P L D 1976 Lahore 805 (PLP)

Muhammad Nawaz, aged 39 years, appellant alongwith acquitted accused Allah Bakhsh was tried for the murder of Hafiz Muhammad Nawaz. By his judgment, dated 4‑7‑1971, Ch. Faiz Ahmad Aslam, Additional Sessions Judge, Lyallpur acquitted Allah Bakhsh and convicting the appel lant under section 302, P. P. C. awarded him sentence of transportation for life. Muhammad Nawaz appellant has challenged his conviction and sentence by this appeal.

2. According to the prosecution on 27‑1‑1968, after the zohar prayer Hafiz Muhammad Nawaz deceased was discussing religious matters in the courtyard of Masjid Ghausia in Kakki Nau, District Jhang with the eye witnesses Maulvi Khuda Bakhsh, Muhammad Saleem and Karim Bakhsh when Allah Bakhsh co‑accused, a servant of the appellant, came at the door of the Mosque and went away. A few minutes after he left the appellant appeared armed with a gun accompanied by his servant Allah Bakhsh co‑accused. The appellant gave a lalkara that he would teach them a lesson for eulogising the companions of the Holy Prophet when every body sitting in the Mosque rushed towards the room of the Mosque. The appellant fired a shot from his gun which hit the deceased at the door of the room. The deceased fell on the floor of the Mosque and died while tae eye‑witnesses shut themselves inside the Mosque. The appellant left with his gun. The motive alleged was that the deceased p‑.rformed: the duties of Imam Masjid in the absence of Maulve Khuda Bakhsh: Imam of the Mosque and used to eulogise the companions of the Holy Prophet in his sermons after the morning prayer which offended the appellant who was a shia by faith. Maulvi Khuda Bakhsh P. W. went, to the Police Station, Shorkot, situated at a distance of 5 miles, and lodged, the F. I. R. at 5 p.m. the same day. During investigation the Police recovered blood‑stained earth and blood‑stained piece of mat from the place of occurrence which according to the serologist's report were found stained with human blood. The body of the deceased was sent to the mortuary and post‑mortem report was obtained. Muhammad Rafiq, brother of the appellant, produced gun (Exh. P. 14) on 29‑I‑1968, which was taken into possession vide memo. (Exh. P. F.). On completion of the investigation police challaned the appellant and Allah Bakhsh acquitted accused.

3. Dr. Abdul Qayyum P. W. deposed that he conducted post‑mortem‑, examination on the dead body of the deceased on 28‑6‑1968 at I1 a.m. and' found the following three injuries:‑ (1) A circular gun shot wound 1/2' x 1/2" going in on the back of the chest right side lower part near the mid line (entrance). (2) . Contusion mark 1 " x 1 " on the upper part right side near the mid line. Pellet was lying underneath. (3) Gun shot wound 1/2" x 1/2'' x 11" on the back of the right fore‑arm, upper with fracture of the ulna bone. Injuries Nos. 1 and 3 were caused by fire‑arm while Injury No. 2 was a component of Injury No.

1. Tenth rib on right side was fractured, the pleura was injured on the right side, right lung and the liver were lacerated= through and through. He removed two pellets in three pieces from the dead body. In his opinion the cause of death was shock and haemorrhage due to fracture of the rib, injury to the right lung and liver and the death was, immediate.

