1986 PLP 1060 (MLD)

(8) Incised wound on the anterol lateral aspect of chest in Anterial Axillary line, 11" x j;" skin deep (Pm L/side). (9) Incised wound on left lateral aspect of upper chest in mid‑axillary line 1" x .1" x S.M. deep. (10) Incised wound in the opegestrium .1" on the right of the mid line 11" x 1" cavity deep. (11) Incised wound on the dorsum of left hand and forearm 3 " x 1 " x structure deep. (12) Computation of left little finger at middle phalyix. (13) Incised wound on, right forearm 5" x 2" x muscle deep on dorsal aspect. (14) Incised wound on right lower leg anterolatrin aspect 1 " x muscle deep. (15) Incised wound on left thigh in intero‑ medial aspect of mid thigh 4" x 1" x bone deep. (16) Incised wound just below injury No. 15, 1" x " x skin deep. (17) Incised wound on left knee 2" x I" x muscle deep: (18) Incised wound on upper and medial part of left leg 4" x " x muscle deep. (19) Incised wound just below and paralled to injury No. 18, 4" x 1 " x skin muscle deep. (20) Incised wound in right upper arm osterio lateral aspect 1" x " x muscle deep. (21) Incised wound orl the back of the right side the chest 1" x 1" x cavity deep. (22) Incised wound on right lumbar region back 1" x " x cavity deep. (23) Incised wound on lower part of the back on right side above the buttock 2" x 1" muscle deep. According to the doctor, injuries Nos. 3, 6, 10, 21, and' 22 with their internal findings were sufficient to cause death in the ordinary course of nature. The prosecution case is supported by the evidence of six eye‑witnesses, namely, Syed Naseer Haider P.W.1, Naeem Fatima P.W.2, P8rween Begum P.W.3, Shamim Haider P.W.4, Saba Syed P.W.6 and. Sami Minhas P.W.7. P.W.1, Syed Naseer Haider, according to his statement was lying in his bedroom with his other family members on 3‑6‑1983 at about 7‑30 a.m. when he heard cries outside the'. room. On hearing the cries, the witness opened the door of his bedroom and found his aunt Mst. Khursheed Begum standing in the drawing room in injured state. She was cluthching her abdomen with both her hands. On the witness, enquiry, she told him that her son Asif Ali, the Appellant, had inflicted knife blows on her abdomen. At that time the appellant was also standing there with knife in his hand. Thereafter, Mst. Khursheed Begum immediately fell down v the ground. The witness also saw the appellant giving several knife brows to his sister Farah Deeba till she was dead. The witness then stated running downstairs alongwith his wife and children due to fear. 4e noticed a pool of blood in the staircase and on enquiry was told that the same was that of Gulnar who had also been stabbed by the appellant and had been removed to hospital in injured state. The witness then came to the ground floor alongwith his other family members where people from the neighbourhood had also collected. The police tad also been informed by one of the neighbours and it arrived after sore time at the scene of the incident. The appellant was still present in tie flat at the time of the arrival of the police. The police then arrested the appellant in presence of the witness s alongwith the blood‑stained knife. Mst. Naeem Fatma, the other eye‑witness of the incident, was wife of P.W. Naseer Haider and was living in the same flat with other P.Ws. She also saw the. appellant giving knife blows to deceased Khursheed Begum and Farah Deeba. She saw a pool of blood in the staircase and came to know later that the appellant had also given knife blows to his other sister, Gulnar. The evidence of this witness is fully corroborated by P.W.3, Parween Begum, who also saw the appellant taking out knife from one of the long shoes, which he was wearing and causing injuries to deceased Khursheed Begum and Farah Deeba. She also saw the appellant chasing his second sister Gulnar in the staircase. After a short while the witness saw Gulnar lying in the staircase in a pool of blood. The next witness who saw the happening was P.W Shamim Haider, a nephew of P.W. Parween Begum who also used to reside with her in the same flat. He heard cries of the deceased Khursheed Begum and later found her injured. He then saw the appellant following his sister Gulnar in the staircase. The witness followed them but was prevented by his aunt P.W. Parween Begum who called him inside the flat of Mr. Hussain Mian Syed, Advocate. Later, when the witness came out, he saw that Gulnar was lying injured in the staircase in a pool of blood. The witness took injured Gulnar to Abbasi Shaheed Hospital alongwith one lqbal in a neighbour's car but she expired on the way. P.W. Saba was another eye‑witness of the incident. She was living with her mother, P.W. Parween Begum, in the same flat, when on the day of incident, in the morning, she got up from sleep and saw the appellant giving Knife blows to deceased Khursheed Begum. She ran inside the bathroom and bolted the door from inside, She also heard shrieks of Mst. Farah Deeba while inside the bathroom. The last eye‑witness of the incident, Sami Minhas, was living in a flat in Maymar Terrace where the flat of P.W. Parween Begum was situated. He heard cries in the staircase on the day of incident. When he opened the door of his flat, he saw the appellant giving knife blows to a girl in the staircase. Later he saw a girl in injured state from his window. Besides these witnesses there is also the evidence of P.W.15, Muhammad Abbas who had sharpened a knife, brought to his shop by the appellant two days