1989 PLP 3968 (MLD)

(2) An incised muscle deep 2.5 cm x 1 cm above the right nipple muscle deep. Corresponding cut on clothes present. (3) An incised wound on middle of the pubic muscle deep 1.5 cm x 0.6 cm small intestines hanging through it. (4) An incised wound 4 cm x 1 cm on the back of the abdomen on the right side, right hypochondrium 1/2 cm below costal margin. Middle of the wound as 10 cm from the tip of the right scapula. (5) An incised wound 3 cm x 1.3 cm muscle deep on the left side of back of the chest, 1.5 cm lateral to the vertebral column, 1.5 cm from the tip of the left scapula. (6) An incised wound muscle deep 1 cm x 0.5 cm at the left shoulder middle of the wound is 5.5 cm from the left nipple. (7) an incised wound muscle deep 1.5 cm x 1 cm in right axilla. Fifth rib was fractured and pleura was also ruptured. The right lobe of the liver was also ruptured. In the opinion of the doctor, the death of Zahid Arshad had taken place on account of shock and haemorrhage caused by injuries 1, 5 and 6 which were sufficient to cause death in the ordinary course of nature.

9. On reaching the spot, Muhammad. Afzal ASI, Police Post Sadiq Abad, PW 9, arrested the appellant and took into possession blood‑stained Chhuri P.17 produced before him by the appellant, vide memo Ex P.H. attested by Kareem Dad, PW 6, Muhammad Akram, PW 7, Amir Afzal PW 8 and Razzaq (given up) besides the investigating officer. The blood‑stained clothes of the appellant comprising his shirt P. 15 and Shalwar P. 16, were also got removed and were taken into possession vide memo Ex. P.C., attested by Suba Khan and Abdul Aziz (given up) besides the investigating officer. Vide report of Chemical Examiner and Serologist, the Chhuri P.17 was found to be stained with human blood.

10. To prove its case at the trial, the prosecution, placed reliance upon the ocular testimony furnished by Kareem Dad, PW 6, Muhammad Akram PW 7 and Amir Afzal, PW

8. In addition thereto, the prosecution also placed reliance upon the arrest of the appellant at the spot and the recovery of blood‑stained Chhuri P. 17 which was produced before the investigating officer. When examined under section 342 Cr. P.C. the appellant made evasive replies and even refused to sign the statement under section 342 Cr. P.C. The appellant had not engaged any counsel at the trial, and thus the Court provided the service of the counsel for the appellant at the State expense.

12. With the assistance of the learned counsel for the appellant and the State, I have carefully perused the entire evidence on the record, and have also heard them at length.

13. In course of the hearing of this appeal, the learned counsel for the appellant Mr. Fazal Elahi Siddique, Advocate contended that the appellant was insane, but such plea could not be raised at the appropriate stage during the trial. To further substantiate his contention, the learned counsel for the appellant drew the attention of this Court to an application moved by the brother of the appellant soon after the registration of the case. In the said application, it was stated, that the appellant was suffering from mental disease, therefore, his examination by a Psychiatrist was essential, so that his mental disorder did not further aggravate. In support of the said application, the brother of the appellant also attached a prescription by Dr. Malik H. Mubbashar, Psychiatrist in the General Hospital, Rawalpindi. The learned Magistrate dealing with the said application, ordered the examination of the appellant, and the report of the Psychiatrist is also on the record. It is unfortunate to note, that thereafter, no material at all was brought to the notice of the learned trial Judge, nor the attention of the learned Judge was drawn to it. It is further pertinent to mention, that brother of the appellant had engaged Sardar Muhammad Ishaque, Advocate to conduct the trial, but before its commencement, the learned counsel was disengaged, therefore, a learned counsel at the expense of the State was appointed to defend the appellant. It was further argued that the learned counsel engaged at the State expense could not draw the attention of the Trial Court to the mental disorder with which, the appellant was suffering. It was further argued, that the said State counsel was not even aware of this fact. There is yet another report on the record recommending further examination of the appellant by Psychiatrist. The said report also reveals, that the appellant was suffering from Schizophrenia. It was thus argued, that the conviction and the sentences of the appellant be set aside and the case be remanded for the fresh trial, so that, an opportunity is provided to the appellant to defend himself, and to raise the plea of mental disorder. In support of his contention, the learned counsel placed reliance upon the judgment of this Court reported as‑Abdullah v. The State (1972 P.Cr.L.J 1041). In the said case, a Division Bench of this Court had examined the plea of insanity, its nature and the burden of proof in the light of the judgment delivered by the Federal Court of Pakistan (PLD 1953 FC 93), Safdar Ali v. The Crown. In the aforesaid judgment, it was held, that the plea of insanity, if raised, can be examined in its entirety, and the facts surrounding should be taken note of, and, then, it should be examined in the light of the dictum of Safdar Ali's case, as referred to above, whether such plea would react upon the prosecution case. It was further laid down, that even if the plea had not been raised, but from the circumstances of the possibility of such a plea could be inferred, then the benefit thereof should be given to the defence.

