1973 P Cr (PLP)

ZAKI-UD-DIJ PAL, J.-Ali Muhammad son of Noor Muhammad, Awan by caste, resident of Dhok Mundwal Dakhli Dhermond, Police Station Tamman, District Campbellpur, bar, been found guilty under section 302, P. P. C. for the murder of his wife, Mst. Bakht Bhari, under section 307, P. P. C. on four counts for having made murderous assault on his daughters, Mst. Sadiq Sultan, Mst. Sarwar Khatun, Mst. Ghulam Fatima and Mst. Shamim Akhtar, and under section 309, P. P. C. for having made attempt to commit suicide, by the learned Additional Sessions Judge, Campbellpur, by his judgment dated 11th Novem ber 1969, and has been sentenced to death for the murder and 4 years' R. I. and one year's S. I. for murderous assault and suicide, respectively. The sentence of imprisonment have been ordered to run concurrently in case the death sentence is not confirmed by the High Court. The convict has filed Criminal Appeal No. 553 of 1970 against his conviction and sentence while the learned Additional Sessions Judge has made reference under section 374, Cr. P. C. for the confirmation of the death sentence. This judgment will dispose of both, the appeal and the reference.

2. The F. I. R. (Exh. P. Q.) was lodged by one Malik Muhammad Khan, Chairman, Union Council P. W. 8 at 11 a. m. on 30th of August 1968. The occurrence had taken place at sehriwela on the same date. The distance of the police station from the place of occurrence is about ten miles. Raja Abdur Razzaq, S. H. O. Police Station Tamman, after having received a copy of the F. I. R. at 4-30 p.m. at Bus-stand Tamman, proceeded to the place of occurrence and reached there at about 5-15 p. m. He travelled by a lorry. He prepared the Inquest Report (Exh. P. W.) and Injuries Statement (Exh. P. V.) of the dead body of Mst. Bakht Bhari and sent the dead body to the mortuary for post-mortem examination under the escort of Akbar Shah F. C. (P. W. 3). He took into possession blood-stained hatchet (P. 1) and made It into a sealed, parcel vide memo. 'Exh. P. A. He arrested the appellant and as he was having injuries on his person, therefore, he prepared his Injuries Statement (Exh. P Y). Khan Zaman (P. W. 10) had also injuries on his person. The S. H. O. p' prepared his Injuries Statement a Exh. P. X.) also and referred him for medical examination. He took into possession the bloodstained earth from the place of occurrence, and made it into a sealed parcel vide memo. Exh. P. C.

3. Dr. Muhammad Latif, Medical Officer, Civil Hospital. Talagang (P. W. I) performed autopsy on the dead body of Mst. Bakht Bhari (deceased) at 8 a. m. tan 31st August 1968 and found the following injuries on her person: - (1) An incised wound 3 x 1 ' up to bone deep on the back of head, a little behind and below the left pinna which was cut I' x I' skin deep. (2) An incised wound 5'x 1 deep on the left side of neck below injury No. 1 both the wounds were in an oblique direction. (3) An abrasion 3/4' x on She back of right elbow. According to him, the death happened due to rupture of brain, haemorrhage and shock as a result of injuries Nos. 1 and 2, respectively, which were sufficient in the ordinary course of nature, to cause death. These injuries according to him could be fatal individually also. All the injuries, except injury No. 3, were caused with sharp-edged weapon. In. his opinion, the probable time that elapsed between the injuries and death was immediate and that between the death and post-mortem was about 24- hours. On 30th August 1968 at 4-30 p. m. Dr. Abdul Latif (P. W.) examined Mst. Shamim Akhtar, daughter of the appellant, and found the following injuries on her person: - (1) An incised wound 2' x I' up to bone deep on the left side of face extending from the outer a thus of the left eye just 3/4' in front of the left pinna, in an oblique direction. The temporal bone near the eye was deeply cut. (2) The right hand was chopped off from the rest of the fore arm incised wound 2J' x 1J' both the bones ulna and radius were cut through and through. All the nerves, blood-vessels and the muscles were cut through and through. The hand was attached to the arm only with a stage of skin on the front side. The wound on the back was a little above the wrist. The face was covered with clotted blood and the shirt was saturated with blood. According to the doctor, all the injuries were grievous and were inflicted with a sharp-edged weapon and in his opinion the pro bable duration of the injuries was about 13 hours. On the same day at 5 p. m. P. W. 1 also examined Mst. Ghulam Fatima, daughter of the appellant. He found the follow ing injury on her person: (1) An incised wound 2' x bone deep on the left parietal region of head, 3' above the left ear in an oblique direction. The left parietal bone under the injury had deep cut. According to him, the injury was grievous and was inflicted with sharp-edged weapon. According to the doctor, the probable duration of the injury was about 12 hours. The same doctor, on the same day, examined- Mst. Sarwar Khatoon, injured daughter of the appellant, aged about seven years, and found the following injuries on her person: -- (1) An incised wound 1 x x 1' on the outer side of left shoulder; in an oblique direction. The depth of the wound was fall of clotted blood. -- (2) An incised wound ' x ' on the outer side of left shoulder in an oblique direction. (3) An superficial cut ' x 1/8 on the dorsum of right hand half inch above the third knuckle. The doctor opined that all the injuries were simple, caused with sharp-edged weapon and that probable duration of the injuries as about 12 hours. On the same day at 5-50 p.m. P.W.1 examined Mst. Sadiq sultan, daughter of the appellant, and found the following injuries on her person: (1) An incised wound ' x ' scalp deep on the right fore head I' above the right eye-brow, in an oblique direction. (2) An incised wound 1 " x ' x " on the dorsum of right hand in a horizontal direction 1f below the wrist near the ulnar border. (3) An incised wound a' x 1 /2" x 2' on the web between the index and the middle finger of the left hand extending to the thonar eminence. (4) A superficial cut 2 ' x 1/8" on the back of the right upper arm 3 above the elecranon. He found the injuries to be simple result of some sharp-edged weapon. The duration of the injuries according to him was about 12 hours. Khan Zaman (P. W. 10) was also examined by the same doctor on 31st August 1968 at 11-15 a. m. and following injuries were found on his person (1) An incised wound " x 1/2' x skin deep on the bridge of nose, in an oblique direction. Clotted blood was present. (2) An incised wound 3" x x 1/2' on the right side of face If in front of the angle of the mandible in an oblique direction. (3) An incised wound 3/4' x 1/2' skin deep just below the angle of right mandible. The injuries were found simple by the doctor and inflicted with sharp-edged weapon. The probable duration of the injuries according to the doctor, was about 24 to 36 hours. Dr. Muhammad Latif (P. W. 1) also examined Ali Muhammad, appellant on the same date at 11-40 a. m. He found the following injuries on his person: -- (1) An incised wound 1/2" x skin deep on the right pinna. (2) An incised wound 1' x skin deep on the right mastoid just behind to the right ear. (3) An incised wound 1'x ' skin deep on the back of head right side 1 ' behind injury No. 2. (4) A scratch 2' in length on the right mastoid 3/4' behind injury No. 2. (5) An incised wound 1/3 x 1/6' skin deep on the back of neck, right side. The doctor found that the general condition of the appellant was good; all the injuries were simple and were inflicted with some sharp-edged weapon. Probable duration of injuries, according to the doctor, was about 24 to 36 hours.