prior to the date of incident. Then there is evidence of Mr. Noor Ahmad, A.C.M., Karachi who recorded the confessional statement of the appellant on 16‑6‑1983. According to the witness, all the required formalities were observed before recording the Confession of the appellant. In the confession, the appellant has stated that on the day of incident, when he had gone to the flat of P.W. Parween he saw his sister deceased Gulnar and P.W. Shamim Haider kissing each other. Deceased Khursheed Begum, his mother, was in the bathroom at that time. When she came out, the appellant complained to her about the misbehaviour of Gulnar. On this Mst. Khursheed Begum rebuked him and called him names. Thereafter, the appellant went into the kitchen, picked up a knife and then attacked his mother and both his sisters with the same. We have heard Mst. Siddiq Mirza, the learned counsel for the appellant and Mr. Abdul Waheed Siddiqi the learned State counsel. The first plea advanced by Mr. Siddiq Mirza, is that of grave and sudden provocation, which according to him has been established both by the appellant's statement before the trial Court as well as his confessional statement. Another argument of the learned counsel has been that the confessional statement of the appellant cannot be split into parts and either it should be accepted or rejected as a whole. Reliance in this respect has been placed on Najib Raza Rehmani v The State P L D 1978 S C 200, in which it has been held that a confessional statement cannot be split up for using part of it against its maker We shall, therefore, first examine the plea of a grave and sudden provocation. Exception‑1 to section 300, P.P.C. says: Exception‑1: When culpable homicide is not murder: Culpable homicide is not murder if the offender, whilst deprived of the power of self‑control by grave and sudden provocation causes the death of the. person who gave the provocation o191 causes the death of any other person by mistake or accident." Looking at the confession made by the appellant we find that the same is not exculpatory is the plea of grave and sudden provocation does not seem to have been established at all. The confession shows that the appellant first saw his sister Gulnar and Shamim Hyder kissing each other. After seeing them as such, the appellant only enquired about his mother and when the mother came out of the bathroom the appellant complained to her about the behavour of his sister. It was only after Mst. Khursheed Begum, the appellant's mother rebuked him that he became angry and picked up a knife and attacked his mother and two sisters thus killing them. This statement hardly seems to suggest any element of grave and sudden provocation. First of all, according to the statement, the provocation was caused not because the appellant had seen Shamim Haider and GuInar kissing each other but the same was caused on account of the rebukes which the appellant allegedly got from the deceased Khursheed Begum after he had complained to her about Gulnar. That in our opinion, was hardly sufficient to cause provocation of such a grave nature so as to deprive the appellant of the power of self‑control. Moreover, since according to his own version, the abuses were hurled on the appellant by his mother, there was no justification, in any case, for causing the death of his two sister. Similarly, the statement of the appellant before the trial Court Also does not bear any element of grave and sudden provocation made by the appellant as well as his statement given to the trial Court, even if believed in full, fail t bring the case within the purview of Exception‑1 to section 300, P.P.C. The case of Najib Raza Rehmani v. State cited by the appellant' counsel, under the circumstances is distinguishable and the same is not attracted to the facts‑ of the instant case. The second plea of Mr. Siddiq Mirza was in regard to the mental condition of the appellant at the time of the commission of the offence. The argument raised by the learned counsel was two‑fold. Firstly it was contended that the appellant at the time of the trial was suffering from unsound mind and consequently he was incapable of making his defence, therefore, under the circumstances the proceedings before the trial Court were vitiated and secondly, that the case of the appellant was covered by the provisions of section 84, P.P.C. as he was incapable of knowing 'the nature of the act which he had committed or that what he was doing was wrong or contrary to law. As far as the first ‑argument is concerned, section 465, Cr.P.C. provides as follows:‑ "

465. Procedure in case of person sent before Court of Sessions or High. Court being lunatic. (1) If any person before a Court of Sessions or a High Court appears to the Court at his trial to be of unsound mind and consequently incapable of making his defence, the Court shall, in the first instance, try the fact of such unsoundness and incapacity, and if the Court is satisfied of the fact, it shall record a finding to that effect and shall postpone further proceedings in the case." Admittedly, the appellant did make an application under section 465 of the Cr.P.C. before the trial Court, but the same was rejected by order, dated 27‑8‑1983. Against that order the appellant filed a revision before this Court which was also dismissed in limine as the order of the learned Additional Sessions Judge, was found‑ to have been passed on cogent grounds and reliable data. However, while dismissing the