4. Dr. Ausaf Ahmad Khan, Almoner, Nishtar Hospital, Multan (P. W. 2) on the basis of relevant record brought by him deposed that'. appellant remained an indoor patient in the Nishtar Hospital twice, from 3‑11‑1965 to 6‑11‑1965, and again from 9‑12‑1965 to 4‑1‑1966.. When cross‑examined he deposed that that according to his history appellant'. had been a patient of Schizo Phrenia and had remained under the treat ment of Dr. Abdul Rauf, Dr. Hayat Zafar and Dr. Muhammad Aslam. Dr. Abdul Rauf (P. W. 3) deposed that he was posted as a Professor of Medicines in the Nishtar Hospital when appellant was admitted on 3‑11‑1965 end was discharged on 6‑11‑1965. Appellant was an alcohol addict and s used to get Paroxysms (bout) during which he was hostile and violent. Mst. Saleem Nighat (P. W. 4) deposed that she worked as Headmistress of the Girls School on 27‑1‑1968, in the absence of Khurshid Begum Head mistress; she was asked by a few residents on that day to close the school as appellant had become insane but she did not close the school. When, cross‑examined she stated that after the roll call guardians and servants of a few persons approached her to close the school because appellant had" escaped after breaking the chains and was holding a gun and that she allowed the girl students to go home at 1 p.m. Miss Shahzad Begum (P. W. 5), a teacher of the same school fully supported the prosecution case. She deposed that on 27‑1‑1968, the school remained open and the presence of all the girl students of Class I and II was marked by her for both times, i.e. forenoon and afternoon at 12 noon. When cross‑examined .she admitted that Miss Saleem Nighat P. W. was Headmistress of the School on 27‑1‑1968 but stated that no guardian or servant of any person had approached her to close the school or to leave the Class on the :pretext that appellant had become insane. Khawaja Ghulam Hussain Butt, D. S P. (P. W. 27) deposed that he partly investigated the case .and took into possession Class I to Class V roll call registers of the Girls Primary School. Kakki Nau vide memo. Exh. P. H. on 19‑3‑1968. He arrested Sagbir Hussain, Headmaster, Boys Middle School, Kakki Nau for preparation of false evidence as he had shown in the roll call register :that his school was closed on 27‑1‑1968 due to disturbance created by the .appellant although all boys were marked present in that register during the forenoon and afternoon roll calls of the day. He further deposed that an application to the S. P., Jhang was made on 30‑1‑1968 to the effect ‑that appellant was lunatic. He also took into possession vide memo. .(Exh. P. G/G) notice dated nil (Exh. P. G) issued by the District Inspeetress of Schools and explanation dated nil (Exh. P. G/B) of the Headmistress .Girls Primary School, Kakki Nau that the school was closed after recess on 27‑1‑1968, apprehending danger from appellant after learning that .appellant had broken his chains and was in possession of a gun. The recoveries of roll call registers of the school for boys vide memos. .(Exhs. P. C & P. J.) were proved by Kaley Khan (P. W. 14), Hakeem‑ud‑Din (P. W. 15) and Fazal Muhammad (P. W. 16) besides the Investigating Officer concerned. Ahmad Nawaz S. H. O. (P. W. 20). The recovery of roll call register of the Girls School vide memo. (Exh. P. H.) as also the letter and .explanation (Exh. P. G/B) vide memo. (Exh. P. G/C) were proved by Manzoor Hussain Clerk (P. W. 6), Safdar Hussain Clerk (P. W. 7) ,,and the Investigating Officers, Ahmed Nawaz (P. W. 20) and Kh. Ghulam Hussain Butt (P. W. 27).

5. The prosecution examined 29 witnesses to prove its case. Mauivi Khuda Bakhsh (P. W. 22), Mohammad Saleem (P. W. 23) and Karim Bakhsh (P. W. 24) were examined ‑as eye‑witnesses while the recoveries from spot and from appellant were proved by Abdul Sattar son of Noor Muhammad (P. W. 17), Abdul Sattar son of Munshi Khan (P, W, 18) and the Investigating Officer Muhammad Sadiq A. S. 1. (P. W. 25). The motive was proved by Ghulam Rasul (P. W. 21), Maulvi Khuda Bakhah (P. W. 22) and Muhammad Arahad Khan (P. W. 26). They ail supported the prosecution case.

6. The appellant pleaded not guilty to the charge. When examined ,under section 342, Cr. P. C. he stated that he had been falsely involved due to enmity and at the instance of Haji Muhammad Inayat Kathia who was a big landlord of village Kakki Nau and was his political rival, that the deceased was a stranger and appellant had no enmity with .deceased. He admitted that be was a B. D. Member of Union Council of Kakki Nua in January, 1968 and belonged to the shin sect. He further stated that on the day of occurrence he was chained by his father because of lunacy, that he was suffering from lunacy quite earlier and had been under treatment at Nishtar Hospital, Multan and Mayo Hospital, Lahore and that Dr. Abdul Rauf, Dr. Alamgir, Dr. Zafar Hayat and many other Specialists had treated him. He examined 11 witnesses in his defence besides produced documents to prove his disease.

