1994SCMR1517 (PLP)

SAEEDUZZAMAN SIDDIQUI, J.‑‑‑The appellant was tried by the Additional Sessions Judge, Rahimyar Khan, under section 302, P.P:C., for committing murder of his wife Mst. Jummal and was sentenced to life imprisonment and fine of Rs.10,000 and in default of payment of fine to undergo further R.I. for 3 years. Half of the fine on realization was ordered to be paid to the heirs of the deceased. Leave was granted in the case to consider the following points:‑‑ "The conviction of the petitioner for murder of his wife is founded mainly on the evidence of P.W.1 Mehr Din, the father of the deceased and P.W. 2 Muhammad Siddiq a relative of P.W.

1. One of the defences raised by the petitioner was that he was insane and he used to be chained by his brothers. Though the whole plea was suggested to the above witnesses, but no evidence was led. However, the complainant in F.I.R. admitted the fact that when the other members of the family went to attend marriage, the petitioner was chained. The complainant has disowned the F.I.R., both the Courts accepted above disowning. In my view case requires examination, as the question, whether in view of the above admission by the complainant in F.I.R. medical/expert's view should have been obtained about the mental conditions of the petitioner. Leave may be granted." We have heard Mr. M. Bilal, Senior Advocate Supreme Court for the appellant and Mr. Raja Abdul Ghafoor, Advocate Supreme Court for the State. The F.I.R. in the case was lodged by the father of the deceased, Mehr Din (P.W. 1) which contained the following statement:‑‑ The above statement in the F.I.R. does show that the appellant was not a normal person and was suffering from some mental abnormality. No doubt the complainant Mehr Din (P.W. 1) in his cross‑examination denied before the trial Court that he made the statement reproduced above, in the F.I.R. and took the plea that this fact was recorded in the F.I.R. at the instance of Sahib Din Lamberdar who had accompanied him to P.S. He further stated in his cross‑examination that the contents of F.I.R. were narrated by Sahib Khan Lamberdar to police at the spot and not in the P.S. He even went to the extent of saying that his statement in examination‑in‑chief was false. To further questioning he made the following statement in the F.I.R.:‑‑ "It is correct that on the day of occurrence, marriage of one Muhammad Sadiq son of Amanullah was taking place at a distance of one square from the place of occurrence. I do not know if the accused had been tied with chains before his family members proceeded to attend the said marriage. (Confronted with Exh. PA., it is so recorded)." The Investigating Officer Manzoor Ahmed A.S.I. (P.W. 10) in his examination‑in‑chief stated that F.I.R. was formulated on the statement of Mehr Din complainant who had appeared before him. In cross‑examination P.W. 10 confirmed that the statement reproduced above, was recorded in the F.I.R. at the instance of complainant. He further stated that he got the appellant medically examined to ascertain his mental capacity and the Medical Officer had stated that the accused pretended to be insane. He also admitted that the accused was not examined in the Mental Hospital and the doctor who examined him is still alive. He denied the suggestion that F.I.R. was not dictated by Mehr Din and that it was framed on the dictation of Sahib Din, Lamberdar. He further stated that the accused was got medically examined on the objection of Jail Authorities. He also admitted that chains with which the appellant was tied on the date of occurrence were taken into possession by him. The above evidence in the case does show that the plea of insanity was substantially raised in the case and even according to prosecution s own story the appellant was not a mentally normal person. It is significant that I.O. in his statement before the trial Court claimed that the accused/appellant was got examined as to his mental state on the objection of jail authorities but no effort was made to produce the doctor, in the evidence who examined the appellant, although he was available according to the statement of 1.0. Chapter XXXIV of the Criminal Procedure Code which contains sections 464 to 475 deals with the trial of a lunatic person. These provisions make it obligatory on the Court holding an inquiry or a trial, if it has reasons to believe that the accused in the case is of unsound mind and in consequence is incapable of making his defence, to first hold an inquiry into the facts of such unsoundness of mind of the accused and for that purpose to get the accused examined by the Civil Surgeon of the district or by such other Medical Officer as the Provincial Government may direct and then record the result of such examination in writing. Pending inquiry into the unsoundness of mind of the accused the trial before the Court is to remain suspended. If as a result of the inquiry into the unsoundness of mind of the accused, it is fund that the accused is of unsound mind and consequently incapable of making his defence the trial or inquiry has to be adjourned until such time the accused regains from his mental illness. While adjourning the trial or inquiry the Court has discretion either to enlarge him on bail or commit him in the safe custody as in the opinion of the Court may be necessary and report the matter to Provincial Government. The trial or inquiry so postponed could be resumed at any time by the Court if it is found that the accused is now in a position to make his defence in the case. However, if upon resumption of inquiry the accused once again is found to be incapable of making his defence, the inquiry and trial is again to be adjourned for such period the accused again recovers from his illness. Apart from the obligation of the Court to hold an inquiry into the fact of unsoundness of the mind of the accused in the above‑stated circumstances, the combined effect of sections 469 and 470, Cr.P.C. is that the Court shall also hold an inquiry, if it appears from the evidence produced before it, or if it has reasons to believe that the accused was incapable of understanding the nature of offence at the time he committed it for reasons of unsoundness of mind, into the fact of unsoundness of the mind of the accused at the time he committed the offence. If the Court reaches the conclusion after holding such inquiry, that the accused was incapable of understanding the nature of act constituting the offence for reasons of unsoundness of mind, the accused will be acquitted, but the Court shall give a specific finding whether he committed the act or not. The above finding by the Court is necessary as further action against the accused upon his ‑acquittal in the case is to be taken by the Court under sections 471, 474 and 475, Cr.P.C. in the light of such findings. The evidence recorded in the case prima facie supports the contention that the appellant /accused at the time of commission of offence was of unsound mind and, therefore, this fact should have been inquired into by the Court as provided under Chapter 34 of the Code of Criminal Procedure. The trial Court dealt with the question of unsoundness of mind of the appellant but dismissed the plea of insanity as follows: "On the basis of my discussion above, I am of the opinion that the prosecution has succeeded in proving the charge under section 302, P.P.C. against the accused. It was also argued by the learned defence counsel that the accused was lunatic at the time of occurrence and in this respect he has referred to the statement of I.O. Manzoor Ahmed P.W. 10 who admitted in his cross‑examination that according to the complainant the accused was insane, who was used to be tied with a chain by his relatives. This fact is however not correct and the statement of the I.O. does not commensurate with his other statement as he got medically examined the accused to ascertain his mental capacity and the Medical Officer opined that the accused was pretending to be insane. Similar fact has been mentioned in the F.I.R. that the accused used to beat his wife posing himself to be an insane person. The accused has been watched on each and every date and ha: been found to be a person of ordinary prudence and not insane." Similarly, the learned Judge in Chambers while dealing with the question of insanity of the accused observed as follows:‑‑ "

