P L D 1962 Dacca 467 (PLP)

SALAHUDDIN AHMAD, J‑This is an appeal by one Balahari Das (Sutradhar) from the order of Mr. Hassan Nawab, C. S. P. Additional Sessions Judge, 1st Court, Dacca, dated the 21st December 1960, convicting the appellant under section 302 of the Pakistan Penal Code and sentencing him to death. Along with the appeal there is also a reference under section 374 of the Code of Criminal Procedure by the learned Additional Sessions Judge for confirmation of the sentence of death passed upon the condemned prisoner Balahari Das (Sntradhar).

2. Both the appeal and the reference are heard together and are now being disposed of by this judgment.

3. The charge against the condemned prisoner was that he on or about the 12th Phalgoon, 1366 B. S. corresponding to 25th February, 1960 at Benodepur, P. S. Munshiganj, did commit murder by intentionally or knowingly causing the death of Anwar Hussain, a boy about nine years old, and thereby commit ted an offence punishable under section 302 of the Pakistan Penal Code.

4. After the usual investigation and preliminary enquiry, the condemned prisoner was put on trial before the Sessions Court, Dacca and was tried by the learned Additional Sessions Judge' Dacca with the aid of four Assessors. The following were tile four assessors chosen (1) Mr. Debendra Mohan Das, (2) Mr. Jogendra Mohan Dutta, (3) Mr. Mubarak Ali, (4) Mr. Momtaz uddin Miah. All the four Assessors unanimously found the prisoner guilty under section 302 of the Pakistan Penal Code. The learned Additional Sessions Judge agreeing with the unanimous opinion of the Assessors, convicted and sentenced the prisoner as already mentioned above.

5. The facts of the case are rather simple. Anwar Hussain (deceased) used to live with his maternal grandmother P. W. 1 Wasimun Nesa who brought him up. His mother P. W. 11 Arjuda Khatoon was remarried to another person on being deserted by her former husband, namely, the father of the deceased. On the 12th Phalgoon, 1366 B. S. corresponding to the 25th February, 1960, at about 3 p.m. the boy left his grand mother's house to go to Rakabibazar to see his mother who lived there. His grandmother gave him an empty bottle and two annas to buy kerosene oil on the way and to bring it on his return. When he arrived at a spot on the District Board road adjacent to the burning ghat at Benodepur in the neighbour hood of Feringibazar, he was caught held of by the prisoner and slaughter ed by him with a knife. Just at the moment when the boy was being slaughtered P. W.

3. Anwara, about 5 or 6 years old happened to pass by the road for the purpose of getting a rick shaw for her maternal aunt. She saw the accused slaughtering the boy and horrified she ran and clasped round P. W. 2 Alfat Nessa when she was returning after having a wash at the tank adjacent to her house. Anwara told Alfat Nessa what the former had seen. Alfat Nessa immediately went there and saw the prisoner slaughtering a body with a big knife by pressing his foot on his chest. She also saw one `Vaishnavi' or `bairagini' bathing in the tank nearby and tried to draw her attention to the prisoner's act but the `bairagini' neither turned towards her nor came out of the lank. The prisoner in the meantime had servered the head of the body and was carrying the head in his left hand and the blood‑stained knife in his right hand. Alfat Nessa was fright ened and rushed towards her house calling out her sister, P. W. 5 Fatema to come soon and in the same process she reported to her sister that a man was carrying the head of a boy after slaughtering him P. W. 5 Fatema came out and saw the beheaded trunk of the boy's body lying on the road near the tank closed to her house and also saw the prisoner carrying the severed head with him. Fatema cried out to her brother‑in‑law P. W. 7 Manik Kazi. Thereafter Manik Kazi and other persons arrived at the scene and chased the prisoner who ran towards his house and on entering, closed the door from inside. People surrounded his but and asked him to come out but he did not. . People tried to enter the but by forcing open its northern fence but the prisoner pushed upon the southern fence and ran away with knife still in his hand. He was again chased by the people some of whom had lathis and bamboos in their hands. He ran into a ditch situated to the south of his hut. The chase was continued and one Aminuddin Bepari, P. W. 8; jumped into the ditch. The prisoner attempted to stab Aminuddin Bepari but he grappled and encircled him with his arms. The prisoner struck Aminuddin Bepari with the knife and inflicted on his (P. W. Aminuddin Bepari's) person several injuries. The crowd beat the prisoner with lathis and one of the lathi blows fell on Aminuddin Bepari also. Somehow Aminuddin Bepari managed to take away the knife from the prisoner and the prisoner was arrested. The knife was made over to the police. The prisoner was brought to his house and was questioned about the severed head upon which he took out the head from inside an earthern pot kept on a loft inside his hut. The prisoner was then tied to a wooden plank and was brought, with the head also on the plank, to the place where the trunk of the beheaded body had been lying. A big crowd assembled at the spot. The maternal grand mother of the boy P. W. Wasimun Nessa having been informed of the murder of her grandchild, came to the place of occurrence and asked the prisoner as to why he had murdered her grandson. The prisoner replied that he cut off the head to offer it to Shiva' in the purja at night. On the same day at 6‑30 p.m. P. W. Wasiman Nessa lodged the first information report at Munshiganj police station which is at a distance of about three miles from the place of occurrence. P. W. Wasimun Nessa also identified the dead body of the deceased to the Police who forwarded the dead body to Munshiganj for post‑mortem examination, which was made by the Sub‑Divisional Medical Officer P. W. 4 Dr. Md. Daneshuddin. The police investigated the case and submitted charge sheet against the prisoner Balahari Das (Sutradhar).