14. The learned counsel for the appellant also moved an application under section 428 Cr.P.C., praying that Dr. Malik H. Mubbashar, Psychiatrist in the General Hospital, Rawalpindi, be examined, because he had treated the appellant, and thus, he was the best person to throw light upon the mental disorder with which the appellant was suffering.

15. After careful consideration of the contents of the said application, and because of the fact that the appellant had killed his wife and his own infant son, this Court, allowed the said application, and summoned Dr. Malik H. Mubbashar, a Psychiatrist. The said Doctor stated in the witness box that he had examined the appellant on a number of occasions, and for the first time, he had examined the appellant on 1‑3‑1982, and thereafter, the appellant remained under his treatment. The witness treated the appellant till 17‑12‑1983. It was stated by the witness, that the appellant was suffering from paranoia and delusion. The appellant complained of hearing of voices. The witness further stated that on 23 4‑1985, the appellant was examined by another Psychiatrist namely Dr. Farid Aslam working in the General Hospital Rawalpindi, and according to his opinion, no sign of ailment could be detected. Dr. Mubbashar stated that such patients have intervals of sanity and insanity, and at the time of the commission of offence, he could have been sane or insane, and therefore, nothing could be stated with certainty. It was further stated that such a patient under the influence of delusion could commit crime. The Doctor further stated that the patient/appellant complained that following voices were chasing him: According to the said doctor, when he examined him after the commission of crime, the appellant stated: The doctor also affirmed that before the commission of offence, the appellant was put on drugs for a period of two years.

16. All the three eye‑witnesses namely Kareem Dad PW 6, Muhammad Akram PW 7 and Amir Afzal PW 8 are residents of the, same locality, and they are neighbours of the appellant in the Muhallah, and thus, they had no enmity or malice towards the appellant so as to involve him falsely in this case. They are natural witnesses, and their statements are consistent. Au the three eye‑witnesses unanimously deposed that on the fateful day in the morning, they were attracted to the residential abode, of the appellant, from where, hue and cry had been raised. According to them, the appellant had bolted the door from inside, and they peeped over the wall; and saw the occurrence, and one of the eye‑witnesses had also scaled over the wall to save the deceased Mst. Sarwari Begum and the minor son of the appellant, but in vain, because the appellant being a desperate person, had also threatened the eye‑witnesses. The testimony of all the three eye witnesses further reveals that they somehow overpowered the appellant and deprived him of the blood‑stained Chhuri the weapon of offence and leaving the appellant with the other eye‑witnesses, Kareem Dad PW 6 proceeded to the police post to report the inurrence.

17. No doubt, that the three eye‑witnesses were cross‑examined at length, but their credibiltiy could not be shaken, because they were natural witnesses of the occurrence and had no axe of their own to grind, and therefore, there is no doubt in my mind that all the three witnesses are the truthful witnesses of the occurrence. The prosecution case also stands corroborated by the recovery of the blood‑stained Chhuri, on which, stains of human blood were found.