revision, this Court observed that the appellant might repeat his request before the trial Court when the medical officer would appear in the Court. However, admittedly, no request thereafter was made on behalf of the appellant. In Atta Muhammad v. State P L D 1960 (W.P.) Lah. 111 it was observed at page 120 of the report, that "in a trial in the Sessions Court, an accused person may feign insanity, but if it appears to the Court, unable to detect the simulation, that the accused may be of unsound mind, the questions has to be tried as a fact and medical evidence on the point would, of course, be in indispensable necessity." It was, however, further observed in the same judgment that "where the Court sees that insanity is a feigned one, it is simply to be ignored; and where it does not appear to the Court at all from its own observation or any other factor that the accused is because of unsoundness of mind incapable to make his defence, the Court is under no obligation to investigate the fact of unsoundness of mind." After referring to the above observations in Atta Muhammad's case with which we find ourselves in respectful agreement, we are of the view that since the trial Court did not consider it necessary to allow the request of the appellant and the order of the trial Court was upheld by this Court in revision application, and since no further request, as observed in the order of this Court, was made on behalf of the appellant, we are not obliged to go into the question any further. As regards the plea taken on behalf of the appellant, qua his insanity at the time of the commission of the offence, before examining any evidence on the point, we would first like to reproduce section 84 of the P.P.C., which reads as follows: "

84. Act of person of unsound mind.‑‑Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law." We may now refer to the evidence of the prosecution witnesses, particularly to those parts of their statements on which Mr. Siddiq Mirza has laid some stress. According to P.W. Naseer Haider, the appellant had run away from his own engagement ceremony about two and a half months prior to the incident. According to P.Ws. Naeem Fatima and Parween Begum, he had refused to get married on the day fixed for his marriage when the guests had already arrived to attend the marriage ceremony. The evidence of these witnesses is further corroborated by the statement of P.W. Shamim Haider. According to P.Ws. Parween Begum and Shamim Haider, the deceased Mst. Khursheed Begum often used to visit "Imam Barghah" to pray for the appellant and get "taweez" for him so. that he may become normal. According to P.W. Naeem Fatima, the mother of the appellant used to pray for his faithfulness, Mr. Siddiq Mirza also pointed out that the very fact that the appellant killed his mother and two sisters without any motive (if the prosecution's version was to be believed) was a clear indication that he was not in his proper senses. He further pointed out that since as may ha, forty‑nine injuries were inflicted on the deceased, that .l is a clear indication about the appellant's state of mind at the time of the commission of tae offence. The learned counsel also referred to the statements of the two defence witnesses which according to him show that the appellant had misbehaved even with his father. This evidence, in our opinion, fails to establish in any manne that the appellant was of unsound mind or was incapable of know in the nature of his actions at the time of the commission of the offence. B The nature of insanity as contemplated by section 84 of the P.P. C., therefore, is not established in the instant case. Neither the evidenc of the prosecution witnesses nor that of the defence witnesses point towards the appellant's insanity at the time of the commission of the offence. Insanity had to be proved either from the prosecution evidence C or independently by the appellant because the burden to prove that the case falls within the general exceptions rests on the appellant, (Also see section 121 of the Qanoon‑e‑Shahadet Order, 1984). In this respect, it is also pertinent to refer to certain other statements made by the P.Ws. on the question of the appellant's insanity at the time of the commission of the offence, P.W. Naseer Haider stated that the appellant was a good student of Engineering University, Lahore and after quarrelling with his parents had come to Karachi and was living separately from them. According to the witness the incident took place because of the appellant's domestic affairs. The witness denied that the appellant at the time of the commission of the offence appeared to be of unsound mind as according to him the appellant was perfectly in his senses. The witness stated, that the appellant had river remained a patient of any mental disease or was a psychic case, or committed the offence under such influence. The statement of this witness was also corroborated to some extent by that of P.W. Naeem Fatima according to whom, she had never heard before that the appellant had ever remained a psychic case. She further stated that the appellant never behaved abnormally in presence of the witness. Even the two defence witnesses examined by the appellant who happened to be his father and brother, respectively, failed to support him in respect of the plea of insanity. The appellant was also examined by a doctor before the hearing of this appeal to ascertain his mental condition. The appellant was referred to a Psychiatrist