1985 P Cr (PLP)

5. As far the main occurrence, it has been stated that at the eventful time, Mst. Nasim Bibi, Mst. Mehran and Mst. Rajan deceased were sitting in the courtyard of the house. Zahoor Ahmad appellant came there armed with Tassa. He declared that he would teach the complainant a lesson for not arranging for his marriage and opened attack on her by giving Tassa blows on her person. The hue and cry attracted Mirza and Amir P.Ws who were present in the nearby house. Mst. Nasim Bibi and Rajan Bibi ran away, from the house to save their lives. Zahoor Ahmad appellant followed them. Mirza and Amir P.Ws. intervened to save the two ladies but the appellant did not pay any heed. He overtook Mst. Nasim Bibi and Rajan Bibi in the adjacent vacant plot. He gave Tassa blows on the back side of the head of Mst. Rajan while she was running to save herself. On receipt of the blows Mst. Rajan fell down and expired on the spot. Zahoor Ahmad appellant then came back to the house. Mst. Mehran his mother was standing in the courtyard of the house. The appellant gave 3 successive blows to her. She fell down. Mirza and Amir P.Ws tried to apprehend Zahoor Ahmad appellant but he made good his escape taking away Tassa with him.

6. On 17‑1‑1981, Dr. Muhammad Mazhar Khan, P.W.8 conducted post‑mortem examination on the dead body of Mst. Rajan and found following injuries on her person:‑ (1) An incised wound 4" x 1" x brain deep on the back of head just behind the left ear. The brain matter was lying out the wound margin. (2) An incised wound 1" x " x bone deep about two inches behind the injury No.1. (3) Another incised wound 1 " x " x mussal deep on the back over the left scapula." In his opinion, the death was due to shock and haemorrhage as a result of injury No.1 which was sufficient to cause death in the ordinary course of nature. Injury No.1 was fatal to life. The rest of the injuries were simple. All the injuries were caused by sharp‑edged weapon. The time between injury and the death was a few minutes and between death and post‑mortem was 3 to 7 hours. (ii) On the same day, the doctor examined Mst. Nasim Bibi complainant. He found; "one incised wound 2 " c. m. x half c. m. scalp deep on left parietal bone 10 c.m. above the left ear." The injury was simple and caused by sharp‑edged weapon. (iii) The doctor also examined Mst. Mehran on the same day. He found two incised wounds bone deep on her head. He found two contused wound on the forearm and on eye‑brow. The injury on the forearm was found grievous and other injuries were simple. Out of 4 injuries found on her person, 2 were caused by sharp‑edged weapon and the remaining with blunt weapon.

7. The appellant was arrested on 17‑4‑1981. He led to the recovery of blood‑stained Tassa Exh.P.3 from his house which was taken into possession vide memo. Exh.P.D. attested by Amir P.W. 4 and Mirza P.W.6. The recovery was effected by Pervez Shah, S.I. P.W.9.

8. To prove its case, prosecution examined 10 witnesses. Amir P.W.4, Mirza P.W.6 and Mst. Nasim Bibi P.W.7 have given the ocular account of the occurrence. They claim to have seen the appellant causing the death of Mst. Rajan by inflicting Tassa blows to her and causing injuries to Mst. Nasim Bibi P.W.7 and Mst. Mehran (not produced). Muhammad Amir P.W.4, Mirza P.W.6 and Pervez Shah, S.I., P.W.9 have supported the recovery of blood‑stained Tassa from the appellant. The Serologist Report Exh.P.O. indicates that Tassa was stained with human blood.

9. When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances. He stated that he was falsely involved in the case because of enmity. In reply to question, whether he wanted to say anything else? He stated:‑ "I am suffering from a disease of the type of Mirgi for the last 5/6 years. I get fits under the disease at the interval of 3 to 6 months. When I am under the influence of that disease my eyes become red, my arms become stretched and I do violent things which I do not know at that time as to what I was doing. All this is told to me by my parents. I have been under treatment of various Hakims and my father had been taking me to so many Peers and Mazars for spiritual treatment of this disease." In defence he produced 5 witnesses. Hakim Muhammad Hayat D.W. stated that the accused was suffering from the disease of Mirgi for 10/11 years and that when he was under the influence of the disease his eyes got red. He stated that he had been treating the appellant on various occasions. The witness also stated that the appellant used to recite the Holy Qur'an and offers prayers five times a day and was a pious man. Hakim Sher Muhammad D.W.2 stated that the appellant was suffering from Mirgi disease. The witness further stated that he used to visit the house of the appellant and had seen that the eyes of the appellant were red and he was not in senses, and that the fits under this disease used to come to the appellant some time after two months and sometime after 4 months. Syed Mazhar Hussain Shah D.W.3 stated that the appellant was a sick person and some times he was seen suffering from Mirgi and his eyes were flushed, some times he was mum and some times he was violent. The witness further stated that the appellant used to quarrel with his brother Noor Muhammad when he was under the influence of the disease. Abbas Ali D.W.4 stated that on the eventful day he was present in his house. When he came out of the house, he saw that one A.S.I. (Police) was present at his door to whom he told his name, parentage and caste as desired by the latter. The witness further stated that he had seen Zahoor Ahmad quarrelling with his brother and pelting stone on his brother. The witness was of the view that the appellant was suffering from Mirgi ailment and that he was under the fits on many occasions. Mst. Mehran D.W.5 is the mother of the appellant. She was allegedly injured by her son, the appellant on the day of occurrence. She was originally a prosecution witness. She was given up by the prosecution so she appeared as defence witness. She stated that the appellant was suffering from Mirgi disease for the last 5 years. He remained under the treatment of various Hakims. The witness stated that when the appellant was under the fits of the disease, his eyes would become red, his mouth gets full of froth. Sometimes he used to lie down unconscious and some time he was violent. He used to quarrel and give kick blows to his brother Noor Muhammad. She further stated that on the day of occurrence, the appellant was under the fits of the disease, the eyes were red and he was quite unconscious and that all of a sudden, the appellant got up and snatched Hukka from the pipe side and flunged the same on her face and when the Hukka fell down, the appellant picked up Tassa lying nearby and gave blows on her head and she became unconscious.