4. The prosecution case is that Mst. Bakht Dhari (deceased) wife of the appellant, the appellant himself and their four daughters; Sadiq Sultan, Sarwar Khatun, Ghulam Fatima and Shamim Akhtar, all injured persons, were sleeping in the house on the fright between 29th and 30th of August 1968 and at about sehriwsla, Ali Muhammad, appellant, got up and started giving hatchet blows to his wife, Mst. Bakht Bhari (deceased) and his above-mentioned four daughters. Me. Sarwar Khatun, however, ran to the house of her relative, Mst. Sharif Khatun (P. W. 12) in order to inform her about the occurrence. The injured persons also raised alarm at the time when the appellant started inflicting injuries to his wife. Mst. Sharif Khatun (P. W.) on having learnt about the incident, came to the spot and found that Mst. Bakht Bhari was lying murdered and appellant was injuring his daughters with hatchet in his hands. Meanwhile, Khan Zaman (P. W.) also reached the spot and found that Mst. Sharif Khatun (P. W.) was catching hold of Ali Muhammad, appellant, Khan Zaman (P. W.) tried to snatch away the hatchet from the hands of the appellant, but during the scuffle. he also received injuries. Ali Muhammad, appellant, also injured himself with that very hatchet in order to commit suicide. Rab Nawab (P. W. 11) also reached the spot at the time and helped Khan Zaman (P. W.) in catching hold of the appellant and overpowering him. They made the appellant to sit at the spot. Sometime, thereafter, Muhammad Khan (P. W. 8), Khizar Hayat (P. W. 9) and Muzaffar Chowkidar (P. W. 7) 'also reached the spot. According to the prosecution, the appellant -on inquiry informed Muhammad Khan and Khizar Hayat (P. Ws.) that on account of the refusal of Mst. Bakht Bhari (deceased) to allow him a sexual intercourse, he got annoyed. He further stated that in order to get rid of all the misfortunes, he injured himself and his four daughters.

5. The appellant during the commitment proceedings replied in the negative, when asked by the Court as to whether on 30th of August 1968, at sehriwela he asked his wife Mst. Bakht Bhari (deceased) for eohqbit4tion, lout she refused. When again asked by the Court to explain the injuries on his person, he replied that he would make statement in this Bard in the Court of Session. However, in the Court of Session, when asked to explain the injuries on his person, he replied that he did not know how he received the same. The answers to all the other questions were in the negative. It is, however, significant that neither before the committing Magistrate nor before the trial Judge, he pleaded insanity or unsoundness of mind at the time when he committed the crime of murder. In reply to a question before the commit ting Magistrate; as to why this case was against him, he stated that it was due to enmity with P. Ws. but before the learned Sessions Judge, he said that he could not say as to why this case was against him.

6. The learned counsel for the appellant has not denied the charge of murder of Mst. Bakht Bhari (deceased), but has raised the plea of insanity and has argued that from the statements of P. Ws. before the trial Judge, it is clear that the appellant fell ill about li or 2 years before the occurrence. He developed a carbuncle in his head. He used to get pus from nose and ears. He used to get fits occasionally and would behave like a mad man. Sometimes, he would run away and would throw stones at others. During that period, he would not take his meals nor would sleep and the fits continued for about a week or so. However, Muhammad Khan and Khizar Hayat (P. Ws.) did not depose to this fact. They showed their ignorance, as to whether the appellant was suffering from occasional fits of insanity. Khan Zaman (P. W. l0), Mst. Sharif Khatun (P. W. 12) and Mst. Sadiq Sultan (P. W. 13), who are close relations of the appellant, have however stated before the trial Judge, that the appellant was suffering from occasional fits of insanity and after he had killed his wife, he was saying that he had killed a wolf. P. Ws. 4, 10, 12 and I, also deposed to the fact of occasional fits suffered by the appellant before the committing Magistrate, while appearing for the prosecution. The learned Additional Sessions Judge, how ever, repelled the plea of insanity of the appellant on the ground, that all the above-mentioned four P. Ws. were close relations of the appellant and, therefore, in order to help him were making this concession in his favour. He has further observed that no attempt was made by the defence to prove by evidence, particu larly by an expert, that the appellant was suffering from the fits of insanity immediately preceding and after the incident,

