condition. The learned trial Magistrate also asked the doctor to opine, whether depressive condition amounts to mental illness or imbalance. The learned trial Magistrate also observed whether it was essential for the physical and mental health of the petitioner, that he should be sent to mental hospital for treatment. On this reference, it was opined that depressive condition can be transitory as well as progressive and no definite opinion can be given, unless the Neuro Psychiatrist examines and submits a report, who is possessed of the specialized knowledge. It was further opined that it was not necessary that the petitioner should be admitted in the mental hospital.

8. The learned counsel for the petitioner on the basis of these reports contended, that the trial of the petitioner stands vitiated because of the non-observance of section 464, Cr. P. C.

9. I have his aspect of tire case and I find no force in the contention, inasmuch as, the plea of insanity was not specifically pleaded. The depression cannot be equated with insanity. The depression may occur on account of variety of reasons. As far as the? insanity is concerned, the law laid down on the subject is very clear. "That in order to get benefit of section 84, P. P. C. it must be established beyond all reasonable doubt that the accused was insane and unable to understand what was wrong or contrary to law on date of occurrence. To establish a defence on the ground of insanity it must be clearly proved that at the time of committing the act the accused was labouring under such a defect or reason from disease of the mind as not to know the nature and quality of the act he was doing or what he was doing was wrong. If the accused was conscious that the act was one which he ought not to do and if that act was at the' same time contrary to the law of the land he is punishable. The standard to be applied is' whether according to the ordinary standard adopted by reasonable men the act was right or wrong. Occasional looseness of head, unsoundness of mind or even partial derailment of brain will not entitle one to claim exemption froth criminal liability under section 84, P. P. C. Uncontrolable impulse co-existing with the full possession of the reasoning powers is no defence in law. Existence of delusions which indicate a defect of sanity will not be deemed sufficient to attract section

84. It is not mere eccentricity or singularity of manner that will suffice to establish the plea of insanity ; it must be shown that the prisoner had no competent use of his understanding so as to know that he was doing a wrong thing in the particular act in question. If there is evidence of premeditation and design the plea of insanity may be negatived. If the cognitive faculty is not impaired and the accused knows that what he is doing is either wrong or contrary to law, he is not insane. It is not necessary that in order to establish a plea of insanity, some scientific evidence must be adduced. If the existence of facts is such as to indicate an unsound state of mind, that is quite sufficient. In each case, the question shall be decided on its own facts, evidence and the surrounding circumstances. The rule of reasonable doubt `will not be inconsistent in such a case'. 1971 D L C

771. Ala Muhammad v. The State P L D 1960 (W. P.) Lab. 111, Muhammad Shafi v. State P L D 1962 S C 475, Aurangaeb v. State 1971 P Cr. L J 1285.

10. It is pertinent to mention here that the petitioner was represented by a defence counsel. He was examined under section 342, Cr. P C. in which he denied the charge and offered to produce the defence evidence D and accordingly, defence witnesses were also produced by the petitioner. The accumulative circumstance leads me to arrive at irresistible conclusion that the petitioner cannot take benefit of section 84; P. P. C.

11. The learned counsel further contended, that non-examination of the victim Waseem Farooq demolishes the prosecution case. According to the learned counsel, non-production of Waseem Farooq, disproves the F. I. R. as well.

12. I have examined this contention in the light of section 118 of the Evidence Act The victim is hardly 8 years of age and it was for the trial Court to judge his mental faculty to hold him as a competent witness. The record reveals that the learned trial Court after taking pains arrived at the conclusion that the victim being a child witness, was unable tog understand and to appear as a witness. The F. I. R. in a case is not substantial piece of evidence, it can only be used to contradict its maker. The F. I. R. leads to the commencement of the investigation under the Criminal Procedure Code. Therefore, the contention raised by the learned counsel has no force. In this case, three eye-witnesses have appeared, who unanimously deposed about the commission of the offence by the petitioner, their relationship with the victim, is no ground to discard their testimony. The prosecution has also produced ample evidence to corroborate the ocular testimony. The recovery of 'chappal' P-1, of the petitioner from they spot, the report of the Chemical Examiner with regard to the Shalwar of the petitioner and the medical evidence clearly establishes that the prosecution version is true. The witnesses had no motive to falsely implicate the petitioner in this case nor it can be accepted that they would level such F allegation by planting a young boy of their family. I? am, therefore,convinced, that the prosecution has proved its case beyond any reasonable doubt,