7. Dr. Alamgir (D. W. 1) deposed that appellant remained admitted in the Nishtar Medical Hospital, Multan from 26‑11‑1964 to 21‑12‑1964. The appellant was then suffering from abnormal agitative and unruly behaviour, was addicted to alcohol and was also taking opium in sm;ll quantities and the diagnosis n the admission slip of the appellant was psychoneurosis. Dr. Muhammad Hayat Zafar (D. W. 5) deposed that the appellant was an indoor patient in the same Hospital from 9‑12 1965 to 4‑1‑1966 when he gave his diagnosis that appellant suffered from Schizophrenia. Such a patient suffers from disturbance of thinking with mental disturbances, hallucinations and delusions. Both of th.‑m were Professors of Medicines. Dr. Muhammad Ahsan (D. W. 41, M. S. District Jail, Jhang deposed that the appellant remained under his observation in the District Jail from 31‑1‑1968 to 12‑2‑1968 when he reported that the appellant be sent for the opinion of psychiatrist. He made this statement on the basis of entries in the Jail record before him and could not say whether the appellant was removed from District Jail, Jhang to District Jail, Lyallpur. Dr. Muhammad Hayat Malik (D. W. 7) deposed that while he was posted as MeJical Superintendent, District Headquarters, Lyallpur he examined the appellant on 10‑12‑1968 under order of the High Court and advised that the appellant be referred to Mental Hospital for the opinion of the Psychiatrist because the appellant was feeling depressed and appeared to be un‑concerned about his surroundings with previous history of Schizophrenia. Dr. Muhammad Rashid Choudhary visiting Neuro‑ps;chistrist, Mental Hospital, Lahore (D. W. 2) deposed that the appellant was an indoor patient in Mental Hospital from 25‑6‑1970 to 18‑12‑1970 under the order of Mr. Muhammad Akram, Magistrate with Section 30 Powers, Lyallpur and was under his treatment. He declared him fit for trial on 18‑12‑1970. In the beginning nothing abnormal was detected but after a month the appellant felt depressed and the witness had to give him electric shocks after which treatment appellant settled down and was found relieved of depression. He recorded the history of appellant to declare him to stand his trial in Court on 19‑12‑1970. In cross‑examination the witness confirmed that during the first month of admission appellant was found normal, was eating and sleeping normally. Hakim Khurshid Ahmad (D. W. 6) deposed that he was practising as a Hakim and had specialised in lunacy. On 24th or 25th of January, 1968 appellant was brought to him by his father and was found suffering from fit of lunacy due to which the witness advised father of the appellant to chain the patient. Mian Rehmat Ullah (D. W. 9), Muhammad Ramzan (D. W. 10) and Phelwan (D. W. 11) deposed that on the day of occurrence the appellant was under lunacy fits and was chained at his dera guarded by Muhammad Ramzan D. W., Mian Rehmat Ullah and Phelwan D. Ws. also deposed that the appellant never objected or restrained Maulvi Khuda Bakhsh P. W. from praising the companions of the Holy Prophet.

8. The learned trial Judge accepted the prosecution version that Hafiz Muhammad Nawaz deceased was murdered by the appellant. He rejected the defence plea that the appellant was under lunacy attack on the day of occurrence and was chained at his dera. The learned counsel appearing for the appellant has challenged his conviction on the plea of insanity alone.

