1995 PLP 667 (MLD)

12. Insanity has been considered as a valid defence against criminal liability in almost all the systems of criminal jurisprudence. In our country the relevant provision in law‑for defence on the plea of insanity is stipulated in section 84 of the P.P.C. which reads as under:‑‑ "Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law."

13. The aforementioned provision is based on the famous "The M' Naghten rule" which was formulated by the English House of Lords in 1843. The relevant portion of this rule has been quoted in "Encyclopaedia of Crime and Justice" by Sanford H. Kadish (Volume 2) (Page 736) and it is to the following effect:- "that every man is to be presumed to be sane, and

that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from 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 now know he was doing what was wrong."

14. The import of section 84, P.P.C. has been commented upon by this Court as also the Hon'ble Supreme Court and in earlier judgments it was held that the law in this country recognises only that mental abnormalities as a defence plea which render a person incapable of knowing either the nature of the act or that what he is doing is so wrong and contrary to law. It was observed that it is necessary to establish that he was incapable of knowing what he was doing at the time the offence was committed. Reference is made to the following judgments:‑‑‑ (i) PLD 1952 Lahore 502 (Lal Khan v. The Crown); (ii) PLD 1953 Lahore 213 (Yousaf v. The Crown), and (iii) PLD 1962 Supreme Court 472 (Muhammad Shafi v. The State).

15. Mens rea or criminal intent is an essential ingredient of criminal liability or offence. The question would, therefore, arise can a person who is incapable to do something of his own volition or form an intention because of impairment of his mental faculties be made responsible for the acts and further whether is it inflexible rule of criminal jurisprudence that the burden of proof lies on defence to establish the plea of insanity of mind? The normal rule of course is that the burden of proof lies on a person who raises this plea. This rule is couched in Article 121 of Qanun‑e‑Shahadat (section 105 of the Evidence Act) which is as under:‑‑‑ "When a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Pakistan Penal Code (XLV of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances."

16. The burden of proof in cases where plea of insanity is taken has come. up for consideration before the Hon'ble Supreme Court as also this Court in a number of cases. In PLD 1953 FC 93 (Safdar Ali v. The Crown) nexus between the famous Woolmington's case and section 105 of the Evidence Act (now Article 121 of the Qanun‑e‑Shahadat) has been summarised by Shahabuddin, J. (page 93) wherein it has been observed:‑‑‑ "Section 105 of the Evidence Act was enacted obviously to relieve the prosecution from the necessity of proving the absence of the facts which might bring the case within a general or special exception. But the burden cast on the accused under that section cannot be as heavy as the burden that rests on the prosecution. The plea of the accused may not be established and yet it may create a reasonable doubt with regard to his guilt. It cannot be said that because under section 105 the burden of proof is on the accused and he has not discharged that burden but has only raised a reasonable doubt, the Court has to convict him in spite of the existence of such a doubt. The decision has to be taken on the entire evidence and not on the special pleading. The decision in Woolmington's case is, therefore, applicable in this country, and far from being inconsistent with section 105, it serves as a valuable guide for its interpretation." The Hon'ble Supreme Court once again reiterated the view in yet another judgment reported in PLD 1974 SC 87 (The State v. Rab Nawaz) wherein it has been observed:‑‑‑ "It is upon the examination of the entire evidence in the case that the Court has to form the opinion whether even if the plea of self‑defence has failed, it has reacted upon the prosecution case so as to entitle the accused to the benefit of doubt." In 1975 PCr.LJ 910 (Muhammad Ibrahim v. The State) and in 1972 PCr.LJ 1041 (Abdullah v. The State) this Court has examined the plea of insanity, its nature and the burden of proof in the light of the aforementioned principle laid down by the Hon'ble Supreme Court.

17. In Islam mens rea is a condition precedent to constitute a criminal liability. A person who is insane or incapable of distinguishing between right or wrong on account of impairment of his mental faculties cannot be held responsible for the criminal act. Dr. Ahmad Fathi Bahnassi, Attorney and Senior Researcher at the Supreme Council of Islamic Research, in his article on "Criminal Responsibility in Islamic Law", published in "The Islamic Criminal Justice System" published by Ocean Publications (at page 185) writes as follows:‑‑‑ "Here the issue is the reasons for vacating responsibility, which are attributed to the personality of the perpetrator on the basis of his inability to choose or discriminate. A person is not held responsible under such conditions because one of the elements necessary for establishing criminal responsibility is necessarily missing. Reasons for withholding responsibility include: (1) Insanity. (2) Unconsciousness. (3) Coercion and necessity. (4) Infancy." Similarly Allama Alauddin Abu Bakr Bin Masood Alkasani in his famous book "Badai‑us‑Sanai" published by Markaz‑e‑Tahqeeq, Dyal Singh Trust Library, Nisbat Road, Lahore (Volume I) at page 340 writes as under:‑‑‑