13. Adverting to the defence evidence, the petitioner in addition to the production of the defence witnesses, has also produced documents to establish that one Wajid Ali had instituted a civil suit against they maternal-uncle of Waseem Farooq, the victim of sodomy, wherein, Karamat Ali, father of the petitioner, was one of the Arbitrators who had given an award against the maternal-uncle of the victim. The perusal of the documentary evidence reveals that Karamat Ali, father of the petitioner, was one of the trustees and not an Arbitrator. To raise a plea of enmity on the basis of this documentary evidence, is a farfetched idea and cannot be taken into consideration. After anxious consideration, I have come to the conclusion that this revision petition has no substance and is hereby dismissed. H. A. K.????????? Revision dismissed. Malik Saeed Hassan for Petitioner. Khalil Ramday, Addl. A.-G. for the State. Date of hearing : 21st January, 1984. The petitioner, Riazat Ali alias Gogi Sain, was tried by Mr. Muhammad Rafiq Gill Magistrate Section 30, Sialkot, on a charge under section 377, P. P. C. The petitioner was found guilty and accordingly, vide judgment, dated 21-8-1978, the learned Magistrate convicted and sentenced him to undergo R. I. for four years and to pay a fine of Rs. 500 or in default, to suffer further R. I. for a period of six months. Aggrieved by the aforesaid conviction, the petitioner took an appeal which was dismissed by the learned Additional Sessions Judge, Sialkot on 5-7-1984, Through this revision petition, the conviction has been assailed.

2. The prosecution case, in brief, is that on 2nd of June, 1977, Waseem Farooq son of Muhammad Farooq aged 8 years, was flying kite on the roof of his house. The petitioner, Riazat Ali, was also flying kite on the roof adjacent to the house of Waseem Farooq. It is alleged that the petitioner called Waseem Farooq and offered him to give flying kite cord (j,.1) Waseem Farooq through the roof of the house of one Muhammad Shafi, reached the roof where the petitioner was flying kites. The petitioner asked Waseem Farooq that ,the flying kite cord is lying in a room and he should accompany him to the said room. Allegedly, by descending the stairs, the petitioner took Waseem Farooq in a room where he was directed to put off his `Pajama', Waseem Farooq started weeping, but the petitioner lifted Waseem Farooq and made him lie on a cot and forcibly removed his `Pajama'. The petitioner after removing his own 'Pajama' started committing sodomy with Waseem Farooq. '-On account of pain, Waseem Farooq, started weeping loudly. The cries. of Waseem Farooq attracted Muhammad Farooq, father, Ashiq Hussain, maternal-uncle, and Billa elder brother of Wweem Farooq who at once reached the said room, whereupon, the petitioner, after seeing them managed to escape. While running, the petitioner left his 'chappal' in the said room. This incident in the terms stated above was reported to A. S.-I. Muhammad Tufail P. W. 4, Incharge Police Post Rangpur, who was on duty on the pakka road near Eidgah, who recorded the statement Exh. P. B. of the first informant'. Waseem Farooq and sent the same for the registration of the case to the Police Station City Sialkot on the basis of which the formal F.

1. R. EA.. P.B./I was drawn.

3. Waseem Farooq,-the victim of sodomy, was medically examined by Dr. Muhammad Aslam P. W. 6 on ?.-6-1977. The doctor found a contusion around anus swelling with tear at 12 O'clock place and from the said .tears, the blood was oozing out. The doctor took swabs from inside and outside the anus and sent the same for Chemical Examination. The blood-stained 'Pajama' of Waseem Farooq was also sent to the Chemical Examiner. Vide report Exh. P. G. of the Chemical Examiner, the swabs were found to be stained with semen and blood.

4. The petitioner was arrested on the same day and be was also got medically examined. The doctor opined that he was fit to commit sexual intercourse. Shalwar of the petitioner was also taken into possession and was sent for chemical examination and vide report Exh. P. F. of the Chemical Examiner, the Shalwar of the accused/petitioner was also found stained with semen. The Investigating Officer also took into possession the Chappal P 1 vide memo. Exh. P. A., which was left by the petitioner in the room while decamping.

5. At the trial, the prosecution produced Ashiq Hussain P. W. I, maternal-uncle of Waseem Farooq, Billa P. W. 2 elder brother of the victim and Muhammad Farooq P. W. 3 father of the victim. These witnesses furnished the ocular account of the incident. Waseem Farooq, victim of the sodomy, was examined under section 118 of the Evidence Act and the trial Court found him not capable of understanding so as to make him eligible to appear as a witness and accordingly he was. not examined.

6. The petitioner, when examined under section 342, C. P. C. completely denied the charge and stated that he had been implicated falsely on account of the enmity between his parents and that of Waseem Farooq. He also offered to produce defence evidence and produced two witnesses, Khurshid Ali D. W. 1 and Lal Din D. W.

2. Both these defence witnesses stated that they were. residents of the same Mohallah where the occurrence had taken place and no such incident ever took place. The witnesses further deposed that the petitioner bore good conduct.

7. It may be stated here that in the trial, it was reported that the petitioner was insane and was suffering from mental disease. Accordingly, the learned trial Court got the petitioner examined from the Medical Superintendent Allama Iqbal Memorial Hospital, Sialkot and it was reported that the petitioner appears to be in a depressive condition and he may be referred to Neuro Psychiatrist Government Mental Hospital, Lahore for Expert opinion. On the receipt of this report clarification was sought as to the exact meaning of depressive condition. The learned trial Magistrate also asked the doctor to opine, whether depressive condition amounts to mental illness or imbalance. The learned trial Magistrate also observed whether it was essential for the physical and mental health of the petitioner, that he should be sent to mental hospital for treatment. On this reference, it was opined that depressive condition can be transitory as well as progressive and no definite opinion can be given, unless the Neuro Psychiatrist examines and submits a report, who is possessed of the specialized knowledge. It was further opined that it was not necessary that the petitioner should be admitted in the mental hospital.