6. The defence appears to be one of the denial of the prisoner's complicity in the crime. In his examination under section 342 of the Code of Criminal Procedure before the Court of Session the prisoner stated that he came to the shop to chew `pan' (betel leaf). On seeing the severed head, he went by running but later said no, not by running but by walking fast. Later again he said that he did not know how he went. He denied having closed the door of his but and characterised as false the evidence of the witnesses who saw him running away with the severed head and later coming out of his but by breaking upon the southern `berg' with the blood‑smeared knife in his hand and his falling into a ditch. He further stated that the people assaulted him and made him senseless and that he knew nothing. As regards his bringing out the head from an earthen vessel inside his hut, he said that he was then in a faint. As regards his con fession that the head would be used in `Shiva Purja', he said that many people were at that place and that he did not say.

7. Mr. S. A. Maquith Chowdhury, learned Advocate has appeared on behalf of the condemned prisoner and Mr. Abdul Hye Chowdhury, learned Deputy Legal Remembrancer has appeared for the State.

8. On examining the evidence in the case, we find that a plea of insanity was also taken, and we shall refer to the relevant evidence later.

9. It does not appear that the learned Additional Sessions Judge is right when he said that the plea of insanity of the accused was not taken. We shall also have occasion to refer to unusual manner adopted by the learned Additional Sessions Judge in trying the case. It appears from the prisoner's petition of appeal before this Court that the prisoner alleged that he had been implicated as a result of intrigues and conspiracy and he has particularly mentioned that there had been ill feeling between P. W. Manik Kazi and the Pal family over the stopping of burning dead bodies in the pyre near the house of Manik Kazi and that the prisoner was siding with the Pal family. It may be at once stated that there is not an iota of evidence to support this ill -feeling nor is there any suggestion to this effect to any witness.

10. It may be said at the outset that to none of the witnesses has it ever been suggested that Anwar Hussain (deceased) was murdered by any person other than the prisoner. On the con trary, the suggestions put to witnesses implied that the prisoner was not in his senses at the time he confessed about his guilt. It was also suggested to the witnesses that the prisoner was ganja smoker. There is, however, no evidence to show that the prisoner was under the influence of ganja at the time of the murder.

11. Mr. Maquith Chowdhury, who has appeared for the condemned prisoner has not argued before us that any person other than the prisoner committed the murder.

12. The evidence of the prosecution witnesses, including the eye‑witnesses of the actual slaughter of the boy by the prisoner viz., P. Ws. 2, 3 and 13 and the witnesses who spoke about having seen the prisoner with the severed head of the boy in one hand and a blood‑stained knife in the other viz., P. Ws. 2, 5, 6, 7, 8, 13 and 16 and the witnesses who spoke about the production of the severed head by the prisoner from inside an earthen pot in his but viz., P. Ws. 5, 7, 13 and 16 conclusively proved the fact that it was the prisoner and none else who slaughtered the poor innocent boy, Anwar Hussain'. There is not an iota of suggestion to any one of these witnesses regarding the existence of any ill feeling or enmity between any of them and the prisoner nor has any material been put before us or any reason given by the learned Advocate appearing on behalf of the s prisoner to induce us to hold that the witnesses are not indepen dent or disinterested or that they are unrefable or untrust worthy. It appears that the learned Additional Sessions Judge has noted the demeanour of prosecution witnesses Alfat Nessa, Anwara, Fatema, Aminuddin Bepari (P. W. 8) and Pear Ahmad and found them to be straight forward. In regard to P. W. 16 Pear ‑ Ahmad the learned Additional Sessions Judge's observation is respect able and disinterested manner of speaking."

13. As regards the child witness P. W.

2. Anwara, the learned Additional Sessions Judge not only noted her capacity to understand things and her demeanour, but also put some questions to the girl to test her capacity to understand things and was satisfied that she could answer ordinary questions intelligently and with understanding. This innocent child appears to us to be absolutely truthful.

14. Among the witnesses mentioned above P. W. 6 is the Chairman of the Union Council, Rakabibazar and P. W. 16 is the proprietor of a `biri' factory. Both of them appear to be respectable persons.

15. P. W. 4 Md. Deneshuddin who held the post- mortem examination on both the parts of the dead body, namely, the head and the trunk, found the head and the trunk fitted one into the other and they were parts of the same body and of the same person. The two parts of body were identified before the doctor by constable P. W. 9 Shamsuddin Ahmad. The doctor was of opinion that the severing of the head in the particular case could be done by the knife Exh. II which he found to be of good quality and very sharp. The doctor was further of opinion that the chopping of the head would not take much time and the cut would be clean and complete as he actually found to be the case.

16. Having regard to all the evidence just mentioned, we have not the slightest doubt that it was the prisoner who slaughter ed Anwar Hussain (deceased) and that the boy died as a result of the severing of the head from the trunk of his body and that this severing of the head was ante‑mortem and homicidal in nature.

17. This brings us, however, to the next important question whether the prisoner committed the murder at a time when he was so bereft of reason due to unsoundness of mind that he was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law.

