1973 PLP 295 (SCMR)

HAMOODUR RAHMAN, C. J.‑The petitioner in this case was tried for the murder of his first cousin, Nurul Marian, on 1st January 1970, at 10'00 a. m. in the mosque of village Mughal Kot, convicted and sentenced to death. The petitioner was a Pesh Iman in village Sadrai and the deceased was a Pesh Imam in village Shal Mani. They lived in their respective villages but it is alleged that about a. year before the present occurrence the deceased and the petitioner had quarreled and grappled with each other over the preparation of tea in the' presence of Shaqul Manan, another brother of the deceased. The latter had separated the two but the petitioner, it is said, nursed a grudge against the deceased on this account. On the date of the incident there was a Khatmul Quran being held in the mosque of Mughal Kot in which 5 Mullas were partici pating, including both the deceased and the petitioner, 20 to 30 other persons had also gathered to listen to the recitation of the Holy Quran. The petitioner attended this function carrying a pistol in a holster round his waist. Soon after the recitation commenced he left the gathering but returned 2/3 minutes later and fired three successive shots at the deceased who was then busy in reciting the Holy Quran. The petitioner then started running away. He was chased by some of the persons present and was captured near the hujra of one Sahib Khan. He was disarmed and locked inside the hujra. The F. I. R. was recorded by the S. H. O. at the village because, he had come there on learning about the occurrence while on gashr. He found the dead body lying on a cot in the mosque and the petitioner locked up in the hujra of Sahib Khan. The pistol containing 3 empties and a bandolier containing 7 live rounds were taken into possession by him and sent to the arms expert. The petitioner also made a confessional statement which was recorded by a Magistrate on the very next day i. e. the 2nd of January 1970. The petitioner was then committed to trial at the Court of Session but there on the 12th of July 1971, during the course of the trial he suddenly fell down with struggling movements of his legs and arms and started snoring and making incoherent noises. The doctor, who had carried out the post‑mortem examination of the deceased, was present in Court and on his advice the petitioner was sent for examination to the Mental Hospital on the 28th of July 1971. He was kept under observation till the 11th of August 1971, and was then reported to be of unsound mind. Thereafter, he was placed before a Special Medical Board consist ing of three doctors. The Board, convened on the 25th of August 1971, opined that the petitioner was suffering from psychiatric illness, i.e. he was of unsound mind and unable to understand the proceedings of the Court. The Board was also of opinion that the petitioner had shown strong homicidal tendencies. The case against the petitioner was, accordingly, adjourned sine die, but was resumed on 6th January 1972 presumably when the petitioner was better and in a position to understand the proceed ings of the Court. At the trial the petitioner pleaded not guilty and stated that he did not know how the deceased had been killed, because he did not remember anything relating to that incident or events subsequent thereto, Up also could not remember as to whether he had made any confessional statement yet he maintained that be had been falsely implicated. His actual words were as follows;

"I am innocent. I have been suffering from epilepsy for many years and get fits from time to time. After the fits I never remember what I have done. This murder attributed to me may have been committed during those fits but I do not remember anything. I have been treated in the mental hospital for about six months and the medical report about me is that I am suffering from the mental disease." Notwithstanding this, the trial Court found him guilty and sentenced him to death. On appeal and reference, the High Court of Peshawar also dismissed his appeal and confirmed his sentence, holding that "there is no iota of evidence on the record from which it can be inferred or concluded that at the time of the commission of the murder of Nurul Marian, the appellant was of unsound mind and that by reason of unsoundness of mind he was incapable of knowing the nature of the act of murder at the time of its commission." The petitioner now seeks special leave to appeal. Learned counsel who appeared for him in the High Court, also appears to support this petition. As in the High Court, the learned counsel does not challenge the evidence but he contends that on the evidence placed on the record the petitioner should have been held to be of unsound mind at the time of the commission of the offence and, as such, his conviction was not justified. There is, of course, no evidence that the petitioner displayed any signs of insanity at the time of the occurrence or at the time of his arrest or at the time he made his confessional statement or at any earlier time. Indeed, even during the commitment pro ceedings he did not show any signs of any abnormality, which was, for the first time exhibited on the 12th of July 1971, when the petitioner fell down in some sort of a fit in the trial Court. One of the witnesses, who was not only a cousin of the petitioner but also his Ustad, testified to the effect that the peti tioner never displayed any signs of abnormality prior to the occurrence and in fact was a qualified Alim. Another witness, who bad known him for 10/12 years, also testified to the effect that to his knowledge the petitioner was never mentally sick. Learned counsel, however, contends that since he was subject to epileptic fits, it was a sign of abnormality which showed that there was a reasonable possibility of the defence put forward by him being true. Otherwise too it was hardly conceivable that a man in his senses would in a mehfil of Khatmul Quran suddenly shoot another participant who happened to be his own cousin and then run away. In support of this contention reliance is sought to be placed on a decision of the Lahore High Court in the case of Gholam husaf v. The Crown (P L D 1953 Lah. 213), and the observations of this Court in the case of Muhammad Shafi v. The State (P L D 1962 S C 472). There is nothing in either of these decisions to support the arguments advanced by the learned counsel. Indeed these decisions go against him. It cannot be accepted that if at any stage subsequent to the incident the culprit suffers from a fit of insanity then it must be presumed that he was insane or suffered from fits of insanity even at the time the crime was committed by him. In the present case, the unchallenged evidence is that neither at any time prior to the occurrence nor up to the time of the occurrence the petitioner had been known to exhibit any kind of abnormality at all. Indeed, right up to the trial Court he behaved in a perfectly normal manner and understood the proceedings of the Court. It was only in the Sessions Court that he got his fit. In the circumstances, we are unable to agree with the learned counsel that in this case the petitioner should have been exculpated on the ground that he was so insane or so incapable at the time of committing the crime that he was unable to understand as to what he was doing. We think that he has bean rightly convicted and sentenced and no interference is called for. This petition is, accordingly, dismissed. Petition dismissed.