7. The learned counsel for the appellant while relying upon Gholarn Yusaf v. The Crown (1) has argued that if reasonable doubt is created by the evidence produced by the prosecution, of the defence, as to whether the accused killed the deceased with a, malicious intention then it can be safely presumed that the prosecution has not made out the case and the accused is entitled to acquittal. The main judgment in the case cited above has been written by Mr. Justice M. R. Kayani, who has dealt with this point at length by referring to -various judgments on the point; particularly, Woolmington's case. His Lordship, in the operative part of his judgment, held as follows: -- "I am not able to say what exactly the state of his mind was, but I am convinced that, although he may have known that he was shooting, he did not know that he was shooting his wife or son. He did not even know that he had kil''ed one of them., The appellant has, therefore, succeeded in discharging the, burden laid upon him by section 84, P. P. C. irrespective of the, fact that it is extremely doubtful whether he could have formed` any intention to kill his wife." The facts of this case are that: Ghulam Yusuf, accused, aged about 50 years, a Field Kanungo of Sialkot, fired several shots with a gun at his son, Liaqat Hayat, and his wife Mst. Sabira Rashida in small hours of 24th of April 1951, injuring the former and killing the latter. The deceased made a statement before her death. The accused, Ghulam Yousuf, remained under the observation of Dr. Hamid Musa, Jail Superintendent, from 25th of April to 18th of May 1951. He recommended him for being admitted to the Mental Hospital at Lahore. The accused was detained there up to 12th of December 1951, and then discharged as cured. He was tried for murder and attempt to murder, con victed and sentenced to death under the former charge and to seven years' imprisonment under the latter. Dr: Ahmad Shafi, Medical Superintendent, Punjab; Mental Hospital, Lahore, who appeared as D. W. 2, gave the details of his observations from 19th of May to 11th of July 1951. During this period the impres sion which one gets from the report of D. W. 2 is that the accused person was mentally deranged. Dr. Ahmad Shafi while appearing for the defence further deposed that he had an occasion to examine the appellant at the show? of Messrs Fazal Din & Sons, Chemists of Lahore in the second or third week of February 1951, much before the occurrence took place. Messrs Fazal Din & Sons are friends of the family of the accused. D. W. 2 found the accused insane and advised him hospital treatment.. He further stated that it was impossible for the accused to do his normal work, though he could distinguish the relatives from strangers. However, in the Hospital, after the occurrence, the accused suffered from delusion and hallucinations. According to the doctor, it was not a case of feigning. Mr. Justice M. R. Kayani held, in the above-cited judgment, that "if a person suffers from insane delusions, he has an unsound mind. It is assumed that notwithstanding such unsoundness, the cognitive faculty may not be impaired. If that be the case, he knows the nature of the act. But if he does not know it, as when he strikes a man's, head, believing it to be a Jar, he is not liable. If he knows that it is a man's head, but strikes it all the same because he believes that he is saving the man from sin, then if he knows at the same time that it is contrary to law, he is guilty; but if he does not know this, he is not guilty, because then he does not know, it is either morally or legally wrong". His Lordship has also referred to McNaughten's case ((1843) 69 It R 85) in his judgment. McNaughten suffered from delusions of persecution and he believing that he was hounded by enemies, shot zed killed Drummond; Sir Robert Peel's Private Secretary, who by supposedly mistook' for Peels. Medical evidence said that such a person might have a moral perception of right and wrong, but that in the case of the prisoner it was a delusion which carried him away beyond the power of his own control, and left him no such perception and that he was not capable of exercising control' over act which dad connection with his delusion. The jury were told that he would not be guilty if they thought he was not sensible "that he was violating the laws both of God and Man", but that he would be guilty if he was at the time of commission "in a sound state of mind". The verdict was that he was not guilty en account of insanity. Justice A. M. Jan agreed with the main judgment written by his colleague, Mr. Justice M. R. Kayani, but added an exhaustive note thereto. He based his observation not only on the prosecution, but also on the evidence of twelve witnesses produced on behalf of the accused in that case. Dr. E.L, Dieck, M. D. (D. W. 1) deposed that he examined the accused twice in February 1951 and found him in a depressed state of mind. The accused told him that the people were out to kill him and he could not sleep. He again visited him on 21st of February 1951, and found the accused excited; his conversation was not coherent and according to the opinion of the witness, he was mentally unbalanced and showed tendency towards violence. Dr. Ahmad Shaft, Superintendent, Punjab Mental Hospital, who examined the accused towards the end of February 1951, advised his treatment in the Hospital and considered him to be a mental case. As mentioned above, after the commission of the crime, i.e. from next day 25th of April 1951, the accused was kept under observa tion in Jail by Dr. Hamid 'Musa, who sent him to the Mental Hospital on 19th of May 1951. The accused in that case was not considered fit to stand his trial until 12th of December 1951. According to the doctor incharge of the Mental Hospital, the accused was not suffering from feigning Justice A. M. Jan on the basis of this evidence came to the conclusion that even in this evidence did not positively prove that the accused spas mad when he committed the crime, he was clearly of the opinion that, there was a reasonable possibility that the defence put forward on his behalf might be true. According to his Lordship; here was no difference between the plea of insanity and any other exception recognized by law in Pakistan and the evidence regarding insanity in this case was sufficient to cast a doubt on the question whether the act of the accused was done with the intention or knowledge required to constitute the offence of murder and that the accused, was, therefore, entitled to the benefit of doubt.

8. The sum and substance of the judgment in Ghulam Yusuf's case appears to be that if there is a. reasonable doubt created by the evidence given either by the prosecution or the defence; as to whether the accused killed the deceased with a malicious intention and the prosecution has not made out the case, the prisoner is entitled to acquittal and further that the doubt that arises should thus relate to the question; whether" the accused killed the deceased with malicious intention and malice being an ingredient of the offence, the doubt refers to the ingre dient and .not to the offence.

9. According to section 105 of the Evidence Act, when a person is accused of an offence, the burden of proving the existence of circumstance bringing the case within any of the general excep tions in the Pakistan Penal Code or within any special exception or proviso contained in any other part of the same Code or in any law defining the offence is on him and the Court shall presume absence of such circumstances. If an accused person pleads in sanity then he has to prove, under this provision, that at the time of commission of the offence, by reasons of unsoundness of mind, he was incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law. While dealing with this aspect Mr. Justice S. A. Rahman in Lai Khan v. Crown (1), made the following observations "that the Evidence Act departs from the principles of English law in certain respects. In the first place, all exceptions, whether general or special, included in the Penal Code, stand on the same level as regards the burden of proof on the accused person, under section 105 of the Act. Under English law the defence of insanity seems to have been placed on a different footing from that of other defences. The expression `reasonable doubt' finds no mention in the Act. Ins tead, we have the criterion of the estimate of probability in each case with reference to the subjective conviction of the `prudent man' as regards the proof or disproof or circumstances bringing the case within am exception . . . . . In cases, therefore, wherein it is only a question whether the offence has been brought home to the accused or 'not, i.e., the essential facts to prove the ingredients of the crime have been established or not, the rule of `reasonable doubt' may well apply; so far there is no difficulty, But the rule does not appear to be of universal application in. the context of the Act. Where the facts established, prima facie make out a case justifying the conviction of a person, of an offence, unless certain other facts arc proved bringing the offence within one of the general or special exceptions of the Penal Code, the mere creation of a doubt on the part of the accused as to the existence or otherwise of those special circumstances asserted on his behalf would not suffice. In such a contingency, the necessary facts could be said to be neither `proved' nor "disproved' and hence they would fall within the definition of `not proved' given in the Act. In view of the clear language: of section 105, it would be anomalous td hold that, although the, exceptional circumstances were not proved, yet the accused was entitled to have the benefit of doubt arising on the whole case. "It was further observed in this case that "Of course there may be cases in which the defence taken may cast a doubt on the existence of the requisite intention or mens sea which is a necessary ingredient of that offence.