18. Mr. Maquith Chowdhury appearing on behalf of the prisoner has vehemently argued that the evidence showed that the prisoner at the time of the commission of the crime was suffering from such insanity as to entitle him to the exemption provided for under section 84 of the Pakistan Penal Code. To establish such insanity on the part of the prisoner, Mr. Chowdhury has placed before us the following points for con sideration: ‑ (1) That the boy was murdered in broad‑day light on a public road, to wit, the District Board Road at a time when people passed by the road. (2) That the prisoner took the severed head in one hand and the bleeding knife in the other hand proceeded towards his but apparently unconcerned. (3) That the prisoner was found gazing at the spot on the ground where the blood was dripping from the head in his hand. (4) That the prisoner turned towards Alfat Nessa with bulging eyes. (5) That when the prisoner was pursued by the people he did not throw away the head and the knife. (6) That there was apparent want of motive on the part of the prisoner to impel him to commit such a brutal murder.

19. It may be mentioned that there is no evidence to show that the prisoner suffered from any mental aberration either before or after the occurrence. There is no suggestion even to chat effect. The suggestions that were put to P. W. 1 Wasimun Nessa in cross‑examination were replied to in these terms: ‑ "He was in his senses when he made the statement to me and understood what he said. He was in full senses. He admitted his guilt to others present in the crowd. I did not hear any one saying that he had turned mad. Why would any one say ? I cannot say whether he killed intentionally or not". From this, it is apparent that the suggestions put to P. W. Wasimun Nessa implied that at the time the prisoner confessed his guilt he might not be in his senses or full senses. These sugges tions were, however, categorically denied by P. W. Alfat Nessa.

20. P. W. Alfat Nessa said in cross‑examination that when she shouted the accused did not say anything. She could not say why the prisoner did that.

21. To a question put by the Court to P. W. 6 Md. Abdul Karim, the latter replied that the accused was a man of sound mind.

22. It also appears from the evidence of witnesses that before the occurrence the prisoner led a perfectly normal life and earned the livelihood by selling dal puris, singaras and other things and by making Biris. This appears from the evidence of P. W.

8. The evidence also discloses that the prisoner ran with the severed head and the knife to his hut, which was at a distance of 300 yards from the place of occurrence, and after entering the but closed its door. The but having been surrounded by the people and on having been pressed by them to come out, the prisoner forced open the southern fence of his hut, and jumped out from there and ran into a ditch. He was again chased by the people and P. W. 8 Aminuddin Bepari grappled with him for the purpose of disarming him of his knife and catching hold of him, whereupon the prisoner resisted and inflicted injuries with his knife upon the person of P. W. 8 Aminuddin Bepari. P. W. 4 Dr. Danesh uddin who examined P. W. 8 Aminuddin Bepari on the 2nd of March, 1960 found injuries on his person. All these clearly show that cognitive faculties of the prisoner were not in any way impaired so as to prevent him from knowing the nature of his act.

23. There is also no evidence to show that any one of the predecessors of the prisoner suffered from insanity.

24. To sum up the evidence on this point, it appears that there is no evidence whatsoever to show that the prisoner ever suffered from any aberration 4f mind either before or at the time or after the occurrence. The evidence, on the contrary, as we have already mentioned above showed that he lived a perfectly normal life before the occurrence. His conduct at and about the time of occurrence definitely showed that his cognitive faculties were fully active and that he fully knew the nature of the act he committed.

25. The evidence regarding his conduct clearly shows that he fully knew that what he had done was wrong or contrary to law, for he not only ran away from his pursuers and sought protection inside the sanctuary of his hut but also closed its door immediately on entering the hut. He concealed the severed head inside his but by hurriedly putting the head inside an earthen pot and putting the pot on a loft. When he found his pursuers about to enter the hut, he broke open the southern fencing of his but and jumped out of it and ran again, chased by the people, to a ditch nearby and jumped into it and when P. W. 8 Amin uddin Bepari tried to secure him; he strongly resisted by inflicting several injuries with knife upon the person of Aminuddin. All these unmistakably show that the prisoner was perfectly sane and that he was fully aware of the nature of his act.

26. In' course of their arguments the learned Advocate appearing on behalf of the condemned prisoner as well as the learned Deputy Legal Remembrancer placed before us a large number of decisions to assist us in the determination of the question whether on the facts and circumstances of the case the prisoner before us was entitled to exemption "under section 84 of the Pakistan Penal Code or not, and whether` if the prisoner failed affirmatively to prove that he was suffering from insanity such as is contemplated under section 84 of the Pakistan Penal Code at the time of the commission of the crime, he should still be entitled to an acquittal if he succeeds in raising doubt in our mind as to the prisoner's capacity to know the nature of his act. Let us now examine the various cases and consider how far they help us in the determinations of these questions.

