1968 P Cr (PLP)

Date of hearing: 12th February 1968. S. A. RAHMAN, J.-The appellant Mooso was convicted of murder by the learned Sessions Judge, Hyderabad and sentenced to death. On appeal and reference, the High Court of West Pakistan, Karachi Bench, confirmed his conviction and sentence. Special leave to appeal was granted on a Jail Petition, submitted on behalf of the convict, as it was observed that the appellant had been under observation of a psychiatrist, Dr. S. S. Zuha, from the 31st March 1965 to the 15th April 1965, and had been found be of unsound mind in that interval. After treatment from the 7th May 1965 to the 1st July 1965, he was declared sane and was then brought to trial. The question, therefore, arose whether at the time of the occurrence which took place on the 17th February 1965, the appellant was not mentally unbalanced. The prosecution case was that the appellant Mooso was employed by one, Nazar Khan, a contractor who used to engage labour to prepare charcoal from wood, near village Nindo in Taluka Badm. The informant in this case, Mirbaz Khan and Wali Muhammad and Nazar Muhammad (P. Ws.) were similarly engaged by another contractor, Muhammad Khan, for similar work. The deceased whose name was Shahzado, was one of the persons employed by Muhammad Khan about 2 or 2 months before his murder. Mirbaz Khan, Wali Muhammad and Nazar Muhammad used to live in a tent near the watercourse while Shahzado occupied a but some 5 or 10 paces away, from the tent. The place where Mooso used to work in those days was about 5 or 6 miles away from this camp. He was not known to the prosecution witnesses prior to the occurrence. On the 17th February 1965, Mirbaz Khan, Wali Muhammad Nazar Muhammad and Shahzado, deceased, were working at their camp, when appellant Mooso arrived there, at about Zohar prayer time. On enquiry by Mirbaz Khan the appellant gave out that he was a pathan and had come there to meet Shahzado. The appellant then went with Shahzado into the but and both came out a few minutes later. The deceased began drinking water when he was suddenly, stabbed by Mooso. Shahzado ran for some distance in order to avoid further blows but he fell down after going 10 or 15 paces. Mooso took to his heels but the three eye-witnesses went after him and as he slipped and fell, they secured him and disarmed him. The cries raised by the eye witnesses brought to the spot, Mohobat Mangsi, Unman Mohdo and his uncle, Muhammad siddiq, who had their residence about a furlong from the site of occurrence. They were told what had happened. The knife that had been seized from the appellant by Mirbaz Khan, was handed over to Mohobat Mangsi Mirbaz Khan then went to Nindo where be lodged the First Information Report (Ex h. 5/A) at 4 P.m. at a distance of 3 miles from the place of occurrence. Fateh Ali, Head Constable, came to the spot to investigate the matter. He found the dead body of Shahzado lying near the watercourse. The appellant was under detention with Wali Muhammad, Nazar Muhammad, Mohobat, Usman and Muhammad Siddiq. The Head Constable took possession of the blood-stained knife and after preparing the inquest report on the dead body, sent it for post-mortem exami nation. He formally arrested the appellant and than recorded the statements of the witnesses. The appellant was produced before the Sub-Judge and F. C. M., Badin who recorded his judicial confession on the 19th April 1965. The learned Magistrate took all the precau tions necessary to ensure that the appellant should make a voluntary statement. In this confession the appellant gave out that he was a resident of Malakand, District Mardan, that the deceased was his fellow-villager, that the deceased bad stabbed his brother and caused his death, some 9 years ago and that the appellant had followed him to this place in order to have his revenge. He got his chance on the 17th February 1965, when he killed him with a butcher's knife. The defence of Mooso in the Courts below was that he had made his confession to the Magistrate under police pressure and that he had been implicated in the case by the eye-witnesses at the instance of the police. He suggested that as the murder took place at the house of Mirbaz Khan, this witness had tried to ward off suspicion from himself by bolstering up a false charge against the appellant. He denied the whole prosecution story. He even alleged that he bad no brother of his own and denied that he had admitted before the eye-witnesses that he had killed the deceased to take revenge for the murder of his brother. He called one witness in his defence, in the person of Dr. S. S. Zuha, the gist of whose evidence has been given above. We have been taken through the evidence on the record by Mr. R. J. E. Kaikobad, on behalf of the appellent. The principal eye-witness, was Mirbaz Khan. He lent full support to the prosecution story and apparently, he had no axe of his own to grind in this case. It was he who had made enquiry from the appellant, when he had arrived at the camp as to what had brought him there. The appellant had talked to him in Pashto and told him that he had some business with Shahzado. No question was, put to him in cross-examination to suggest that at that time the appellant gave any indication of mental imbalance Muhammad Siddiq (P. W, 84) and Mohobat (P. W. 5) who came up to the spot on hearing the alarm, were similarly not questioned about the mental state of the appellant at the relevant time. The only criticism of their evidence was that they had failed to mention in their statements, recorded by a Magistrate under section 164 o f the Code of Criminal Procedure, that the accused, on enquiry, had made an extra judicial confession to them about the motive for the crime. These two witnesses however, were entirely disinterested in the case and it does not appear that they had any motive for charging the appellant falsely for the crime. They were not related to Mirbaz Khan either. The Investigating Officer, Fateh Ali Head Constable, was the first witness to be questioned about the mental state of the appellant, at the time of the murder. He deposed that he had talked to the appellant who understood all the questions and answered them intelligently. He appeared to be normal to him at the time. Even two days later, on the 19th February 1965, when the learned Magistrate recorded the judicial confession of the appellant, the answers made by the later to the Magistrate convinced him that he was making a free and voluntary statement. Apparently nothing unusual was detected about him at the time. It appears from the evidence of Dr. S. S. Zuha (D. W. 1), that the appellant developed symptoms of mental instability sometime during the investigation when he was sent for examination to him, by order of the S. D. M., on the 31st March 1965. This was long after the occurrence and even if by brooding over his own deed, the appellant became mentally unhinged, this does not mean e that at the time when the offence was committed by him, he was suffering from any insanity, such as could furnish a defence to the charge of murder. There is no other evidence to show that the appellant had ever suffered from mental instability at any time prior to the occurrence in this case. We are, therefore, satisfied that the appellant's conviction for murder was not open to any legal exception. The appeal is dismissed. Appeal dismissed.