P L D 1956 (W (PLP)

Lalcharan's injuries are also proved by the medical evidence. He was admitted to Hospital for treatment on the, same day. According to the doctor, Exh. 23, on examination the following injuries were found on his person :‑ "(1) Incised wound at the left sub‑costal region measuring 2 " x " x reaching the peritonium. (2) Incised wound 2" x " x intestines protruding out at the umbiblical region. (3) Incised wound 2" x " x " below injury No. 2 on the left side. The injuries appeared to have been caused by some sharp cutting weapon like a knife and were fresh. He was dis charged on 11th May 1955. Appellant Baloo was also examined and the doctor found superficial incised wounds on the right side of the abdomen each measuring 1" x 1/6", " x 1/6", 1/3" x 1/8". They were fresh and appeared to have been caused by a sharp cutting weapon like a knife, and could be self‑inflicted. It is also proved beyond doubt that death of Mst. Shanti was caused by the knife injuries inflicted by the appellant on her body. It is also proved that appellant inflicted knife injuries on the body of his grandson Lalcharan. P. W. Ramlal, Exh. 4, and P. W. Jaffar, Exh. 6, imme diately rushed to the scene of occurrence, and found appellant the only person present there, besides the injured children. The appellant admitted before them to have caused the injuries to the said children. He also later on took the inves tigating officer to the shop of P. W. Ismail Exh. 12, from where the knife was purchased. Haji Ghulam Muhammad. Exh. 10, Mashirnama Exh. 11 and P. W. Ismail Exh. 12 also deposed to these facts. Appel lant made a confession Exh. 29 and in that admitted to have caused the said injuries on the body of the injured children by the knife purchased from the shop of the P. W. Ismail Exh.

12. The knife and the bloodstained clothes also corro borate these facts. On this evidence, the learned judge rightly convicted the appellant under sections 302 and 307, P. P. C., and we are in complete agreement with his finding on this aspect of the case. Mr. Halim, the learned counsel for the appellant, has also not challenged before us this finding of the learned Judge. He has, however, contended that at the time of the incident the appellant was of unsound mind and, therefore, is protect ed under section 84, P. P. C. from any punishment. We have been taken through the evidence of several prosecution witnesses, particularly the statement of Ramlal Exh. 4, wherein he has stated that when he first saw the accused he was acting like a mid min. It is further pointed out that the appellant was found naked, his Dhoti lying on the ground and according to the learned counsel for the appellant, only a mad person can be found in miserable condition. In support of this contention, the learned counsel has also relied on the circumstances related by the appellant in his confession before the learned Magistrate, Exh. 29, according to which the two children were injured in a desperate mood. In answer to the question put by Mr. Ahmad Khan Barakzai, Sub‑Judge and F. C. M. Hyderabad, while recording the statement, Exh. 29, the appellant stated as follows :‑ Budhu and Ando are my nephews whom I have maintain ed since their young age and got them married. My daughter Shanti aged about 15‑16 years and my son Lal chand aged about 6 years are with me and we all live in one and the same house with Budhu and others. Walan is wife of Budhu. Since some days she wanted that I along with children should leave her house, and she was not willing to feed us meals. On the previous third day she quarrelled with me and asked me to leave her house. I told her that I have maintained Budho and others and got them married and where should I go now. At 9 O'clock in the morning I took my children and went to the house of Lilo father of Walan and told him that his daughter has given me out and that he may allow me to stay with him a also refus ed me from staying there. I became sick of my life and first stabbed knife in the stomach of my son Lalchand and then gave two knife blows on the stomach of my daughter Shanti. Then I gave three knife blows on my own stomach. Lilo returned from his work at that time. Many other persons had collected and police was sent for". The contention of the learned counsel is that in these circumstances appellant lost control of his senses and he was in a fit of unsoundness of mind and, therefore, should not have been convicted under sections 302 and 302/307, P. P. C. The learned counsel, however, has lost sight of the fact that there is a vast distinction between medical insanity and legal insanity. If a person is capable of knowing the nature of his act or that he is doing what is either wrong or contrary to law, then he cannot claim protection under section 84, P. P. C. The case law, latest on this subject, is reported in Lai Khan v. The Crown (P L D 1952 Lah. 105) and Ghulam Yusuf v. The Crown (P L D 1953 Lah. 213). In Lal Khan's case, the facts were much more favourable to the accused than the one involved in the present case, but the learned Judges, after careful consideration of the circumstances of the case, did not accept the plea of insanity, as the accused failed to establish this plea affirmatively. In the present case before us, the evidence on the record disproves the plea of insanity. Except Exh. 4 Ramlal, P. Ws. Jaffar Exh. 6, Lilu, Exh. 8, Walan Exh. 9, have deposed that the appellant was not mad and was not found mad at the time of the occurrence. There is no evidence that at any time before the date of occurrence, the appellant had any fit of insanity. No question was put to the doctor Nural Hassan Exh. 23 on this particular plea. Moreover, there is evidence on the record that both before and after the incident the appellant's cognatic faculties were in perfect order. It is established on the record that the appellant took his children in the morning to the Fort. He worked there while the accused's children remained with him. Then he went to the shop of Ismail Exh. 12, purchased a knife, brought the children to the quarter of Lilu and committed the offence. A person of unsound mind will not act in this manner. After the incident, the accused admitted his guilt and took the investiga ting officer to the shop of Ismail for pointing out the place from where the knife was purchased. The accused was examined by Dr. Nural Hassan Exh. 23, who did not report any defect in his mental condition. The next day, the appel lant made a confession before a Magistrate. His statement is co‑herent, consistent and sensible in every respect., This statement shows perfect intelligence and describes all the circumstances under which the murder of the deceased Shanti took place. The futility of this plea was also realised by the appellant when he took a different stand before the learned Sessions judge and totally denied having committed the offence. We therefore find no force in this contention of the learned counsel for the appellant, and hold that he has failed to establish the plea of insanity. There now remains the question of sentence. It has been contended that no sensible person will attempt the murder of his children, unless he is driven to a desperate mood or compelled by circumstances to commit such a heinous offence. According to the learned counsel for the appellant, Wallan Exh. 9, refused to maintain the appellant and his children. Lilu Exh. 9, in whom the appellant had much confidence, also refused to maintain the appellant and his children. He was therefore driven to desperation and killed one of his children and attempted to kill the other child. The learned counsel for the appellant contended in these circumstances, capital punishment should not be awarded to the appellant. We have carefully considered the circumstances of the case, the age of the appellant which is between 60‑70 years and the dying declaration of deceased Shanti, Exh. 19, in which she stated" . . . . . . . Then after reaching the house of Lilu, he fell Lalu on a cot lying out in the court‑yard and gave knife blows on his stomach. I tried to save Lalu and snatch the knife but it fell on the palm of my hand. After him my father stabbed me knife on my left loin as I had fallen upon Lalu and had tried to save him . . . . . . .". This statement shows that deceased Shanti received injury while saving Lalcharan. There is also sufficience evidence on the record to indicate that the appellant was in a desperate condition) and in such condition inflicted injuries not only on the persons of the children whom he loved very much, but also on his own body. Taking all these facts and circumstances into consideration, we are definitely of the opinion that the appel lant committed the offence while he was completely upset and sick of his life and, therefore, award him a lesser punishment. The sentence of the appellant is, therefore, reduced from death to transportation for life under section 302, P. P. C. The sentence under section 307, P. P. C., will remain intact. The sentences to run concurrently. With this modification. the appeal is dismissed. A. H. Sentence modified.