27. The first case cited before us is that of Safdar Ali V. The Crown (P L D 1953 F C 93). This was a case in which a plea of right of private defence was taken. It is not necessary for us to state the facts of the case. The principle that has been laid down in this case is this: "In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution, and the defence. If, after an examination of the entire evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view re‑acts on the whole prosecution. In these circumstances, the accused is entitled to the benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt". It has been held further that mere non‑acceptance of an accused person's special pleading will not justify his conviction of the offence charged. The conviction can only result after the prosecution has fully discharged its onus of proving without the shadow of any reasonable doubt that the accused has committed a particular crime. This onus is on the prosecution from start to finish and is there irrespective of the success or failure of the defence case. Chief Justice Abdul Rashid, who presided over the Bench of the Federal Court, however, said that the general observations in regard to the duty of the Court to review the entire evidence produced by the prosecution as well as the defence in order to find out whether the defence put forward by the accused might be true, should not be taken to apply to any question relating to insanity, as no such question arose before the Federal Court. Their Lordships of the Federal Court, however, held that the decision in the case of Woolmington v. The Director of Public Prosecutions (L R 1935 A C 462) was in no way inconsistent with the provisions of section 105 of the Evidence Act.

28. It may be noted that in the Woolmington's case the defence was one of accidental firing of gun. It was held in that case that McNaughton's case stood by itself. That was the famous pro nouncement on the law of the hearing on the question of insanity in cases of murder and that was quite exceptional and had nothing to do with circumstances m .Woolmington's case. In McNaughton's case the onus was definitely and exceptionally placed upon the accused to establish such a defence. On the facts of Woolmington's case the House of Lords said that it was not necessary to refer McNaughton's case a second time in the judg ment for the case had nothing to do with question before them.

29. It may be noted that neither the case of Safdar Ali v. The Crown nor the case of Woolmington v. The Director of Public Prosecutions, has any direct application to the facts of .the case before us because none of them was a case of insanity.

30. Next we come to the case of Lal Khan v. Crown (P L D 1952 Lah. 502). This was a case where the accused without any apparent motive shot down two of his relatives with a gun in broad‑day‑light, without any attempt at concealment of his act and without the help of any accomplice. The accused then voluntarily proceeded to wards the thana. On examination of the gun which was double barrelled one it appeared that only the right barrel had been used and a trigger of the left barrel was out of order which indicated that after shooting one person dead the accused must have reloaded the right barrel of the gun. The history of the accused prior to the occurrence established somewhat eccentric behaviour inas much as he had allowed his beard and the hair of the' head, to grow long and he had allowed his nails uncut. , The defence witness said that the accused actually had a fit of insanity some eighteen months or even six months before, the incident. The Doctor who examined him visualised that he was suffering from a delusion of a particular type and that he might have regarded his act as morally justified, though he might have been conscious that it was contrary to law. Mr. Justice Rehman held that in the case of a special plea of insanity under section 84 of the Pakistan Penal Code, the burden of proof lay upon the accused and that mere creation of doubt as to the existence or otherwise of circum stances bringing the case within the exception of section 84 of the said Code was not enough. It was further held that there might be cases in which the defence taken might cast a doubt on the existence of the requisite intention or mens rea, which proved a necessary ingredient of the offence. In such cases it was con ceivable that the accused might succeed in securing an acquittal on the strength of a reasonable doubt created on that point. But where the circumstances of the defence plea did not affect the ingredients of the offence established by the prosecution evidence, for example, where the right of private defence or circumstances of grave and sudden provocation were pleaded, such question could possibly arise and the accused must prove his defence plea within the meaning of the Act. The Court, therefore, held that the circumstances brought out in defence merely suggested that the moral judgment of the appellant might possibly have been affected by a delusion but no inference arose that any ingredient of the offence proved was thereby subjected to a doubt. The conviction and sentence of transportation for life in the case were upheld.

31. In a separate judgment Chief Justice Muhammad Munir said: "If the killing and the requisite intention or knowledge are proved or admitted, but the plea taken is that of insanity, the evidence in proof of the plea will not be directed against any ingredient of the offence of murder but will seek to establish that some other independent fact which is not a part of the offence of murder existed which made the fact, which was a prima facie murder, cease to be murder * * * * * * * * * * * In the case of such exceptions, I am of the view that evidence produced by the defence, which merely throws a doubt on the applicability or otherwise of the exception will not be sufficient to discharge the onus that lies on the accused to prove that his case comes within the exception. A contrary view would have the effect of requiring the prosecution to disprove the exception, which is plainly opposed to the terms of section 105 of the Evidence Act."

32. The next case of importance is that of Gholam Yusaf v. The Crown (P L D 1953 Lah. 213). In this case the accused fired several shots with a gun at his son and his (accused) wife, apparently in a fit of insane delusion, injuring the former and killing the latter. The evidence, particularly medical evidence, discloses that the accused suffered from mental disease or abnormality both before and after the occurrence. In fact, he had to be put under the observation by the Jail Superintendent, Dr. Hamid Mush, who recommended him for being admitted into the Mental Hospital at Lahore. After having been detained in the Mental Hospital for several months, he was discharged as cured and was there after put on trial of murder and attempted murder. The evidence disclosed that although his wife had been dead, he believed her to be still alive. Kayani, J. in his judgment held that he was convinced that although the accused might 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 killed one of them. It was, therefore, held that the accused had succeeded in discharging the burden laid upon him by section 84 of the Pakistan Penal Code irrespective .of the fact that it was extremely doubtful whether he could have formed any intention to kill his wife.