10. The learned trial Court has believed the prosecution case, the eye‑witness account and recovery of Tassa from the appellant and has disbelieved the evidence led by the appellant relatable to his insanity.

11. Learned counsel for the appellant contends that the prosecution has failed to prove motive; that the eye‑witnesses are not dependable; that the recovery of Tassa from the appellant is fake and that the plea raised by the appellant in his statement recorded under section 342, Cr.P.C. that he was suffering from Mirgi has been established through defence witness. In the alternative, he argued that the allegations accepted at face value, the culpable homicide does not amount to murder. On the other hand, the learned counsel for the State while supporting the judgment of the 'trial Court maintained that the crime has successfully been brought home to the appellant that the plea of insanity has not been established and that there is reasonable possibility of the defence version being true.

12. I have considered the arguments advanced by the learned counsel for the parties with care. Since it is a case of two versions, I propose to examine the prosecution case and its evidence first in order to come to an independent findings as to the truth or falsehood of the prosecution case. I find that it is a case of prompt F.I.R. The occurrence took place on 7‑4‑1981 at 10‑00 a.m. and the F.I.R. was lodged on the same day at 11‑00 a. m. There is nothing on record to show that the F.I.R. was not written at the time and place as it indicates. The name of the appellant, the names of the eye‑witnesses, the weapon used by the appellant and the manner in which the occurrence took place, are detailed therein. So, this valuable document can be used to corroborate the statement of Mst. Nasim Bibi made by her in the Court. As far the ocular testimony, I find that Mst. Nasim Bibi is the wife of the brother of the appellant. She being resident of the house, her presence at the time of occurrence was quite natural. By the fact of injuries on her person, her presence on the spot at the time of occurrence is very much established. Amir P.W.4 and Mirza P.W.6 have given probable cause of their presence at the place of occurrence. They have no serious enmity with the appellant. They have successfully faced the test of cross‑examination. I do not see any inherent infirmity in their evidence. The learned counsel has failed to point out any material contradiction /discrepancy and dishonest improvements in their statements. To my mind, they are confidence inspiring witnesses. They have also proved the recovery of blood‑stained Tassa from the appellant. The Serologist report Exh.P.O. shows that the Tassa was stained with human blood. Pervez Shah S.I. P.W.9 has also no motive to falsely involve the appellant in the case. In this view of the matter, I do not feel inclined to discard the prosecution case or reject the ocular testimony given by the three eye‑witnesses.

13. This brings me to the plea of insanity due to Mirgi disease. It has been argued before me that since the appellant was victim of Mirgi and was actually suffering from its fits at the time of occurrence, therefore, his case was covered by the exceptions mentioned in section 84, P.P.C. I have considered this aspect of the case very carefully and have not been able to persuade myself to agree with the learned counsel for the appellant. It is well‑settled that the law presumes every one to be of "sound mind" and responsible for the consequences of his acts and as such, burden lies on the person pleading insanity to show that not only, he was an insane person, but at the time of the alleged offence, he was suffering from such disease of the mind as not to know the nature of his act. In the case in hand, I find that there is no reliable direct evidence to show that the appellant was in fact suffering from any disease of the mind as not to know the nature of his act. Mst. Mehran D.W. has tried to show that the appellant was perhaps under fits of the disease at the time of occurrence. She was originally a prosecution witness. She was given up and it appears that she has made favourable statement to save his son from punishment. The instance of abnormality of the appellant quoted by the defence witnesses fail to make out any legal insanity within the meanings of section 84, P.P.C. For all these reasons I am of the view that the prosecution has successfully brought home the guilt to the appellant and there is no reasonable possibility of defence version being true.

13. The upshot of the discussion is that there being satisfactory basis to uphold the conviction and sentence of the appellant, the appeal is dismissed. M.Y.H. Appeal dismissed.