10. The effect of the special plea of insanity under section 84, P. P. C. was dealt with at length in State it. Balahari Das Sutradhar (2). The case Ghulam Yusuf v. Crown (2), as cited above, was also referred to in this judgment in addition' to many other judgments. The Judges of the Division Bench, while referring to Ghulam Yusuf's case, made the following observations: - "The only apparent little exception seems to appear in the judgment of Muhammad Jan, J. in the case of Ghulam Yusuf v. The Crown already discussed above. The learned Judge on the facts of the particular case was clearly of the opinion that there was a reasonable possibility that the defence of insanity put forward by the accused might be true and consequently held that tine evidence regarding insanity in that case was sufficient to cast a doubt on the question whether the act of the accused was done with the intention or knowledge required to constitute the offence of murder. This, in our opinion, is no exception at all, for the learned Judge never said that the onus of the plea of insanity was not on the defence. All that the learned Judge seems to mean is that although in a given case the plea of insanity might not be proved conclusively by the defence, it might nevertheless create a doubt in the mind of the Court that the accused at the time of the commission of the offence might be in such a state of mind as to deprive him partially or wholly of the power of making a resolve for the intention to do an act, implied some sort of a resolve." The learned Judges deduced the following sum total of the princi ples from the decisions discussed in the judgment:- (i) -If the accused raises any special plea or claims exoneration: on the basis of any special or general exception be must prove: his special plea or the existence of conditions entitling him to claim the exoneration. (ii) Irrespective of the success or failure of the special plea raised by the defence or its claim to exoneration the prosecution must prove its case beyond any reasonable doubt. (iii) If after an examination of the entire evidence the Court is of opinion that there is a reasonable possibility that the defence put forward by the accused may be true or that the evidence casts a doubt on the existence of the requisite intention or mess rea which is a necessary ingredient of a particular offence, this will react on the whole prosecution case entitling the accused to the benefit of doubt. (iv) Legal insanity as contemplated in section 84, P. P, C is different from medical insanity. 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. Merely being sub jected to uncontrollable impulses or insane delusions or even partial derangement of mind will not do, nor mere eccentricity or singularity of manner. (v) If there is evidence of pemeditation and design or evidence that the accused after the act in question tried to resist arrest the plea of insanity may be negatived. (vi) If the facts are clear solar as the act complained of is concerned motive is Irrelevant. The facts of Balahart Dai's case, cited above, were that; the deceased, Anwar Hussain, was caught hold of by the accused on the day of occurrence and was slaughtered by him with a knife. This was seen by some of the witnesses and by the time other persons reached the spot, the accused had severed the head of the deceased and carried the same to his hut. The accused after reaching his house entered the same and closed it from inside. Ultimately lie was caught and overpowered by the people. At the time when he appeared before the Sessions Judge plea of insanity was also taken by him. The learned Judges of the Division Bench, after discussing various authorities and deducing principles therefrom held that the defence had totally failed to prove that the condemned prisoner was insane at the time of the commission of the offence or at any time before or after the occurrence or that he ever suffered from aberration of mind at al: so as to bring his case under the exception of section-84 of the Penal Code. They further held that there was nothing in the evidence to cast a doubt on the question whether the act of the prisoner was done with the intention or knowledge such as is required to constitute an offence under section 302 of the Pakistan. Penal Code. It was also observed by the learned Judges that the evidence did not show that the prisoner showed any sign of abnormality of mind, or behaviour before the enquiring Magistrate. nor the Additional Sessions Judge, who tried the case, evinced any symptom of madness while trying the case. The accused while examined under section 342, Cr. P. C. did not say a word about his ever being insane or that he ever suffered from any kind of aberration of mind. Ultimately the appeal of the accused was dismissed and his conviction under section 302, P. P. C. was maintained, but the sentence of death was commuted to one of transportation for life.

11. In Ata Muhammad v. The State (1) Shabir Ahmad and Sajjad Ahmad, JJ., while deciding the case of the accused, who had killed Dr. Khan Sahib, Chief Minister of West Pakistan, observed as follows :- "In point of time and as at matter of law the question of the insanity of an accused person at the time of the occurrence and at the time of the inquiry or trial are independent matters, to be adjudged separately, although his state of mind at different stages may be relevant to each other in formulating conclusions. A person may be mad both at the time when he commits an offence and subsequently when he faces an inquiry or trial for the same, but the one does not necessarily follow the other, because a person may be insane when he committed the offence yet he may be found to be a normal person when he stands his trial, unsoundness of mind having disappeared or cured in the meanwhile; and, conversely, a person, who is found to be insane at the time of the inquiry and trial may have been perfectly sane at the time of the commission of the offence. The state of mind at each of the above stages is a question of fact." It was further observed that "In dealing with cases of insanity arising in Courts, then first thing to be considered is that the issue of insanity at the time of the commission of an offence is in the nature of a defence raised by an accused person, or on his behalf, to criminal responsibility and, therefore, it has to be proved either from t he prosecution evidence or independently by the defence. In law, until the contrary is proved, every man is presumed to be save and possessed of a sufficient degree of reason to be responsible for his actions. This clearly follows from section 105 of the 'Evidence Act, which provides that the burden of proving that the case of an accused person, falls within an exception is on him. However, as remarked by their Lordships of the Federal Court in Safdar Ali v. The Crown (P L D 1953 F C 93) this position is not inconsistent with the "rule of reasonable doubt" which pervades out criminal jurisprudence and according to which a doubt occurring in the matter will re-act, on the prosecution case as a wt Cole resulting in a benefit of doubt to the accused". Their Lordships further observed that "-One point to be kept in view In this connection is that medical and legal standards of sanity are not identical. Froze the medical point of view, it is probably correct to say that the act of murder by itself denotes an unhealthy and abnormal state of mind of the murderer, but from take legal point of when he is sane as long as he can understand that his act is contrary to law. If an accused person is aware that the act is one which he ought not 'to do and the act at the same time is contrary to law, he is punishable. Therefore, to establish, successfully a defence on the ground of insanity, it must be proved that an accused poison at the time of committing the act was labouring under such a detect of reason, from disease of the mind as not to know the nature of his act and that what he was doing was wrong and contrary to law. On this legal concept of insanity no amount of queerness in habit, morbidity of temper, peculiarities of character or eccentricities of behaviour, or even aberrations of mind result ing in abnormality will constitute insanity for the purpose of section 84 of the Pakistan Penal Code although they maybe relevant factors for determining whether or not tree accused was insane. "The learned Judges in their judgment have quoted extracts from the statement of the accused made by him before the trial Judge in answer to questions put by the Court. After going through various parts of the statement, the learned Judges came to the conclusion that they were unable to find therein impairment of the mental faculties of the accused. The appeal of the appellant against the conviction and sentence of death was dismissed by the learned Judges.