18. The prosecution in this case is silent as to the motive, and obviously, a real father can have no motive to murder his own infant son aged 1‑1/2 years. No doubt, it is a brutal murder, but it seems that it was a sudden affair, and the dap ardly act. Ang flared up losing control of himself had committed this

19. The next crucial question is whether the crime was committed under delusion, and whether the plea of insanity in this case has been established on the record. No doubt, this plea was not raised during the trial, nor any witness was examined, and no material worth the name was brought on the record. However in view of the application made by the brother of the appellant soon after the arrest of the appellant to the learned Magistrate goes a long way to show, that the appellant was suffering from some mental disorder. In the aforesaid application, no such plea was raised, but it was only prayed that the appellant be examined, so that, his ailment did not aggravate in the jail. Furthermore, I am conscious of the fact, that medical insanity is to be distinguished from the legal insanity Statements of Dr. Malik H. Mubbashar and others show that the appellant was suffering from Daranoia, Schizophrenia and Delusion.

20. Delusions involve a false belief rather than a false sense, impression and perception. They therefore constitute a disturbance of the higher activities of conscious mind, such as the weighing of evidence, formation of conclusions, passing of judgments. The most frequent forms of this system are delusions of grandeur and delusions of persecution. In these cases, as the terms imply, the patients believe themselves to be great personages, or the victims of sinister plots against their lives or fortunes.

21. Similarly, "A hallucination is a false sense perception. The patient hears a sound, or sees, feels or smells an object that has no objective existence."

22. The appellant in this case also heard voices and also was suffering from delusion of persecution. This circumstance is established from the statement of Dr. Malik H. Mubbashar, who stated that the appellant stated:

23. In a classical judgment reported as Gholam Yusuf v. The Crown (PLD 1953 Lahore 213), in this reported case as well, the appellant Yusuf killed his wife, and attempted. to kill his son with no reason, and this circumstance was considered a pointer strong enough to an unhealthy state of mind.

24. It was argued by the learned counsel for the State, that since the appellant had attempted to escape from the scene of occurrence by scaling over the wall, therefore, at the time of the commission of offence, the appellant was not suffering from mental disorder. I have considered this aspect very minutely, acid I am not prepared to believe, that in fact, the appellant had done so. On the other hand, the eye‑witnesses stated that they had peeped through the wall, that the appellant was, killing his wife and son. There is nothing on the record, nor the witnesses were examined qua the manner of such peep. It is not clear whether there were holes. It is also established on the record, that the door was bolted from inside. After anxious consideration of all these circumstances I am of the view, that in fact, the witnesses had been attracted after 'hearing the voices, and some of them must have scaled over the wall to enter the house. The area Wherein the occurrence took place is a congested lane and sufficient evidence could have 'been led by the prosecution to throw light upon the manner of attempting to escape by the appellant. I further disbelieve such attempt by the appellant, because all the eye‑witnesses satisfactorily stated that the appellant had threatened them with dire consequences with the same knife which he was holding in his hand. I am of the view, that in fact, the appellant was overpowered without any attempt on his part to escape.

25. To repeat once again the act of killing by appellant of his own wee and infant son aged 1‑1/2 years with no reasons by itself shows that the appellant in fact suffered from some delusion under which he committed such dastardly act. To conclude, by respectfully following the dictum as laid down in Abdullah v State (1972 P. Cr. L.J. 1041), I am of the view, that the statement of Dr. Malik H. Mubbashar in fact reflects upon the prosecution case, and in my view, the plea of insanity (though not raised) reflects upon the entire prosecution case. It will not be useful at this stage to remand this case to examine the plea. The appellant was provided the services of a Lawyer at the State expense during the trial, who did not know such mental disorder, nor had been instructed to raise such plea at that time, otherwise, he would have cross‑examined the witnesses. 26: Upshot of the above discussion is that the case of the appellant falls within the purview of section 84 P.P.C., therefore, he is entitled to its benefit. This appeal is therefore, allowed. Appellant shall be released forthwith if not required in any other case. SA./M‑1581/L Appeal allowed.