18. In American Criminal Law the test used by Courts to determine criminal responsibility has been provided in Model Penal Code. Section 4.01 of the said Code stipulates:‑‑‑ "A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of law." (Note.‑‑‑Black's Law Dictionary, Fifth Edition, page 714),

19. In the instant case a bare reading of the F.I.R. would show that convict Muhammad Arshad Javed was mentally deranged. As per the prosecution story when the students' procession against the publication of Sulman Rushdi's "Satanic Verses" reached SE College Crossing, the convict came right in front of the procession. He tried to address the students and said "I am `Hazrat Isa', I have no father. The Day of Judgement would fall on 21‑2‑1989. The `Satanic Verses' written by Sulman Rushdi is correct". Such a provocative speech in the face of a spirited crowd was by itself an act which no person with normal mental capacities would do. It is significant to note that none of the student C participants of the procession reacted to the speech of the convict. This by itself would indicate that they did not consider him to be normal and opted to ignore him. Otherwise they could have reacted and the convict could have been beaten up or dragged.

20. The report of M.S., Bahawal Victoria Hospital, Bahawalpur dated 3‑7‑1989 which has been reproduced in para. 6 above as also the statement of Dr. Salahud Din, Psychiatrist referred to in para. 7 above corroborate the view that the convict was insane and had "totally lost his mental balance". Not satisfied with the opinion of two experts in the field, the learned District and Sessions Judge in his judicial wisdom referred the matter to Nishter Hospital Multan. Because of the non‑availability of the Psychiatrist there, he sent the convict to Mental Hospital, Lahore for examination. In Lahore, the convict was produced before a Board of Certification consisting of Psychiatrists of eminence and the M.S. of Mental Hospital, Lahore vide his letter dated 3‑1‑1991 informed the Court:‑‑‑ "The Board is of the opinion that he is suffering from Hypomania and is not yet fit to stand trial." The learned Court waited for yet another six months for the second opinion from the Board which was furnished on 25‑6‑1991 and the convict was declared fit for trial.

21. Notwithstanding the second opinion furnished by the Board of Certification on 25‑6‑1991(i.e. more than two years after the registration of the case) there is pursuasive material on record to suggest that the convict was insane and was incapable of understanding to be saddled with a criminal liability. There is an affidavit of Ch. Khair Muhammad, Advocate resident of 62/W, Satellite Town, Bahawalpur to the effect that he knew the family of the convict and that most of his elders i.e. from maternal and paternal side both had bouts of insanity. The convict, according to the report of the Psychiatrist, suffered from Mania and Hypomania. This is a mental disease where a person has feeling of elation and euphoria. The patient has delusion of grandeur and believes himself to be a great personage. The proclamation of the convict in front of a crowd of students that he was `Hazrat Isa' and predicted that the Judgement Day was to arrive on a specific date were nothing but symptoms of euphoria which is characteristic of Mania or Hypomania.

22. The mental state of the convict during trial and thereafter is also relevant. He did not seriously defend his case. In his statement under section 342, Cr.P.C. he owned that he made a speech before the procession but did not remember what he said. Having been convicted by the learned trial Court to death sentence did not choose to file an appeal. That again is reflective of his abnormal mental state. This piece of circumstantial evidence and the conduct of the convict in Court further lends support to the medical evidence qua his insanity.

23. For what has been discussed above, we are of the considered view that in the light of the evidence on record and the conduct of the convict it can legitimately be inferred that the convict was not aware of what he was doing. His act fell within the exception of section 84 of the P.P.C. We, therefore, DO NOT CONFIRM the death sentence awarded to him and set aside the judgment dated 9‑2‑1993 passed by the learned Additional Sessions Judge, Bahawalpur whereby he was convicted under section 16, M.P.O. to three years' R.I. and under section 295‑C, P.P.C. to death sentence and acquit him of the said charges. He shall be released forthwith unless wanted in any other case. The articles recovered from him (mentioned in para. 3 of this judgment) shall be returned to him. N.H.Q./S‑564/L Accused acquitted.