12. The facts of the case Muhammad Shafi v. The State (P L D 1962 S C 472) are very much similar to the facts or the present case. The accused in that case 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 fist. Shamim 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 anti 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 accused Muhammad Shafi was residing with his bro ther in the same house. He was sleeping on the roof of the house on the night when the occurrence took place. At about mid night, the accused started causing injuries to the members of his family with a tesha. He in this way killed and injured the persons mentioned above. He was overpowered by his brother and two neighours with great difficulty. No motive, whatsoever, was ascribed for the murders, but it was stated that the crime had been committed in a fit of excitement or unbalance of mind. It was deposed by the prosecution witnesses, including his brother and other relations, that Muhammad Shafi accused had met with an accident about 12 years ago while working in a factory and as a result of that injury he was in the Hospital for about a month, but even thereafter h; 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 accused Muhammad Shafi 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 the fateful night also he appeared to be in one of such fits, for, he was waving even his empty hands. It was also deposed by the P. Ws. that Muhammad Shaft used to tell people that evil spirits often visited him. When this case first came for hearing before the Supreme Court it was thought proper to know as how the accused had been behaving in the jail where he had been almost for a period of two years since his arrest. A report was, therefore, called for as to his behaviour during the period of his imprisonment. Reports to this effect were submitted by the Superintendents of Jail Mian wali and Sialkot stating that the accused 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. Their Lordships of the Supreme Court thereafter observed as follows: - "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 anyrhyme 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 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 mania it is necessary to establish that the maniac was incapable of knowing what he was doing at 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. In 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 realis ing 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." Their Lordships, therefore, in the circumstances upheld the con viction and sentence awarded to him by the High Court and dismissed his appeal.

13. In the present case before us, it is in evidence that the appellant used to get fits occasionally and behaved like an insane man. Sometimes he used to run away and throw stones at others and also during that period he did not take meals nor sleep Similar kind of evidence was brought on record in the case of Muhammad Shafi v. State, as cited above. Since it was not established that at the time when Muhammad Shafi accused com mitted the crime of murder he was insane and incapable of knowing either the nature of his act or that what he was doing was wrong and contrary to law, therefore plea of insanity set up on his behalf was not accepted.

14. The facts of Ghulam Yusuf's case are quite different from the facts of the present case. In the former case the accused was examined by a qualified doctor much before the commission of offence of murder. He was examined twice and was found insane and advised Hospital treatment. This advice was, however, not complied with. The offence was committed on 24th of April 1951, and on the following day i.e., 25th of April 1951, he was put under the observation of Dr. Hamid Musa, who recom mended him for being admitted to the Mental Hospital, Lahore, where he remained till 12th of December 1951. The evidence produced in Ghulam Yusuf's case established that the accused, preceding the period of occurrence and immediately thereafter, remained insane. The observations of Dr. Ahmad Shafi (D. W. 2) in that case about the behaviour of the accused were also taken into consideration by the learned Judges. His observations were contained in his. report which he submitted to the Court while appearing as D. W. 2 and they related to his behaviour on different occasions. According to these observations which related to the period from 19th of May to 11th of July 1951, Ghulam Yusuf was insane. In addition to the metrical evidence in support of the insanity of Ghulam Yusuf, the learned Judges also took into consideration the evidence of other persons. Their Lordships ultimately came to the conclusion on the basis of this evidence that they were unable to say as to what exactly the state of mind of the accused, was, but they were convinced that although he may have known that he was shooting yet he did not know that he was shooting his wife or son. He did not even know that he had killed one of them. In these circumstances, the learned Judge held that the accused had succeeded in discharging the burden laid upon him by section 84, P.P.C., as reasonable doubt had been created by the evidence as to whether the accused killed the deceased with a malicious intention. The learned Judges in that case, however, did not hold that the burden of proof under section 105 of the Evidence Act did not lie on the accused person to prove that his case falls within the exception as provided by section 84, P. P. C. This is, however, true that this position is not inconsistent with the rule of "reasonable doubt" which pervades our criminal jurisprudence and according to which a doubt occurring in the matter will re-act on the prosecution case as a whole resulting in a benefit of doubt to the accused.

