P L D 1964 Supreme Court 801 (PLP)

FAZLE-AKBAR, J.

The appellant Alam Khan who is deaf and dumb from birth was charged with the murder of his father Karam. The Sessions Judge, Larkana convicted him under section 302 of the Pakistan Penal Code and then forwarded the proceedings to the High Court of West Pakistan at Karachi under section 341 of the Code of Criminal Procedure. A Division Bench of the High Court which heard the reference upheld the conviction and sentenced him to rigorous imprisonment for 14 years. The prosecution case briefly is as follows :-- The appellant is deaf and dumb from birth. He insisted that his father should get him married but the latter used to put him off on the ground of lack of funds. About two and a half years before this incident when his father turned down his request for marriage he injured him with a hatchet and the matter was reported to the Police. On the night previous to the day of occurrence he repeated his request for marriage and his father's reply that he had no funds annoyed him and he left the house. On the next morning, that is, at about breakfast time on 23rd September 1961 when his father was returning from his land he came out of a jungle and after inflicting injuries on him with a hatchet he ran away leaving the hatchet on the spot. His father succumbed to the injuries shortly thereafter. His mother Mst. Sain who was then taking breakfast for her husband and Saindad and Bahawal who came there on being attracted by her shout saw the occurrence. The same afternoon Umar, brother of the deceased lodged first information report at Bakrani Police Station. The Police recovered blood-stained hatchet from the spot, arrested the accused from his house and also seized the blood-stained shirt and loin cloth from his person. The post-mortem examination revealed that the `Top of the skull was torn to pieces with brain matter out'. The deceased had also three contused and one incised wounds on the different parts of his body. As the accused was deaf and dumb, the trial judge utilised the services of Rasul Bakhsh, the maternal uncle of the accused, to ascertain whether he was capable to understand the proceed ings in Court. Though he could answer simple questions by gestures, the trial judge was of the opinion that he was incapable of understanding and following the proceedings by reason of his inability to communicate with or be communicated with by others. He was then put upon his trial on the charge of murder. He denied the charge by gesture. The ocular evidence against the appellant was furnished by his mother Mst. Sain, his uncle, Saindad and one Bahawal. During trial Mst. Sain, in order to save her only son tried to resile from her previous statement and therefore, her statement before the committing Court was put in under section 288, Cr. P. C. She admitted that what she had stated before the committing Court was correct. The trial Judge also saw no reason to doubt the evidence of Bahawal who lives very close to the place of occurrence. He therefore, in agreement with the majority opinion of the assessors convicted the accused under section 302 of the Pakistan Penal Code and reported the case to the High Court under section 341, Cr. P. C. The learned Judges of the High Court were also satisfied that the charge had been fully brought home to the accused and they therefore, maintained his conviction but in view of his disability passed a sentence of rigorous imprisonment for 14 years. Special leave to appeal was granted in this case to consider as to what should be the proper order in such a case. No doubt an ordinary person acting as the appellant did would be guilty of murder. Now the question is : Should a different view be taken in this case because the appellant was deaf and dumb from birth ? Section 341 of the Code of Criminal Procedure reads as follows : "

341. If the accused, though not insane, cannot be made to understand the proceedings, the Court may proceed with the inquiry or trial ; and, in the case of a Court other than a High Court, if such inquiry results in a commitment, or if such trial results in a conviction, the proceedings shall be forwarded to the High Court with a report of the circumstances of the case, and the High Court shall pass thereon such order as it thinks fit." From the above section it is clear that unless a person is insane tie Court is entitled to proceed with the trial even though the accused cannot be made to understand the proceedings. Further if such trial results in conviction the trial Judge is required to forward the proceedings to the High Court and the High Court shall pass thereon such order as it thinks fit. In this case the Sessions Judge found that the accused could not be made to understand the proceedings of the trial and therefore, the course of procedure adopted by him seems to be right. We would however, like to observe that the Sessions Court while forwarding a case to the High Court under section 341, Cr. P. C. should also record a finding as to whether the accused though deaf mute had sufficient intelligence of knowing that he was doing what was wrong and contrary to law. In this case the Sessions Judge has not recorded a finding on this point. The High Court while passing the sentence had therefore, to consider whether the appellant had sufficient intelligence to understand the criminal character of his act: The next question is what should be done in such a case by the High Court. At the outset we may observe that at one time in England the accused persons who were not insane but laboured under defects which rendered their trial impossible were treated as insane persons and were detained at Queen's pleasure. Some of the High Courts in India also took the view that section 341, Cr. P. C. gave them sufficient power for ordering the persons to be confined in a suitable place of safe custody under the orders of local Government and they therefore, requested the Government to deal with such cases as if it had been reported under section 471, Cr. P. C. In other words they attempted to follow the English practice. Now the law in England appears to be that though great caution and diligence are necessary in the trial of deaf and dumb person, yet if it be shown that such person had sufficient intelligence to understand the character of his act he is liable to punishment. Russell in his book on Crimes, 10th Edition, Part I, page 47 says that: "If it appears that he has the use of understanding, he is criminally responsible and may be tried and convicted, though great caution should be used in such a proceeding." Now since the beginning of this century the trend of decisions in the High Courts in India seems to be that a person could not be exempted from punishment simply because he is deaf and dumb. In this connection reference may also be made to the observations of this Court in Muhammad Shafi v. The State (P L D 1962 S C 472). "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 responsi bility is not available as a defence in a criminal prosecution as in England now under the English Homicide Act of 1957." This observation which was made while dealing with the case of an abnormal person would be also applicable to a person who is deaf and dumb from birth. We may also point out that there is no provision in the Pakistan Penal Code under which deaf and dumb person could be exempted from punishment. From what has been stated above it is clear that where a deaf and dumb person is convicted and a reference is made under section 341, Cr. P. C. the High Court should first satisfy itself if there had been a fair trial and if the accused had sufficient intelligence to understand the criminal character of his act, and then it would proceed to pass such sentence as the circumstances of the ease would require. In this case the prosecution had proved beyond reasonable doubt that this appellant murdered his father. His conduct both before and after the occurrence sufficiently indicates that he knew what he was doing was wrong and contrary to law. Once before this incident he had injured his father. On the day of occurrence he was lying in ambush armed with a hatchet and attacked his father as soon as he passed by the jungle where he was hiding. As the shouts of his mother attracted nearby people he ran away leaving the hatchet on the spot. When he was arrested it was found that he had attempted to wash away the blood-stains from the shirt and the loin cloth which were on his person. Further from the nature of the injuries it is also clear that they were delivered with considerable force. Hence it could be safely inferred that he intended to kill his father. In these circumstances the High Court was fully justified in affirming his conviction under section 302, P. P. C. Punishment for murder under section 302, P. P. C. is death or transportation for life. We have therefore, failed to appreciate why a sentence of rigorous imprisonment for 14 years was passed in this case. At the most it can be said that in view of the facts and circumstances the extreme penalty is not called for in this case. We accordingly while maintaining the conviction of the appellant alter the sentence to one of transportation for life. With the above modification in sentence this appeal is dismissed. A. H. Sentence modified.