33. The learned Judge discussed in his judgment the cases of Woolmington v. The Director of Public Prosecutions and Lal Khan v. The Crown and made the following deductions :‑ (a) That the Evidence Act places all Exceptions on a par, whether they relate to insanity, accident, self‑defence or grave and sudden provocation ; (b) That proof of the Exception is on the prisoner ; (c) That if the evidence relating to the proof of the Excep tion casts a doubt on an ingredient of the offence, it affects the whole case and not the Exception alone ; (d) That if no such doubt arises and the doubt relates only to the Exception, the prisoner has "not proved" his case ; (e) That Woolmington's case is an example of the proposi tion stated in "(c)" above ; and finally (f) That even in Woolmington's case insanity and "statutory exception" were excepted. 34. .The learned Judge thereafter discussed the three judg ments in the case of Safdar Ali v. The Crown decided by the Federal Court and summarised them as follows: ‑ "(1) Even when the prosecution proves all the ingredients of tie offence of murder, including intention, if on the whole evidence including the defence of reasonable doubt arises as to whether the act was unintentional or provoked, the benefit will go to the accused person (Woolmington's case). (2) Applying this principle to the Evidence Act, if the prudent man of section 3 finds in the entire evidence a reasonable doubt as to an essential ingredient of an offence, such as the‑requisite intention, the prosecution must fail, (In one place, Cornelius J. observed that the prudent man, "setting the defence case aside, . . . . . would proceed to consider whether the charges referred by the prosecution were established on the whole case," but the rest of the judgment does not show that his Lordship intended the defence case to be set aside, for then "the whole case" would not be before the Court). (3) A plea of self‑defence is founded on the actuation of the accused, not by an intention to kill, but by an intention to preserve himself, and duplicity of intention is inconceivable. (4) In cases of grave and sudden provocation, intention is not formed and is excluded by an emotional reaction. (5) Section 105 of the Evidence Act was intended to make it clear that it was not the duty of the prosecution to prove that the case did not fall within an Exception (Shahab‑Lid‑Din J., further said that the prosecution must prove that the accused was the aggressor, but "on the whole judgment," I think, his Lordship should be presumed to have treated aggression as part of intention). (6) The principles laid down in Woolmington's case are applicable with full force in Pakistan. (7) The general observations made by the learned Chief Justice should not be taken to apply to "any question relating to insanity, as no such question arises in the present appeal "

35. The learned Judge then discussed McNaughton's case and after considering the answers given by the Judges to the House of Lords applied the answers to the law in Pakistan and stated: "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 that it is either morally or legally wrong." Muhammad Jan, J., in a separate judgment held: Even if the evidence did not positively prove that the appellant was mad when he committed the crime, I am clearly of the opinion that there is a reasonable possibility that the difference put forward on his behalf might be true There is no difference between the plea of insanity and any other excep tion recognised by law to Pakistan and the evidence regarding insanity in this case is sufficient to cast a doubt on the question whether the act of the appellant was done with the intention or knowledge required to constitute the offence of murder. The appellant is, therefore, entitled to the benefit of doubt."

36. In the same case Kayani, J., has elaborately dealt with "delusions" and "hallucination."

37. We should have considered that the cases discussed by us above were sufficient for the purpose of assisting us in the decision of the present case. Since, however, several other cases have been cited which have some bearing on the facts of the case before us, we shall briefly refer to them as well.

38. In the case of Ghungar Mal Ghania Lal v. Emperor (A I R 1939 Lah. 355), the accused was sentenced to transportation for life for having murdered a boy named Thenchu. After the murder the accused ran away and was seen cleaning his blood‑stained hands with sand in the river. He subsequently hid himself in his kotha and attempted to prevent people coming in by placing stones against the door. After his arrest the plea of insanity was raised on behalf of the accused and he was certified insane and committed to the Punjab Mental Hospital, from where he was later dis charged as cured and then stood his trial. There was some evidence as to his eccentric behaviour shortly before the day on which the occurrence tool place. It was held in that case that if the accused was conscious that the act done by him was one, which he ought not to have; done, and the act was contrary. to the law of the land, he was punishable. His liability would not be diminished if he did the act under the influence of insane delusion for redressing or revenging some supposed grievance, if he knew that he was acting contrary to law. It was further held that although the accused was medically certified to be insane, he knew that in killing the victim he was doing something wrong and could not, therefore, be exonerated under section 84 of the Penal Code.

39. The next case is that of King‑Emperor v. Gedka Goala (1). In this case the accused was charged with the murder of his wife, his two daughters and his son and with causing grievous hurt to another son of his and with causing hurt to his mother. It was held in that case that it was only unsoundness of mind which materially impaired the cognitive, faculties of the mind that could form a ground of exemption from criminal responsibility within the meaning of section 84, Penal Code, the nature and the extent of the unsoundness of mind required being such as would make the offender incapable of knowing the nature of the act or that he was doing what was wrong or con trary to law. It was further held that a person was not entitled to exemption from criminal liability in cases in which it was only shown that he was subject to insane impulses while the cognitive faculties remained unimpaired. It was further held that one must look outside the act itself, for the evidence as to how much the accused knew about it. It was finally held that although the accused had committed multiple murders while suffering from mental derangement of some sort and it was found that (I L R 16 Pat. 333) there was absence of any motive,. (ii) absence of secrecy, (iii) want of pre‑arrangement and (iv) want of accomplices, the circum stances were insufficient to support the inference that the , accused suffered from unsoundness of mind of the kind referred to in section

84. The case of Panche v. Emperor (33 C L J 714.) was decided by Sulaiman and Niamat Ullah, JJ. The accused attacked the victim with lathis while asleep on a charpoy. It appeared from the evi dence that the accused, on account of his abnormality, was placed under the observation of the Civil Surgeon who reported that the accused suffered from weak intellect but otherwise did not show any sign of insanity. In the committing Magistrate's Court the accused did not show any sign, which might suggest to the Magistrate that he was insane. His answers to questions were quite rational. The same was the case before the Sessions Judge. Sulaiman, J. who delivered the judgment, discussed the legal and medical conception of insanity and held that "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 is 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."

