1969 PLP 805 (SCMR)

CORNELIUS, J.‑The appellant Said Amir Shah stands convicted for the murder of a 12 years' old girl named Mst. Gull. Mirmana. He is himself aged 32 years and is married to a sister of Mst. Gul Mirana's father. The murder was committed in broad day light, in the presence of one Mst. Mirma Jan, P. W. 9, who was engage d in washing clothes along with the deceased, and was also seen by Mst. Dawa Jan, P. W. 8, who was herself going to the washing place. Six separate blows were struck with a hatchet on the head of the deceased girl, causing six separate fractures. The alarm being given by the witnesses, a number of men went after the accused and found him hiding in a fodder shed in the house of a relative. His clothes were stained with blood and his hatchet which was found in the same room also bore stains of blood. There was a prompt report and investigation was commenced without delay. As regards the fact of the murder, there seems no doubt whatsoever that the prosecution evidence represents the truth. The medical examination of the body of the deceased showed that she had been subjected to sexual intercourse within a short period before she was killed. The medical opinion was that this might have happened as much as a day before her death. This circumstance was the subject of some discussion in the judgment of the High Court, and the conclusion was reached that it was "very difficult to connect that rape with the murder in question". The learned Judges however pro ceeded to observe as follows :‑ It is possible that the accused committed the rape on the girl, and being afraid of the girl's informing her people of it, killed her, or it is equally possible that the accused saw the girl committing sexual intercourse with somebody else, and having got annoyed put an end to her life. In any case, if there was any connection between the rape and the murder which benefited the accused, then it was the duty of the accused to bring those facts upon the record and try to prove that the murder which he committed was not intentional, or that he was not liable to the death penalty." Another question which has received very serious considera tion at the hands of the trial Court, and has also been discussed in the judgment of the High Court, is the question whether, at the time when he committed the crime of murder the accused was not of sound mind. The trial Judge went to the trouble of receiving evidence on the question whether the accused was capable of making his defence, and examined a doctor as well as an Assistant Superintendent of the Jail where the accused was held in custody,' as to his state of mind during the short interval preceding the trial. This pre caution appears to have been taken because in the course of the investigation and the commitment proceedings, statements had been made to the effect that the accused had shown signs of mental derangement for sometime preceding the commitment of the murder. The witnesses from his village were questioned on the point, and they gave evidence to support the suggestion that the accused had been of uncertain temper and peculiar in his behaviour for sometime prior to the murder. Mst. Dawa Jan for example said that the accused was called liawanai which might perhaps be rendered as being "off his head". She said that this behaviour started about six years before the date of her evidence, and as proof of this mentality, she said that the accused used to beat his mother and sister, and that he roamed about aimlessly in jungles and graveyards. A similar statement was made by Lashkari Khan, P. W.

10. Mir Bash Khan, Lambardar, P. W. 12, while being unable to say "whether the accused is or is not insane", mentioned that the accused once beat his mother and thereafter remained in jail "for a year or more in Peshawar" at which time it used to be said in the village that he was in a lunatic asylum. The village Chowkidar Spin Gul, P. W. 11 stated that the accused was called liwanai, that he used to wander about aimlessly and "always kept quiet"; he mentioned a particular incident which he had witnessed, namely, that the accused's brother forcibly put him into atonga to take him away to the lunatic asylum after he had beaten his mother. The Investigating Police Officer, Dost Muhammad Khan, P. W. 14 said that in the course of investigation it was suggested to him that the accused "had been insane" and he therefore had him medically examined. He said also that the accused's father had told him that about 3 years before the occurrence the accused had been "not of normal mind". In the judgment of the trial Court, the question whether at the time of the commission of the crime, the accused was of unsound mind so that he did not know the nature or quality of his act was considered with some care. The trial Judge noted that there was no evidence that at or about the time when the murder was committed the deceased had shown any sign of insanity, secondly that he did not plead insanity but false implication, thirdly that immediately after the occurrence he took to flight in order to save himself showing that he was in full possession of his senses, fourthly, that the statements upon the record regarding the behavior of the accused prior to the occurrence were "not worth any serious consideration", and finally that the allegation that the accused had previously been in the lunatic asylum did not appear to be correct, since there was no evidence in support. These