9. I have read the entire evidence in the case and have considered it in the light of the contentions raised by the learned counsel for the parties. The eye‑witness Maulvi Khuda Bakhsh, his sisters's son Muhammad Saleem and his pupil Karim Bakhsh, have consistently deposed that when they were sitting with the deceased in the courtyard of the Mosque after the zohar prayer, Allah Bakhsh acquitted accused came and left after observing them and after a short time appellant armed with a gun came to the Mosque and gave a lalkara that he would kill them on account of their act of praising the companions of the Holy Prophet upon which all of them including the deceased got up and rushed towards the room of the Mosque. The eye‑witnesses succeeded in taking protection but the deceased failed in that attempt and before he could enter the room of the Mosque the appellant fired from his gun with which the deceased was hit and fell dead. None of the eye‑witnesses has any enmity or ill‑will against the appellant. They are not related with the deceased and are not interested witnesses so as to depose in order to falselv implicate an innocent person. They are natural witnesses and their presence at the place and time of occurrence cannot be doubted. The recovery of blood‑stained earth from the spot proves the place where the offence was committed and corroborates the ocular testimony on that point. The medinal evidence further corroborates the ocular evidence that the deceased died of fire‑arm injuries at the time alleged by the prosecution. The eye‑witnesses attributed the fatal injury to the appellant alone and substitution is a rare phenomena. The learned counsel for the appellant has not seriously contested the incident as alleged by the prosecution. I am convinced that the eye‑witnesses saw the occurrence which occurred in the manner alleged by the prosecution. The appellant had a motive to kill the deceased.

10. The question left to be determined is whether the defence plea of insanity can be accepted so as to absolve the appellant of the crime of murder. According to the provisions of section 84, P. P. C. nothing is an ofence if at the time of committing it, by reason of unsoundness of mind, accused is incapable of knowing the nature of the act he is committing or that he is doing what is either wrong or contrary to law. Legal insanity as contemplated in section 84, P. P. C. is different from medical insanity. If the cognitive faculty is not impaired arid the accused knows that what he is doing is either wrong or contrary to law, he is not legally i~issaue Merely being subject to uncontrolable impluses or insane delusiora or even partial derangement of mind will not do, nor mere A eccentricity or singularity of manner. If there is evidence of premeditation or design or evidence that the accused after the act in question tried to resist arrest or ran away, the plea of insanity will be negatived. In the case of Ata Muhammad v. State (P L D 1960 1960Lah. 111) it was observedt‑ "On the legal concept of insanity no amount of queerness in habit, morbidity of temper, peculiarities of character or eccentricities of behaviour, or even aberrations of mind resulting in abnormality will constitute insanity for the purpose of section

84. P. P. C. although they may be relevant factor for determining whether or nor the accused was insane." In the same case it was further observed:‑ "In point of time and as a matter of law the question of the insanity of an accused person at the time of the occurrence and at the time of the inquiry or trial are independent matters to be adjudged separately, :although his state of mind at different stages may be relevant to each other in formulating conclusions. A person may be mad both at the time when he commits an offence and subsequently when he faces an inquiry or trial for the? same, but the one does not necessarily follow the other, because a person may be insane when he committed the offence yet he may be found to be a normal person when he stands his trial; unsoundness of mind having disappeared or cured in the meanwhile; and, conversely, a person, who is found to be insane at the time of the inquiry and trial may have been perfectly sane at the time of the commission of the offence. The state of mind at each of the above stages is a question of fact" In Aurangzeb v. The State (1971 P Cr. L J 1285) it was held that:‑ "benefit of insanity under section 84, P. P. C. can be availed of only if legal insanity is established and mere queer behaviour does not establish insanity." According to section 105 of the Evidence Act the burden of proof lies on the accused that his case falls within the exception as contained in section 84, P. P. C. However, it is true that the discharge of tact burden is not inconsistent with the rule of "reasonable doubt", which pervades our criminal jurisprudence and according to which a duubt occurring in the B matter will re‑act on the prosecution case as a whole resulting in a benofi of doubt to the accused. The learned counsel for the appellant ha contended that if the accused can prove that his defence plea is reasonably true he has earned his liberty. He supported his contentions by citing case‑law and I agree with him in principle.

