1985 P Cr (PLP)

MAZHARUL HAQ, J.‑‑ Muhammad Iqbal (35) was tried for the murder of his wife Mst. Kaniz Fatima and for having murderously assaulted his father‑in‑law Safdar Ali. On 18‑4‑1982 Sessions Judge, Gujrat found him guilty of the charges and sentenced him to death. On the count under section 307,P.P.C. he was sentenced to 10 years' R.I. with a fine of Rs.2,000 in default to undergo 6 months' R.I. Fine if realised was ordered to be paid as compensation to the heirs of the deceased. Appeal of the convict, the connected murder reference and the complainant's revision for the enhancement of the sentence of fine are before us.

2. Kaniz Fatima (deceased) daughter of Safdar Ali (injured) was married to Muhammad Iqbal accused about eight/nine years before the occurrence in this case. It was not a happy match because Muhammad Iqbal often used to beat his wife, but in spite of the cruel treatment Mst. Kaniz Fatima lived with him. The motive for the crime was that Muhammad Iqbal suspected Mst. Kaniz Fatima and her father Safdar Ali of having done some "Toona Taaveez" on him which he believed to have been administered to him in food. It was for this reason that he often used to beat her up. According to the prosecution on 26‑6‑1977 at about 12‑30 p.m. P.W. Jamshed Beg brother of Safdar Ali was present in the house of his brother; wife of Safdar Ali namely P.W. Mst. Rashida Bibi was also there. They heard the alarm raised by Mst. Kaniz Fatima. The three alongwith P.W. Muhammad Khalid (given up as unnecessary) went into the courtyard of her house but her door was bolted from inside; its windows were however open. They peeped in and saw Muhammad Iqbal giving fist blows to his wife. The witnesses stopped him. Muhammad Iqbal picked up a Danda and hit Kaniz Fatima on her face near the chin. He gave another blow on her forehead. She fell down and the accused inflicted blows on her chest. The witnesses continued raising alarm. Muhammad Iqbal picked up a .12 bore gun and asked the witnesses to go away otherwise he would kill them. The witnesses kept on calling Kaniz Fatima who did not respond as she had died on account of the injuries. P.W. Safdar Ali stood in front of the window with his hands raised. He continued calling Mst. Kaniz Fatima. Muhammad Iqbal fired at him. The pellets hit his hands and the face, he fell down. Several other persons gathered there. Jamshed Beg P.W. bolted the door from outside P. W. Safdar Ali was carried to C. M. H. Hospital. Covering a distance of 15 miles P.W. 6 Jamshed Beg reached Police Station Serai Alamgir and made report Exh. P.C. to P W.12 Munirez Khan S.H.O. at 3‑55 p.m. the same day. After registering the case the S.I. went to the place of occurrence. He unbolted the door of accused's room from outside. Muhammad Iqbal opened the latch from inside. He was holding .12 bore gun P.8 in one hand and five live cartridges P.9/1‑5 in the other hand. The S.I. unloaded ttie gun, took it into possession with the live cartridges through memo Exh P.H. attested by P.Ws. Roshan Din and Riasat Beg (both given up). Since the accused had no licence for the gun therefore the S.I. drafted a complaint for the registration of a case under the Arms Ordinance. After preparing the necessary documents he sent the dead body for its post‑mortem examination. On inspection of the spot he took into possession crime empty P‑11 which was lying on the bed. He also took into possession Danda P.10 through memo P.L. Accused's Kurta P.12 and Shalwar P.13 were stained with blood these were taken into possession through memo P.N. attested by the same aforesaid witnesses

3. Since Dr. Muhammad Rafiq who held the autopsy had proceeded to Saudi Arabia therefore Secondary evidence was led. P.W. 11 Muhammad Akram Dispenser who had worked with the doctor proved the post‑mortem report. Exh. P.F. On 27‑6‑1977 Dr. Muhammad Rafiq found the following injuries on the deceased:‑ (1) A contused wound on the right side of the forehead about 1 x x bone deep. (2) A contused wound on the left side of chin measuring about 2" x x bone deep. (3) Contusion mark on the front of neck upper part of chest measuring about 11" x 1/7 . (4) A contusion mark on the front of chest measuring about 8" x 2 . In his opinion death was due to shock and haemorrhage caused by injury No.1 which was sufficient to cause death in the ordinary course of nature. On 21‑7‑1977 the 'doctor examined Safdar Ali and found as many as 12 injuries on his person which were caused by fire‑arm within the duration of 3‑4 weeks. Exh. P.G. is a copy of the medical report. After completing the investigation, Muhammad Iqbal was tried in due course.