40. The learned Judge further held that where the plea of insanity was set up the burden of proof lay on the defence to show that the accused at the time of committing the act was 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 "mind which are recognised by the medical science as amounting to madness, were excluded in the eyes of the law. The learned Judge went on to say that 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, it was held that the absence of strong motive could not be conclusive. The learned Judge also held that in the case of a person of week intellect subject to fits of insanity and not possessed of a normal mind, a sentence of death was not appropriate.

41. In the case of The Emperor v. Kazi 5 Bazlur (33 C W N 136), the accused was charged under section 302 of the Penal Code for having committed the murder of Mr. G. H. W. Davies, I. C. S., District Magistrate and Collector of Chittagong. Here also a plea of insanity as a bar to criminal responsibility was taken. It appears from the evidence that the accused was subject to fits of insanity before the occurrence. The evidence also disclosed that the accused suffered from delusions, for example, that he considered himself a man of ability and qualifications although he was not so. He considered himself a person with title to which he had no right; that he claimed unusual powers (Saint, Imam Mahdi etc.), that he was anxious to complete his educa tion in England. All these delusions were not only supported by the oral evidence but by documents also. P. W. 1 (,Major Hodge, I. M. S.), the local expert, thou‑tit that the accused was of unsound mind. It was held, on a consideration of the circumstances of the case, that the accused was of unsound mind at the time when the crime was committed but the circumstances were not such as to entitle him to claim exemption from criminal liability under the provisions of section 84 of the Penal Code. C. C. Ghose, J., who delivered the judgment, said that 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 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 not know it that he did not know that what he was doing was wrong. The standard to be applied was whether according to the ordinary standard adopted by reasonable men the act was right or wrong. He further held that uncontrollable impulse co‑existing with the full possession of the reasoning powers was no defence in law nor was moral insanity, i.e. existence of delusions which indicated a defect of sanity such as would relieve a person from criminal responsibility, any defence in law. It was not mere eccentricity or singularity of manner that would suffice to establish the plea of insanity; it must be shown that the prisoner had no competent use of his understanding so as to know that he was doing a wrong thing in the particular act in question. If there was evidence of pre meditation and design or evidence that the prisoner, after the act in question, tried to resist arrest the plea of insanity might be negatived. It was also held that the onus of proof in case of plea of insanity taken on behalf of accused lay on him and that it must be proved affirmatively that the accused was insane at the time when he committed the crime in question. If the facts were clear so far as the act complained of was concerned, motive was irrelevant. On the facts of the case the learned Judge said that "the weapon employed, an unusually large and heavy clasp knife pointed like a dagger, the force used, which was sufficient to cut through a rib, the accuracy with which the blow penetrated the hurt and the second blow all show that the appellant must have deliberately intended ‑ to kill Mr. Davies.

42. The next case is that of Ram Sundar Das v. Emperor (A I R 1919 Cal. 248). In this case the accused murdered his wife and his infant daughter by striking them with a dao without any apparent motive. There was some evidence to show that the accused had not been quite himself and that he had been disturbed and distressed by the shortage of cloth, rice and fodder. The accused had admitted without reservation what he had done and made no attempt at concealment or escape. There was no reliable evidence that his intellect was deranged but there was some vague evidence that his natural father was mad. It was held that the cognitive faculties of the accused were so impaired that he did not know the nature of his act or that he was doing what was wrong or contrary to law. It was further held that the burden of proof of unsound mind rested upon the accused.

43. Yet another case has been placed before us, namely, the case of Zeat Ali v. Emperor (A I R 1917 Pat. 503). The accused was found to have murdered his wife who believed herself to be possessed of evil spirits and who had repeatedly pressed her husband to kill her saying that if he killed her the evil spirits would leave her, and she would come to life again, and he would acquire money and comforts. It was found that the accused had openly and freely confessed to his guilt. The learned Sessions Judge who tried the case said in the concluding paragraph of his judgment w "It is a case of sacrificial murder actuated by superstitution working on a mind doubtless to some extent disordered." Atkinson and Jwala Prasad, JJ of the Patna High Court wrote in their judgment :‑ "We think that what the learned Sessions Judge meant by that was that although the accused knew and understood what he was doing, he was no doubt a weak man with a weak mind labouring under strong religious superstitution and belief which actuated him in cutting off his wife's head in the belief that profit and gain would come to thereby. That may be so, but that is not sufficient to justify us in saying that the accused is not responsible for his acts and we think that this is not a case where a person has been wrongfully convicted of murder."

44. It will, therefore, be noticed (1) that in all cases dealing with insanity as a plea of defence, it was consistently held that the onus lay upon the defence to prove his plea in order to attract the exemption under section 84 of the Pakistan Penal Code and (2) that in all these cases there were some tangible evidence to show that the accused suffered from aberration of mind in one form or another either before, at the time or after the occurrence.