11. The evidence won record proves that the appellant remained an indoor patient suffering from Schizophrenia in the Nishtar Hospital, Multan from 3‑I1‑1965 to 6‑11‑1965 and again from 9‑12‑1965 to 4‑1‑1966. During that period the appellant was found to be an alcohol addict and used to get proxyisms (bout) during which he was hostile and violent. He was also an indoor patient in the same hospital suffering from Schizophrenia from 26‑11‑1964 to 21‑12‑1964. According to Doctor Muhammad Hayat Malik D. W. who examined him under order of the High Court, on 10‑12‑1968, the appellant was depressed and was referred by him to Mental Hospital. Dr. Muhammad Rashid Choudhary D. W. who treated the appellant in the Mental Hospital from 25‑6‑1970 to 22‑12‑1970, declared him fit for trial in Court on 18‑121970, and found that in the beginning nothing abnormal was detected but after about a month appellant felt depressed and the witness gave him electric shocks. I believe the evidence on the point that the appellant suffered from Schizophrenia during certain periods in the years 1964, 1965 and 1970. In the case of Jalal Din v. State (1968 P Cr. L J 187), the learned Judges of the Supreme Court refused leave and observed:‑‑ "No doubt, the evidence of the doctor shows that the accused was a cbronic patient of schizophrenia and that he was subject to occasional fits of insanity. Under section 84, P. P. C. the crucial point of time at which unsoundness of mind shuuld be established is the time when the act constituting the offence is committed and the burden of proving that the accused is entitled to the benefit of this exemption, is upon him. The accused has, however, failed to prove that at the time when he committed the offence he was incabable of knowing that what he was doing was either wrong or contrary to law. On the other hand from the facts, evidence and circumstances of the case it appears that the attack was directed against those who were considered as his ene mies. The fact that he selected his victim from those against whom he bore ill‑will establishes that it was a crime not committed in a sudden fit of insanity but one that exhibited premeditation. The Courts below have, therefore, rightly rejected the plea of insanity."

12. According to Mian Rehmat Ullah, Muhammad Ramzan and Phelwan D. Ws, on the day of occurrence, appellant was insane and was being kept in chains at the dera of his father. Hakim Khurshid Ahmad Shah D. W. claimed to be a Hakim and specialized in the disease of lunacy deposed that the appellant was insane since 24‑1.‑1968. They also deposed that the appellant was released from chains only on 28‑1‑IS68, when he was arrested by the police. The deceased died in the courtyard of the mosque on 27‑1‑1968, due to a gunshat fired by the appellant sad it is not in evidence that appellant was rechained after killing the deceased. I have already believed the prosecution story of the occurrence which is not even disputed. Therefore, I disbelieve the above defence witnesses. Mst. Salcem Nighat (P. W. 4), Headmistress, Girls Primary School, deposed that she closed her school and some of the children were taken away by the guardians or their servants because it was known in the village that the appellant had released himself from the chains and was holding a gun. She has been contradicted by Mst. Shahzad Begum (P. W. 5), who is a teacher in the same school. The Roll Call Registers which showed that attendance of students in classes was marked both in the forenoon and afternoon prove that the school did not close for half‑day on the day of occurrence. Mst. Saleem Nigbat (P. W. 4) only made an obliging concession to favour the appellant. D. W. Dr. Muhammad Ahsan, Medical Officer, District Jail, Jhang observed the appellant in Jail from 31‑1‑1968 to 12‑2‑1968 and only reported on 12‑2‑1968, that appellant be sent to the Mental Hospital for getting the opinion of the psychistrist. However, he did not know if the appellant was taken out of Jail, also did not know at whose instance the appellant was admitted as patient in the Jail Hospital or on his own request He deposed only on the basis of the Medical Officer's Report Book which had been tampered with. The evidence in support of defence plea has not convinced me and I find that the same does not create reasonable doubt to justify the conclusion that the case of the appellant falls under exception provided in section 84, P. P. C. The appellant admitted that he was a B. D. Member in January 1968. There is no evidence that be ever committed any offence prior to the murder of Hafiz Muhammad Ntwaz. It bas not been explained as to how he came into possession of a gun although according to the defence he had been chained at the dera since 25‑1‑1968. He came straight to the mosque with a gun and went away after committing the murder and was arrested on the neat day i e. 28‑1‑1968. On the evidence on record and in the circumstances of the case I am satisfied that the appellant was not insane at the time of committing the crime.

13. For the above discussion, I maintain the conviction and sentence of the appellant and dismiss his appeal. S. Q. Appeal d0missed.