15. In the present case there is no medical evidence to the effect that the appellant was suffering from unsoundness of mind which renders a person incapable of knowing either the nature of his acts or that what he was doing was wrong or contrary to law. There is no evidence to this effect also that the appellant ever behaved in such a violent fashion before. After the appellant was overpowered, be was made to sit on the spot. He had been tied down by the persons present there. At the time when the police arrived at the spot, the appellant's behaviour was not abnormal and according to the evidence on record, he did not abuse any body. Dr. Muhammad Latif, Medical Officer (P. W. 1), who examined him on 31-8-1968, following the day of occurrence, found his general condition quite good. If there had been any sign of insanity then at the time when he was examined by the doctor the same would have been observed by him and the matter would have been brought to the notice of the Court for necessary action. Nothing of the sort was reported by the police during the period when the appellant remained in their custody. Thereafter during the last about four years since the occurrence took place, it was never reported by the Jail Authorities concerned that the appellant was suffering from any fits of insanity, had been behaving violently or was found suffering from unsoundness of mind which renders a person incapable of knowing the nature of the act he is doing. Further he was examined by the committing Magistrate on 27th of December 1968, and he gave correct answers to various questions put to him. In reply to a question as to how he explained the injuries on his person, he replied that he would make a statement with regard to that in the Court of Session. Again in reply to a question by the Court, as to whether he would lead evidence in defence in this Court or in the Court of Session, he replied, he would do so in the Court of Session if necessary. This answer shows that he was understanding the proceedings of the Court quite intelligently. The committing Court did not make any observation with regard to his un soundness of mind or abnormal behaviour during the proceedings pending in that Court. The appellant never raised plea of insanity before the committing Magistrate and never prayed that his case was covered by the exception as contained in section 84, P. P. C. Thereafter at the time when he appeared before the Additional Sessions Judge, he was examined by him on 6th of Nov--mbar 1969. His answer to various questions put to him by the Court reveals that he was understanding the proceedings quite intelligently. He gave correct answers to various questions put to him. There again he never raised the plea of insanity. However, the defence counsel took this plea of insanity in cross-examination and tried to prove that the appellant was suffering from occasional fits of insanity. Nothing was brought on record to show that at the time when the crime of murder was committed the appellant was suffering from any fits of insanity.

16. We would like to refer to and discuss some other authorities in order to show that when plea of insanity is taken then burden lies on the accused to prove unsoundness of mind at the time when the crime was committed and that his case is covered by the exception as contained in section 84, P. P. C. It was held in Chandoo v. The State (P L D 1963 Kar. 1034), that in the case of a special plea of insanity under section 84 of the Penal Code, the burden of proof is on the accused, and the mere creation of doubt as to the existence or otherwise of circumstances bringing the east within the exception of section 84, P. P. C. is not enough. The facts of that case are that; Chandoo accused came to the shop of Noor Muhammad, who was selling water-melons on a hand-cart. On the asking of the accused he was given a slice of melon, but the same was not sweet. He got behind Noor Muhammad and picked up a large melon-cutting knife with a 6 ` blade and a total length of about 15". Noor Muhammad attempted to snatch the knife from the accused but could not succeed. The accused thereafter got into the shop of one Saifuddin in front of which Noor Muhammad had put his hand-cart. He broke the glass panes of show-case of the shop and demanded a sum of Rs. 1 lacs from Saifuddin, who in fear ran out of the shop and hastened to the Police Station situated at a short distance. He lodged his First Information Report there and in consequence thereof a constable rushed to the spot, who alongwith one Abdul Ghafoor asked the accused to come out of the shop. Whilst doing so, the accused stabbed Abdul Ghafoor with the knife he was holding. Large number of people collected on the spot and the accused started running towards the lane where he was confronted by one Abdul Aziz. He inflicted injuries on Abdul Aziz in the abdomen and various parts of his body with the knife. By that time a large crowd collected there and ultimately they succeeded in catching hold of him. Abdul Aziz, who was grievously injured by the accused, however, died later on. In the trial Court, the accused took up the plea that he was not in his senses at the time when the offence was committed and did know nothing. Though the behaviour of the accused was abnormal and somewhat peculiar, but the learned Judges held that there was nothing on the record to show that the accused had suffered from any fits of insanity or that he was not aware of what he was doing at that point of time or that his conduct amounted to legal insanity. It was found that the case of the accused was not covered by the exception as contained in section 84, P. P. C. The learned Judges after having observed that the conduct of the accused was abnormal and indicated his mental unbalance at the time of murder, which was not premeditated, reduced his sentences to transportation for life.

17. In Aurangzeb v. The State (1971 P Cr. L J 1285) it was held that benefit of insanity under section 84, P. P. C. can be availed of only if legal insanity is established and mere queer behaviour does not establish legal insanity. The accused in. that case was tried and convicted under section 302, P. P. C. for causing the murders of two boys and under sections 326 and 324, P. P. C. for causing grievous and simple injuries to other persons by a hatchet. On the first count,' he was sentenced to death, on the second count 4 years' R. I. and a fine of Rs. 500 or in default of payment of fine further R. I. for six months and on the third count one year's R. I. The facts of the case are that a widow named Mst. Phapul and her two sons aged 14 years and 11 years resided with Muhammad Rahim, brother of Allah Bachayo, late husband of Mst. Phapul. The accused who was their relation also resided in the same compound but in a different house. On the day of occurrence, the accused came to the house of Muhammad Rahim armed with a hatchet. At that time Mst. Phapu, wife of Muhammad Rahim and Mst. Phapul widow of Allah Bachayo were sitting in the courtyard of Muhammad Rahim, who was taking his meal. The accused inflicted hatchet blows on Yar Muhammad, second son of Mst. Phapul and one blow on Baby Yasmin. Mst. Phapul intervened, but she was also given a hatchet blow which severed her forearm. Before coming to the house of Muhammad Rahim, the accused had murdered the elder son of Mst. Phapul at his house. The accused after committing the crime of murder tried to run away and while doing so gave hatchet blows to other persons who came in his way. At the trial the accused person gave a lengthy statement indicating that he was not a sane person. His counsel ultimately pleaded insanity in terms of section

84. P. P. C. and in this regard relied upon the statements of some of the witnesses, who had deposed that the accused was not in senses at the time of the incident and prior to that he used to talk too much and irrelevant. Sometimes he used to say that Imam Mahdi was born and sometimes he used to say that the Resurrection was near. He used to ask the people to offer the prayers. He also sometimes used to talk himself while sitting alone. While discussing the evidence referring to the state of mine. of the accused, the learned Judges observed that at the most if they were to accept the obliging admissions made by some of the witnesses, the same did not give an indication of mental imbalance, but only his deep religious attitude and talkativeness. They further observed that there was no medical evidence on his insanity prior to the day of occurrence or of his conduct immedi ately prior to the occurrence. His conduct immediately after the occurrence did not give any clue of insanity. The learned Judges further observed that if benefit was to be had from section 84, P. P. C. it was necessary for the accused to prove legal insanity in the context of "reasonable doubt" at the time of committing the offence. It was also observed that there was no material on the record to establish that by reason of unsoundness of mind, the accused was incapable of knowing the nature of his own acts or that what he was doing was either wrong or contrary to law. All that appeared on record was his queer behaviour before the occurrence and that by itself, even if they were to accept that the accused behaved in that manner, would not throw light on his mental imbalance at the time when he committed the offence in context of legal insanity. The learned Judges upheld the convic tion and sentence of death under section 302, P, P. C. awarded tc him.