8. The learned counsel for the petitioner on the basis of these reports contended, that the trial of the petitioner stands vitiated because of the non-observance of section 464, Cr. P. C.

9. I have his aspect of tire case and I find no force in the contention, inasmuch as, the plea of insanity was not specifically pleaded. The depression cannot be equated with insanity. The depression may occur on account of variety of reasons. As far as the? insanity is concerned, the law laid down on the subject is very clear. "That in order to get benefit of section 84, P. P. C. it must be established beyond all reasonable doubt that the accused was insane and unable to understand what was wrong or contrary to law on date of occurrence. To establish a defence on the ground of insanity it must be clearly proved that at the time of committing the act the accused was labouring under such a defect or reason from disease of the mind as not to know the nature and quality of the act he was doing or what he was doing was wrong. If the accused was conscious that the act was one which he ought not to do and if that act was at the' same time contrary to the law of the land he is punishable. The standard to be applied is' whether according to the ordinary standard adopted by reasonable men the act was right or wrong. Occasional looseness of head, unsoundness of mind or even partial derailment of brain will not entitle one to claim exemption froth criminal liability under section 84, P. P. C. Uncontrolable impulse co-existing with the full possession of the reasoning powers is no defence in law. Existence of delusions which indicate a defect of sanity will not be deemed sufficient to attract section

84. It is not mere eccentricity or singularity of manner that will suffice to establish the plea of insanity ; it must be shown that the prisoner had no competent use of his understanding so as to know that he was doing a wrong thing in the particular act in question. If there is evidence of premeditation and design the plea of insanity may be negatived. If the cognitive faculty is not impaired and the accused knows that what he is doing is either wrong or contrary to law, he is not insane. It is not necessary that in order to establish a plea of insanity, some scientific evidence must be adduced. If the existence of facts is such as to indicate an unsound state of mind, that is quite sufficient. In each case, the question shall be decided on its own facts, evidence and the surrounding circumstances. The rule of reasonable doubt `will not be inconsistent in such a case'. 1971 D L C

771. Ala Muhammad v. The State P L D 1960 (W. P.) Lab. 111, Muhammad Shafi v. State P L D 1962 S C 475, Aurangaeb v. State 1971 P Cr. L J 1285.

10. It is pertinent to mention here that the petitioner was represented by a defence counsel. He was examined under section 342, Cr. P C. in which he denied the charge and offered to produce the defence evidence D and accordingly, defence witnesses were also produced by the petitioner. The accumulative circumstance leads me to arrive at irresistible conclusion that the petitioner cannot take benefit of section 84; P. P. C.

11. The learned counsel further contended, that non-examination of the victim Waseem Farooq demolishes the prosecution case. According to the learned counsel, non-production of Waseem Farooq, disproves the F. I. R. as well.

12. I have examined this contention in the light of section 118 of the Evidence Act The victim is hardly 8 years of age and it was for the trial Court to judge his mental faculty to hold him as a competent witness. The record reveals that the learned trial Court after taking pains arrived at the conclusion that the victim being a child witness, was unable tog understand and to appear as a witness. The F. I. R. in a case is not substantial piece of evidence, it can only be used to contradict its maker. The F. I. R. leads to the commencement of the investigation under the Criminal Procedure Code. Therefore, the contention raised by the learned counsel has no force. In this case, three eye-witnesses have appeared, who unanimously deposed about the commission of the offence by the petitioner, their relationship with the victim, is no ground to discard their testimony. The prosecution has also produced ample evidence to corroborate the ocular testimony. The recovery of 'chappal' P-1, of the petitioner from they spot, the report of the Chemical Examiner with regard to the Shalwar of the petitioner and the medical evidence clearly establishes that the prosecution version is true. The witnesses had no motive to falsely implicate the petitioner in this case nor it can be accepted that they would level such F allegation by planting a young boy of their family. I? am, therefore,convinced, that the prosecution has proved its case beyond any reasonable doubt,

13. Adverting to the defence evidence, the petitioner in addition to the production of the defence witnesses, has also produced documents to establish that one Wajid Ali had instituted a civil suit against they maternal-uncle of Waseem Farooq, the victim of sodomy, wherein, Karamat Ali, father of the petitioner, was one of the Arbitrators who had given an award against the maternal-uncle of the victim. The perusal of the documentary evidence reveals that Karamat Ali, father of the petitioner, was one of the trustees and not an Arbitrator. To raise a plea of enmity on the basis of this documentary evidence, is a farfetched idea and cannot be taken into consideration. After anxious consideration, I have come to the conclusion that this revision petition has no substance and is hereby dismissed. H. A. K.????????? Revision dismissed.