9. As for the argument that the appellant was insane/lunatic and that he acted under a fit of insanity is neither here nor there. It is true that some of the witnesses were confronted with portion of their statements (recorded by police under section 161, Cr.P.C.) to mean that the appellants' brothers used to chain him occasionally, prior to the occurrence, as he used to run away from his house. But the appellant has not specifically pleaded to be suffering from lunacy/insanity at the time of occurrence or at the time of trial. No evidence whatsoever was led on that point either. Some suggestions were, of course, put to the witnesses in this regard but they were repelled by them. It is in evidence that he has got living brothers and sisters yet none of them has entered the witness‑box to say so. Failure on the part of the appellant to produce any member of his family or any medical expert to depose about his insanity rather proves that any reference thereto occurring in F.I.R. or in the statements of P.Ws. recorded under section 161, Cr.P.C. was managed. This also proves assertion by Mehr Din, the first informant, that the Lambardar's version was recorded by the police in the F.I.R. An F.I.R. is not a substantive piece of evidence and is used only for corroborating its maker. Here the maker of the F.I.R. has disowned it and his saying so appears to be correct. So it is just and proper to rely upon Mehr Din's statement made by him at the trial which I have found to be confidence inspiring." The above‑quoted paragraphs from the judgment of the trial Court as well as that of the learned Judge in Chambers at the most show that the Courts below were only conscious of the fact that the accused/appellant appeared to be of sound mind at the trial of the case. This approach on the part of the Courts below may not be correct as the prosecution evidence referred to above prima facie shows that at the time of commission of the offence the appellant was not of sound mind. In these circumstances, an inquiry into the fact of unsoundness of the mind of appellant at the time of commission of the offence was necessary to determine whether the appellant could be convicted of the offence he was accused of. We, accordingly, allow the appeal, set aside the judgments of two Courts below and remand the case to the trial Court with direction that the question regarding unsoundness of mind of the appellant at the time of commission of offence should be first determined in accordance with law and thereafter the charge under section 302, P.P.C. be determined in the light of the evidence so recorded, in accordance with the law. M.BA./A‑1164/S Case remanded.