facts were, however, not taken into account in reference to the question of sentence. The trial Judge was content to hold that there was "absolutely no evidence that at or about the time of the occurrence the accused was insane to the extent as required by law" and that it was not established "that the accused is insane to the extent that he can be excused altogether". In the High Court also, it was taken into account that there was no evidence of the accused having been in the lunatic asylum at any time prior to the occurrence, that when kept under observation shortly after the occurrence, he did not show any signs of insanity at all, that the fact that he wandered about aimlessly and did no work did not prove that he was of unsound mind, and that the quick action which he took to escape capture showed that the instinct of self‑pre servation was operating normally in his case. Holding that the accused was of sound mind when the offence was committed, the learned Judge proceeded to observe as under :‑ "In fact there is absolutely no evidence produced upon the record that the accused had ever been of unsound or even of an unbalanced mind." Consequently, they were not concerned to consider the matter in relation to the appropriate sentence to be passed upon the accused, although they were constrained to observe that "there is however no positive evidence as to why should the accused have killed this girl and then so brutally". Special leave to appeal to this Court was granted to examine the evidence in regard to the point of rape, and also as regards the plea of unsound mind. It seems quite clear that it is impossible to connect the fact of the sexual intercourse with the fact of murder, upon the evidence led in this case. It may well be that the two facts are wholly disconnected. But upon the second point, we are not satis fied that the question of accuser s mentality has Iowa properly appreciated in relation to the determination of the sentence, appropriate to his crime. The Courts below five been imp ressed by the fact that the person murdered was a young and defenseless girl, who was a close relative of the accused and whom he had no motive whatsoever to kill, so far as the record shows. There are some conjectures, though these cannot take the place of proof upon the question as to the decree of malice displayed by the culprit. It was not to be expected, when, from the outset, it had been brought to the notice of the authorities that the accused was not‑wholly of normal mind as other men, that he himself should have put forward any defences, founded on the difficult question of the degree of his own responsibility. Therefore, the act must be regarded as a senseless act of extreme violence committed contrary to all expectations of human behaviour. This act was committed by a person who is shown to have been regarded in the village for some years before the occurrence as being somewhat off his head, :s ho displayed his pecu liarity of mind by wandering about aimlessly in jungles and graveyard, and doing no work and who once previously had been guilty of an act of violence contrary to human standards of behaviour, namely an assault upon his own mother which led his relatives to take the strong step of forcibly putting him into a tonga to take him to the lunatic asylum. There: is in addition, a statement that the accused usually kept quiet. Some of these symptoms might give rise to the possibility that the accused suffered from the mental disease known as manic depressive insanity. The peculiarity of this disease is that the patient suffers from alternating fits of extreme depression and of manical violence. Whether before the occurrence, the accused showed any such symptoms is a ques tion of fact which has not been examined in the necessary detail, but it seems to us that in determining what is the appropriate sentence for a crime of this description, one question which must necessarily be answered before the final act of taking the life of the convict man is performed, is whether it is not possible that the degree of responsibility for the crime is in his case not of the same nature or quality as that of any black hearted and revengeful murderer, killing his enemy in retaliation for past wrongs, or for any other malicious motive. There is a possibility that in the case of a man such as the present appellant, the act may be the result of an uncontrollable impulse towards violence, and while it is undoubtedly the duty of the defence to establish such a circumstance, even for the purpose of mitigation of the punish ment only, yet it is the duty of the Court as well to consider the matter in that light particularly where the alternative punishment is that of death. This Court does not concern itself with legal sentences, and upon the facts of the present case we are not able to conclude, with the necessary degree of certainty, that circum stances sufficient for imposition of the lesser penalty do exist. Nor do we consider it necessary to institute any enquiry upon that point. It is open to the Provincial Government to commute the sentence and for this purpose, that Government has ample authority to make the necessary enquiries both locally as well as from scientific experts. With these observations we dismiss this appeal directing at the same time that a copy of this judgment shall be sent without delay to the Provincial Government for such action as they may deem fit to take. Appeal dismissed.