45. The only apparent little exception seems to appear in the judgment of Muhammad Jan, J. in the case of Gholam Yusaf v. The Crown already discussed above. The learned Judge on the facts of the particular case was clearly of opinion that there was a reasonable possibility that the defence of insanity put forward by the accused might be true and consequently held that the evidence regarding insanity in that case was sufficient to cost a doubt on the question whether the act of the accused was done with the intention or knowledge required to con stitute 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. In other words, the language of Rahman, J. in the case Lal Khan v. Crown, also discussed above, what Muhammad Jan, J. meant was: ‑‑ "There may be cases in which the defence taken may cast a doubt on the existence of the requisite intention or mens rea which proves a necessary ingredient of the offence. In such case it is conceivable that the accused may succeed in securing an acquittal on the strength of a reasonable doubt created on that point." Thus the sum total of the principles deducible from the decision discussed above may be condensed as follows: ‑ (i) If the accused raises any special plea or claims exoneration on the basis of any special or general exception he 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 B 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 inten tion 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 either wrong or contrary to law he is not insane. Merely being subjected 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 premeditation 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 so far as the act complained of is concerned motive is irrelevant. Vide Emperor v. Kazi Bazlur mentioned above.

46. Applying the aforesaid principles of law to the facts and circumstances of the case before us, we find no difficulty in holding that the defence has 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 any aberration of mind at all so as to bring his case under the exception of section 84 of the Penal Code. We further hold that there is 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.

47. It may be mentioned that it does not appear from the evidence that the prisoner showed any sign of abnormality of mind, or behaviour before the enquiring Magistrate. The learned Additional Sessions Judge who tried the case stated in his judg ment that the prisoner did not evince any symptom of mad ness. It may also be noted that during his examination under section 342 of the Code of Criminal Procedure before the Court of Session the prisoner did not say a word about his ever being insane or that he ever suffered from any kind of aberration of mind.

48. The motive given by the prisoner himself for com mitting this diabolical and atrocious murder is that he cut off the head to offer it for the "Shiva Puja" in the night. It is significant that the day of occurrence was the day of "Shivaratri puja". This motive appears in the evidence of prosecution witness No. 1 Wasimunnessa who stated in cross‑examination thus: ‑ "I asked the accused why he had chopped off the head of my grandson and he replied that he cut off the head to offer it for the "Shiva Puja" in the night." She also mentioned this fact in her first information report. P. W. 1 has also been corroborated on this point by P. W. 13 Aminuddin Matbar, P. W. 14 Abdur Rahman, P. W. 15 Ashraf Ali P. W. 16 Pear Ahmed and P. W. 17 Adam Ali. It may be mentioned that P. Ws. 13, 14 and 15 speak about the corrobora tion on this point in their examination by the Court. We accordingly hold that the motive for the murder in the present case has been proved satisfactorily.

49. The evidence regarding motive mentioned above are also evidence of extra judicial confession made by the prisoner. It will be noticed that the evidence on this point found their way into the record either by way of cross‑examination by the defence or through' answers given to questions put by the trial Court. This confession was, however, later retracted by the prisoner: Mr. Maquith Chowdhury has argued that the confession has been, hit by the provisions of section 24 of the‑'Evidence Act and has, therefore, been illegally admitted into evidence because (a) it was the result of beatings; (b) it was made to a person in authority.

50. There is no doubt about the fact that the persons who chased the prisoner, after he had committed the murder, gave him severe beatings with the result that he had to be carried on a plank from his but to the actual place of occurrence. It further appears from the order‑sheet of the Magistrate who held the preliminary enquiry that the prisoner had to be sent to the Hospital and was detained there for about six months. There is, however, nothing "on record to show who actually beat the prisoner. From the evidence on record it does not appear that this confession was made before any person who could be said to be a person in authority within the meaning of section 24 of the Evidence Act. In the Full Bench case of Santokhi Beldar v. King Emperor (I L R 12 Pat. 241), it was held: - "It is well established that the words "person in authority" have reference to a person who has authority to interfere in the matter under enquiry." The Court further held that: "The reported cases on the point show that, generally speaking, a "person in authority" within the meaning of section 24 is one who is engaged in the apprehension, detention or prosecution of the accused or one who is empowered to examine him. Abdul Aziz is a Tehsildar of the Banaili Rail and appears to be a person of some influence in the village but he had no interest in the prosecution of Santokhi other than the interest which every citizen has in the maintenance of law and order; and although the confession was made in con sequence of the questions put and the promise made by him, he was not a person empowered to examine Santokhi or who could legitimately influence the course of the proceedings." This case was cited before us by the learned Deputy Legal Remembrancer.