13. In Tola Ram v. The Crown (I L R 8 Lab. 634) the accused who was charged with murder, but pleaded insanity had been subject both before and after the occurrence to occasional fits and epilepsy and melancholia, but it was found that though physical and mental ailments from which he suffered had affected his emotions and will, it could not be said that his cognitive faculties had been impaired. On the day of the crime, he had no epileptic fit, but, on the contrary, had acted like a sane man until being asked by his mother to wait before he could get certain articles for which he had asked her. He became angry, hit her, and upon his father's remonstrance lost self-control and hit him five or six times on the head with a stick causing immediate death. In the circumstances, it was held that the accused did not hit his father in a fit of insanity, but in a fit of anger and his convic tion under section 302, P. P. C. was affirmed. The learned Judges further held, "that in order to bring the case within section 84, P. P. C. all the following elements must be proved, namely, that- (a) at the time of committing the offence, (b) the accused was labouring under a defect of reason, (c) which had been caused by unsoundness of mind, (d) such as had rendered .him incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law." The learned Judges while deciding the above case followed MeNaughten's case. The same principle, as discussed above was followed in King-Emperor v. Genka Goala (I L R,16 Pat. 333). According to the facts of that case, the accused had committed multiple murders while suffering from mental derangement of some sort and it was found that there was; (i) absence of any motive, (ii) absence of secrecy, (iii) want of pro-arrangement; and (iv) want of accomplices. It was held that the circumstances were insufficient to support the inference that the accused had suffered from unsoundness of mind of the kind referred to in section 84, P. P. C.

19. The learned counsel for the appellant has also relied on Mitha v. Emperor (A I R 193 Lab. 123). In this case the accused was tried for murdering his two children and convicted under section 302, P. P. C. On the day of occurrence wife of the accused went to the house of the brother of her husband for a while leaving behind her children, husband and mother-in-law. The children were aged about 9 years and six months, respectively. After a short while when wife of the accused came back, she became horrified on seeing that her two children had been seriously injured and were profusely bleeding. Both the children later on died. On being questioned as to why he had killed his children, the accused replied that he had asked his daughter, aged 9 years, to give him water; but she refused to do the same. Her behaviour enraged him and be struck the children with his crutch. It was stated by his brother while appearing as P. W. in this case, that the accused had fallen ill sometime back and had been placed under the treatment of a physician. It was further stated that during his illness, he generally used to shout and try to run away saying drat he was being struck with knives and hatchets. It was also stated that during the night preceding the day of occurrence, he went out twice or thrice as before and used similar words. It was held by the learned Judges that the sheer brutality of the assault in the absence of any provocation was a circumstance which would lead to the inference that the mind of the accused was in -fact unhinged and far from normal. But it was not to be said with any degree of certainty that he did not know that what he was doing was wrong or contrary to law within the meanings of section 84 of the Penal Code. The convic tion of the accused under section 302 was upheld, but the capital sentence was altered into that of transportation for life. The argument of the learned counsel that since the present accused was stated to be abnormal in his behaviour and somewhat mentally diseased, therefore, it was proved by the evidence on record, that he was of unsound mind at the tune when he committed The crime of murder and did not know that his act of murdering was contrary to law, has no force, in the circum stances of the case. There is nothing on record to show that the appellant did not know what he was doing was wrong or contrary to law within the meanings of section 84, P. P. C.

20. The next case which needs our consideration is regarding Sankappa Shetty (A I R 1941 Mad. 320). The accused in that case was found guilty under section 302 of the Penal Code and sentenced to death by the Sessions Judge for the murder of his wife. The High Court while dealing with his appeal observed that where a husband brutally and violently assaults his wife which results in her death, it cannot be said that in the ab4gqqe of a deep stated motive the husband must have been insane: It was further observed by the learned Judges as follows: "It is true that a mere lack of apparent motive for the deed does not necessarily or always lead to an inference of intel lectual aberration or insanity but a total lack of an apparent motive may in some cases taken alongwith other facts legitimately give rise to any inference that the act was done under an insane impulse. It is also true that a crime is not excused by its own atrocity, but it cannot be said that the nature of the act or the mode of perpetrating it can under no circumstances be taken into account in considering a plea bf insanity. It may be that as a rule of prudence Courts will be slow to infer from such material about its criminality. But there is no warrant for laying down, as a rule of evidence, that one must look outside the act itself for the evidence as to how much the accused knew about it. The truth is that in dealing with all such cases no general rule can be applied and the only proper course to adopt is to decide each case on its own peculiar facts bearing in mind, of course, that the point for determination is whether the evidence before the Court is sufficient to establish that the person charged with the offence was not conscious of the nature of the act he was doing or that he was doing what was wrong or contrary to law." The same principle was followed in Emperor v. NurugesaTevan (1935 M W N 584). It was held in that case that where an act of murder was commit ted without motive and apparently on 'some kind of sudden impulse, it cannot be held to fall within section 84 of the Penal Code by reason of the accused not having known the nature of the act or that it was, wrong or contrary to law. It was further held by the learned Judges that the mere fact that an act of this character was committed on a sudden impulse with no discover able motive will not, in general, afford sufficient basis for accept ing a plea of insanity. Where it undoubtedly appears that for some reasons the accused was suffering from a sudden lack of control and there could have been no deliberation about his act, the extreme sentence is not called for.