4. In his statement at the trial Muhammad Iqbal denied guilt. He however, admitted that he had suspected his wife of performing some "Toona Taaveez" on him but on this score he had no quarrel with her. He admitted that the gun and the live cartridges were his as he was a licence holder. Explaining the case against him Muhammad Iqbal stated that deceased's parents and P.W. 6 Jamshed Beg her uncle used to demand a divorce for Kaniz Fatima because they wanted to marry her to Iqbal a brother‑in‑law of Jamshed P.W. Since he refused to divorce her, therefore, the case was foisted against him. He further explained as follows:‑ "I am innocent. I was employed in the Army where from I was discharged on account of insanity. Thereafter, I got employed in Tobacco Company at Karachi. I was also discharged from there for the said reason. I remained under treatment for insanity in C. M. H. Kharian. A day before the day of occurrence I was given electric shocks by way of treatment. I was under the attack of insanity at the time of occurrence. I produce Discharged slip, dated 12‑3‑1980, Specialist's report, dated 12‑4‑1980 to 1‑11‑1980. Another such report from a doctor at C. M. H. Jhelum, dated 29‑11‑f980 to 7‑10‑1981. In defence he produced two witnesses. D.W.1 Lt.‑Col. Muhammad Yunas Khan Associate Professor was working in C. M. H. as graded specialist psychiatrist in 1976. Muhammad Iqbal who was then in the army was his patient. He examined him on 25‑3‑1976 and found him suffering from "Schizophrenia". He gave him the necessary treatment, ti1112‑6‑1976 and found some improvement in his mental state, but his symptom relapsed which were recorded by him on 12‑6‑1976. Exh. D.B. is the photo copy of his report. D.W.2 Major Syed Qamar Shah Specialist psychiatrist C. M. H. remained posted at Sialkot from September, 1976 to April, 1978. He examined Muhammad Iqbal on 25‑6‑1977, also found him to be a patient of "Schizophrenia". He treated him with electric convulsive treatment therapy. Exh. D.C. is photo copy of his notes of the treatment.

5. Trial Court did not rely on the defence plea of insanity relying on the evidence of .the eye‑witnesses it found him guilty. Criticising the finding learned counsel for the appellant contended that the two defence witnesses belong to the Medical Profession. They deposed that the appellant was suffering from "Schizophrenia", a mental disease. Further contended that the motive story is also suggestive of appellants mental disorder, i.e. he suspected his wife of performing some kind of "Taaveez Toona" on him. In all probability the eye‑witnesses were not suggested whether the deceased did perform some kind of "Toona Taaveez" on the appellant to cure him of the ailment because they took up a negative stand from the very beginning and said that there was nothing wrong with the appellant. However, the story of the motive as it is, did indicate the abnormal behaviour of the appellant. On the other hand it is strange that none of the prosecution witnesses have explained as to why the appellant believed that his wife was playing some kind of charms on him (Taaveez Toona). The prosecution witnesses have tried to conceal appellants mental disorder but in the cross‑examination of P.W.10 Safdar Ali appellant's father‑in‑law admitted that the appellant was employed in the army and was discharged on the recommendation of the Medical Board. This witness however gave an unsatisfactory answer when he was questioned as to why the appellant left his second job at Karachi. According to him he did not inquire from the appellant the reason for giving up the job. Whereas according to the appellant he was removed by his employer because of his mental ailment. There is yet another circumstance which goes to show that the appellant was a mental case. It is the case of the prosecution that the appellant often used to beat up his wife. According to the witnesses the only reason advanced by the appellant was that his wife was putting him under the influence of some kind of Taaveez. According to P.W.7 Mst. Rasheeda mother of the deceased she wanted a divorce for her daughter but the deceased did not wish to get a divorce. Had it been the constant conscious cruelty of the husband the deceased would have been the first one to ask for a divorce. But the fact that she refused to ask for a divorce and the fact that there was a kind of suspicion of a Taaveez in the mind of the appellant are such considerations in this case which have led us to the conclusion that the appellant was a mental case and had no control over himself.

6. The next question for determination would be whether by reason of unsoundness of mind the appellant was incapable of knowing the nature of the act or that what he did was either wrong or contrary to law. We may straightaway mention that what transpired between the appellant and his wife before the occurrence is a mystery. The evidence is that the appellant started beating his wife with the Danda used in 1b Kitchen for grinding and her parents who came nearer the window bf the room of the appellant were calling at their daughter. It is in the evidence of P.W.5 Muhammad Rafiq whose house is adjacent to the appellants that the appellant was a mental case and for this reason he was discharged from the army and a day before the occurrence he was given electric shock treatment at C.M.H. Kharian. His statement is supported by D.W.2 Major Dr. Syed Qamar Shah Specialist in Psychiatry. It may be mentioned here that the electric shock treatment is administered to calm down a patient of Schizophrenia and in the instant case the treatment had just begun. The appellant was supposed to visit Dr. Syed Qamar Shah on alternate days for the treatment of electric shocks. Keeping in view the evidence of two Specialist doctors in Psychiatry and that of P.W.5 Muhammad Rafiq, a neighbour of the appellant and the other circumstances appearing in the evidence of this case which have been analysed above has led us to the conclusion that there was a preponderance of probabilities that a reasonable possibility cannot be excluded that at the time of doing the act with which the accused was charged, it was not a lucid interval and that Muhammad Iqbal appellant was not in full control of his senses as contemplated by section 84, P.P.C. In support of the view that we have taken ‑we would like to make a reference to the case of Abdullah v. State 1972 P Cr. L J 1041. In the cited case it has been held:‑ "If the accused is able to prove substantial impairment to his mental responsibility due to even partial or border line insanity so as to affect his knowledge as provided in section 84 P.P.C. he would tie entitled to a favourable verdict on the plea of insanity. As to how he is to establish the above requirement, the answer is that the fact need not be proved as scientifically certain but can be established on the balance of probabilities and on proper resolution of doubts, as held in Safdar Ali v. Crown P L D 1953 F C 93."

7. For the foregoing reasons we accept the appeal and set aside the conviction and sentences of Muhammad Iqbal appellant. We, however, direct Muhammad Iqbal appellant to be detained in a mental hospital in accordance with the provisions of section 471, Cr. P. C. and a report to this effect be sent to the provincial Government. S.A Appeal Accepted.