51. Mr. Maquith Chowdhury has also cited a decision on this point, namely, the case of E. D. Smith v. Emperor (19 Cr, L J 189). In this case two of. the Judges who constituted the Division Bench differed in their opinion as to the meaning of the "person in authority." In this case the alleged confession was said to have been made before one Captain Philips of the Army Clothing Factory. One of the Judges held that he was not the head of the Factory nor does it appear that he had anything to do with the general management. The Police had started the investi gation without his knowledge and without his authority. He further held that it was difficult to understand how Captain Philips could have interfered in the prosecution of that case in any way and in that view of the matter, he held that Captain Philips was not a person in authority. The other Judge, however, held a different view and considered Captain Philips, the Commissioned Officer of the Army, as a person in authority. We are unable to agree with the opinion that Captain Philips was a person in authority within the meaning of section 24 of the Evidence Act. We would prefer to rely upon the definition of the words "person in authority" as given in the case of Santokhi Beldar v. King Emperor. There is neither any evidence to show that the confession was made on the inducement, threat or promise proceeding from a person in authority and sufficient in the opinion of the Court to give the prisoner ground which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the pro ceedings against him. We, therefore, hold that the confession has been rightly admitted into evidence. We may, however, state that even without this confession there is ample evidence to prove the guilt of the prisoner. The learned Additional Sessions Judge who tried this case appears to have used this confession merely as supplying motive for the murder and not as a piece of evidence proving the guilt of the prisoner. The confession in our opinion has been amply corroborated in all material particulars by other reliable evidence on record.

52. On a careful consideration of the entire facts and circumstances of the case, we have no doubt whatsoever in our mind that the prisoner has committed a deliberate act of cold blooded murder, that his cognitive faculties were fully active at the time of the commission of the crime and that he was then fully capable of knowing the nature of his act or that he was doing what was either wrong or contrary to law.

53. It appears that many of the prosecution witnesses have been subjected to examination by the Court and some of them to very lengthy examination. Because of this Mr. Choudhury appearing on behalf o f the condemned prisoner has to some extent rightly felt aggrieved. There were altogether 18 pro secution witnesses. Out of them, no less than eleven witnesses were so subjected to examination by the Court. They are P. Ws. 2, 4, 6, 7, 8, 10, 13, 14, 15, 16 and

18. It may be men tioned that two of these witnesses, namely, P. Ws, 14 and 15 were merely tendered by the prosecution and P. W. 13 was not cross‑examined at all. It is true that section 165 of the Evidence Act gives very wide power to the Judge to put any question he pleases to any witnesses in order to discover or obtain proper D proof of relevant facts. This power, however, should be used with great circumspection and only when it is absolutely necessary in the interest of justice and without assuming the role of any party to the proceeding.

54. In the case of Noor Bux Kazi and others v. The Empress (1), Chief Justice Richard Garth who delivered the judg ment of the Division Bench observed as follows: ‑ "It is not the province of the Court to examine the witnesses unless the pleaders on either side have omitted to put some material question or questions ; and the Court should, as a general rule, leave the witnesses to the pleaders to be dealt with as laid down in section 138 of the Act." The prisoner was defended before the Court of Session by a pleader appointed by the State. It appears that the cross -examination of the prosecution witnesses by the defence lawyer was not happy. He put many questions to the witnesses, which, in the interest of his client, he should riot have put. That being the state of things, if the learned Additional Sessions Judge wanted to exercise his power under section 165 of the Evidence Act, in our opinion, he should have done so in the interest of justice for the benefit of the defence rather than the prosecution. On an examination of the answers given by the witnesses to questions put by the Court, it appears that some of these answers filled up some not very important gap in the prosecution case. This, in our opinion, the learned Additional Sessions Judge should not have done. He had the diary and the evidence of the witnesses before the committing Court before him and he could have used them in putting questions to witnesses in cases where the defence lawyer himself failed to put relevant questions in the interest of the prisoner. On the facts and circumstances of the case, however, we do not feel that this action, rather unneces sary action on the part of the learned Additional. Sessions Judge has in any way prejudiced the prisoner. On our part, we have not only examined the evidence but also in the interest of justice the other facts and circumstances to arrive at our conclusions and decision.

55. The question of sentence in this case presents us with some difficulty. As we have already mentioned earlier, the prisoner was subjected to such severe beatings at the hands of the crowd that he had to be admitted into the Jail Hospital for treatment which necessitated his detention in the hospital from the 25th of February 1960 to some time about the 25th August, 1960. At first he was put in Munshiganj Hospital and then he was transferred to the Dacca Jail Hospital. It also appears from the evidence that he was so severly beaten im mediately after the occurrence that he had to be carried on a plank from his but to the place of occurrence. P. W. 10 Md. Salimuddin, Sub‑Inspector of Police attached to the D. I. B. Dacca said in cross‑examination:‑"As the accused was injured he was unable to give a statement". P. W. 6 stated in ‑cross‑examination that the prisoner did not talk much as he was beaten and was feeling exhausted. In his examination under section 342 the prisoner said: "All of them assaulted me and made me senseless. On this evidence, it seems to us that the prisoner did receive seveve beatings at the hands of the people which necessitated long course of hospital treatment being given to the prisoner. The exact nature of the injuries do not appear upon the evidence before us. But from the facts and circumstances of the case it will not be mere speculation if we say that the injuries were serious. The crime committed by the prisoner is indeed atrocious and revolting to civilization, and we would not have hesitated in the least to confirm the sentence of death passed on him had it not been for the fact that people has to some extent avenged the unspeakable wrong the prisoner had done to society. We, therefore, feel that in the particular and special facts of this case alone, the ends of justice will be met if we sentence the prisoner to transportation for life.

56. In the result, the appeal is dismissed and the conviction of the prisoner under section 302 of the Pakistan Penal Code is maintained but the sentence of death passed on him thereunder is commuted to one of transportation for life. The reference is accordingly rejected. KHAN, J.‑I agree. K. B. A. Appeal dismissed: Reference rejected.