by a Division Bench of this Court for examination and submission of report. Thereafter opinion from Dr. S. Haroon Ahmad, Associate Professor of Psychiatry, Jinnah Post‑Graduate Medical Centre was received according to which the appellant might have been suffering from residual schizopherenia. However he was not found to be suffering from any mental ailment at the time of the commission of the offence. In our opinion, therefore, it has not been established that the appellant was insane or incapable of understanding the nature of his auctions at the time of the commission of the offence. We are, therefore, of the view that the plea of insanity set up by the appellant is without any substance and as such the same is rejected. In this respect, w would like to once again refer to 14tts Muhammad v. State wherein at page 121 of the report, the following observations have been made:‑ "In dealing with cases of insanity arising in Courts, the first thing to be considered is that the issue of insanity at the time ‑‑f the commission of an offence is in the nature of a defence raked by an accused person, or on his behalf, to criminal responsibility and therefore, it has to be proved either from the prosecution evidence or independently by the defence. In law until them contrary is proved, every man is presumed to be sane and possessed of a sufficient degree of reason to be responsible for his actions. This clearly follows from section 105 of the Evidence Act, which provides that the burden of proving that the case of an accused person falls within and exception is on him. However, as remarked by their Lordships of the Federal Court in 8afdar Ali v. The Crown this position is not inconsistent with the "Rule of reasonable doubt" which pervades our criminal jurisprudene and according to which a doubt occurring in the matter will re‑act on the prosecution case as a whole resulting in benefit of doubt to the accused. "One point to be kept in view in this connection is that medical‑and legal standards of sanity are not identical. From the medical point of view, it is probably correct to say that the act of murder‑by itself denotes an unhealthy and abnormal state of mind of the murderer, but from the legal point of view he is sane as long as he can understand that his act is contrary to law. If an accused person is aware that the act is one which he ought not to do and the act at the same time is contrary to law, he is punishable. Therefore, to establish successfully a defence on the ground of insanity, it must be proved that an accused person at the time of committing the act was labouring under such a defect of reason, from disease of the mind as not to know the nature of his act and that what he was doing was wrong and, contrary to law. On this legal concept of insanity no amount of queerness in habit, morbidity of temper, peculiarities of character or accentricities of behaviour or even aberrations of mind resulting in abnormality will constitute insanity for the purpose of sections 84 of the Pakistan Penal Code although they may be relevant factors for determining whether or not the accused was insane." In that judgment reliance was also placed on the following observations made in the Miscellaneous Naughtan's case‑ "If a person suffers from insane delusions, he has an unsound mind. It is assumed that notwithstanding such unsoundness, the cognitive faculty may not be impaired. If that be the case, he knows the nature of the act. But if he does not know it, as when he strikes a man's head, believing it to be a jar, he is not liable. If he knows that it is a man's head, but strikes it all the same because he believes that he is saving the man from sin, then if he knows at the same time that it is contrary to law he is guilty; but if he does not know this he is not guilty, because then he does not know that it is either morally or as legally wrong." The evidence of the prosecution witnesses coupled with admission made by the appellant in his confession and statement before the trial Court, leave no doubt in our minds that the appellant is guilty of the offence with which he has been charged. His conviction under section 302, therefore,‑ is .not open to any exception. However, we cannot b oblivious of the fact that the appellant has caused the death of hi mother and two sisters which could not have been possible without motive, although the same has remained shrouded in mystery. Th appellant has stated both in his confession and statement before th trial Court that he saw his sister Gulnar in objectionable posture with P.W. Shamim Haider. Although this part of the statement could not b supported by the appellant with any evidence, but the possibility o an affair between his sister Gulnar and Shamim Haider cannot be rule gut, since both were young and were staying together in the Sam mouse at the time of the commission of the offence. The medical evidence was still unmarried was Not a virgin and was used to sexual intercourse. These facts indicate of the appellant's sisters, both of whom were young and was in doubt and that could have motivated him to commit the gruesome murders. We are, therefore, of the view that lesser punishment under section 302, P.P.C. would meet the ends of justice. We, therefore, titer the death sentence of the appellant to life imprisonment. The reference made by the learned Additional Sessions Judge, is therefore, not accepted. With this modification, this appeal is dismissed. M.Y.H Order accordingly