21. The next case for our consideration is John Dowlat Moon v. Emperor (A I R 1928 Pat. 363). The accused John Dowlat Moon in this case a drill man of 45 years, came out of the room of his bunga low with a gun on the day of occurrence and shot at a person named, Shome through the heart and killed him. Another person named Pramanik was also shot at by him in the right elbow. Pramanik on being injured ran to his room when the accused followed him. Paramanik caught hold.of the barrel of the gun and they struggled. Pramanik fell and was shot in the back. Thereafter the accused also shot himself and blew away part of his upper jaw. The plea of insanity was raised in this case, but the same was not accepted. However, the case was recommended for lesser sentence of transportation for life. It is admitted in this case that prior to the commission of the crime of murder, there was no motive on the part of the accused for committing the same. The accused was, however, labouring under a delusion that Shome (deceased) alongwith Pramanik was going to kill him. The learned Judges held that in considering the plea of insanity, the antecedents and the subsequent conduct of the man were relevant to show as to what was the state of the mind of the accused at the time the act was committed, but the state of the mind at the time of doing the act is the chief thing to betaken into consideration. 'Where the evidence given did not go to the length of showing that the accused could not be con scious of the nature of the act he was doing at the time of the occurrence, but only proved that the accused was in a bewildered state of mind a day or two before the day of occurrence, the case did not come within the purview of section 84 of the Penal Code. In Chandgi v. Emperor (A I R 1932 Lab. 260) it was held that the mere fact that the accused committed certain unusual acts in the past does not lead to the inference of his insanity at the time of the com mission of the offence. In order to avail of the plea of insanity under section 84, it must be shown that the accused was incapable of understanding the nature of his act at the time when the act in question was committed. It was further held that where the accused found guilty under section 302 made no attempt to run away on the commission of the crime, kept on wearing the blood stained clothes till the arrival of the police and on previous occasions used to snatch away huqqas from people saying that it was bad to smoke and used to tear off his clothes and hurl brickbats and once gave a beating to his uncle, his acts though unusual, did not necessarily lead to an inference of insanity.

22. In the case Seat All v. Emperor (A I R 1917 Pat. 503) the accused committed the murder of his wife deliberately under a superstitious belief and under some insane delusion and made a clear and positive admission of the guilt. Plea of insanity was taken in this case and it was held, that the fact that the accused while committing the crime was under some insane delusion was not per se sufficient to exempt him from criminal liability for his wrongful act unless impulses was such as to render him unconscious of what be was doing or to make him ignorant of the fact that the act which he was about to do was wrong. The accused in this case was sen tenced to transportation for life by the Sessions Judge and the same was armed by the High Court.

23. In Muhammad Aslam v. Emperor ((1931) 32 Cr. G J 327,) the accused person committed two murders with very inadequate motive. The evi dence showed that he was eccentric but he had never been con sidered unfit for work and was till the day of the murder perform ing the duties of the Moharrir of a Court, and his whole conduct showed that he knew very well that what he was doing was wrong. It was held that section 84 of the Penal Code had no reference to a case of this kind and the accused was not entitled to acquittal on the ground of unsoundness of mind. The accused in this case was convicted and sentenced to death. The appellant in the present case has not been shown to have not been performing his duties normally preceding the day of occurrence. As such, the exception as contained in section 84, P. P. C. cannot be availed of by him.

24. Pancha v. Emperor (139 I C 147) is the last case in this connection which' comes before us for consideration. The accused in that case was found to be of weak intellect by the doctors. No motive was ascribed to the accused for the murder of another person at the night. He attacked the deceased with lathis, who was sleeping on a charpoy in lane. The injuries received by the deceased were so severe that he succumbed to them on the spot. Plea of insanity was taken in the case but the same was not accepted. It was specifically, noted oy the learned Judges of the High Court that before the commiting Magistrate, the accused did not show any sign of insanity and his answers to the questions put to him were quite rational. The same was the position before the Sessions Judge. The death sentence awarded by the learned Sessions Judge to the accused was, however, altered by the learned Judges of the Nigh Court to transportation foe life. Sir Sulaiman, J., an eminent jurist, while writing the judgment held as follows: -- "The legal conception of insanity differs considerably from the medical conception. It is not every forth of insanity or madness that is recognised by law as a sufficient excuse . . . . . . In order 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 disease of the mind as not to know the nature and quality of the act he was doing or if he did know it, that he did not know he was doing what was wrong where the plea of insanity set up the burden of proof ties an the defence to show that the accused at the time of committing the offence as "by reason of unsoundness of mind incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law". Nothing short of this particular degree of insanity would bring the case within the exception. All other forms of insanity and all other minor aberrations of mind which are recognised by the medical science as amounting to madness are excluded in the eye of the law. The mere fact that the accused's mind was partially deranged or that he was subject to some uncontrollable impulse due to insanity would not do so. So long as the man was not so insane as to make it impossible for him to know the nature of the act or to realise that his act was wrong or contrary to law, he would be guilty of the offence committed by him."

25. The learned counsel for the appellant at the very outset of the arguments in the present case conceded that as far as the commission of the crime of murder and the inflicting of injuries to his daughters was concerned, he had no arguments to offer. He only pleaded insanity on behalf of the appellant and relied upon the statements of some of the P. Ws. in this respect. We have discussed most of the case-law on the point in order to show under which circumstances plea of insanity can be availed of. It has been laid down by almost all the authorities cited above, that the burden of proof lies on the accused to show that at the time when the crime was committed, he was suffering from unsound ness of mind and could not know the nature and quality of the act he was doing and did not know that he was doing that what was wrong en contrary to law. It is, however true that the burden of proving that the case of an accused person falls within the exception as contained in section 84, P. P. C. is not inconsistent with the rule of "reasonable doubt", which pervades our criminal jurisprudence and according to which a doubt occurring in the matter will re-act on the prosecution case as a who resulting in a benefit of doubt to the accused, but in the present case, as discussed above, in detail, nothing has beet, brought on record to show that the appellant was suffering from unsoundness of mind at the time when he committed the crime or he did not, know the nature of the act or that he was doing that what was either wrong or contrary to law. As discussed above, the appellant behaved quite normally before the committing Magistrate as well as before the learned Sessions Judge and his answers) to various questions put to him by the Courts were quite rational. He may be a man, of abnormal mind and labouring under some disease of the mind, but that would hat cover his case by the exception as contained in section 84, P. P. C.

26. Keeping in view the circumstances of the case and the tact that there was no premeditation on the part of the appellant to kill his wife and cause injuries to his daughters, his sentence of death for killing his wife is reduced to one for transportation for life. His conviction under section 307, P. P. C. on four counts B for the murderous assault on his daughters for 4 years' R. I. in each count is maintained. His conviction and sentence under section 309, P. P. C. and sentence to 1year S. I. is also maintained. All these sentences will run concurrently. His appeal is dismissed with this modification in the quantum of sentence. The death sentence is not confirmed accordingly. Appeal dismissed. Sentence modified.